[Federal Register Volume 76, Number 17 (Wednesday, January 26, 2011)]
[Proposed Rules]
[Pages 4579-4584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1624]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2010-1025; FRL-9253-8]
Approval and Promulgation of Air Quality Implementation Plan; New
Jersey and New York; Disapproval of Interstate Transport State
Implementation Plan Revision for the 2006 24-Hour PM[ihel2].[ihel5]
NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Pursuant to our authority under the Clean Air Act (CAA), EPA
is proposing to disapprove the New Jersey and the New York State
Implementation Plan (SIP) revisions submitted to address significant
contribution to nonattainment or interference with maintenance in
another State with respect to the 2006 24-hour fine particle
(PM2.5) national ambient air quality standards (NAAQS). On
January 20, 2010, New Jersey submitted a SIP revision to address
section 110(a)(2)(D)(i) of the CAA concerning interstate transport
requirements, and sections 110(a)(1) and (2) of the CAA concerning
infrastructure requirements. On March 23, 2010, New York submitted a
SIP revision to address the section 110(a)(2)(D)(i) of the CAA
concerning interstate transport, and sections 110(a)(1) and (2) of the
CAA concerning infrastructure SIP requirements. In this action, EPA is
proposing to disapprove the portion of the New Jersey and the New York
SIP revisions that addresses the section 110(a)(2)(D)(i)(I) requirement
prohibiting a State's emissions from significantly contributing to
nonattainment or interfering with maintenance of the NAAQS in any other
State. The rationale for the disapproval action of the SIP revision is
described in this proposal.
DATES: Comments must be received on or before February 25, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2010-1025, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (212) 637-3901.
4. Mail: Raymond Werner, Chief, Air Programs Branch, Environmental
Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York,
New York 10007-1866.
5. Hand Delivery or Courier. Deliver your comments to: Raymond
Werner, Chief, Air Programs Branch, Environmental Protection Agency,
Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-
1866. Such deliveries are only accepted during the Regional Office's
normal hours of operation. The Regional Office's official business
hours are Monday through Friday, 8:30 to 4:30, excluding Federal
holidays.
Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2010-1025. 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.
[[Page 4580]]
Do not submit through http://www.regulations.gov, or e-mail,
information that you consider to be CBI or otherwise protected. 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 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. For additional information about EPA's public docket, visit
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
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, i.e., CBI 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 or in hard copy at the Environmental Protection
Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor,
New York, New York 10007-1866. EPA requests that if at all possible,
you contact the contact listed in the FOR FURTHER INFORMATION CONTACT
section to view the hard copy of the docket. You may view the hard copy
of the docket Monday through Friday, 8 a.m. to 4 p.m., excluding legal
holidays.
FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin
([email protected]), Air Programs Branch, 290 Broadway, 25th
Floor, New York, New York 10007-1866, (212) 637-4249.
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:
I. What action Is EPA taking?
II. What is the background for this action?
III. What is EPA's evaluation of New Jersey's submittal?
IV. What is EPA's evaluation of New York's submittal?
V. Statutory and Executive Order Reviews
I. What action is EPA taking?
We are proposing to disapprove portions of the submissions from the
State of New Jersey and the State of New York that were to demonstrate
that the States have adequately addressed elements of CAA section
110(a)(2)(D)(i)(I). Those elements require a State's SIP to contain
adequate provisions to prohibit air pollutant emissions from sources
within a State from significantly contributing to nonattainment in or
interference with maintenance of the 2006 24-hour PM2.5
NAAQS in any other State. We are proposing to determine that the New
Jersey and New York submissions do not contain adequate provisions to
prohibit air pollutant emissions from within the States that
significantly contribute to nonattainment in or interference with
maintenance of the 2006 24-hour PM2.5 NAAQS in other
downwind States. The remaining elements of the submittal, including the
section 110 infrastructure, and section 110(a)(2)(D)(i)(II) regarding
interference with measures required in the applicable SIP for another
State designed to prevention of significant deterioration of air
quality and protect visibility, are not addressed in this action and
will be acted on in a separate rulemaking.
