[Federal Register: February 26, 2007 (Volume 72, Number 37)]
[Proposed Rules]
[Page 8329-8332]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe07-37]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2007-0015; FRL-8281-5]
Approval and Promulgation of Implementation Plans; State of Iowa
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
submission by the State of Iowa which revises the air quality rules to
include portions of the Federal New Source Review (NSR) regulations
promulgated by EPA in December 2002. These revisions do not include the
portion of the rules for nonattainment areas as there are currently no
nonattainment areas in the State of Iowa; therefore, those portions of
the State rules remain in effect. The definitions and applicability
portions of the Prevention of Significant Deterioration (PSD) program
were written into the State rules while the remaining portions of the
PSD program were adopted by reference. All references to clean units
and pollution control projects are not adopted by reference. Iowa has
also not adopted portions of the Federal rule relating to exceptions
from recordkeeping requirements.
DATES: Comments on this proposed action must be received in writing by
March 28, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2007-0015 by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: hamilton.heather@epa.gov.
3. Mail: Heather Hamilton, Environmental Protection Agency, Air
Planning and Development Branch, 901 North 5th Street, Kansas City,
Kansas 66101.
4. Hand Delivery or Courier. Deliver your comments to Heather
Hamilton, Environmental Protection Agency, Air Planning and Development
Branch, 901 North 5th Street, Kansas City, Kansas 66101. Such
deliveries are only accepted during the Regional Office's normal hours
of operation. The Regional Office's official hours of business are
Monday through Friday, 8 to 4:30, excluding legal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-
2007-0015. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
[[Page 8330]]
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the Environmental
Protection Agency, Air Planning and Development Branch, 901 North 5th
Street, Kansas City, Kansas. EPA requests that you contact the person
listed in the FOR FURTHER INFORMATION CONTACT section to schedule your
inspection. The interested persons wanting to examine these documents
should make an appointment with the office at least 24 hours in
advance.
FOR FURTHER INFORMATION CONTACT: Heather Hamilton at (913) 551-7039, or
by e-mail at hamilton.heather@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This section provides
additional information by addressing the following questions:
What is a SIP?
What is the Federal approval process for a SIP?
What does Federal approval of a State regulation mean to me?
What is the background for this action?
What is being addressed in this document?
Have the requirements for approval of a SIP revision been met?
What action is EPA proposing?
What is a SIP?
Section 110 of the Clean Air Act (CAA) requires States to develop
air pollution regulations and control strategies to ensure that State
air quality meets the national ambient air quality standards
established by EPA. These ambient standards are established under
section 109 of the CAA, and they currently address six criteria
pollutants. These pollutants are: carbon monoxide, nitrogen dioxide,
ozone, lead, particulate matter, and sulfur dioxide.
Each State must submit these regulations and control strategies to
us for approval and incorporation into the Federally-enforceable SIP.
Each Federally-approved SIP protects air quality primarily by
addressing air pollution at its point of origin. These SIPs can be
extensive, containing State regulations or other enforceable documents
and supporting information such as emission inventories, monitoring
networks, and modeling demonstrations.
What is the Federal approval process for a SIP?
In order for State regulations to be incorporated into the
Federally-enforceable SIP, States must formally adopt the regulations
and control strategies consistent with State and Federal requirements.
This process generally includes a public notice, public hearing, public
comment period, and a formal adoption by a State-authorized rulemaking
body.
Once a State rule, regulation, or control strategy is adopted, the
State submits it to us for inclusion into the SIP. We must provide
public notice and seek additional public comment regarding the proposed
Federal action on the State submission. If adverse comments are
received, they must be addressed prior to any final Federal action by
us.
All State regulations and supporting information approved by EPA
under section 110 of the CAA are incorporated into the Federally-
approved SIP. Records of such SIP actions are maintained in the Code of
Federal Regulations (CFR) at title 40, part 52, entitled ``Approval and
Promulgation of Implementation Plans.'' The actual State regulations
which are approved are not reproduced in their entirety in the CFR
outright but are ``incorporated by reference,'' which means that we
have approved a given State regulation with a specific effective date.
What does Federal approval of a State regulation mean to me?
Enforcement of the State regulation before and after it is
incorporated into the Federally-approved SIP is primarily a State
responsibility. However, after the regulation is Federally approved, we
are authorized to take enforcement action against violators. Citizens
are also offered legal recourse to address violations as described in
section 304 of the CAA.
