Air Quality Designations for the 2010 Sulfur Dioxide (SO2

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This rule establishes the initial air quality designations for certain areas in the United States (U.S.) for the 2010 primary sulfur dioxide (SO₂) National Ambient Air Quality Standard (NAAQS). The Environmental Protection Agency (EPA) is designating the areas as either nonattainment, unclassifiable/attainment, or unclassifiable, based on whether the areas do not meet the NAAQS or contribute to a nearby area that does not meet the NAAQS; meet the NAAQS; or cannot be classified on the basis of available information as meeting or not meeting the NAAQS, respectively. The designations are based on the weight of evidence for each area, including available air quality monitoring data and air quality modeling. The Clean Air Act (CAA) 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 second round of area designations for the 2010 SO₂ NAAQS.

DATES:

The effective date of this rule is September 12, 2016.

ADDRESSES:

The EPA has established a docket for this action under Docket ID NO. EPA-HQ-OAR-2014-0464. All documents in the docket are listed in the http://www.regulations.gov Web site. 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 http://www.regulations.gov.

In addition, the EPA has established a Web site for the initial SO₂ designations rulemakings at: https://www.epa.gov/sulfur-dioxide-designations. The Web site includes the EPA's final SO₂ designations, as well as state and tribal initial 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 Rhea Jones, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Planning Division, C539-04, Research Triangle Park, NC 27711, telephone (919) 541-2940, email at jones.rhea@epa.gov.

SUPPLEMENTARY INFORMATION:

U.S. EPA Regional Office Contacts:

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

Region II—Henry Feingersh, telephone (212) 637-3382, email at feingersh.henry@epa.gov.

Region III—Irene Shandruk, telephone (215) 814-2166, email at shandruk.irene@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—Dayana Medina, telephone (214) 665-7241, email at medina.dayana@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—Gwen Yoshimura, telephone (415) 947-4134, email at yoshimura.gwen@epa.gov.

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

The public may inspect the rule and state-specific technical support information at the following locations:

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 2 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. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act (URMA)

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

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

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

I. National Technology Transfer and Advancement Act (NTTAA)

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

K. Congressional Review Act (CRA)

L. 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

VCS Voluntary Consensus Standards

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 primary SO₂ NAAQS, in accordance with the requirements of the CAA. The EPA is designating areas as either nonattainment, unclassifiable/attainment, or unclassifiable, based on whether the areas do not meet the NAAQS or contribute to a nearby area that does not meet the NAAQS; meet the NAAQS; or cannot be classified on the basis of available information as meeting or not meeting the NAAQS, respectively. This is the second 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 by the Administrator 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 this second round of SO₂ designations, the EPA is designating 61 additional areas in 24 states: 4 nonattainment areas, 41 unclassifiable/attainment areas and 16 unclassifiable areas. 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. These designations are based on the EPA's 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 2013-2015, as available, including an evaluation of exceptional event claims. In most of the modeling runs conducted by states or third parties, the impacts of the actual emissions for the 3-year periods 2012-2014 or 2013-2015 were considered, and in some cases modeling evaluated recent or not-yet-effective allowable emissions limits in lieu of or as a supplement to modeling of actual emissions. For the areas being designated nonattainment, the CAA directs states to develop and submit to the EPA State Implementation Plans 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. We also note that under EPA's Data Requirements Rule in 40 CFR part 51, subpart BB (80 FR 51052; August 21, 2015), the EPA expects to receive additional air quality characterization for many of the sources located in areas subject to this round of designations, and the agency could consider such data that corresponds to those areas designated unclassifiable in this round in future actions that assess the areas' air quality status.

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

The Administrator signed a final rule revising the primary SO₂ NAAQS on June 2, 2010. The rule was published in the Federal Register on June 22, 2010 (75 FR 35520) and became effective on August 23, 2010. Based on the Administrator's 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 parts per billion (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)-(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.

The EPA's NAAQS for SO₂ is designed to protect against exposure to the entire group of sulfur oxides (SO_X). SO₂ is the component of greatest concern and is used as the indicator for the larger group of gaseous SO_X. Other gaseous SO_X (e.g., SO₃) are found in the atmosphere at concentrations much lower than SO₂.

Emissions that lead to high concentrations of SO₂ generally also lead to the formation of other SO_X. Control measures that reduce SO₂ can generally be expected to reduce people's exposures to all gaseous SO_X. This may also have the important co-benefit of reducing the formation of fine sulfate particles, which pose significant public health threats. SO_X can react with other compounds in the atmosphere to form small particles. These particles penetrate deeply into sensitive parts of the lungs and can cause or worsen respiratory disease, such as emphysema and bronchitis, and can aggravate existing heart disease, leading to increased hospital admissions and premature death. The EPA's NAAQS for particulate matter are designed to provide protection against these health effects.