II. What is the background for this action?
On December 18, 2006, EPA revised the 24-hour average
PM2.5 primary and secondary NAAQS from 65 micrograms per
cubic meter ([micro]g/m\3\) to 35 [micro]g/m\3\. Section 110(a)(1) of
the CAA requires States to submit infrastructure SIPs to address a new
or revised NAAQS within 3 years after promulgation of such standards,
or within such shorter period as EPA may prescribe.\1\ As provided by
section 110(k)(2), within 12 months of a determination that a submitted
SIP is complete under 110(k)(1), the Administrator shall act on the
plan. As authorized by section 110(k)(3) of the CAA, where the portions
of the State submittals are severable, EPA may decide to approve only
those severable portions of the submittals that meet the requirements
of the CAA. When the deficient provisions are not severable from all of
the submitted provisions, EPA must propose disapproval of the
submittals, consistent with section 110(k)(3) of the CAA.
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\1\ The rule for the revised PM2.5 NAAQS was signed
by the Administrator and publically disseminated on September 21,
2006. Because EPA did not prescribe a shorter period for 110(a) SIP
submittals, these submittals for the 2006 24-hour NAAQS were due on
September 21, 2009, three years from the September 21, 2006
signature date.
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CAA section 110(a)(2) lists the elements that infrastructure SIPs
must address, as applicable, including section 110(a)(2)(D)(i), which
pertains to interstate transport of certain emissions. On September 25,
2009, EPA issued its ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5)
National Ambient Air Quality Standards (NAAQS)'' (2009 Guidance). EPA
developed the 2009 Guidance to make recommendations to States for
making submissions to meet the requirements of section 110, including
110(a)(2)(D)(i), for the revised 2006 24-hour PM2.5 NAAQS.
As identified in the 2009 Guidance, the ``good neighbor''
provisions in section 110(a)(2)(D)(i) require each State to submit a
SIP that prohibits emissions that adversely affect another State in the
ways contemplated by the statute. Section 110(a)(2)(D)(i) contains four
distinct requirements related to the impacts of interstate transport.
The SIP must prevent sources in the State from emitting pollutants in
amounts which will: (1) Contribute significantly to nonattainment of
the NAAQS in other States; (2) interfere with maintenance of the NAAQS
in other States; (3) interfere with provisions to prevent significant
deterioration of air quality in other States; or (4) interfere with
efforts to protect visibility in other States.
In the 2009 Guidance, EPA indicated that SIP submissions from
States, pertaining to the ``significant contribution'' and ``interfere
with maintenance'' requirements of section 110(a)(2)(D)(i), must
contain adequate provisions to prohibit air pollutant emissions from
within the State that contribute significantly to nonattainment or
interfere with maintenance of the NAAQS in any other State. EPA further
indicated that the State's submission must explain whether or not
emissions from the State have this impact and, if so, address the
impact. EPA stated that the State's conclusion must be supported by an
adequate technical analysis. EPA recommended the various types of
information that could be relevant to support the State SIP submission,
such as information concerning emissions in the State, meteorological
conditions in
[[Page 4581]]
the State and the potentially impacted States, monitored ambient
concentrations in the State, and air quality modeling. Furthermore, EPA
indicated that States should address independently the ``interfere with
maintenance'' requirement. This requires an evaluation of impacts on
areas of other States that are meeting the 2006 24-hour
PM2.5 NAAQS, not merely areas designated nonattainment.
Lastly, in the 2009 Guidance, EPA stated that States could not rely on
the Clean Air Interstate Rule (CAIR) to comply with CAA section
110(a)(2)(D)(i) requirements for the 2006 24-hour PM2.5
NAAQS because CAIR does not address this NAAQS.
EPA promulgated CAIR on May 12, 2005, (70 FR 25162). CAIR required
States to reduce emissions of sulfur dioxide (SO2) and nitrogen oxides
(NOX) that significantly contribute to, and interfere with
maintenance of the 1997 NAAQS for PM2.5 and/or ozone in any
downwind State. CAIR was intended to provide States covered by the rule
with a mechanism to satisfy their CAA section 110(a)(2)(D)(i)(I)
obligations to address significant contribution to downwind
nonattainment and interference with maintenance in another State with
respect to the 1997 ozone and PM2.5 NAAQS. Many States
adopted the CAIR provisions and submitted SIPs to EPA to demonstrate
compliance with the CAIR requirements in satisfaction of their
110(a)(2)(D)(i)(I) obligations for those two pollutants.
EPA was sued by a number of parties on various aspects of CAIR, and
on July 11, 2008, the U.S. Court of Appeals for the District of
Columbia Circuit issued its decision to vacate and remand both CAIR and
the associated CAIR Federal Implementation Plans (FIP) in their
entirety. North Carolina v. EPA, 531 F.3d 836 (DC Cir. Jul. 11, 2008).
