[Federal Register Volume 81, Number 165 (Thursday, August 25, 2016)]
[Proposed Rules]
[Pages 58438-58442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20320]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2013-0145; FRL-9951-30-Region 8]
Approval and Promulgation of Air Quality Implementation Plans;
North Dakota; Revisions to Air Pollution Control Rules
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing
approval of State Implementation Plan (SIP) revisions submitted by the
State of North Dakota on January 28, 2013 and April 22, 2014. The
revisions are to Article 33-15 ``Air Pollution Control'' rules of the
North Dakota Administrative Code. The revisions include amendments to
update the Prevention of Significant Deterioration (PSD) rules and the
definition of ``volatile organic compounds''; to add particulate matter
less than 2.5 microns in diameter (PM2.5) methods of
measurement; to modify the PM2.5 state ambient air quality
standard, permissible open burning rule, and permit fee processes; and,
to remove permitting fees for sources that operate an air monitoring
site. The revisions also make clarifying changes. This action is being
taken under section 110 of the Clean Air Act (CAA).
DATES: Written comments must be received on or before September 26,
2016.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2013-0145 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.,) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. The 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 a.m. to 4 p.m.,
excluding federal holidays.
FOR FURTHER INFORMATION CONTACT: Jaslyn Dobrahner, Air Program, U.S.
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595
Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6252,
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
What should I consider as I prepare my comments for EPA?
1. Submitting Confidential Business Information (CBI). Do not
submit CBI to the EPA through http://www.regulations.gov or email.
Clearly mark the part or all of the information that you claim to be
CBI. For CBI information on 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
[[Page 58439]]
information (subject heading, Federal Register, date, and page number);
Follow directions and organize your comments;
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; and
Make sure to submit your comments by the comment period
deadline identified.
II. Background
A. On January 28, 2013, the State of North Dakota submitted a SIP
revision containing amendments to Article 33-15 Air Pollution Control
rules. The amendments: Update the PSD rules; add PM2.5
methods of measurement; revise permit fee processing; remove permitting
fees for sources that operate an air monitoring site; and make
clarifying changes. The North Dakota State Health Council adopted the
amendments on August 14, 2012 (effective January 1, 2013).
B. On April 22, 2014, the State of North Dakota submitted a SIP
revision containing amendments to Article 33-15 Air Pollution Control
rules. The amendments: Update the PSD rules and the definition of
``volatile organic compounds''; revise the PM2.5 state
ambient air quality standard and permissible open burning rule; and
clarify excess emissions reporting requirements. The North Dakota State
Health Council adopted the amendments on February 11, 2014 (effective
April 1, 2014).
III. The EPA's Review of the State of North Dakota's January 28, 2013
and April 22, 2014 Submittals
We evaluated North Dakota's January 28, 2013 and April 22, 2014
submittals regarding revisions to the State's Air Pollution Control
rules. We propose to approve some of the revisions and not act on other
revisions.
A. January 28, 2013 SIP Submittal
The State's January 28, 2013 SIP submittal includes the following
types of amendments to the State's air quality rules: Revisions to
update State-specific additions to the incorporation by reference of
the PSD rules; revisions to add PM2.5 methods of
measurement; revisions to remove permitting fees for sources that
operate an air monitoring site; and a revision to streamline the
administrative fee process. The revisions also make clarifying changes.
The January 2013 submittal adds a sentence to 33-15-01-13.3,
``[t]he provisions of this subsection do not apply to sources that are
subject to monitoring requirements in chapter 33-15-21,'' to clarify
that the alternative monitoring requirements in this rule do not apply
to sources that are required to comply with the acid rain rules and
exempts sources subject to acid rain requirements in chapter 33-15-21,
Acid Rain Program, from the continuous emission monitoring system
(CEMS) failures requirements found in 33-15-01-13.3 of the General
Provisions chapter. Instead, 33-15-21-09.1 requires that CEMS
monitoring, recordkeeping, and reporting requirements found in 40 CFR
part 75 and its appendices apply to sources subject to acid rain
requirements. This revision is for clarification purposes, and we
propose to approve it. Likewise, we propose to approve the State's
revisions to 33-15-05-04.3 that indicate PM2.5 measurements
must be made in accordance with 40 CFR 51, Appendix M, Recommended Test
Methods for State Implementation Plans and clarifies the definition of
PM10 determinations under the same method.
