Air Quality Designations for the 2010 Sulfur Dioxide (SO2

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This final rule establishes the initial air quality designations for certain areas in the United States (U.S.) for the 2010 sulfur dioxide (SO₂) primary National Ambient Air Quality Standard (NAAQS). The Environmental Protection Agency (EPA) is designating the areas as either Nonattainment, Attainment/Unclassifiable, or Unclassifiable. The designations are based on application of the EPA's nationwide analytical approach and technical analysis, including evaluation of monitoring data and air quality modeling, to determine the appropriate designation based on the weight of evidence for each area. The Clean Air Act (CAA or Act) directs areas designated Nonattainment by this rule to undertake certain planning and pollution control activities to attain the SO₂ NAAQS as expeditiously as practicable. This is the third of four expected sets of actions to designate areas of the U.S. for the 2010 SO₂ NAAQS.

DATES:

The final rule is effective on April 9, 2018.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2017-0003. All documents in the docket are listed in the index at http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information 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 either electronically in the docket or in hard copy at the Docket, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The hours of operation at the EPA Docket Center are 8:30 a.m.-4:30 p.m., Monday-Friday. The telephone number for the Public Reading Room is (202) 566-1744. Air dispersion modeling input and output files are too large to post in the docket or on the website and must be requested from the EPA Docket Office or the Regional office contacts listed in the FURTHER INFORMATION section.

In addition, the EPA has established a website for the initial SO₂ designations rulemakings at: https://www.epa.gov/sulfur-dioxide-designations. The website includes the EPA's final SO₂ designations, as well as state and tribal recommendation letters, the EPA's modification letters, technical support documents, responses to comments and other related technical information.

FOR FURTHER INFORMATION CONTACT:

For general questions concerning this action, please contact Liz Etchells, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Policy Division, C539-01, Research Triangle Park, NC 27709, telephone (919) 541-0253, email at etchells.elizabeth@epa.gov. The EPA contacts listed at the beginning of the Supplementary Information can answer questions regarding areas in a particular EPA Regional office.

SUPPLEMENTARY INFORMATION:

U.S. EPA Regional Office Contacts:

Region I—Leiran Biton, telephone (617) 918-1267, email at biton.leiran@epa.gov.

Region II—Ken Fradkin, telephone (212) 637-3702, email at fradkin.kenneth@epa.gov.

Region III—Ruth Knapp, telephone (215) 814-2191, email at knapp.ruth@epa.gov.

Region IV—Twunjala Bradley, telephone (404) 562-9352, email at bradley.twunjala@epa.gov.

Region V—John Summerhays, telephone (312) 886-6067, email at summerhays.john@epa.gov.

Region VI—Bob Imhoff, telephone (214) 665-7262, email at imhoff.robert@epa.gov.

Region VII—David Peter, telephone (913) 551-7397, email at peter.david@epa.gov.

Region VIII—Adam Clark, telephone (303) 312-7104, email at clark.adam@epa.gov.

Region IX—Anita Lee, telephone (415) 972-3958, email at lee.anita@epa.gov.

Region X—John Chi, telephone (206) 553-1185, email at chi.john@epa.gov.

The public may inspect the recommendations from the states, territories and tribes, our recent letters notifying the affected states, territories, and tribes of our intended designations, and area-specific technical support information at the following locations:

The information can also be reviewed online at https://www.epa.gov/sulfur-dioxide-designations and in the public docket for these SO₂ designations at https://www.regulations.gov under Docket ID No. EPA-HQ-OAR-2017-0003.

Table of Contents

The following is an outline of the Preamble.

I. Preamble Glossary of Terms and Acronyms

II. What is the purpose of this action?

III. What is the 2010 SO₂ NAAQS and what are the health concerns that it addresses?

IV. What are the CAA requirements for air quality designations and what action has the EPA taken to meet these requirements?

V. What guidance did the EPA issue and how did the EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries?

VI. What air quality information has the EPA used for these designations?

VII. How do the Round 3 designations affect Indian country?

VIII. Where can I find information forming the basis for this rule and exchanges between the EPA, states and tribes related to this rule?

