[Federal Register Volume 78, Number 154 (Friday, August 9, 2013)]
[Rules and Regulations]
[Pages 48615-48617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19200]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2012-0350; FRL-9844-9]
Disapproval of State Implementation Plans; State of Utah;
Interstate Transport of Pollution for the 2006 PM2.5 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to disapprove a portion of a State
Implementation Plan (SIP) submission from the State of Utah that is
intended to demonstrate that its SIP meets certain interstate transport
requirements of the Clean Air Act (``Act'' or ``CAA'') for the 2006
fine particulate matter (``PM2.5'') National Ambient Air
Quality Standards (NAAQS). Specifically, EPA is disapproving the
portion of the Utah SIP submission that addresses the CAA requirement
prohibiting emissions from Utah sources from significantly contributing
to nonattainment of the 2006 PM2.5 NAAQS in any other state
or interfering with maintenance of the 2006 PM2.5 NAAQS by
any other state. Under a recent court decision, this disapproval does
not trigger an obligation for EPA to promulgate a Federal
Implementation Plan (FIP) to address these interstate transport
requirements.
DATES: Effective Date: This final rule is effective September 9, 2013.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2012-0350. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (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 through www.regulations.gov or in hard copy at the Air
Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. EPA requests that if at all
possible, you contact the individual 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, 8:00 a.m.
to 4:00 p.m., excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Adam Clark, Air Program, U.S.
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595
Wynkoop, Denver, Colorado 80202-1129, (303) 312-7104,
[email protected].
SUPPLEMENTARY INFORMATION:
Definitions
For the purpose of this document, we are giving meaning to certain
words or initials as follows:
(i) The words or initials Act or CAA mean or refer to the Clean Air
Act, unless the context indicates otherwise.
(ii) The words EPA, we, us or our mean or refer to the United
States Environmental Protection Agency.
(iii) The initials NAAQS mean or refer to National Ambient Air
Quality Standards.
(iv) The initials SIP mean or refer to State Implementation Plan.
(v) The initials UDEQ mean or refer to the Utah Department of
Environmental Quality.
(vi) The words Utah and State mean the State of Utah.
Table of Contents
I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
On October 17, 2006 EPA promulgated a new NAAQS for
PM2.5, revising the level of the 24-hour PM2.5
standard to 35 [mu]g/m\3\ and retaining the level of the annual
PM2.5 standard at 15 [mu]g/m\3\. (71 FR 61144). By statute,
SIPs
[[Page 48616]]
meeting the ``infrastructure'' requirements of CAA sections 110(a)(1)
and (2) are to be submitted by states within three years after
promulgation of a new or revised standard. Among the infrastructure
requirements of section 110(a)(2) are the ``interstate transport''
requirements of section 110(a)(2)(D).
CAA section 110(a)(2)(D)(i) identifies four distinct elements
related to the evaluation of impacts of interstate transport of air
pollutants. In this action for the state of Utah, EPA is addressing the
first two elements of section 110(a)(2)(D)(i) with respect to the 2006
PM2.5 NAAQS.\1\ The first element of section 110(a)(2)(D)(i)
requires that each SIP for a new or revised NAAQS contain adequate
provisions to prohibit any source or other type of emissions activity
within the state from emitting air pollutants that will ``contribute
significantly to nonattainment'' of the NAAQS in another state. The
second element of CAA section 110(a)(2)(D)(i) requires that each SIP
for a new or revised NAAQS contain adequate provisions to prohibit any
source or other type of emissions activity in the state from emitting
pollutants that will ``interfere with maintenance'' of the applicable
NAAQS in any other state.
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\1\ This action does not address the two elements of the
transport SIP provision (in CAA section 110(a)(2)(D)(i)(II))
regarding interference with measures required to prevent significant
deterioration of air quality or to protect visibility in another
state. We will act on these elements in a separate rulemaking.
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On September 21, 2010, the Utah Department of Environmental Quality
(UDEQ) provided a submission to EPA certifying that Utah's SIP is
adequate to implement the 2006 PM2.5 NAAQS for all the
``infrastructure'' requirements of CAA section 110(a)(2)(D), including
the requirements of CAA section 110(a)(2)(D)(i)(I).\2\
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\2\ UDEQ's submission is included in the docket for this action.
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On May 20, 2013 (78 FR 29314), EPA proposed to disapprove Utah's
September 2010 submission with regard to the interstate transport
requirements of CAA section 110(a)(2)(D)(i)(I). As explained in that
notice, id. at 29317, we proposed to disapprove this element of Utah's
submission because there is no basis for EPA to conclude that the
existing SIP is adequate to satisfy the significant contribution to
nonattainment and interference with maintenance elements of section
110(a)(2)(D)(i)(I).
II. Response to Comments
EPA received one letter on June 14, 2013 containing comments from
the Sierra Club. The letter supported our proposed disapproval of
Utah's submission, but disagreed with other aspects of our proposal.
The significant comments in the letter and EPA's responses are given
below.
Comment 1: The commenter disagrees with EPA's statement that
disapproval of Utah's infrastructure SIP, as it relates to section
110(a)(2)(D)(i)(I) requirements, would not trigger a mandatory duty for
EPA to promulgate a FIP to address these requirements. Specifically,
the commenter contends that the plain language of the CAA requires EPA
to issue a FIP within two years of a disapproval action. In addition,
the commenter contends that the decision in EME Homer City Generation
v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted, 2013 U.S. LEXIS
4801 (U.S. June 24, 2013) (No. 12-1182) (EME Homer City), is not
binding or persuasive because it was incorrectly decided. The commenter
also contends that the decision is inconsistent with previous decisions
by the District of Columbia (D.C.) Circuit Court of Appeals. The
commenter further suggests that EPA should not voluntarily follow the
incorrectly decided EME Homer City opinion, particularly in the context
of an infrastructure action that only impacts sources in Utah, a state
within the jurisdiction of the Tenth Circuit Court of Appeals rather
than the D.C. Circuit Court of Appeals.
Response 1: EPA has historically adopted the commenter's
interpretation: disapproval of section 110(a)(2)(D)(i)(I) would trigger
an obligation for the Agency to promulgate a FIP within two years
unless the state submitted and EPA approved a SIP to correct the
deficiency within that time. EPA continues to agree that the plain
language of the statute establishes these obligations, and for those
reasons, we asked the U.S. Supreme Court to review the D.C. Circuit's
decision in EME Homer City. On June 24, 2013 the Supreme Court agreed
to do so.
In the meantime and because the mandate from the D.C. Circuit was
issued to EPA in February 2012, EPA intends to act in accordance with
the EME Homer City opinion. In particular, the D.C. Circuit court
concluded that EPA does not have authority to promulgate a FIP to
address the requirements of section 110(a)(a)(2)(D)(i)(I) until EPA has
identified emissions in a state that significantly contribute to
nonattainment or interfere with maintenance of the NAAQS in another
state and given the state an opportunity to submit a SIP to address
those emissions. EME Homer City, 696 F.3d at 28. Because EPA has not
identified or quantified any potential contribution and or interference
from Utah to other states, or given the State an opportunity to submit
a SIP to address any potential downwind contribution following action
by EPA to quantify that contribution, our disapproval action today does
not obligate Utah to take any action or make a new SIP submission, nor
does it trigger an obligation for EPA to promulgate a FIP.
EPA also disagrees with the commenter's suggestion that the Agency
need not follow the D.C. Circuit's decision in EME Homer City in the
context of an infrastructure action for Utah. The EPA rule reviewed by
the court in EME Homer City--``Federal Implementation Plans: Interstate
Transport of Fine Particulate Matter and Ozone and Correction of SIP
Approvals,'' 76 FR 48207 (August 8, 2011), also known as the Cross
State Air Pollution Rule (CSAPR)--was designated by EPA as a
``nationally applicable'' rule within the meaning of section 307(b)(1)
of the CAA. See id. at 48352. Accordingly, all petitions for review of
the CSAPR had to be filed in the U.S. Court of Appeals for the D.C.
Circuit and could not be filed in any other federal court. 42 U.S.C.
7607(b)(1). Accordingly, EPA believes the D.C. Circuit's decision in
EME Homer City vacating this rule is also nationally applicable.\3\ As
such, EPA does not intend to take any actions, even if they are only
reviewable in another federal Circuit Court of Appeals, that are
inconsistent with the decision of the D.C. Circuit. EPA acknowledges,
however, that if the EME Homer City decision is reversed or otherwise
modified by the Supreme Court, at that time EPA may need to revisit its
conclusion that this action does not trigger an obligation for EPA to
promulgate a FIP.
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\3\ In this respect, the D.C. Circuit's EME Homer City decision
is distinguishable from decisions of other Courts of Appeal
involving petitions for review of EPA actions under the CAA that are
``regionally or locally applicable'' within the meaning of section
307(b)(1). E.g., Summit Petroleum Corp. v. U.S. EPA, 690 F.3d 733
(6th Cir. 2012).
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Comment 2: The commenter contends that even if EPA chose to follow
the EME Homer City Generation decision, EPA should acknowledge that the
disapproval starts a FIP clock and then move expeditiously to provide
Utah with the information the EME Homer City court said EPA must
provide.
Response 2: EPA disagrees. As discussed in the response to comment
1, unless the D.C. Circuit's decision in EME Homer City is reversed or
[[Page 48617]]
otherwise modified, disapproval of Utah's 2006 PM2.5
infrastructure SIP as it relates to section 110(a)(2)(D)(i)(I) does not
give EPA authority, much less obligate it, to promulgate a FIP for
Utah. EPA intends to move forward expeditiously to address the
interstate transport requirements of the CAA in accordance with all
applicable court decisions.
Comment 3: The commenter states that the D.C. Circuit lacked
jurisdiction in the EME Homer City decision to address whether or not a
2 year FIP clock should have started to run, because that issue was not
timely raised in a challenge to the June 9, 2010 (75 FR 32673) finding
of failure to submit. Citing footnote 34 of the EME Homer City opinion,
the commenter argues that the opinion acknowledged that the court was
not overturning the June 9, 2010 finding of failure to submit in which
EPA stated that a FIP clock was started by the finding.
Response 3: The Supreme Court granted certiorari and agreed to
consider all three questions presented in the United States' petition,
including whether the D.C. Circuit lacked jurisdiction to consider the
challenges on which it granted relief. However, as explained above we
do not intend to take any actions that are inconsistent with the D.C.
Circuit's EME Homer City decision unless that decision is reversed or
otherwise modified. The D.C. Circuit clearly held that EPA lacked
authority to promulgate the CSAPR FIPs even though it acknowledged that
for each state subject to a CSAPR FIP EPA had previously disapproved
that state's 110(a)(2)(D)(i)(I) SIP submission or had previously found
that the state had failed to submit a 110(a)(2)(D)(i)(I) SIP. EME Homer
City, 696 F.3d at 31-37. Also, in the very same footnote cited by the
commenter, the court stated: ``[A] State cannot be `required' to
implement its good neighbor obligation in a SIP `submission'-- nor be
deemed to have submitted a deficient SIP for failure to implement the
good neighbor obligation--until it knows the target set by EPA.'' Id.
at 37 n.34. In our disapproval of the Utah submission, we are acting
consistently with the D.C. Circuit decision, even as expressed in the
footnote cited by the commenter.
III. Final Action
EPA is disapproving the 110(a)(2)(D)(i)(I) portion of Utah's
September 21, 2010 submission. We are disapproving this portion of the
submission because it fails to demonstrate that the Utah SIP is
adequate for the requirements of 110(a)(2)(D)(i)(I). As explained in
detail in our proposal and our response to comments, unless the
decision of the D.C. Circuit in EME Homer City is reversed or modified,
this disapproval will not trigger an obligation for EPA to promulgate a
FIP to address these interstate transport requirements, nor does it
require Utah to submit a revised interstate transport SIP to meet the
requirements.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act 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 approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely disapproves state law that does not
meet Federal requirements and does not impose additional requirements
beyond those imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
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);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
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 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to 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.
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. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
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 October 8, 2013. 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)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 26, 2013.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2013-19200 Filed 8-8-13; 8:45 am]
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