The State revised section 33-15-14-02.13.c(4) by deleting ``or are
subject to a standard under chapter 33-15-22,'' to clarify that sources
subject to the national emission standards for hazardous air pollutants
(40 CFR part 63) in chapter 33-15-22, Emissions Standards for Hazardous
Air Pollutants for Source Categories, do not need a permit to construct
if they meet the exemption requirements found in 33-15-14-02.13. The
State requested this revision to clarify that sources at minor
facilities do not require a permit. Since the North Dakota SIP already
exempts engine sources whose emissions are below certain thresholds
(see 33-15-14-02.13(c)(1), (2), (3)) and also requires major hazardous
air pollutant sources subject to maximum achievable control technology
(MACT) to obtain a permit (see 33-15-22), we agree that this revision
is for clarification purposes and propose to approve it.
The State makes a number of revisions in their January 28, 2013
submittal to their PSD rules found in chapter 33-15-15; some of the
revisions we approved in prior actions, while other revisions were
superseded by subsequent SIP submittals. First, the State updates the
incorporation by reference date in 33-15-15-01.2 for 40 CFR 52.21,
paragraphs (a)(2) through (e), (h) through (r), (v), (w), (aa) and (bb)
to as they exist on January 1, 2012. We acted on the approval of
incorporating 40 CFR 52.21(b)(14)(i) through (iii); (b)(15)(i) and
(ii); and paragraph (c) pertaining to major and minor source baseline
dates and ambient air increments in our July 30, 2013 final rule (78 FR
45866) approving the State's demonstration that the North Dakota SIP
meets the infrastructure requirements of the CAA for the National
Ambient Air Quality Standards (NAAQS) promulgated for PM2.5
on July 18, 1997 and on October 17, 2006. In doing so, paragraphs
(b)(14)(i) through (iii); (b)(15)(i) and (ii); and paragraph (c) were
added to 40 CFR 52.1829 as paragraphs (c) and (d). We are proposing to
not act on incorporating the remainder of 40 CFR 52.21 as they exist on
January 1, 2012, because this revision is superseded by the revision in
the State's April 22, 2014 submittal to incorporate the same portions
of 40 CFR 52.21 as they existed on July 1, 2013.
There are additional revisions in the State's January 28, 2013 PSD
rules in 33-15-15-01.2. that we propose to approve. First, the State
relocates 40 CFR 52.21(b)(50)(i)(c) and (b)(50)(i)(d) to correct
numerical order. Second, the State revises 40 CFR 52.21(d) consistent
with the federal rule at the same citation by changing ``[n]o
concentration of a contaminant shall exceed the ambient air quality
standards in chapter 33-15-02 for these areas subject to regulation
under this article and the national ambient air quality standards in
all other areas of the United States'' to ``[n]o concentration of a
contaminant shall exceed: (1) The concentration permitted under the
national primary and secondary ambient air quality standards. (2) The
concentration permitted by the ambient air quality standards in chapter
33-15-02.'' Third, the State revises 40 CFR 52.21(k)(1) consistent with
the federal regulations at 40 CFR 52.21(k)(1)(i) by changing ``[a]ny
ambient air quality standard in chapter 33-15-02 for those areas
subject to regulation under this article and the national ambient air
quality standards in all other areas of the United States; or'' to
``[a]ny national ambient air quality standard or any standard in
chapter 33-15-02.'' The State recognizes their current regulations
inadvertently do not include (i) after 40 CFR 52.21(k)(1) and will
revise the language to read 40 CFR 52.21(k)(1)(i) in
[[Page 58440]]
a future submittal.\1\ Fourth, the State also revised 40 CFR
52.21(v)(2)(iv)(a) consistent with the federal rule at the same
citation by adding ``national ambient air quality standard or any'' and
deleting ``regulation under this article and the national ambient air
quality standards in all other areas of the United States.'' We propose
to approve all of these changes.