IX. Environmental Justice Concerns

X. Statutory and Executive Order Reviews

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

B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

C. Paperwork Reduction Act (PRA)

D. Regulatory Flexibility Act (RFA)

E. Unfunded Mandates Reform Act (UMRA)

F. Executive Order 13132: Federalism

G. Executive Order 13175: Consultation and Coordination With Indian Tribal Government

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

I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution or Use

J. National Technology Transfer and Advancement Act (NTTAA)

K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

L. Congressional Review Act (CRA)

M. Judicial Review

I. Preamble Glossary of Terms and Acronyms

The following are abbreviations of terms used in the preamble.

APA Administrative Procedure Act

CAA Clean Air Act

CFR Code of Federal Regulations

DC District of Columbia

EO Executive Order

EPA Environmental Protection Agency

FR Federal Register

NAAQS National Ambient Air Quality Standards

NTTAA National Technology Transfer and Advancement Act

OMB Office of Management and Budget

SO₂ Sulfur Dioxide

SO_X Sulfur Oxides

RFA Regulatory Flexibility Act

UMRA Unfunded Mandate Reform Act of 1995

TAR Tribal Authority Rule

TAD Technical Assistance Document

TSD Technical Support Document

U.S. United States

II. What is the purpose of this action?

The purpose of this final action is to announce and promulgate initial air quality designations for certain areas in the U.S. for the 2010 SO₂ NAAQS, in accordance with the requirements of the CAA. The EPA is designating areas as either Nonattainment, Attainment/Unclassifiable, or Unclassifiable, based on the definitions described in Section IV in this preamble, and based on evaluating any available information, including (but not limited to) appropriate modeling analyses and/or monitoring data.

This is the third round of designations for the 2010 SO₂ NAAQS. As discussed in Section IV of this document, the EPA is designating SO₂ areas in multiple rounds. The EPA completed the first round of SO₂ designations in an action signed on July 25, 2013 (78 FR 47191; August 5, 2013). In that action, the EPA designated 29 areas in 16 states as Nonattainment, based on air quality monitoring data. In the second round of SO₂ designations, in actions published on July 12, 2016 (81 FR 45039), and December 13, 2016 (81 FR 89870), the EPA designated 65 additional areas in 24 states: 7 Nonattainment areas, 41 Unclassifiable/Attainment areas and 17 Unclassifiable areas. In this third round, 6 areas are being designated Nonattainment; 23 areas are being designated Unclassifiable; and the rest of the areas covered by this round in all states, territories, and tribal lands are being designated Attainment/Unclassifiable. In a future fourth round, the EPA expects to designate all remaining undesignated areas (approximately 50 areas) where states have installed and begun timely operation of a new SO₂ monitoring network.

The list of areas being designated in the affected states and the boundaries of each area appear in the tables for each state within the regulatory text at the end of this document. For areas in this action that meet our definition of “Attainment/Unclassifiable,” the EPA notes this inversion, from previous rounds, of the order of the words “Attainment” and “Unclassifiable” in the amended term “Attainment/Unclassifiable area” has no consequence itself, and that there are no regulatory consequences of this change in, or clarified interpretation of, terminology to the areas in which the terms “Attainment/Unclassifiable” or “Unclassifiable” are applied. For consistency, we are also inverting the order of “Attainment” and “Unclassifiable” for areas previously designated in Round 2 (81 FR 45039 and 81 FR 89870). This re-ordering of the terms has no regulatory consequence and does not revisit the determinations made in Round 2 for these areas. The EPA believes this change is consistent with Congress's definition of “Attainment area” in CAA section 107(d)(1)(A)(ii), and will improve public understanding and make clearer what regulations apply to areas designated in this way, which states have commented they believe is important for the economic development of such areas.