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. Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant.” If an area meets either prong of this definition, then the EPA is obligated to designate the area as “nonattainment.” This provision also defines an attainment area as any area other than a nonattainment area that meets the NAAQS and an unclassifiable area as any area that cannot be classified on the basis of available information as meeting or not meeting the NAAQS.

The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d) of the CAA. The CAA requires the EPA to complete the initial designations process within 2 years of promulgating a new or revised standard. If the Administrator has insufficient information to make these designations by that deadline, the EPA has the authority to extend the deadline for completing designations by up to 1 year. On July 27, 2012, the EPA announced that it had insufficient information to complete the designations for the 1-hour SO₂ standard within 2 years and extended the designations deadline to June 3, 2013 (77 FR 46295; August 3, 2012).

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 state 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 EPA. If the EPA is considering modifications to a state's initial recommendation, the EPA is required to notify the state of any such intended modifications to its recommendation not less than 120 days prior to the EPA's promulgation of the final designation. These notifications are commonly known as the “120-day letters.” During this period, if the state does not agree with the EPA's 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 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, the EPA intends to follow the same process to the extent practicable for tribes that choose to make designation recommendations. If a tribe does not provide designation recommendations, the EPA will promulgate the designations that the Administrator deems appropriate.

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.

For the 2010 SO₂ NAAQS, designation recommendations were due to the EPA by June 3, 2011. Designation recommendations and supporting documentation were submitted by most states and several tribes to the EPA by that date. After receiving these recommendations, and after reviewing and evaluating each recommendation, the EPA provided responses to the states and tribes regarding certain areas on February 7, 2013. The state and tribal letters, including the initial recommendations, the EPA's February 2013 responses to those letters, any modifications, and the subsequent state comment letters, are in the separate docket for that first round of SO₂ designations, at Docket ID NO. EPA-HQ-OAR-2012-0233.

Although not required by section 107(d) of the CAA, the EPA also provided an opportunity for members of the public to comment on the EPA's February 2013 response letters. The EPA completed the first round of SO₂ designations on July 25, 2013, designating 29 areas in 16 states as nonattainment (78 FR 47191; August 5, 2013). In the preamble to that action, the EPA stated that in separate future actions, it intended to address designations for all other areas for which the agency was not yet prepared to issue designations and that were consequently not addressed in that final rule. With input from a diverse group of stakeholders, EPA developed a comprehensive implementation strategy for the future SO₂ designations actions that focuses resources on identifying and addressing unhealthy levels of SO₂ in areas where people are most likely to be exposed to violations of the standard.

Following the initial August 5, 2013, 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 an effort intended to resolve the litigation in one of those cases, the EPA and the plaintiffs, Sierra Club and the Natural Resources Defense Council, filed a proposed consent decree with the U.S. District Court for the Northern District of California. On March 2, 2015, the court entered the consent decree and issued an enforceable order for the EPA to complete the area designations by three specific deadlines according to the court-ordered schedule.

According to the court-ordered schedule, the EPA must complete this second round of SO₂ designations by no later than July 2, 2016 (16 months from the court's order). The court order specifies that in this round the EPA must designate two groups of areas: (1) Areas that have newly monitored violations of the 2010 SO₂ NAAQS and (2) areas that contain any stationary sources that had not been announced as of March 2, 2015, for retirement and that, according to the EPA's Air Markets Database, emitted in 2012 either (i) more than 16,000 tons of SO₂, or (ii) more than 2,600 tons of SO₂ with an annual average emission rate of at least 0.45 pounds of SO₂ per one million British thermal units (lbs SO₂/mmBTU). Specifically, a stationary source with a coal-fired electric generating unit that, as of January 1, 2010, had a capacity of over 5 megawatts and otherwise meets the emissions criteria, is excluded from the July 2, 2016, deadline if it had announced through a company public announcement, public utilities commission filing, consent decree, public legal settlement, final state or federal permit filing, or other similar means of communication, by March 2, 2015, that it will cease burning coal at that unit.

The last two court-ordered deadlines for completing remaining designations are December 31, 2017 (Round 3), and December 31, 2020 (Round 4). In Round 3, the EPA must designate any remaining undesignated areas, for which, by January 1, 2017, states have not installed and begun operating a new SO₂ monitoring network meeting the EPA's specifications referenced in the then-anticipated SO₂ Data Requirements Rule. By December 31, 2020, the EPA must designate all remaining areas. The EPA finalized the SO₂ Data Requirements Rule (DRR) on August 10, 2015, codified at 40 CFR part 51, subpart BB (80 FR 51052; August 21, 2015). The rule establishes requirements for state and other air agencies to provide additional monitoring or modeling information on a timetable consistent with these designation deadlines. We expect this additional information to become available in time to help inform these subsequent designations.