What is the background for this action?
The 2002 NSR Reform rules are part of EPA's implementation of parts
C and D of title I of the CAA, 42 U.S.C. 7470-7515. Part C of title I
of the CAA, 42 U.S.C. 7470-7492, is the Prevention of Significant
Deterioration (PSD) program, which applies in areas that meet the
National Ambient Air Quality Standards (NAAQS), also known as
``attainment areas'' and in areas for which there is insufficient
information to determine whether the area meets the NAAQS, also known
as ``unclassifiable'' areas.
Part D of Title I of the CAA, 42 U.S.C. 7501-7515, is the
nonattainment New Source Review (NNSR) program, which applies in areas
that are not in attainment of the NAAQS, also known as ``nonattainment
areas.'' Collectively, the PSD and NNSR programs are referred to as the
``New Source Review'' or NSR programs. EPA regulations implementing
these programs are contained in 40 CFR 51.165, 51.166, 52.21, 52.24 and
part 51, appendix S. The SIP submittal from the State of Iowa does not
include the portion of the rules relating to NSR reform provisions for
nonattainment areas as the State of Iowa currently has no areas
designated nonattainment.
The 2002 NSR Reform rules made changes to five areas of the NSR
programs. In summary, the 2002 rules: (1) Provide a new method for
determining baseline actual emissions; (2) adopt an actual-to-
projected-actual methodology for determining whether a major
modification has occurred; (3) allow major stationary sources to comply
with plantwide applicability limits (PALs) to avoid having a
significant emission increase that triggers the requirements of the
major NSR program; (4) provide a new applicability provision for
emissions units that are designated clean units; and (5) exclude
pollution control projects (PCPs).
After the 2002 NSR Reform rules were finalized and effective,
various petitioners challenged numerous aspects of the 2002 NSR Reform
rules, along with portions of EPA's 1980 NSR rules (45 FR 5276, August
7, 1980). On June 24, 2005, the District of Columbia Court of Appeals
issued a decision on the challenges to the 2002 NSR Reform Rules. New
York v. United States, 413 F.3d (DC Cir. 2005). In summary, the Court
of Appeals for the District of Columbia vacated portions of the rules
pertaining to clean units and pollution control projects, remanded a
portion of the rules regarding exemption from recordkeeping, e.g., 40
CFR 52.21(r)(6) and 40 CFR 51.166(r)(6), and let stand the other
provisions included as part of the 2002 NSR Reform rules. EPA has not
yet responded to the Court's remand regarding recordkeeping provisions.
[[Page 8331]]
What is being addressed in this document?
EPA is proposing to approve the Iowa Department of Natural
Resources' (IDNR) request to revise the Iowa SIP to include the PSD
portion of the NSR regulations. In general, the Iowa revisions consist
of incorporation by reference of substantial portions of the Federal
Prevention of Significant Deterioration (PSD) rule and inclusion of
other portions of the Federal rule almost verbatim. Iowa has not
adopted provisions of the 2002 reform rule which were either vacated or
remanded by the Court, as previously described. IDNR has identified
portions of its rule which are at variance with the Federal rule and
has provided conclusions with respect to equivalency of the State rule
with the Federal requirements.
Revisions to the Iowa Administrative Code (567-20.1 and 567-22.4)
add language to reference the new Chapter 33 entitled ``Special
Regulations and Construction Permit Requirements for Major Stationary
Sources--Prevention of Significant Deterioration (PSD) of Air
Quality.'' These revisions are informational in nature and do not
include substantive requirements.
Chapter 33 of the Iowa rules contains the substantive PSD rule
revisions which include EPA's NSR reform rules as previously described.
The Federal provisions are adopted as follows: (1) The definitions,
applicability provisions, public participation procedures, and source
obligation provisions (the requirements in 40 CFR 52.21(r) of the
Federal rule with the exception of the provision in 40 CFR 52.21(r)(6)
which exempts certain emissions changes from the record keeping
requirements) are set forth in language which tracks the relevant
language of the corresponding federal rules; and, (2) the remainder of
the Federal PSD rules upheld by the Court are adopted by reference.
The State's definition section (567-33.3(1)) contains several
definitions with wording which differs from the wording in the Federal
rule, but the differences are either not substantive or do not affect
the stringency of the rule. These differences are described in the
technical support document, and EPA believes that the differences do
not affect the approvability of the rule. Another example of a
difference is that the State does not incorporate by reference the
Federal definitions relating to the clean unit exemption and pollution
control project exclusion, which provisions were vacated by the court.