These designations are based on the EPA's nationwide analytical approach and technical assessment of and conclusions regarding the weight of evidence for each area, including but not limited to available air quality monitoring data or air quality modeling. With respect to air quality monitoring data, the EPA considered data from at least the most recent three calendar years 2014-2016 as available. In the modeling runs conducted by states or third parties, the impacts of the actual emissions for recent 3-year periods (e.g., 2012-2014, 2013-2015, 2014-2016) were considered. In some cases, the modeling evaluated current allowable emissions limits in lieu of or as a supplement to modeling of actual emissions. As described in Section VI and in limited circumstances, the EPA may consider early certified 2015-2017 monitoring data or other documentation that demonstrates Attainment. This information would need to be submitted to the EPA by February 28, 2018. For the areas being designated Nonattainment, the CAA directs states to develop and submit to the EPA State Implementation Plans (SIPs) within 18 months of the effective date of this final rule, that meet the requirements of sections 172(c) and 191-192 of the CAA and provide for Attainment of the NAAQS as expeditiously as practicable, but not later than 5 years from the effective date of this final rule.

In 2010, the EPA issued a notice of final rulemaking that revised the primary SO₂ NAAQS (75 FR 35520; June 22, 2010) after review of the existing primary SO₂ standards promulgated on April 30, 1971 (36 FR 8187). The EPA established the revised primary SO₂ NAAQS at 75 parts per billion (ppb) which is attained when the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations does not exceed 75 ppb.

The process for designating areas following promulgation of a new or revised NAAQS is contained in the CAA section 107(d) (42 U.S.C. 7407(d)). After promulgation of a new or revised NAAQS, each governor or tribal leader has an opportunity to recommend air quality designations, including the appropriate boundaries for Nonattainment areas, to the EPA. The EPA considers these recommendations as part of its duty to promulgate the formal area designations and boundaries for the new or revised NAAQS. By no later than 120 days prior to promulgating designations, the EPA is required to notify states, territories, and tribes, as appropriate, of any intended modifications to an area designation or boundary recommendation that the EPA deems necessary.

After invoking a 1-year extension of the deadlines to designate areas, as provided for in section 107 of the Act, the EPA completed an initial round of SO₂ designations for certain areas of the country on July 25, 2013 (referred to as “Round 1”). Following the initial designations, three lawsuits were filed against the EPA in different U.S. District Courts, alleging the agency had failed to perform a nondiscretionary duty under the CAA by not designating all portions of the country by the June 2, 2013, deadline. In one of those cases, the U.S. District Court for the Northern District of California on March 2, 2015, entered an enforceable order for the EPA to complete the area designations by three specific deadlines according to the court-ordered schedule.

To meet the first court-ordered deadline, additional areas were designated on June 30, 2016, and November 29, 2016 (collectively referred to as “Round 2”). Pursuant to the court-ordered schedule, the EPA must complete SO₂ designations for the remaining areas of the country by two specific deadlines: December 31, 2017, and December 31, 2020. This current third round of designations addresses all remaining undesignated areas except those where a state has installed and begun timely operating a new SO₂ monitoring network meeting EPA specifications referenced in EPA's SO₂ Data Requirements Rule.

On or about August 22, 2017, consistent with section 107(d)(1)(b)(ii) of the CAA, the EPA notified affected states, territories, and tribes of its intended designation of certain specific areas as either Nonattainment, Attainment/Unclassifiable, or Unclassifiable for the SO₂ NAAQS. These states then had the opportunity to demonstrate why they believed an intended modification of their updated recommendations by the EPA may be inappropriate. Although not required under the CAA, as the EPA had done for the first and second rounds of SO₂ designations, the EPA also chose to provide an opportunity for members of the public to comment on the EPA's August 2017 letters. The EPA published a notice of availability and public comment period for the intended designations on September 5, 2017 (82 FR 41903). The public comment period closed on October 5, 2017. The recommendations, the EPA's August 2017 letters, and the subsequent state and public comment letters, are in the docket for this third round of SO₂ designations at Docket ID No. EPA-HQ-OAR-2017-0003 and are available on the SO₂ designations website.