However, in response to EPA's petition for rehearing, the Court issued
an order remanding CAIR to EPA without vacating either CAIR or the CAIR
FIPs. North Carolina v. EPA, 550 F.3d 1176 (DC Cir. Dec. 23, 2008). The
Court thereby left CAIR in place in order to ``temporarily preserve the
environmental values covered by CAIR'' until EPA replaces it with a
rule consistent with the Court's opinion. Id. at 1178. The Court
directed EPA to ``remedy CAIR's flaws'' consistent with its July 11,
2008 opinion, but declined to impose a schedule on EPA for completing
that action. Id.
In order to address the judicial remand of CAIR, EPA has proposed a
new rule to address interstate transport pursuant to section
110(a)(2)(D)(i), the ``Federal Implementation Plans to Reduce
Interstate Transport of Fine Particulate Matter and Ozone'' (Transport
Rule).\2\ As part of the proposed Transport Rule, EPA specifically
examined the section 110(a)(2)(D)(i)(I) requirement that emissions from
sources in a State must not ``significantly contribute to
nonattainment'' and ``interfere with maintenance'' of the 2006 24-hour
PM2.5 NAAQS by other States. The modeling performed for the
proposed Transport Rule shows that New Jersey and New York
significantly contribute to nonattainment or interfere with maintenance
of the 2006 24-hour PM2.5 NAAQS in downwind areas.
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\2\ See ``Federal Implementation Plans to Reduce Interstate
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75
FR 45210 (August 2, 2010).
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On January 20, 2010, EPA received a SIP revision from the State of
New Jersey that was to address the requirements of section
110(a)(2)(D)(i) pertaining to interstate transport and sections
110(a)(1) and (2) pertaining to infrastructure for the 2006 24-hour
PM2.5 NAAQS. On March 23, 2010, EPA received a SIP revision
from the State of New York that was to address the requirements of
section 110(a)(2)(D)(i) pertaining to interstate transport and sections
110(a)(1) and (2) pertaining to infrastructure for the 2006 24-hour
PM2.5 NAAQS. In this rulemaking, EPA is addressing only the
requirements that pertain to prohibiting sources in New Jersey and New
York from emitting air pollutants that will significantly contribute to
nonattainment or interfere with maintenance of the 2006 24-hour
PM2.5 NAAQS in other States.
In its submission, the State of New Jersey provided an analysis
showing that the State significantly contributed to nonattainment or
interferes with the maintenance of the 2006 24 hour PM2.5
NAAQS in seven northeastern and Mid-Atlantic States (i.e. Connecticut,
Delaware, Maryland, Massachusetts, New Hampshire, New York, and
Pennsylvania). New Jersey included a list of measures that were
recently adopted by the State to reduce PM2.5,
SO2, NOX, and volatile organic carbon (VOC)
emissions.
In its submission, the State of New York provided a list of
measures from the attainment SIP revision for the 1997 PM2.5
NAAQS submitted by New York on October 27, 2009, including CAIR program
rules, and the attainment SIP revision submitted by New York on
February 8, 2008 for the 1997 8-hour Ozone NAAQS, that are expected to
help achieve compliance with the 2006 24-hour PM2.5 NAAQS.
New York also provided a commitment to the adoption of measures
identified by EPA as needed as to address the interstate transport for
the 2006 PM2.5 NAAQS upon EPA's completion of the
rulemaking.
III. What is EPA's evaluation of New Jersey's submittal?
On January 20, 2010, New Jersey submitted a SIP revision to address
the requirements of 110(a)(2)(D)(i)(I) with respect to the 2006
PM2.5 NAAQS. New Jersey provided an analysis showing that
the State significantly contributed to seven northeastern and Mid-
Atlantic States (i.e. Connecticut, Delaware, Maryland, Massachusetts,
New Hampshire, New York, and Pennsylvania). New Jersey based its
assessment on a weight-of-evidence analysis approach using the results
of four modeling analysis to determine significant contribution: EPA
modeling performed for CAIR and the NOX SIP call,\3\
Regional Haze SIP modeling performed by the Northeast States for
Coordinated Air Use Management (NECAUM), and State Collaborative
Modeling performed by the Midwestern, Mid-Atlantic, and Northeastern
States to estimate interstate impacts and assess future control
programs for ozone and particulate matter standards. New Jersey
included a list of measures that were recently adopted by the State to
reduce PM2.5, SO2, NOX, and VOC
emissions. In its SIP revision, New Jersey indicated that it was
confident that these actions were more than adequate to address its
contribution to downwind areas. New Jersey also provided a list of
measures that it was either proposing or evaluating that would further
reduce PM2.5 emissions. However, modeling conducted by EPA
for the proposed Transport Rule demonstrates that emissions from New
Jersey significantly contribute to nonattainment or interfere with
maintenance of the 2006 24-hour PM2.5 NAAQS in downwind
areas. EPA's 2009 Guidance directed that a State's SIP submission
pertaining to the requirement of section 110(a)(2)(D)(i)(I) must be
supported by an adequate technical analysis. In the 2009 Guidance, EPA
recommended the various types of information that could be relevant to
support a State's SIP submission. EPA has determined that the New
Jersey demonstration does not meet the requirements of
[[Page 4582]]
110(a)(2)(D)(i)(I) because the State did not evaluate or demonstrate
with a technical analysis that the emissions reduction measures
provided in the SIP revision assure that New Jersey does not contribute
significantly to nonattainment, or interfere with maintenance of the
2006 24-hour PM2.5 NAAQS. Additionally, the SIP submittal
did not go through public notice and comment.