The applicability section (567-33.3(2)) discusses the application
of PSD program requirements as they apply to the construction of any
new major stationary source, or any project at an existing major
stationary source in an area designated as attainment or
unclassifiable. This section extracts the language from 40 CFR
51.166(a)(7), including the actual-to-projected-actual test for
determining whether a modification is subject to the rule and other
provisions of the Federal rule.
The public participation procedures in the State rule (567-
33.3(17)) are substantially the same as the rules in the existing SIP.
EPA believes that these procedures meet the corresponding requirements
in 40 CFR 51.166.
The following sections were adopted by reference as specified in 40
CFR 52.21: Ambient air increments; Ambient air ceilings; Restrictions
on area classifications; Redesignation; Stack heights; Exemptions;
Control technology review; Source impact analysis; Air quality models;
Air quality analysis; Source information, and Additional impact
analyses.
The provisions of the State rule relating to exclusions from
increment consumption, sources impacting Federal Class I areas--
additional requirements, and innovative control technology adopt by
reference the relevant portions of 40 CFR 51.166 except for the phrases
that contain ``the plan may provide that,'' ``the plan provides that,''
``it shall also provide that,'' and ``mechanism whereby.'' These
phrases are excluded to convert the language of 40 CFR 51.166 to
substantive rules rather than minimum program requirements. The EPA
provisions for plantwide applicability limitations are adopted by
reference except that the term ``Administrator'' used in the Federal
rule means ``the department of natural resources'' in the State rule.
These provisions were reviewed by EPA for consistency with the Federal
requirements and are acceptable.
The reference to Clean Units and Pollution Control Projects as set
forth in 40 CFR 52.21 and 51.166 are not adopted by reference. In
addition, the provision of the Federal rule (40 CFR 52.21(r)(6)), which
exempts certain projects from recordkeeping, is not adopted, so that
recordkeeping requirements apply to all modifications which use the
actual-to-projected-actual test to show nonapplicability. Iowa intended
these deviations from the Federal rule to address the Court ruling on
EPA's reform rules, and EPA believes they are approvable.
Have the requirements for approval of a SIP revision been met?
The State submittal has met the public notice requirements for SIP
submissions in accordance with 40 CFR 51.102. The submittal also
satisfied the completeness criteria of 40 CFR part 51, appendix V. In
addition, as explained above and in more detail in the technical
support document that is part of this document, EPA believes that the
revisions meet the substantive SIP requirements of the CAA, including
section 110 and implementing regulations.
What action is EPA proposing?
We are proposing to approve revisions to Iowa's rule at Chapter 20,
``Scope of Title-Definitions-Forms-Rules of Practice,'' and Chapter 22,
``Controlling Pollution,'' as the revisions relate to the NSR
regulations. We are also proposing to approve new Chapter 33, ``Special
Regulations and Construction Permit Requirements for Major Stationary
Sources--Prevention of Significant Deterioration (PSD) of Air
Quality.'' It should be noted that IDNR has no nonattainment areas so
those portions of the NSR reform rules are not being addressed with
this rulemaking.
Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
proposed action merely proposes to approve State law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by State law. Accordingly, the Administrator certifies that the
proposed approvals in this proposed rule will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule
proposes to approve pre-existing requirements under State law and does
not impose any additional enforceable duty beyond that required by
State law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4).
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or
[[Page 8332]]
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). This action also
does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This
action merely proposes to approve a State rule implementing a Federal
standard, and does not alter the relationship or the distribution of
power and responsibilities established in the CAA. This proposed rule
also is not subject to Executive Order 13045 ``Protection of Children
from Environmental Health Risks and Safety Risks'' (62 FR 19885, April
23, 1997), because it approves a State rule implementing a Federal
Standard.
In reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the CAA. In this
context, in the absence of a prior existing requirement for the State
to use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the CAA. Thus, the requirements of section
12(d) of the National Technology Transfer and Advancement Act of 1995
(15 U.S.C. 272 note) do not apply. This proposed rule does not impose
an information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: February 14, 2007.
John B. Askew,
Regional Administrator, Region 7.
[FR Doc. E7-3204 Filed 2-23-07; 8:45 am]
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