III. What is the 2010 SO2 NAAQS and what are the health concerns that it addresses?

The EPA revised the primary SO₂ NAAQS in a final rule published in the Federal Register on June 22, 2010 (75 FR 35520), which became effective on August 23, 2010. Based on review of the air quality criteria for oxides of sulfur and the primary NAAQS for oxides of sulfur as measured by SO_2, the EPA revised the primary SO₂ NAAQS to provide requisite protection of public health with an adequate margin of safety. Specifically, the EPA established a new 1-hour SO₂ standard at a level of 75 ppb, which is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations is less than or equal to 75 ppb, as determined in accordance with Appendix T of 40 CFR part 50. 40 CFR 50.17(a) and (b). The EPA also established provisions to revoke both the existing 24-hour and annual primary SO₂ standards, subject to certain conditions. 40 CFR 50.4(e).

Current scientific evidence links short-term exposures to SO₂, ranging from 5 minutes to 24 hours, with an array of adverse respiratory effects including bronchoconstriction and increased asthma symptoms. These effects are particularly important for asthmatics at elevated ventilation rates (e.g., while exercising or playing). Studies also show a connection between short-term exposure and increased visits to emergency departments and hospital admissions for respiratory illnesses, particularly in at-risk populations including children, the elderly and asthmatics.

IV. What are the CAA requirements for air quality designations and what action has the EPA taken to meet these requirements?

After the EPA promulgates a new or revised NAAQS, the EPA is required to designate all areas of the country as either “Nonattainment,” “Attainment,” or “Unclassifiable,” for that NAAQS pursuant to section 107(d)(1) of the CAA. As part of these Round 3 designations, the EPA is implementing its interpretation of statutory terms under CAA section 107(d) nationwide and is basing these designations on the EPA's nationwide analytical approach and technical analysis, including evaluation of monitoring data and air quality modeling, applied to the available evidence for each area.

Regarding statutory definitions and the EPA's interpretations of such, section 107(d)(1)(A)(i) of the CAA defines a Nonattainment area as an area that does not meet the NAAQS or that contributes to a nearby area that does not meet the NAAQS. An Attainment area is defined by the CAA as any area that meets the NAAQS and does not contribute to a nearby area that does not meet the NAAQS. Unclassifiable areas are defined by the CAA as those that cannot be classified on the basis of available information as meeting or not meeting the NAAQS.

For the purpose of this action for the 2010 SO₂ NAAQS, the EPA has interpreted and applied the statutory definitions as follows. The EPA defines a Nonattainment area as an area that the EPA has determined violates the 2010 SO₂ NAAQS or contributes to a violation in a nearby area, based on the most recent 3 years of air quality monitoring data, appropriate dispersion modeling analysis, and any other relevant information.

In this action, an Attainment/Unclassifiable area is defined by the EPA as an area that either: (1) Was not required to be characterized under 40 CFR 51.1203(c) or (d) for which available information does not indicate that the area violates the NAAQS or contributes to ambient air quality in a nearby area that does not meet the NAAQS; or (2) was required to be characterized under 40 CFR 51.1203(c) or (d) for which the EPA has determined the available information indicates the area meets the NAAQS and does not indicate the area contributes to ambient air quality in a nearby area that does not meet the NAAQS.

In this action, an Unclassifiable area is defined by the EPA as an area for which the available information does not allow the EPA to determine whether the area meets the definition of a Nonattainment area or the definition of an Attainment/Unclassifiable area.

This nationwide analytical approach also includes but is not limited to: (1) EPA's interpretations of other terms in the context of Round 3 of the 2010 SO₂ NAAQS; (2) the appropriate basis for characterizing the air quality of an area; (3) the five-factor analysis to determine the boundaries for each air quality area under the NAAQS; and (4) the methodology for appropriately characterizing SO₂ air quality through monitoring or modeling.

The EPA notes that CAA section 107(d) provides the agency with discretion to determine how best to interpret the terms in the definition of a Nonattainment area (e.g., “contributes to” and “nearby”) for a new or revised NAAQS, given considerations such as the nature of a specific pollutant, the types of sources that may contribute to violations, the form of the standards for the pollutant, and other relevant information. In particular, the EPA's position is that the statute does not require the agency to establish bright line tests or thresholds for what constitutes “contribution” or “nearby” for purposes of designations.