On March 20, 2015, the EPA sent letters to Governors notifying them of the March 2, 2015, court order and identifying any sources in their states meeting the criteria for the round of designations to be completed by July 2, 2016. The EPA offered states the opportunity to submit updated recommendations and supporting information for the EPA to consider for the affected areas. The EPA also notified states that the agency had updated its March 24, 2011, SO₂ designations guidance to support analysis of designations and boundaries for the next rounds of designations. All of the states with affected areas submitted updated designation recommendations. For areas of Indian county, there were no violating monitors and no sources meeting the criteria for the designations to be completed by July 2, 2016. However, the EPA also sent letters to Tribal Leaders where the EPA had identified a state source that met the criteria in the court order and that could potentially be impacting the tribal land. The EPA also offered tribes the opportunity to submit information or a recommendation for the potentially affected areas of tribal land. No tribes submitted information or recommendations for this round of designations.

On or about February 16, 2016, the EPA notified 24 affected states of its intended designation of certain specific areas as either nonattainment, unclassifiable/attainment, 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, as the EPA had done for the first round of SO₂ designations, the EPA also chose to provide an opportunity for members of the public to comment on the EPA's February 2016 response letters. The EPA published a notice of availability and public comment period for the intended designation on March 1, 2016 (81 FR 10563). The public comment period closed on March 31, 2016. The updated recommendations, the EPA's February 2016 responses to those letters, any modifications, and the subsequent state and public comment letters, are in the docket for this second round of SO₂ designations at Docket ID NO. EPA-HQ-OAR-2014-0464 and are available on the SO₂ designations Web site.

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 its approach to implementing the standard, including its 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 three 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 on monitored SO₂ concentrations from Federal Reference Method and Federal Equivalent Method monitors that are sited and operated in accordance with 40 CFR parts 50 and 58.

In the March 24, 2011, guidance, the EPA stated that the perimeter of a county containing a violating monitor 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, updated designations guidance was issued by the EPA through a March 20, 2015, memorandum from Stephen D. Page, Director, U.S. EPA, Office of Air Quality Planning and Standards, to Air Division Directors, U.S. EPA Regions 1-10. This memorandum supersedes the March 24, 2011, designation guidance for the 2010 SO₂ NAAQS, and identifies factors that the EPA intends to evaluate in determining whether areas are in violation of the 2010 SO₂ NAAQS. The guidance also contains the factors the EPA intends 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. This guidance was supplemented by two non-binding technical assistance documents intended to assist states and other interested parties in their efforts to characterize air quality through air dispersion modeling or ambient air quality monitoring for sources that emit SO₂. Notably, the EPA's documents titled, “SO₂ NAAQS Designations Modeling Technical Assistance Document” (Modeling TAD) and “SO₂ NAAQS Designations Source-Oriented Monitoring Technical Assistance Document” (Monitoring TAD), were first made available to states and other interested parties in spring of 2013. Both of these documents were most recently updated in February 2016 and are available at https://www.epa.gov/sulfur-dioxide-designations.

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 allowable source emissions. The EPA issued the non-binding draft Monitoring TAD and Modeling TAD recommending how air agencies should conduct such monitoring or modeling. For the SO₂ designations contained in this action, the EPA considered available air quality monitoring data from at least calendar years 2013-2015, including an evaluation of exceptional events claims, and modeling submitted by state air agencies and other parties. In most of the modeling runs, the impacts of the actual emissions for the 3-year periods 2012-2014 or 2013-2015 were considered, and in some cases modeling evaluated recent or not-yet-effective allowable emissions limits in lieu of or as a supplement to modeling of actual emissions. 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. For this round of designations there were no areas designated nonattainment based on monitoring data showing violations of the NAAQS. To determine model-based violations, the EPA believes that dispersion modeling is an appropriate tool, as discussed in the Modeling TAD. The TAD provides recommendations on how an air agency might appropriately and sufficiently model ambient air in proximity to an SO₂ emission source to establish air quality data for comparison to the 2010 primary SO₂ NAAQS for the purposes of designations.

VII. How do the Round 2 designations affect Indian country?

In Round 2 of the designations for the 2010 primary SO₂ NAAQS, the EPA is designating 61 state areas as either nonattainment, unclassifiable/attainment, or unclassifiable. For areas of Indian county, there were no violating monitors and no sources meeting the criteria for the designations to be completed by July 2, 2016. No areas of Indian country are being designated as nonattainment as part of this round. Any Indian country located in areas being designated as unclassifiable/attainment or unclassifiable are being designated along with the surrounding state area. All remaining state areas and areas of Indian country will be addressed in subsequent rounds of SO₂ designations.