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\3\ In October, 1998, EPA finalized the ``Finding of Significant
Contribution and Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of Reducing Regional
Transport of Ozone''--commonly called the ``NOX SIP
Call.'' See 63 FR 57356 (October 27, 1998).
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The submitted provisions are severable. Therefore, EPA is proposing
to disapprove those provisions which address the 110(a)(2)(D)(i)(I)
demonstration and to take no action at this time on the remainder of
the demonstration.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of a Part D Plan (42 U.S.C. 7501-515) or
is required in response to a finding of substantial inadequacy as
described in 7410(k)(5) (SIP call) starts a sanctions clock. The
provisions in the submittal we are disapproving were not submitted to
meet either of those requirements. Therefore, if EPA takes final action
to disapprove this submittal, no sanctions will be triggered.
The full or partial disapproval of a State implementation plan
revision triggers the requirement under section 110(c) that EPA
promulgate a FIP no later than 2 years from the date of the disapproval
unless the State corrects the deficiency, and the Administrator
approves the plan or plan revision before the Administrator promulgates
such FIP. The proposed Transport Rule, when final, is the FIP that EPA
intends to implement for the State.
IV. What is EPA's evaluation of New York's submittal?
On March 23, 2010, New York submitted a SIP revision to address the
requirements of 110(a)(2)(D)(i)(I) with respect to the 2006 24-hour
PM2.5 NAAQS. New York indicated that emission reductions
from measures proposed in the attainment SIP revision submitted by New
York on October 27, 2009 for the 1997 PM2.5 NAAQS, including
CAIR program rules, are expected to help achieve compliance with the
2006 24-hour PM2.5 NAAQS. New York further stated that all
of the measures are expected to be adequate based on EPA's prior CAIR
assessment, the effects of New York's attainment SIP revision for the
1997 PM2.5 NAAQS, the attainment SIP revision submitted by
New York on February 8, 2008 for the 1997 8-hour Ozone NAAQS, and the
supporting effects of New York's permitting programs. The State of New
York also commits to the adoption of measures identified by EPA as
needed as to address the interstate transport for the 2006
PM2.5 NAAQS upon EPA's completion of the rulemaking.
The modeling conducted by EPA for the proposed Transport Rule
demonstrates that emissions from New York significantly contribute to
nonattainment or interfere with maintenance of the 2006 24-hour
PM2.5 NAAQS in downwind areas. EPA's 2009 Guidance directed
that a State's SIP submission pertaining to the requirement of section
110(a)(2)(D)(i)(I) must be supported by an adequate technical analysis.
EPA recommended the various types of information that could be relevant
to support a State's SIP submission. The State did not evaluate or
demonstrate with a technical analysis that the emission reduction
measures provided in the SIP revision assure that New York does not
contribute significantly to, or interfere with maintenance of the 2006
24-hour PM2.5 NAAQS. The State's submittal indicates that it
is meeting its 110(a)(2)(D)(i)(I) obligations with respect to the 2006
PM2.5 NAAQS in part by virtue of the continuing
applicability of CAIR program requirements at both the Federal and
State levels. However, CAIR was promulgated before the 24-hour
PM2.5 NAAQS were revised in 2006 and does not address
interstate transport with respect to the 2006 PM2.5
NAAQS.\4\ Thus, EPA's 2009 Guidance explicitly notes that reliance on
CAIR cannot be used to comply with section 110(a)(2)(D)(i)(I) for the
respective 2006 NAAQS. Because New York's submittal relies on CAIR to
address the requirements of 110(a)(2)(D)(i)(I) with respect to the 2006
PM2.5 NAAQS this submission is deficient. Several States
claim that controls planned for, or already installed on, sources
within the State to meet the CAIR provisions satisfied section
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS.