Similarly, the EPA's position is that the statute permits the EPA to evaluate the appropriate application of the term “area” to include geographic areas based upon full or partial county boundaries, as may be appropriate for a particular NAAQS. For example, CAA section 107(d)(1)(B)(ii) explicitly provides that the EPA can make modifications to designation recommendations for an area “or portions thereof,” and under CAA section 107(d)(1)(B)(iv) a designation remains in effect for an area “or portion thereof” until the EPA redesignates it.

By no later than 1 year after the promulgation of a new or revised NAAQS, CAA section 107(d)(1)(A) provides that each state governor is required to recommend air quality designations, including the appropriate boundaries for areas, to the EPA. The EPA reviews those recommendations and is authorized to make any modifications the Administrator deems necessary. The statute does not define the term “necessary,” but the EPA interprets this to authorize the Administrator to modify designations that did not meet the statutory requirements or were otherwise inconsistent with the facts or analysis deemed appropriate by the Administrator. If the EPA is considering modifications to a recommendation, we are required by CAA section 107(d)(1)(B)(ii) to notify the state of any such intended modifications not less than 120 days prior to our promulgation of the final designation. These notifications are commonly known as the “120-day letters.” During this period, if the state or territory does not agree with the EPA's proposed modification, it has an opportunity to respond to the EPA and to demonstrate why it believes the modification proposed by the EPA is inappropriate. If a state or territory fails to provide any recommendation for an area, in whole or in part, the EPA still must promulgate a designation that the Administrator deems appropriate, pursuant to CAA section 107(d)(1)(B)(ii). While CAA section 107(d) specifically addresses the designations process between the EPA and states and territories, the EPA followed the same process to the extent practicable for tribes that submitted designation recommendations.

V. What guidance did the EPA issue and how did the EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries?

In the notice of proposed rulemaking for the revised SO₂ NAAQS (74 FR 64810; December 8, 2009), the EPA issued proposed guidance on our approach to implementing the standard, including our approach to initial area designations. The EPA solicited comment on that guidance and, in the notice of final rulemaking (75 FR 35520; June 22, 2010), provided further guidance concerning implementation of the standard and how to identify Nonattainment areas and boundaries for the SO₂ NAAQS. Subsequently, on March 24, 2011, the EPA provided additional designations guidance to assist states with making their recommendations for area designations and boundaries. That guidance recommended, among other things, that monitoring data from the most recent 3 consecutive years be used to identify a violation of the SO₂ NAAQS. This is appropriate because the form of the SO₂ NAAQS is calculated as a 3-year average of the 99th percentile of the yearly distribution of 1-hour daily maximum SO₂ concentrations (specifically the most recent 3 consecutive years). The EPA based the first round of final SO₂ designations in 2013 solely on violating monitored SO₂ concentrations for the years 2010-2012 from Federal Reference Method and Federal Equivalent Method monitors that are sited and operated in accordance with 40 CFR parts 50 and 58, and did not at that time designate any other areas.

In the March 24, 2011, guidance, the EPA stated that the perimeter of a county containing a violation would be the initial presumptive boundary for Nonattainment areas, but also stated that the state, tribe and/or the EPA could conduct additional area-specific analyses that could justify establishing either a larger or smaller area. The EPA indicated that the following factors should be considered in an analysis of whether to exclude portions of a county and whether to include additional nearby areas outside the county as part of the designated Nonattainment area: (1) Air quality data; (2) emissions-related data; (3) meteorology; (4) geography/topography; and (5) jurisdictional boundaries, as well as other available data. States and tribes may identify and evaluate other relevant factors or circumstances specific to a particular area.

Following entry of the March 2, 2015, court order setting forth the schedule for the EPA to complete SO₂ designations, the EPA issued updated designations guidance. This guidance superseded the March 24, 2011, designation guidance for the 2010 SO₂ NAAQS, and identified factors that the EPA intended to evaluate in determining whether areas are in violation of the 2010 SO₂ NAAQS or contribute to air quality in nearby areas that are in violation of the 2010 SO₂ NAAQS. The guidance also contained the factors the EPA intended to evaluate in determining the boundaries for all remaining areas in the country, consistent with the court's order and schedule. These factors include: (1) Air quality characterization via ambient monitoring or dispersion modeling results; (2) emissions-related data; (3) meteorology; (4) geography and topography; and (5) jurisdictional boundaries.