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\1\ Refer to docket #EPA-R08-OAR-2013-0145 for documentation.
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We also propose to approve in the January 28, 2013 submittal
revisions to chapter 33-15-23, Fees, allowing billing statements to be
sent to applicants before final determinations have been made (33-15-
23-02.2.c) and removing the permit fee for sources that operate an air
monitoring site (33-15-23-03.1). CAA section 110(a)(2)(E) requires that
a state implementation plan provide assurances that the state will
have, among other items, adequate funding to carry out the
implementation plan. Sending billing statements earlier than currently
required under the SIP impacts the timing of when the fees are billed
and collected. Therefore, it is appropriate to propose to approve
because the change impacts the timing. The deletion of the criteria
that describe this category is approvable because under 33-15-23-03.2
North Dakota will continue to charge fees to sources based on actual
costs incurred by the State for the following: (1) Observation of
source or performance specification testing; and (2) audits of source
operated ambient air monitoring networks.
In this submittal, the State also made clarifying revisions to
three other SIP provisions. First, the State modified the abbreviation
of PM10 (33-15-01-05) by adding the phrase ``less than or
equal'' and deleting the less than or equal to symbol. Second, the
State moved and modified language related to agricultural practices and
fugitive emissions from chapter 33-15-17 Restriction of Fugitive
Emission to chapter 33-15-03 Restriction of Emissions of Visible Air
Contaminants (the State deleted from 33-15-17-02.6 ``[a]gricultural
activities related to the normal operations of a farm shall be exempt
from the requirements of this section. However, agricultural practices
such as tilling of land, application of fertilizers, and the harvesting
of crops shall be managed in such a manner as to minimize dust from
becoming airborne,'' and then added the following sentence to 33-15-03-
04.5 ``[h]owever, agricultural practices such as tilling of land,
application of fertilizers, harvesting of crops, and other activities
shall be managed in such a manner as to minimize dust from becoming
airborne''). In doing this the State modified the existing SIP by
removing the exemption and requirement related to agricultural
activities and fugitive dust under chapter 33-15-17, Restriction of
Fugitive Emissions, and adding the same requirement related to
agricultural activities and fugitive dust to chapter 33-15-03,
Restriction of Emission of Visible Air Contaminants. We view these
changes as non-substantive, SIP-strengthening, and clarifying because
it removes an exemption and moves a requirement to a related area in
the SIP. Third, the State inserted a reference to the exceptions found
in 33-15-03-04 to the restrictions on the emission of visible air
contaminants in chapter 33-15-03 Restriction of Emissions of Visible
Air Contaminants into 33-15-17-02.4, which has the effect of referring
the reader to exceptions already located within another chapter of the
State's rules, which we characterize as a clarifying revision. We
propose to approve all of these as clarifying, SIP-strengthening, and
non-substantive revisions.
Finally, we are not acting on the revision to 33-15-01-04 as this
revision to the incorporation by reference date is superseded by a
revision in the April 2014 submittal. We are also not acting on
revisions to 33-15-03-04.4 and 33-15-05-01.2a(1) to remove improper
exemptions from emissions limitations as we acted on these previously
(79 FR 63045). We will act on revisions to 33-15-14-02.1, 33-15-14-
02.5.a and 33-15-15-01-.2 in a future rulemaking and thus are not
acting on these revisions at this time.
B. April 22, 2014 SIP Submittal
The State's April 22, 2014 SIP submittal includes the following
types of amendments to the State's air quality rules: Revisions to
update the dates of incorporation by reference of the (1) PSD rules,
and (2) the definition of ``volatile organic compounds''; revisions to
lower the PM2.5 State ambient air quality standard;
revisions to clarify the permissible open burning rule; a revision that
clarifies that the required excess emissions reporting requirements are
for sources that operate continuous emission monitors; and a revision
that removes a category of fees.