However, States will not be able to permanently rely upon the emissions
reductions predicted by CAIR, because EPA needs to address the concerns
of the Court as outlined in its decision remanding CAIR. For this
reason, EPA cannot approve New York's SIP submission pertaining to the
requirements of section 110(a)(2)(D)(i)(I) because it relies on CAIR
for emission reduction measures. Based upon our evaluation, EPA is
proposing to disapprove the New York SIP revision because it does not
meet the requirements of section 110(a)(2)(D)(i)(I) of the CAA.
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\4\ Further, as explained above and in the Transport Rule
proposal [75 FR 45210 (August 2, 2010)], the DC Circuit in North
Carolina v. EPA found that EPA's quantification of States'
significant contribution and interference with maintenance in CAIR
was improper and remanded the rule to EPA. CAIR remains in effect
only temporarily.
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The submitted provisions are severable from each other. Therefore,
EPA is proposing to disapprove those provisions that relate to the
110(a)(2)(D)(i)(I) demonstration and to take no action on the remainder
of the demonstration at this time.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of a Part D Plan (42 U.S.C. 7501-7515) or
is required in response to a finding of substantial inadequacy as
described in section 7410(k)(5) of the Act (SIP call) starts a
sanctions clock. The provisions in the submittal we are disapproving
were not submitted to meet either of those requirements. Therefore, if
EPA takes final action to disapprove this submittal, no sanctions will
be triggered.
The full or partial disapproval of a State implementation plan
revision triggers the requirement under section 110(c) that EPA
promulgate a FIP no later than 2 years from the date of the
disapproval, unless the State corrects the deficiency, and the
Administrator approves the plan or plan revision before the
Administrator promulgates such FIP. The proposed Transport Rule, when
final, is the FIP that EPA intends to implement for the State.
V. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to act on State law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by State law.
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
because this proposed SIP disapproval under section 110 and subchapter
I, part D of the Clean Air Act will not in-and-of itself create any new
information collection
[[Page 4583]]
burdens but simply disapproves certain State requirements for inclusion
into the SIP. Burden is defined at 5 CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 and subchapter I, part D of
the Clean Air Act will not in-and-of itself create any new requirements
but simply disapproves certain State requirements for inclusion into
the SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. The fact that
the Clean Air Act prescribes that various consequences (e.g., higher
offset requirements) may or will flow from this disapproval does not
mean that EPA either can or must conduct a regulatory flexibility
analysis for this action. Therefore, this action will not have a
significant economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or Tribal governments or the private
sector.'' EPA has determined that the proposed disapproval action does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or Tribal governments in
the aggregate, or to the private sector. This action proposes to
disapprove pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or Tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
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, as
specified in Executive Order 13132, because it merely disapproves
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, Executive
Order 13132 does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
This action does not have Tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP
EPA is proposing to disapprove would not apply in Indian country
located in the State, and EPA notes that it will not impose substantial
direct costs on Tribal governments or preempt Tribal law. Thus,
Executive Order 13175 does not apply to this action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it is not an
economically significant regulatory action based on health or safety
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997).
This proposed SIP disapproval under section 110 and subchapter I, part
D of the Clean Air Act will not in-and-of itself create any new
regulations but simply disapproves certain State requirements for
inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use
This action is not subject to Executive Order 13211 (66 FR 28355,
May 22, 2001) because it is not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
The EPA believes that this action is not subject to requirements of
Section 12(d) of NTTAA because application of those requirements would
be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to
[[Page 4584]]
make environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove State choices, based on the criteria
of the Clean Air Act. Accordingly, this action merely proposes to
disapproves certain State requirements for inclusion into the SIP under
section 110 and subchapter I, part D of the Clean Air Act and will not
in-and-of itself create any new requirements. Accordingly, it does not
provide EPA with the discretionary authority to address, as
appropriate, disproportionate human health or environmental effects,
using practicable and legally permissible methods, under Executive
Order 12898.
Statutory Authority
The statutory authority for this action is provided by sections 110
of the CAA, as amended (42 U.S.C. 7410).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Particulate matter.
Dated: January 4, 2011.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2011-1624 Filed 1-25-11; 8:45 am]
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