On March 8, 2017, the EPA issued a memo to clarify what version of the AERMOD modeling system is the most appropriate for consideration by the agency in the SO₂ designations process.

VI. What air quality information has the EPA used for these designations?

For designations for the SO₂ NAAQS, air agencies have the flexibility to characterize air quality using either appropriately sited ambient air quality monitors or modeling of actual or current allowable source emissions. These designations are based on the EPA's application of the nationwide analytical approach to, and technical assessment of, the weight of evidence for each area, including but not limited to available air quality monitoring data and air quality modeling results. The 1-hour primary SO₂ standard is violated at an ambient air quality monitoring site (or in the case of dispersion modeling, at an ambient air quality receptor location) when the 3-year average of the annual 99th percentile of the daily maximum 1-hour average concentrations exceeds 75 ppb, as determined in accordance with Appendix T of 40 CFR part 50. With respect to air quality monitoring data, the EPA has considered data from at least the most recent 3 calendar years, i.e., 2014-2016, as available. In most of the modeling runs available for EPA's review, the impacts of the actual emissions for one or more of the recent 3-year periods (e.g., 2012-2014, 2013-2015, 2014-2016) were considered, and in some cases the modeling was of currently effective limits on allowable emissions in lieu of or as a supplement to modeling of actual emissions.

The deadline for Round 3 designations and the practical difficulties of obtaining source emissions data for modeling, and complete, quality-assured, certified SO₂ monitoring data for the entirety of calendar year 2017 in December 2017, make the EPA's use of final 2017 emissions and monitoring data for this action generally impracticable. Under normal circumstances, the full year of such data would not be available to support regulatory determinations until after the end of the calendar year, and under the applicable regulations, the deadline for states to certify monitoring data is May 1, 2018. However, because these designations are being promulgated at the end of calendar year 2017, and because states can obtain source emissions information and make complete, quality-assured, certified 2017 data available for some areas quickly in 2018, in order to address the impracticability problem, the EPA is providing a process by which state-certified 2017 monitoring or emissions data that become available early in 2018 could be used in the designation process. We have provided that the final SO₂ designation decisions announced in this action will be effective on the date 90 days following the date of publication of this action in the Federal Register. If any state submits complete, quality-assured, certified 2017 data or related information about 2017 air quality to the EPA by February 28, 2018, supporting a change of the designation status for any area within that state, and the EPA agrees that a change of designation status is appropriate, then we will withdraw the designation announced in this action for such area and issue another designation that reflects the inclusion and analysis of such information. We emphasize that we will conduct this process only for those states that submit the information by the deadline of February 28, 2018, and in those instances where we can complete our analysis of the information and effect the change of designation status before the original effective date established by this final action.

If these submissions cause an area to change from Nonattainment to Attainment or Unclassifiable, the EPA will change the designation for the area following the process described in the preceding paragraph. If inclusion of 2017 data or related information about 2017 air quality indicates Nonattainment in an area that was designated Attainment or Unclassifiable, we will evaluate the reasons for the violation in the area and determine the appropriate course of action, which could include additional future action to change the designation for the area to Nonattainment.

VII. How do the Round 3 designations affect Indian country?

For areas of Indian country, there are no violating monitors. The Navajo Nation submitted modeling analyses for the areas around two SO₂ emission sources located in the Navajo Nation, the Navajo Generating Station and the Four Corners Power Plant, neither of which indicated a violation of the NAAQS. The Navajo Nation, the lands of the Hopi Tribe, and the Southern Ute Indian Reservation are being designated as separate areas. All other parts of Indian country are being designated as Attainment/Unclassifiable or Unclassifiable along with the surrounding state area. No areas of Indian country are being designated as Nonattainment in this round.

VIII. Where can I find information forming the basis for this rule and exchanges between the EPA, states and tribes related to this rule?