The CAA requires the regulation of volatile organic compounds
(VOCs) for various purposes. For example, tropospheric ozone, commonly
known as smog, is formed when VOC and nitrogen oxides (NOX)
react in the atmosphere in the presence of sunlight. Thus, because of
the harmful health effects of ozone, the EPA and state governments
limit the amount of VOC--organic compounds of carbon--that can be
released into the atmosphere. Section 302(s) of the CAA specifies that
the EPA has the authority to define the meaning of ``VOC,'' and hence
what compounds shall be treated as VOC for regulatory purposes. The EPA
defines VOCs at 40 CFR 51.100(s) and VOC exclusions, determined to have
negligible photochemical reactivity, at 51.100(s)(1). In its January
2013 submittal, the State updates 33-15-01-04, Definitions, to include
the incorporation by reference of 40 CFR 51.100(s) as it exists on
January 1, 2012. Subsequently, in its April 2014 submittal, the State
updates 33-15-01-04, Definitions, again to include the incorporation by
reference of 40 CFR 51.100(s) as it exists on July 1, 2013. The April
2014 submittal supersedes the January 2013 submittal, thus we are
proposing to approve the April 2014 revision because it incorporates by
reference the EPA's rule provisions.
The CAA also requires the EPA to set National Ambient Air Quality
Standards (40 CFR part 50) for pollutants considered harmful to public
health and the environment and identifies two types of national ambient
air quality standards: Primary standards provide public health
protection, including protecting the health of ``sensitive''
populations such as asthmatics, children, and the elderly; and
Secondary standards provide public welfare protection, including
protection against decreased visibility and damage to animals, crops,
vegetation, and buildings. In 2012 (78 FR 3086), the EPA revised the
primary (health-based) annual PM2.5 standard by lowering the
level from 15 micrograms per cubic meter ([mu]g/m\3\) to 12.0 [mu]g/
m\3\ so as to provide increased protection against health effects
associated with long- and short-term exposures (including premature
mortality, increased hospital admissions and emergency department
visits, and development of chronic respiratory disease). Accordingly,
the State's April 2014 submittal revises the PM2.5 primary
standard in Table 1. Ambient Air Quality Standards of chapter 33-15-02
from 15.0 [mu]g/m\3\ to match the federal standard of 12.0 [mu]g/m\3\.
We propose to approve this revision because it is consistent with the
federal standard.
In addition, we propose to approve revisions in the April 2014
submittal that revise 33-15-04-02.2.a to require that any type of
permissible burning listed in 33-15-04-02.1 will not create ``air
pollution'' as defined by the State in 33-15-04 (33-15-04-02.2.a); and
to
[[Page 58441]]
delete the existing SIP requirement in 33-15-04-02.2.a (73 FR 30308),
that prohibited permissible burning listed in 33-15-04-02.1 from
creating a public nuisance (``No public nuisance is or will be
created''). We propose to approve these revisions because they
strengthen the SIP by prohibiting open burning that creates air
pollution where ``one or more air contaminants in such quantities and
duration as is or may be injurious to human health, welfare, or
property or animal or plant life, or which unreasonably interferes with
the enjoyment of life or property.''
We also propose to approve the clarification to the applicability
of excess emissions reporting and recordkeeping requirements for
continuous emission monitoring requirements (33-15-06-05.1). We propose
to approve this revision because it clarifies the existing SIP
provision (58 FR 54041) and explains that the emission monitoring
requirements referenced in 33-15-06-05.1 are those performed for
continuous emission monitoring (adding the phrase ``in accordance with
section 33-15-06-04'').
In the April 2014 submittal, the State also revised the
incorporation by reference date of 40 CFR 52.21 into the state
regulations to July 1, 2013 (33-15-15-01.2). As previously discussed in
III.A., we approved the incorporation of 40 CFR 52.21(b)(14)(i) through
(iii); (b)(15)(i) and (ii); and paragraph (c) pertaining to major and
minor source baseline dates and ambient air increments in our July 30,
2013 final rule (78 FR 45866) by adding paragraphs (c) and (d) to 40
CFR 52.1829. We propose to approve the State's revision of the
incorporation by reference date to July 1, 2013 because it references
our regulations, and in doing so, propose to delete paragraphs (c) and
(d) in 40 CFR 52.1829 as they would no longer be needed and would be
duplicative if retained. The State also added the reference to
``title'' before the federal regulation citation in this section (first
paragraph), and as this is for clarification purposes, we propose to
approve this addition.
We are proposing to approve the State's deletion of the criteria
for the ``Monitor'' category (33-15-23-03.01) from the SIP. These
criteria explain the ``Monitor'' fee is a charge that applies to minor
sources that is ``in addition to the annual fee for any source
operating a continuous emission monitor system (CEMS) or an ambient
monitoring site.'' The State's January 2013 SIP submittal indicates
that this fee is no longer being charged.\2\ Thus, removal of the
``Monitor'' category corresponds to the State's revision in their
January 2013 submittal (removing the annual fee for minor sources that
operate an emission monitor or ambient air quality monitoring site),
which we propose to approve in section III.A.
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\2\ April 2014 State SIP Submittal, PDF page 14.
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Finally, we are not acting on the State's revision to 33-15-03-05
and will instead take action on this revision in a future rulemaking.
IV. What action is the EPA taking?
For the reasons expressed in III.A. and III.B., the EPA is
proposing to approve the following revisions, shown in Table 1, to the
State's Air Pollution Control rules. We are also proposing to not act
on several other revisions, shown in Table 2, for the reasons discussed
in III.A. and III.B. and summarized below.
Table 1--List of North Dakota Revisions That the EPA Is Proposing To
Approve
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Revised sections in January 28, 2013 and April 22, 2014 submissions
proposed for approval
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January 28, 2013 submittal: 33-15-01-05; 33-15-01-13.3; 33-15-03-04.5;
33-15-05-04.3; 33-15-14-02.13.c(4); 33-15-15-01.2 [dagger]; 33-15-17-
02.4; 33-15-17-02.6; 33-15-23-02.2.c; 33-15-23-03.1.
April 22, 2014 submittal: 33-15-01-04; 33-15-02, Table 1.; 33-15-04-
02.2.a; 33-15-06-05.1; 33-15-15-01.2; 33-15-23-03.
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[dagger] Except for the incorporation by reference date in the first
paragraph and the revision associated with 40 CFR 52.21(l)(1).
Table 2--List of North Dakota Revisions That the EPA Is Proposing To Take No Action On
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Revision Revision will
superseded by Revision acted be acted on in
Revised section April 22, 2014 on in 79 FR a future
submittal 63045 submittal
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Revised Sections in January 28, 2013 Submission Proposed for No Action
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33-15-01-04.................................................. x
33-15-03-04.4................................................ x
33-15-05-01.2a(1)............................................ x
33-15-14-02.1................................................ x
33-15-14-02.5.a.............................................. x
33-15-15-01.2 [Dagger]....................................... x
33-15-15-01.2 Sec. ......................................... x
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Revised Section in April 22, 2014 Submission Proposed for No Action
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33-15-03-05.................................................. x
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[Dagger] Only the revision to the incorporation by reference date in the first paragraph.
Sec. Only the revision associated with 40 CFR 52.21(l)(1).
V. Incorporation by Reference
In this rule, the EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by
reference North Dakota Administrative Code as described in section IV.
of this preamble. The EPA has made, and will continue to make, these
materials generally available through www.regulations.gov and/or at the
EPA Region 8 Office (please contact the
[[Page 58442]]
person identified in the ``For Further Information Contact'' section of
this preamble for more information).
VI. Statutory and Executive Orders Review
Under the CAA, 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 choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves some state law as meeting federal
requirements; this proposed action does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed 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 CAA; 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).
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 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, Greenhouse
gases, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and
recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: August 11, 2016.
Debra H. Thomas,
Acting Regional Administrator, Region 8.
[FR Doc. 2016-20320 Filed 8-24-16; 8:45 am]
BILLING CODE 6560-50-P