
[Federal Register Volume 76, Number 17 (Wednesday, January 26, 2011)]
[Proposed Rules]
[Pages 4579-4584]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-1624]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2010-1025; FRL-9253-8]


Approval and Promulgation of Air Quality Implementation Plan; New 
Jersey and New York; Disapproval of Interstate Transport State 
Implementation Plan Revision for the 2006 24-Hour PM[ihel2].[ihel5] 
NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Pursuant to our authority under the Clean Air Act (CAA), EPA 
is proposing to disapprove the New Jersey and the New York State 
Implementation Plan (SIP) revisions submitted to address significant 
contribution to nonattainment or interference with maintenance in 
another State with respect to the 2006 24-hour fine particle 
(PM2.5) national ambient air quality standards (NAAQS). On 
January 20, 2010, New Jersey submitted a SIP revision to address 
section 110(a)(2)(D)(i) of the CAA concerning interstate transport 
requirements, and sections 110(a)(1) and (2) of the CAA concerning 
infrastructure requirements. On March 23, 2010, New York submitted a 
SIP revision to address the section 110(a)(2)(D)(i) of the CAA 
concerning interstate transport, and sections 110(a)(1) and (2) of the 
CAA concerning infrastructure SIP requirements. In this action, EPA is 
proposing to disapprove the portion of the New Jersey and the New York 
SIP revisions that addresses the section 110(a)(2)(D)(i)(I) requirement 
prohibiting a State's emissions from significantly contributing to 
nonattainment or interfering with maintenance of the NAAQS in any other 
State. The rationale for the disapproval action of the SIP revision is 
described in this proposal.

DATES: Comments must be received on or before February 25, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
OAR-2010-1025, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: Werner.Raymond@epa.gov.
    3. Fax: (212) 637-3901.
    4. Mail: Raymond Werner, Chief, Air Programs Branch, Environmental 
Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, 
New York 10007-1866.
    5. Hand Delivery or Courier. Deliver your comments to: Raymond 
Werner, Chief, Air Programs Branch, Environmental Protection Agency, 
Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-
1866. Such deliveries are only accepted during the Regional Office's 
normal hours of operation. The Regional Office's official business 
hours are Monday through Friday, 8:30 to 4:30, excluding Federal 
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-
2010-1025. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute.

[[Page 4580]]

Do not submit through http://www.regulations.gov, or e-mail, 
information that you consider to be CBI or otherwise protected. The 
http://www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket, visit 
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in http://www.regulations.gov or in hard copy at the Environmental Protection 
Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, 
New York, New York 10007-1866. EPA requests that if at all possible, 
you contact the contact 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 legal 
holidays.

FOR FURTHER INFORMATION CONTACT: Kenneth Fradkin 
(fradkin.kenneth@epa.gov), Air Programs Branch, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, (212) 637-4249.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This section provides 
additional information by addressing the following questions:

I. What action Is EPA taking?
II. What is the background for this action?
III. What is EPA's evaluation of New Jersey's submittal?
IV. What is EPA's evaluation of New York's submittal?
V. Statutory and Executive Order Reviews

I. What action is EPA taking?

    We are proposing to disapprove portions of the submissions from the 
State of New Jersey and the State of New York that were to demonstrate 
that the States have adequately addressed elements of CAA section 
110(a)(2)(D)(i)(I). Those elements require a State's SIP to contain 
adequate provisions to prohibit air pollutant emissions from sources 
within a State from significantly contributing to nonattainment in or 
interference with maintenance of the 2006 24-hour PM2.5 
NAAQS in any other State. We are proposing to determine that the New 
Jersey and New York submissions do not contain adequate provisions to 
prohibit air pollutant emissions from within the States that 
significantly contribute to nonattainment in or interference with 
maintenance of the 2006 24-hour PM2.5 NAAQS in other 
downwind States. The remaining elements of the submittal, including the 
section 110 infrastructure, and section 110(a)(2)(D)(i)(II) regarding 
interference with measures required in the applicable SIP for another 
State designed to prevention of significant deterioration of air 
quality and protect visibility, are not addressed in this action and 
will be acted on in a separate rulemaking.