Information providing the basis for this final action are provided in a final technical support document (TSD) ¹¹included in the docket. The final TSD, intended designations TSD, modeling files, technical assistance documents, applicable EPA guidance memoranda, public comments, and copies of correspondence regarding this process between the EPA and the states, territories, tribes, and other parties, are available for review at the public docket for these SO₂ designations at https://www.regulations.gov under Docket ID No. EPA-HQ-OAR-2017-0003, at the EPA Docket Center listed above in the ADDRESSES section of this document and on the agency's SO₂ Designations website at https://www.epa.gov/sulfur-dioxide-designations. Area-specific questions can be addressed to the EPA Regional offices (see contact information provided at the beginning of this document).

IX. Environmental Justice Concerns

When the EPA establishes a new or revised NAAQS, the CAA requires the EPA to designate all areas of the U.S. as either Nonattainment, Attainment, or Unclassifiable. This action addresses designation determinations for certain areas for the 2010 SO₂ NAAQS. Area designations address environmental justice concerns by ensuring that the public is properly informed about the air quality in an area. In locations where air quality does not meet the NAAQS, the CAA requires relevant state authorities to initiate appropriate air quality management actions to ensure that all those residing, working, attending school, or otherwise present in those areas are protected, regardless of minority and economic status.

X. Statutory and Executive Order Reviews

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

This action is exempt from review by the Office of Management and Budget because it responds to the CAA requirement to promulgate air quality designations after promulgation of a new or revised NAAQS.

B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

This action is not an Executive Order 13771 regulatory action because actions such as air quality designations after promulgating a new revised NAAQS are exempt under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under the PRA. This action fulfills the non-discretionary duty for the EPA to promulgate air quality designations after promulgation of a new or revised NAAQS and does not contain any information collection activities.

D. Regulatory Flexibility Act (RFA)

This designation action under CAA section 107(d) is not subject to the RFA. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. Section 107(d)(2)(B) of the CAA explicitly provides that designations are exempt from the notice-and-comment provisions of the APA. In addition, designations under CAA section 107(d) are not among the list of actions that are subject to the notice-and-comment rulemaking requirements of CAA section 307(d).

E. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538 and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

F. 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. The division of responsibility between the federal government and the states for purposes of implementing the NAAQS is established under the CAA.

G. Executive Order 13175: Consultation and Coordination With Indian Tribal Government

This action does not have tribal implications, as specified in Executive Order 13175. This action concerns the designation of certain areas in the U.S. for the 2010 SO₂ NAAQS. The CAA provides for states, territories, and eligible tribes to develop plans to regulate emissions of air pollutants within their areas, as necessary, based on the designations. The Tribal Authority Rule (TAR) provides tribes the opportunity to apply for eligibility to develop and implement CAA programs, such as programs to attain and maintain the SO₂ NAAQS, but it leaves to the discretion of the tribe the decision of whether to apply to develop these programs and which programs, or appropriate elements of a program, the tribe will seek to adopt. This rule does not have a substantial direct effect on one or more Indian tribes. It would not create any additional requirements beyond those of the SO₂ NAAQS. This rule establishes the designations for certain areas of the country for the SO₂ NAAQS, but no areas of Indian country are being designated as Nonattainment by this action. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the TAR establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply.

Although Executive Order 13175 does not apply to this rule, after the EPA promulgated the 2010 primary SO₂ NAAQS, the EPA communicated with tribal leaders and environmental staff regarding the designations process. In 2011, the EPA also sent individualized letters to all federally recognized tribes to explain the designation process for the 2010 primary SO₂ NAAQS, to provide the EPA designations guidance, and to offer consultation with the EPA. The EPA provided further information to tribes through presentations at the National Tribal Forum and through participation in National Tribal Air Association conference calls. The EPA also sent individualized letters to all federally recognized tribes that submitted recommendations to the EPA about the EPA's intended Round 1 designations for the SO₂ standard and offered tribal leaders the opportunity for consultation. These communications provided opportunities for tribes to voice concerns to the EPA about the general designations process for the 2010 SO₂ NAAQS, as well as concerns specific to a tribe, and informed the EPA about key tribal concerns regarding designations as the designations process was under development and through its implementation up to that point. For the second round of SO₂ designations, the EPA sent additional letters to tribes that could potentially be affected and offered additional opportunities for participation in the designations process. For this third round of SO₂ designations, the EPA has sent similar letters to affected tribes.

