[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43153-43156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17742]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R02-OAR-2010-1025; FRL-9436-2]
Approval and Promulgation of Air Quality Implementation Plan; New
Jersey and New York; Final Disapproval of Interstate Transport State
Implementation Plan Revision for the 2006 24-Hour PM2.5
NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action 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 sections of the Clean Air Act (CAA) concerning interstate
transport requirements, and the sections of the CAA concerning
infrastructure requirements. On March 23, 2010, New York submitted a
SIP revision to address the section 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 taking final
action to disapprove the portion of the New Jersey and the New York SIP
revisions that addresses the requirement prohibiting a state's
emissions from significantly contributing to nonattainment or
interfering with maintenance of the NAAQS in any other state. The
remaining elements of the submittals are not addressed in this action
and will be addressed in a separate action. The intended effect of this
action will be the implementation of a Federal Implementation Plan
(FIP) for the State no later than 2 years from date of the disapproval.
The proposed Transport Rule, when final, is the FIP that EPA intends to
implement for the State.
DATES: Effective Date: This rule is effective on August 19, 2011.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R02-OAR-2010-1025. All documents in the docket
are listed at http://www.regulations.gov. 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 through 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. This
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The Docket telephone number is 212-
637-4249.
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 comments did EPA receive in response to the proposal?
III. What are EPA's conclusions?
IV. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is taking final action to disapprove portions of the
submissions from the State of New Jersey and the State of New York that
were submitted to demonstrate that those states have adequately
addressed elements of CAA section 110(a)(2)(D)(i)(I). Those elements
require a state's SIP to contain
[[Page 43154]]
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. The New Jersey and New York submissions do
not contain adequate provisions to prohibit air pollutant emissions
from within the states from significantly contributing to nonattainment
in or interference with maintenance of the 2006 24-hour
PM2.5 NAAQS in other downwind states.
The remaining elements of the New Jersey and New York submittals,
including the section 110 infrastructure, and section
110(a)(2)(D)(i)(II) regarding interfering with measures required in the
applicable SIP for another state designed to prevent significant
deterioration of air quality and protect visibility, are not addressed
in this action and will be acted on in a separate rulemaking.
For additional details on EPA's analysis and findings, the reader
is referred to the proposal published in the January 26, 2011 Federal
Register (76 FR 4579) which is available on line at http://www.regulations.gov, Docket number EPA-R02-OAR-2010-1025.
II. What comments did EPA receive in response to the proposal?
EPA received one comment letter on the January 26, 2011 proposal.
The letter can be found on the internet in the electronic docket for
this action. To access the letter, please go to http://www.regulations.gov and search for Docket No. EPA-R02-OAR-2010-1025, or
contact the person listed in the FOR FURTHER INFORMATION CONTACT
paragraph above. The discussion below addresses those comments and our
response.
A. Comment From the State of New Jersey Concerning the New Jersey
Submittal
Comment: The commenter requests that EPA approve its SIP Revision
because New Jersey has adopted multi-pollutant performance standards
and met its rule commitments to address the emissions from electric
generating units. In addition, New Jersey's air quality levels are in
compliance with the 2006 24-hour PM2.5 NAAQS.
EPA Response: EPA recognizes New Jersey's actions in improving air
quality in the state and reducing the transport of emissions to
downwind areas, including adopting multi-pollutant performance
standards for electric generating units. However, despite such actions
by New Jersey, EPA's evaluation, as discussed in the proposed
disapproval, demonstrated that New Jersey's submittal is inadequate.
EPA notes that much of the recent improvement in air quality has
resulted from the promulgation of the Clean Air Interstate Rule (CAIR).
This rule was remanded to EPA in 2008 and will not remain in place
indefinitely. Reductions associated with the CAIR thus also cannot be
said to be permanent. EPA's modeling analysis, conducted for the
proposed Transport Rule, as proposed on August 2, 2010, in the Federal
Register (75 FR 45210) 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.
Therefore, EPA cannot approve New Jersey's submittal.
III. What are EPA's conclusions?
EPA has evaluated the New Jersey and New York submittals for
consistency with the CAA, EPA regulations, and EPA policy. The
demonstrations submitted by New Jersey and New York do not meet the
requirements of section 110(a)(2)(D)(i)(I) because the states did not
evaluate or demonstrate with a technical analysis that the emissions
reduction measures provided in their SIP revisions assure that they do
not contribute significantly to nonattainment or interfere with
maintenance of the 2006 24-hour PM2.5 NAAQS. Accordingly,
EPA is finalizing the disapproval of the portions of the New Jersey and
the New York SIP revisions that address 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.
EPA is taking no action at this time on the remainder of the
demonstration, including sections 110(a)(1) and (2) regarding
infrastructure requirements, and section 110(a)(2)(D)(i)(II) regarding
interference with measures required in the applicable SIP for another
state designed to prevent significant deterioration of air quality and
protect visibility. They will be addressed in a separate rulemaking.
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 110(k)(5) (42 U.S.C. 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, no
sanctions are triggered for this disapproval.
IV. 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 Orders 12866 and
13563 (76 FR 3821, January 21, 2011).
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 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 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 rule on small
entities, I certify that this action will not have a significant impact
on a substantial
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number of small entities. This rule does not impose any requirements or
create impacts on small entities. This 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.
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 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 disapproves 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 disapproving 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 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 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 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 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 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.
K. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
action and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to publication of the rule in the Federal Register. A
major rule cannot take effect until 60 days after it is published in
the Federal Register.
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This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
L. Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 19, 2011. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
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, Incorporation by
reference, Intergovernmental relations, Particulate matter.
Dated: June 1, 2011.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2011-17742 Filed 7-19-11; 8:45 am]
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