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 action are provided in several technical support documents (TSDs), a response to comments document (RTC) and other information in the docket. The TSDs, RTC, applicable EPA's guidance memoranda and copies of correspondence regarding this process between the EPA and the states, tribes and other parties, are available for review at the EPA Docket Center listed above in the ADDRESSES section of this document and on the agency's SO₂ Designations Web site 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 final action addresses designation determinations for certain areas for the 2010 primary 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

Upon promulgation of a new or revised NAAQS, the CAA requires the EPA to designate areas as attaining or not attaining the NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. In this final rule, the EPA assigns designations to selected areas as required.

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

This action is exempted from review from 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. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under the PRA. This action responds to the requirement to promulgate air quality designations after promulgation of a new or revised NAAQS. This requirement is prescribed in the CAA section 107 of title 1. This action does not contain any information collection activities.

C. Regulatory Flexibility Act (RFA)

This final rule is not subject to the RFA. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule is not subject to notice-and-comment requirements under the APA but is subject to the CAA section 107(d)(2)(B) which does not require a notice-and-comment rulemaking to take this action.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandates as described by URM, 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.

E. Executive Order 13132: Federalism

This final action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states or on the distribution of power and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175. This action concerns the designation of certain areas in the U.S. for the 2010 primary SO₂ NAAQS. The CAA provides for states 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 does 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. 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 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 primary SO₂ NAAQS, as well as concerns specific to a tribe, and informed the EPA about key tribal concerns regarding designations as the rule was under development. For this 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. The communication letters to the tribes are provided in the dockets for Round 1 (Docket ID NO. EPA-HQ-OAR-2012-0233 and Round 2 (Docket ID NO. EPA-HQ-OAR-2014-0464).

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

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

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

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

This action does not involve technical standards.

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

The EPA believes 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 Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this decision is contained in Section IX of this document.

K. Congressional Review Act (CRA)

The CRA, 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 U.S. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the U.S. 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 September 12, 2016.

L. 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 designating areas for the 2010 primary SO₂ NAAQS is “nationally applicable” within the meaning of section 307(b)(1). This final action establishes designations for areas across the U.S. for the 2010 primary SO₂ NAAQS. At the core of this final action is the EPA's interpretation of 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 this final action is nationally applicable and is hereby publishing that finding in the Federal Register.

For the same reasons, the Administrator also is determining 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 this final action extends to numerous judicial circuits since the designations 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, this final action is based on a determination by the Administrator of nationwide scope or effect, and the Administrator is hereby publishing that finding in the Federal Register.

Thus, any petitions for review of these final designations 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 81

• Environmental protection
• 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 81.304 is amended by adding a new table entitled “Arkansas—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Arkansas—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

3. Section 81.306 is amended by adding a new table entitled “Colorado—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Colorado—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

4. Section 81.311 is amended by adding a new table entitled “Georgia—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Georgia—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

5. Section 81.312 is amended by adding a new table entitled “Hawaii—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Hawaii—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

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

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

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

9. Section 81.317 is amended by adding a new table entitled “Kansas—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Kansas—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

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

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

12. Section 81.321 is amended by adding the table entitled “Maryland—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Maryland—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

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

14. Section 81.325 is amended by adding a new table entitled “Mississippi—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Mississippi—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

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

16. Section 81.328 is amended by adding a new table entitled “Nebraska—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Nebraska—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

17. Section 81.333 is amended by adding a new table entitled “New York—2010 Sulfur Dioxide NAAQS (Primary)” following the table “New York—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

18. Section 81.334 is amended by adding a new table entitled “North Carolina—2010 Sulfur Dioxide NAAQS (Primary)” following the table “North Carolina—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

19. Section 81.335 is amended by adding a new table entitled “North Dakota—2010 Sulfur Dioxide NAAQS (Primary)” following the table “North Dakota—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

20. Section 81.336 is amended by revising the table entitled “Ohio—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

21. Section 81.337 is amended by adding a new table entitled “Oklahoma—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Oklahoma—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

22. Section 81.342 is amended by adding a new table entitled “South Dakota—2010 Sulfur Dioxide NAAQS (Primary)” following the table “South Dakota—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

23. Section 81.343 is amended by revising the table entitled “Tennessee—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:

24. Section 81.344 is amended by adding a new table entitled “Texas—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Texas—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:

25. Section 81.350 is amended by revising the table entitled “Wisconsin—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows: