[Federal Register Volume 79, Number 217 (Monday, November 10, 2014)]
[Rules and Regulations]
[Pages 66651-66654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26523]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R10-OAR-2014-0140, FRL-9918-97-Region 10]
Approval and Promulgation of Implementation Plans; Alaska:
Infrastructure Requirements for the 1997 and 2006 Fine Particulate
Matter and 2008 Ozone National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is approving the Alaska State Implementation Plan
(SIP) as meeting specific infrastructure requirements of the Clean Air
Act (CAA) for the National Ambient Air Quality Standards (NAAQS)
promulgated for fine particulate matter (PM2.5) on July 18,
1997 and October 17, 2006, and for ozone on March 12, 2008. Whenever a
new or revised NAAQS is promulgated, the CAA requires states to submit
a plan for the implementation, maintenance and enforcement of such
NAAQS. The plan is required to address basic program elements,
including but not limited to regulatory structure, monitoring,
modeling, legal authority, and adequate resources necessary to
implement, maintain, and enforce the standards. These elements are
referred to as infrastructure requirements.
DATES: This final rule is effective on December 10, 2014.
ADDRESSES: The EPA has established a docket for this action under
Docket Identification No. EPA-R10-OAR-2014-0140. All documents in the
docket are listed on the http://www.regulations.gov Web site. Although
listed in the index, some information may not be publicly available,
i.e., Confidential Business Information or other information the
disclosure of which 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 EPA Region 10, Office of Air,
Waste, and Toxics, AWT-150, 1200 Sixth Avenue, Seattle, Washington
98101. The EPA requests that you contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to schedule your inspection. The
Regional Office's official hours of business are Monday through Friday,
8:30 to 4:30, excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Kristin Hall at: (206) 553-6357,
[email protected], or the above EPA, Region 10 address.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us'' or ``our'' is used, it is intended to refer to the EPA.
Information is organized as follows:
Table of Contents
I. Background
II. Response to Comment
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background
Section 110 of the CAA specifies the general requirements for
states to submit SIPs to implement, maintain and enforce the NAAQS and
the EPA's actions regarding approval of those SIPs. On July 9, 2012 and
March 29, 2011, Alaska made SIP submissions to the EPA demonstrating
that the Alaska SIP meets the infrastructure requirements of the CAA
for the 1997 PM2.5, 2006 PM2.5, and 2008 ozone
NAAQS. On July 16, 2014, we proposed approval of the Alaska SIP as
meeting the following CAA section 110(a)(2) infrastructure elements for
the 1997 PM2.5, 2006 PM2.5, and 2008 ozone NAAQS:
(A), (B), (C), (D)(ii), (E), (F), (H), (J), (K), (L), and (M) (79 FR
41496). We also proposed approval of the Alaska SIP as meeting the
requirements of CAA section 110(a)(2)(D)(i)(II) as it applies to
prevention of significant deterioration and visibility for the 2006
PM2.5 and 2008 ozone NAAQS. In addition, we proposed
approval of the Alaska SIP as meeting the requirements of CAA section
110(a)(2)(G) for the 2008 ozone NAAQS.
An explanation of the CAA requirements and implementing regulations
that are met by these SIP submissions, a detailed explanation of the
submissions, and the EPA's reasons for the proposed action were
provided in the notice of proposed rulemaking on July 16, 2014, and
will not be restated here (79 FR 41496). Below we address a recent
court decision related to the application of PSD permitting
requirements to greenhouse gases (GHGs) and why we believe the decision
does not impact this action.
With respect to CAA section 110(a)(2)(C) and (J), the EPA
interprets the CAA to require each state to make an infrastructure SIP
submission for a new or revised NAAQS that demonstrates that the state
has a complete PSD permitting program meeting the current requirements
for all regulated NSR pollutants. The requirements of CAA section
110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the state
has a complete PSD permitting program correctly addressing all
regulated NSR pollutants. Alaska has shown that it currently has a PSD
program in place that covers all regulated NSR pollutants, including
GHGs.
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not
treat GHGs as an air pollutant for purposes of determining whether a
source is a major source required to obtain a PSD permit. The Court
also said that the EPA could continue to require that PSD permits,
otherwise required based on emissions of pollutants other than GHGs,
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT). In order to act consistently with
its understanding of the Court's decision pending further judicial
action to effectuate the decision, the EPA is not continuing to apply
the EPA regulations that would require that SIPs include permitting
requirements that the Supreme Court found impermissible. Specifically,
the EPA is not applying the requirement that a state's SIP-approved PSD
program require that sources obtain PSD permits when GHGs are the only
pollutant (i) that the source emits or has the potential to emit above
the major source thresholds, or (ii) for which there is a significant
emissions increase and a significant net emissions increase from a
modification (e.g. 40 CFR 51.166(b)(48)(v)).
The EPA anticipates a need to revise federal PSD rules in light of
the
[[Page 66652]]
Supreme Court opinion. In addition, the EPA anticipates that many
states will revise their existing SIP-approved PSD programs in light of
the Supreme Court's decision. The timing and content of subsequent EPA
actions with respect to EPA regulations and state PSD program approvals
are expected to be informed by additional legal process before the
United States District Court for the District of Columbia Circuit. At
this juncture, the EPA is not expecting states to have revised their
PSD programs for purposes of infrastructure SIP submissions and is only
evaluating such submissions to assure that the state's program
correctly addresses GHGs consistent with the Supreme Court's decision.
At present, the EPA has determined the Alaska SIP is sufficient to
satisfy CAA sections 110(a)(2)(C), (D)(i)(II), and (J) with respect to
GHGs because the PSD permitting program previously-approved by the EPA
into the SIP continues to require that PSD permits (otherwise required
based on emissions of pollutants other than GHGs) contain limitations
on GHG emissions based on the application of BACT. Although the
approved Alaska PSD permitting program may currently contain provisions
that are no longer necessary in light of the Supreme Court decision,
this does not render the infrastructure SIP submission inadequate to
satisfy CAA sections 110(a)(2)(C), (D)(i)(II), and (J) for purposes of
the 1997 PM2.5, 2006 PM2.5 and 2008 ozone NAAQS.
The SIP contains the necessary PSD requirements at this time, and the
application of those requirements is not impeded by the presence of
other previously-approved provisions regarding the permitting of
sources of GHGs that the EPA does not consider necessary at this time
in light of the Supreme Court decision. Accordingly, the Supreme Court
decision does not affect the EPA's approval of Alaska's infrastructure
SIP as to the requirements of CAA sections 110(a)(2)(C), (D)(i)(II),
and (J) for purposes of the 1997 PM2.5, 2006
PM2.5 and 2008 ozone NAAQS.
II. Response to Comment
The public comment period for our proposed action ended on August
15, 2014, and we received one comment via email from Robert Ukeiley of
the Law Office of Robert Ukeiley.
Comment: ``EPA must disapprove all of the PSD related elements of
all three of these proposed Infrastructure SIPs because Alaska does not
have PM2.5 increments in its SIP approved PSD program. EPA
can approve these PSD related elements if the PM2.5
increments are approved into the Alaska SIP prior to final action on
these infrastructure SIPs. Also, the Alaska minor source permitting
program does not prohibit minor sources from causing or contributing to
PM2.5 and ozone NAAQS violations. Therefore, all SIP
elements related to the minor source permitting program must be
disapproved.''
Response: With respect to the first part of the comment on Alaska's
PSD program, we agree with the commenter. In our proposal we stated
that final action on the Alaska infrastructure SIP requirements would
be contingent upon our first taking final action on revisions to the
Alaska SIP to reflect changes to the NAAQS and federal PSD regulations
that we proposed to approve on May 5, 2014 (79 FR 25533). On September
19, 2014, we finalized approval of the revisions, including updates to
the PSD program for purposes of PM2.5 (79 FR 56268). Because
we approved the NAAQS and PSD revisions to the Alaska SIP on September
19, 2014, including the PM2.5 PSD increments, we are now
finalizing our infrastructure approval.
With respect to the second part of the comment on Alaska's minor
NSR program, we disagree with the commenter. Alaska's minor NSR program
was originally approved into the SIP by the EPA on July 5, 1983 (48 FR
30623). We recently approved revisions to Alaska's minor NSR rules on
September 19, 2014 (79 FR 56268). In that action, we determined that
the revisions to Alaska's minor NSR program met the federal minor NSR
regulatory requirements at 40 CFR 51.160-164 ``Review of New Sources
and Modifications'' which include the requirement at 40 CFR 51.160(a)
that all SIPs contain legally enforceable procedures to ensure that
construction or modification of a stationary source will not cause a
violation of a NAAQS or any applicable portions of the control
strategy. Alaska's federally-approved minor NSR rules are located at 18
AAC 50, Article 5 ``Minor Permits.'' 18 AAC 50.542(f)(1)(B) (approval
criteria) and 18 AAC 50.544(c)(1) (screening ambient air quality
analysis) specifically address the requirement at 40 CFR 51.160(a).
In our September 19, 2014, action we determined that the Alaska
minor NSR program meets federal requirements. We are now finalizing our
approval of the Alaska SIP as meeting the requirements of CAA section
110(a)(2)(C) with respect to minor NSR for the 1997 PM2.5,
2006 PM2.5, and 2008 ozone NAAQS.
III. Final Action
The EPA is approving the Alaska SIP as meeting the following CAA
section 110(a)(2) infrastructure elements for the 1997
PM2.5, 2006 PM2.5, and 2008 ozone NAAQS: (A),
(B), (C), (D)(ii), (E), (F), (H), (J), (K), (L), and (M). We are also
approving the Alaska SIP as meeting the requirements of CAA section
110(a)(2)(D)(i)(II) as it applies to prevention of significant
deterioration and visibility for the 2006 PM2.5 and 2008
ozone NAAQS. In addition, we are approving the Alaska SIP as meeting
the requirements of CAA section 110(a)(2)(G) for the 2008 ozone NAAQS.
This action is being taken under section 110 of the CAA.
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, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting 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 this action does not involve technical standards; and
Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human
[[Page 66653]]
health or environmental effects, using practicable and legally
permissible methods, under Executive Order 12898 (59 FR 7629, February
16, 1994).
The SIP is not approved to apply on any Indian reservation land or
in any other area where the EPA or an Indian tribe has demonstrated
that a tribe has jurisdiction. In those areas of Indian country, the
rule does not have tribal implications as specified by Executive Order
13175 (65 FR 67249, November 9, 2000), nor will it 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. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 9, 2015. 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 27, 2014.
Michelle Pirzadeh,
Acting Regional Administrator, Region 10.
For the reasons stated in the preamble, 40 CFR part 52 is amended
as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart C--Alaska
0
2. In Sec. 52.70, the table in paragraph (e) is amended by adding
three entries at the end of the table for: ``110(a)(2) Infrastructure
Requirements--1997 PM2.5 NAAQS.''; ``110(a)(2)
Infrastructure Requirements--2006 PM2.5 NAAQS.''; and
``110(a)(2) Infrastructure Requirements--2008 Ozone NAAQS.''
The additions read as follows:
Sec. 52.70 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Alaska Nonregulatory Provisions and Quasi-Regulatory Measures
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Applicable
Name of SIP provision geographic or non- State EPA Approval date Comments
attainment area submittal date
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* * * * * * *
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Section 110(a)(2) Infrastructure and Interstate Transport
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* * * * * * *
110(a)(2) Infrastructure Statewide......... 7/9/12 11/10/14 [Insert Approves SIP for
Requirements--1997 PM2.5 NAAQS. Federal Register purposes of CAA
citation]. sections 110(a)(2)(A),
(B), (C), (D)(ii),
(E), (F), (H), (J),
(K), (L), and (M) for
the 1997 PM2.5 NAAQS.
110(a)(2) Infrastructure Statewide......... 7/9/12, 3/29/ 11/10/14 [Insert Approves SIP for
Requirements--2006 PM2.5 NAAQS. 11 Federal Register purposes of CAA
citation]. sections 110(a)(2)(A),
(B), (C), (D)(i)(II),
(D)(ii), (E), (F),
(H), (J), (K), (L),
and (M) for the 2006
PM2.5 NAAQS.
110(a)(2) Infrastructure Statewide......... 7/9/12, 3/29/ 11/10/14.......... Approves SIP for
Requirements--2008 Ozone NAAQS. 11 [Insert Federal purposes of CAA
Register sections 110(a)(2)(A),
citation]. (B), (C), (D)(i)(II),
(D)(ii), (E), (F),
(G), (H), (J), (K),
(L), and (M) for the
2008 Ozone NAAQS
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[FR Doc. 2014-26523 Filed 11-7-14; 8:45 am]
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