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

The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

I. 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.

J. National Technology Transfer and Advancement Act (NTTAA)

This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this determination is contained in Section IX of this preamble, “Environmental Justice Concerns.”

L. 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 U.S. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

M. Judicial Review

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit: (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “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 to designate certain areas for the 2010 SO₂ NAAQS is “nationally applicable” within the meaning of section 307(b)(1). The final action establishes designations for areas across the U.S. for the 2010 SO₂ NAAQS. At the core of this action is the EPA's nationwide analytical approach and technical analysis, including evaluation of monitoring data and air quality modeling, applied to the available evidence for each area, including the EPA's interpretation of statutory terms in the CAA such as the definitions of Nonattainment, Attainment, and Unclassifiable under section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country. Accordingly, the Administrator has determined that the final action is nationally applicable and is hereby publishing that finding in the Federal Register.

For the same reasons discussed above that make the final rule nationally applicable, the Administrator also has determined that the final designations are of nationwide scope and effect for the purposes of section 307(b)(1). This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of the action will extend to numerous judicial circuits since the designations will apply to areas across the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the action to be of “nationwide scope or effect” and for venue to be in the D.C. Circuit. Therefore, the Administrator has determined that the final action is based on a determination by the Administrator of nationwide scope or effect, and is hereby publishing that finding in the Federal Register.

List of Subjects in 40 CFR Part 81

• Air pollution control
• National parks
• Wilderness areas

For the reasons set forth in the preamble, 40 CFR part 81 is amended as follows:

PART 81—DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES

1. The authority citation for part 81 continues to read as follows:

Authority:42 U.S.C. 7401, et seq.

Subpart C—Section 107 Attainment Status Designations

2. Section 81.301 is amended by adding a table titled “Alabama—2010 Sulfur Dioxide NAAQS (Primary)” following the table titled “Alabama—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

3. Section 81.302 is amended by adding a table titled “Alaska—2010 Sulfur Dioxide NAAQS (Primary)” following the table titled “Alaska—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

4. Section 81.303 is amended by revising the table entitled “Arizona—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

5. Section 81.304 is amended by revising the table entitled “Arkansas—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

6. Section 81.305 is amended by adding a table titled “California—2010 Sulfur Dioxide NAAQS (Primary)” following the table “California—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

7. Section 81.306 is amended by revising the table entitled “Colorado—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

8. Section 81.307 is amended by adding a table entitled “Connecticut—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Connecticut—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

9. Section 81.308 is amended by adding a new table entitled “Delaware—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Delaware—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

10. Section 81.309 is amended by adding a table titled “District of Columbia—2010 Sulfur Dioxide NAAQS (Primary)” following the table titled “District of Columbia—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

11. Section 81.310 is amended by revising the table entitled “Florida—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

12. Section 81.311 is amended by revising the table entitled “Georgia—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

13. Section 81.312 is amended by revising the table entitled “Hawaii—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

14. Section 81.313 is amended by adding a table entitled “Idaho—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Idaho—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

15. Section 81.314 is amended by revising the table entitled “Illinois—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

16. Section 81.315 is amended by revising the table entitled “Indiana—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

17. Section 81.316 is amended by revising the table entitled “Iowa—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

18. Section 81.317 is amended by revising the table entitled “Kansas—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

19. Section 81.318 is amended by revising the table entitled “Kentucky—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

20. Section 81.319 is amended by revising the table entitled “Louisiana—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

21. Section 81.320 is amended by adding a table entitled “Maine—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Maine—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

22. Section 81.321 is amended by revising the table entitled “Maryland—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

23. Section 81.322 is amended by adding a table entitled “Massachusetts—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Massachusetts—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

24. Section 81.323 is amended by revising the table entitled “Michigan—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

25. Section 81.324 is amended by adding a table entitled “Minnesota—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Minnesota—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

26. Section 81.325 is amended by revising the table entitled “Mississippi—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

27. Section 81.326 is amended by revising the table entitled “Missouri—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows: