[Federal Register Volume 80, Number 225 (Monday, November 23, 2015)]
[Proposed Rules]
[Pages 72937-72940]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-29681]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 80, No. 225 / Monday, November 23, 2015 /
Proposed Rules
[[Page 72937]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2015-0670; FRL-9937-26-Region 8]
Approval and Promulgation of Air Quality Implementation Plans;
2008 Ozone NAAQS Interstate Transport for Colorado, Montana, North
Dakota and South Dakota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve State Implementation Plan (SIP) submissions from the states of
Colorado, Montana, North Dakota and South Dakota that are intended to
demonstrate that the SIP for each respective state meets certain
interstate transport requirements of the Clean Air Act (Act or CAA) for
the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS).
These submissions address the requirement that each SIP contain
adequate provisions prohibiting air emissions that will have certain
adverse air quality effects in other states. The EPA is proposing to
approve these SIPs for all four states as containing adequate
provisions to ensure that air emissions in the states do not
significantly contribute to nonattainment or interfere with maintenance
of the 2008 8-hour ozone NAAQS in any other state.
DATES: Comments must be received on or before December 23, 2015.
ADDRESSES: The EPA has established a docket for this action under
Docket Identification Number EPA-R08-OAR-2015-0670. 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 the hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at EPA Region 8, Office of
Partnership and Regulatory Assistance, Air Program, 1595 Wynkoop
Street, Denver, Colorado 80202-1129. The EPA requests that you contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section to
view the hard copy of the docket. The Regional Office's official hours
of business are Monday through Friday, 8:00 a.m.-4:00 p.m., excluding
federal holidays. An electronic copy of the state's SIP compilation is
also available at http://www.epa.gov/region8/air/sip.html.
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:
I. General Information
What should I consider as I prepare my comments for the EPA?
1. Submitting Confidential Business Information (CBI). Do not
submit CBI to the EPA through www.regulations.gov or email. Clearly
mark the part or all of the information that you claim to be CBI. For
CBI information in a disk or CD ROM that you mail to the EPA, mark the
outside of the disk or CD ROM as CBI and then identify electronically
within the disk or CD ROM the specific information that is claimed as
CBI. In addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
II. Background
On March 12, 2008, the EPA revised the levels of the primary and
secondary 8-hour ozone standards from 0.08 parts per million (ppm) to
0.075 ppm (73 FR 16436). The CAA requires states to submit, within
three years after promulgation of a new or revised standard, SIPs
meeting the applicable ``infrastructure'' elements of sections
110(a)(1) and (2). One of these applicable infrastructure elements, CAA
section 110(a)(2)(D)(i), requires SIPs to contain ``good neighbor''
provisions to prohibit certain adverse air quality effects on
neighboring states due to interstate transport of pollution. There are
four sub-elements within CAA section 110(a)(2)(D)(i). This action
addresses the first two sub-elements of the good neighbor provisions,
at CAA section 110(a)(2)(D)(i)(I). These sub-elements require that each
SIP for a new or revised standard 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'' or ``interfere with maintenance'' of the applicable
air quality standard in any other state. We note that the EPA has
addressed the interstate transport requirements of CAA section
110(a)(2)(D)(i)(I) for the eastern portion of the United States in
several past regulatory actions.\1\ We
[[Page 72938]]
most recently promulgated the Cross-State Air Pollution Rule (CSAPR),
which addressed CAA section 110(a)(2)(D)(i)(I) in the eastern portion
of the United States.\2\ CSAPR addressed multiple NAAQS, but did not
address the 2008 8-hour ozone standard.\3\
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\1\ NOX SIP Call, 63 FR 57371 (October 27, 1998);
Clean Air Interstate Rule (CAIR), 70 FR 25172 (May 12, 2005); Cross-
State Air Pollution Rule (CSAPR), 76 FR 48208 (August 8, 2011).
\2\ 76 FR 48208.
\3\ CSAPR addressed the 1997 8-hour ozone, and the 1997 and 2006
fine particulate matter NAAQS.
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In CSAPR, the EPA used detailed air quality analyses to determine
whether an eastern state's contribution to downwind air quality
problems was at or above specific thresholds. If a state's contribution
did not exceed the specified air quality screening threshold, the state
was not considered ``linked'' to identified downwind nonattainment and
maintenance receptors and was therefore not considered to significantly
contribute or interfere with maintenance of the standard in those
downwind areas. If a state exceeded that threshold, the state's
emissions were further evaluated, taking into account both air quality
and cost considerations, to determine what, if any, emissions
reductions might be necessary. For the reasons stated below, we believe
it is appropriate to use the same approach we used in CSAPR to
establish an air quality screening threshold for the evaluation of
interstate transport requirements for the 2008 8-hour ozone
standard.\4\
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\4\ Note that EPA has not done an assessment to determine the
applicability of the one-percent screening threshold for western
states that contribute above the one percent threshold. There may be
additional considerations that may impact regulatory decisions
regarding potential linkages in the west identified by the modeling.
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In CSAPR, the EPA proposed an air quality screening threshold of
one percent of the applicable NAAQS and requested comment on whether
one percent was appropriate.\5\ The EPA evaluated the comments received
and ultimately determined that one percent was an appropriately low
threshold because there were important, even if relatively small,
contributions to identified nonattainment and maintenance receptors
from multiple upwind states. In response to commenters who advocated a
higher or lower threshold than one percent, the EPA compiled the
contribution modeling results for CSAPR to analyze the impact of
different possible thresholds for the eastern United States. The EPA's
analysis showed that the one-percent threshold captures a high
percentage of the total pollution transport affecting downwind states,
while the use of higher thresholds would exclude increasingly larger
percentages of total transport. For example, at a five percent
threshold, the majority of interstate pollution transport affecting
downwind receptors would be excluded.\6\ In addition, the EPA
determined that it was important to use a relatively lower one-percent
threshold because there are adverse health impacts associated with
ambient ozone even at low levels.\7\ The EPA also determined that a
lower threshold such as 0.5 percent would result in relatively modest
increases in the overall percentages of fine particulate matter and
ozone pollution transport captured relative to the amounts captured at
the one-percent level. The EPA determined that a ``0.5 percent
threshold could lead to emission reduction responsibilities in
additional states that individually have a very small impact on those
receptors--an indicator that emission controls in those states are
likely to have a smaller air quality impact at the downwind receptor.
We are not convinced that selecting a threshold below one percent is
necessary or desirable.'' \8\
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\5\ 75 FR 45210, 45237 (August 2, 2010).
\6\ See also Air Quality Modeling Final Rule Technical Support
Document, Appendix F, Analysis of Contribution Thresholds.
\7\ 76 FR 48208, 48236-37.
\8\ Id.
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In the final CSAPR, the EPA determined that one percent was a
reasonable choice considering the combined downwind impact of multiple
upwind states in the eastern United States, the health effects of low
levels of fine particulate matter and ozone pollution, and the EPA's
previous use of a one-percent threshold in CAIR. The EPA used a single
``bright line'' air quality threshold equal to one percent of the 1997
8-hour ozone standard, or 0.08 ppm.\9\ The projected contribution from
each state was averaged over multiple days with projected high modeled
ozone, and then compared to the one-percent threshold. We concluded
that this approach for setting and applying the air quality threshold
for ozone was appropriate because it provided a robust metric, was
consistent with the approach for fine particulate matter used in CSAPR,
and because it took into account, and would be applicable to, any
future ozone standards below 0.08 ppm.\10\
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\9\ Id.
\10\ Id.
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III. EPA's Analysis
On August 4, 2015, the EPA issued a Notice of Data Availability
(NODA) containing air quality modeling data that applies the CSAPR
approach to contribution projections for the year 2017 for the 2008 8-
hour ozone NAAQS.\11\ The moderate area attainment date for the 2008
ozone standard is July 11, 2018. In order to demonstrate attainment by
this attainment deadline, states will use 2015 through 2017 ambient
ozone data. Therefore, 2017 is an appropriate future year to model for
the purpose of examining interstate transport for the 2008 8-hour ozone
NAAQS. The EPA used photochemical air quality modeling to project ozone
concentrations at air quality monitoring sites to 2017 and estimated
state-by-state ozone contributions to those 2017 concentrations. This
modeling used the Comprehensive Air Quality Model with Extensions (CAMx
version 6.11) to model the 2011 base year, and the 2017 future base
case emissions scenarios to identify projected nonattainment and
maintenance sites with respect to the 2008 8-hour ozone NAAQS in 2017.
The EPA used nationwide state-level ozone source apportionment modeling
(CAMx Ozone Source Apportionment Technology/Anthropogenic Precursor
Culpability Analysis technique) to quantify the contribution of 2017
base case nitrogen oxides (NOX) and volatile organic
compounds (VOC) emissions from all sources in each state to the 2017
projected receptors. The air quality model runs were performed for a
modeling domain that covers the 48 contiguous United States and
adjacent portions of Canada and Mexico. The NODA and the supporting
technical support documents have been included in the docket for this
SIP action.
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\11\ See 80 FR 46271 (August 4, 2015) (Notice of Availability of
the Environmental protection Agency's Updated Ozone Transport
Modeling Data for the 2008 Ozone National Ambient Air Quality
Standard (NAAQS)).
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The modeling data released in the August 4, 2015 NODA is the most
up-to-date information the EPA has developed to inform our analysis of
upwind state linkages to downwind air quality problems. For purposes of
evaluating these four states' interstate transport SIPs with respect to
the 2008 8-hour ozone standard, the EPA is proposing that states whose
contributions are less than one percent to downwind nonattainment and
maintenance receptors are considered non-significant.
The modeling indicates that the relevant contributions from
Colorado, Montana, North Dakota, and South Dakota are all below the
one-percent screening threshold of 0.75 ppb.\12\ Colorado's largest
contribution to any projected downwind nonattainment site is 0.36 ppb,
and its largest contribution to any projected downwind
[[Page 72939]]
maintenance-only site is 0.34 ppb. Montana's largest contribution to
any projected downwind nonattainment site is 0.15 ppb, and its largest
contribution to any projected downwind maintenance-only site is 0.17
ppb. North Dakota's largest contribution to any projected downwind
nonattainment site is 0.14 ppb, and its largest contribution to any
projected downwind maintenance-only site is 0.28 ppb. South Dakota's
largest contribution to any projected downwind nonattainment site is
0.08 ppb, and its largest contribution to any projected downwind
maintenance-only site is 0.12 ppb. These values are all below the one-
percent screening threshold of 0.75 ppb, and therefore there are no
identified linkages between any of these four respective states and
2017 downwind projected nonattainment and maintenance sites.
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\12\ Id. at 46276, Table 3.
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IV. State Submissions and EPA's Assessment
Each of the four states addressed in this proposed rulemaking made
a submission certifying the adequacy of their existing SIP to implement
the 2008 8-hour ozone NAAQS. Colorado submitted its certification on
December 31, 2012; Montana submitted its certification on January 3,
2013; North Dakota submitted its certification on March 8, 2013; and
South Dakota submitted its certification on May 30, 2013. All of these
2008 ozone infrastructure SIPs are included in the docket for this
action. Each submission included an analysis of the respective SIP's
adequacy with regard to the interstate transport requirements of
section 110(a)(2)(D)(i)(I).
A. Colorado
In its December 31, 2012 submission, the State of Colorado
concluded that it did not significantly contribute to nonattainment or
interfere with maintenance in other states with respect to the 2008 8-
hour ozone NAAQS. Colorado based this conclusion on the distance from
the state to downwind 2008 ozone nonattainment areas and the overall
decrease in ozone emissions within Colorado. The EPA has determined
that distance is a relevant factor for an interstate transport
technical analysis because pollutant dispersion increases as distance
increases.\13\ Colorado did not provide a detailed analysis supporting
its conclusion, including any quantification of the distance to other
nonattainment areas or the amount of ozone emission reductions within
the state and over what timeframe. Moreover, Colorado suggests that it
need not perform a more detailed technical analysis until the EPA
provides guidance specific to the development of SIPs to address
interstate transport as to the 2008 ozone NAAQS. As the Supreme Court
recently affirmed in EPA v. EME Homer City Generation, L.P., the EPA is
not obligated to provide any information, guidance, or specific metrics
before a state must undertake to fulfill its obligation to address
interstate transport in its SIP. 134 S.Ct. 1584, 1601 (2014).
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\13\ Memorandum from William T. Harnett entitled ``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),'' September 25, 2009.
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Despite the state's incomplete technical analysis, the modeling
released in the EPA's August 4, 2015 NODA confirms Colorado's
conclusion that the State does not significantly contribute to
nonattainment or interfere with maintenance of the 2008 ozone standard
in any other state.\14\ Based on the modeling data and the information
provided in Colorado's submission, we are proposing to approve
Colorado's SIP as meeting the CAA section 110(a)(2)(D)(i)(I)
requirements for the 2008 8-hour ozone standard.
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\14\ Id.
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B. Montana
In its January 3, 2013 submission, the State of Montana concluded
that it did not significantly contribute to nonattainment or interfere
with maintenance in other states with respect to the 2008 8-hour ozone
NAAQS. Montana based this conclusion on the existing permitting
programs to which current and future Montana ozone sources are subject,
as well as certain federal requirements such as applicable maximum
achievable control technology (MACT) and new source performance
standard (NSPS) requirements. While Montana did not provide information
or analysis explaining why the existing permitting programs support
their conclusion that emissions from within the state do not contribute
to downwind air quality problems, and the EPA does not agree that
permitting programs alone are necessarily sufficient to show non-
contribution or non-interference at a level that satisfies
110(a)(2)(D)(i)(I), the EPA concurs with Montana's overall conclusion
that the State does not significantly contribute to nonattainment or
interfere with maintenance of the 2008 8-hour ozone NAAQS in any other
state based on the EPA's modeling data from the August 4, 2015
NODA.\15\ Based on that modeling data, we are proposing to approve
Montana's SIP as meeting the CAA section 110(a)(2)(D)(i)(I)
requirements for the 2008 ozone NAAQS.
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\15\ Id.
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C. North Dakota
In its March 8, 2013 submission, the State of North Dakota
concluded that it did not significantly contribute to nonattainment or
interfere with maintenance in other states with respect to the 2008 8-
hour ozone NAAQS. North Dakota based this conclusion in part on the
results of the modeling conducted for CSAPR, which included analysis of
North Dakota's downwind contributions for ozone (for the 1997 ozone
NAAQS). North Dakota noted that the CSAPR modeling predicted the
State's largest contribution to any projected downwind nonattainment
site to be 0.2 ppb, and the largest contribution to any projected
downwind maintenance-only site to be 0.1 ppb. As further evidence that
North Dakota neither contributes significantly to nonattainment nor
interferes with maintenance in other states, the State noted that its
point-source NOX emissions were ``steadily declining''
between 2002 and 2011, with more reductions expected as a result of
regional haze actions.
The EPA notes that the modeling North Dakota relies upon was
conducted by the EPA in 2011, for purposes of evaluating upwind state
contributions and downwind air quality problems as to a prior, less-
stringent ozone NAAQS, and that the modeling evaluated a 2012
compliance year. Accordingly, the fact that this modeling showed
downwind contribution less than one percent of the 2008 ozone NAAQS is
not necessarily dispositive of North Dakota's obligations under section
110(a)(2)(D)(i)(I). However, as discussed above, the EPA has conducted
more updated modeling subsequent to the State's SIP submission that
confirms the underlying conclusion of our 2011 modeling, and of North
Dakota's SIP submission: North Dakota does not significantly contribute
to nonattainment or interfere with maintenance of the 2008 8-hour ozone
standard in any other state. Accordingly, we are proposing to approve
North Dakota's SIP as meeting the CAA section 110(a)(2)(D)(i)(I)
requirements for the 2008 8-hour ozone standard.
D. South Dakota
In its May 30, 2013 submission, the State of South Dakota concluded
that it did not significantly contribute to
[[Page 72940]]
nonattainment or interfere with maintenance in other states with
respect to the 2008 8-hour ozone NAAQS. The State explained that its
conclusion was ``based on South Dakota's emissions inventory,'' and
provided further supporting information in an attachment including (1)
demographic and geographic data; (2) an inventory of emissions and
locational data on 85 major Title V sources within South Dakota that
``potentially could impact air quality in neighboring states''; \16\
(3) topographical, distance, and meteorological information (including
windrose graphs); and (4) explanations for why this information
suggests that the impact of South Dakota's emissions on four nearby
nonattainment areas is minimal.\17\ Separately, South Dakota noted
plans to install controls to reduce NOX emissions by 70
percent from the largest source of ozone-forming pollution in the State
(Otter Tail's Big Stone power plant),\18\ as well as plans to install
controls on Black Hills Power's Ben French facility, the State's third
highest emitter of NOX at the time of the submission.
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\16\ The State provided emissions inventories for seven such
potentially impacted ``neighboring states''--North Dakota,
Minnesota, Iowa, Nebraska, Colorado, Wyoming, and Montana.
\17\ Specifically, the State's submission discussed potential
impacts on (1) Sublette County, Wyoming (the only nonattainment area
in a State bordering South Dakota); (2) northeastern Colorado (the
``closest ozone non-attainment area to South Dakota''); and (3)
Sheyboygan County, Wisconsin and Chicago, Illinois (the ``non-
attainment areas . . . closest to the east side of South Dakota'').
\18\ The EPA notes that these controls have been installed in
the time since South Dakota made this submission.
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The EPA notes that South Dakota's analysis focuses solely on
potential impacts to the designated nonattainment areas closest to
South Dakota, and does not appear to address the potential for either
significant contribution to nonattainment areas located further away,
or interference with any maintenance of the standard in areas that
might currently be in attainment. Even if a state does not
significantly contribute to the most physically proximate nonattainment
areas, other factors may cause emissions from the state to affect
nonattainment areas that are farther away. Furthermore, because prong 1
and 2 concern air-quality impacts in different areas, even a state that
does not significantly contribute to nonattainment may still interfere
with maintenance of the standard in areas currently attaining.
Nonetheless, as discussed above, the modeling in the EPA's NODA
confirms South Dakota's underlying conclusion that the State does not
significantly contribute to nonattainment or interfere with maintenance
of the 2008 ozone standard in any other state. Based on this modeling
data and the information and analysis provided in South Dakota's
submission, we are proposing to approve South Dakota's SIP as meeting
the CAA section 110(a)(2)(D)(i)(I) requirements for the 2008 8-hour
ozone standard.
V. Proposed Action
The EPA is proposing to approve the following submittals as meeting
the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I)
for the 2008 8-hour ozone NAAQS: Colorado's December 31, 2012
submission; Montana's January 3, 2013 submission; North Dakota's March
8, 2013 submission; and South Dakota's May 30, 2013 submission. The EPA
is proposing this approval based on the information and analysis
provided by each state, as well as the modeling in EPA's August 4, 2015
NODA that confirms each state's conclusion that its SIP contains
adequate provisions to ensure that in-state air emissions will not
contribute significantly to nonattainment or interfere with maintenance
of the 2008 ozone NAAQS in any other state. This action is being taken
under section 110 of the CAA.
VI. 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, the EPA's role is to approve state
actions, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves state law provisions
as meeting federal requirements and does not propose 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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
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 the 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, the SIP does not 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
proposed rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
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.
Authority: 42 U.S.C. 7401 et seq.
Dated: November 10, 2015.
Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2015-29681 Filed 11-20-15; 8:45 am]
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