II. What is the background for this action?

    On December 18, 2006, EPA revised the 24-hour average 
PM2.5 primary and secondary NAAQS from 65 micrograms per 
cubic meter ([micro]g/m\3\) to 35 [micro]g/m\3\. Section 110(a)(1) of 
the CAA requires States to submit infrastructure SIPs to address a new 
or revised NAAQS within 3 years after promulgation of such standards, 
or within such shorter period as EPA may prescribe.\1\ As provided by 
section 110(k)(2), within 12 months of a determination that a submitted 
SIP is complete under 110(k)(1), the Administrator shall act on the 
plan. As authorized by section 110(k)(3) of the CAA, where the portions 
of the State submittals are severable, EPA may decide to approve only 
those severable portions of the submittals that meet the requirements 
of the CAA. When the deficient provisions are not severable from all of 
the submitted provisions, EPA must propose disapproval of the 
submittals, consistent with section 110(k)(3) of the CAA.
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    \1\ The rule for the revised PM2.5 NAAQS was signed 
by the Administrator and publically disseminated on September 21, 
2006. Because EPA did not prescribe a shorter period for 110(a) SIP 
submittals, these submittals for the 2006 24-hour NAAQS were due on 
September 21, 2009, three years from the September 21, 2006 
signature date.
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    CAA section 110(a)(2) lists the elements that infrastructure SIPs 
must address, as applicable, including section 110(a)(2)(D)(i), which 
pertains to interstate transport of certain emissions. On September 25, 
2009, EPA issued its ``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)'' (2009 Guidance). EPA 
developed the 2009 Guidance to make recommendations to States for 
making submissions to meet the requirements of section 110, including 
110(a)(2)(D)(i), for the revised 2006 24-hour PM2.5 NAAQS.
    As identified in the 2009 Guidance, the ``good neighbor'' 
provisions in section 110(a)(2)(D)(i) require each State to submit a 
SIP that prohibits emissions that adversely affect another State in the 
ways contemplated by the statute. Section 110(a)(2)(D)(i) contains four 
distinct requirements related to the impacts of interstate transport. 
The SIP must prevent sources in the State from emitting pollutants in 
amounts which will: (1) Contribute significantly to nonattainment of 
the NAAQS in other States; (2) interfere with maintenance of the NAAQS 
in other States; (3) interfere with provisions to prevent significant 
deterioration of air quality in other States; or (4) interfere with 
efforts to protect visibility in other States.
    In the 2009 Guidance, EPA indicated that SIP submissions from 
States, pertaining to the ``significant contribution'' and ``interfere 
with maintenance'' requirements of section 110(a)(2)(D)(i), must 
contain adequate provisions to prohibit air pollutant emissions from 
within the State that contribute significantly to nonattainment or 
interfere with maintenance of the NAAQS in any other State. EPA further 
indicated that the State's submission must explain whether or not 
emissions from the State have this impact and, if so, address the 
impact. EPA stated that the State's conclusion must be supported by an 
adequate technical analysis. EPA recommended the various types of 
information that could be relevant to support the State SIP submission, 
such as information concerning emissions in the State, meteorological 
conditions in

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the State and the potentially impacted States, monitored ambient 
concentrations in the State, and air quality modeling. Furthermore, EPA 
indicated that States should address independently the ``interfere with 
maintenance'' requirement. This requires an evaluation of impacts on 
areas of other States that are meeting the 2006 24-hour 
PM2.5 NAAQS, not merely areas designated nonattainment. 
Lastly, in the 2009 Guidance, EPA stated that States could not rely on 
the Clean Air Interstate Rule (CAIR) to comply with CAA section 
110(a)(2)(D)(i) requirements for the 2006 24-hour PM2.5 
NAAQS because CAIR does not address this NAAQS.
    EPA promulgated CAIR on May 12, 2005, (70 FR 25162). CAIR required 
States to reduce emissions of sulfur dioxide (SO2) and nitrogen oxides 
(NOX) that significantly contribute to, and interfere with 
maintenance of the 1997 NAAQS for PM2.5 and/or ozone in any 
downwind State. CAIR was intended to provide States covered by the rule 
with a mechanism to satisfy their CAA section 110(a)(2)(D)(i)(I) 
obligations to address significant contribution to downwind 
nonattainment and interference with maintenance in another State with 
respect to the 1997 ozone and PM2.5 NAAQS. Many States 
adopted the CAIR provisions and submitted SIPs to EPA to demonstrate 
compliance with the CAIR requirements in satisfaction of their 
110(a)(2)(D)(i)(I) obligations for those two pollutants.
    EPA was sued by a number of parties on various aspects of CAIR, and 
on July 11, 2008, the U.S. Court of Appeals for the District of 
Columbia Circuit issued its decision to vacate and remand both CAIR and 
the associated CAIR Federal Implementation Plans (FIP) in their 
entirety. North Carolina v. EPA, 531 F.3d 836 (DC Cir. Jul. 11, 2008). 
However, in response to EPA's petition for rehearing, the Court issued 
an order remanding CAIR to EPA without vacating either CAIR or the CAIR 
FIPs. North Carolina v. EPA, 550 F.3d 1176 (DC Cir. Dec. 23, 2008). The 
Court thereby left CAIR in place in order to ``temporarily preserve the 
environmental values covered by CAIR'' until EPA replaces it with a 
rule consistent with the Court's opinion. Id. at 1178. The Court 
directed EPA to ``remedy CAIR's flaws'' consistent with its July 11, 
2008 opinion, but declined to impose a schedule on EPA for completing 
that action. Id.
    In order to address the judicial remand of CAIR, EPA has proposed a 
new rule to address interstate transport pursuant to section 
110(a)(2)(D)(i), the ``Federal Implementation Plans to Reduce 
Interstate Transport of Fine Particulate Matter and Ozone'' (Transport 
Rule).\2\ As part of the proposed Transport Rule, EPA specifically 
examined the section 110(a)(2)(D)(i)(I) requirement that emissions from 
sources in a State must not ``significantly contribute to 
nonattainment'' and ``interfere with maintenance'' of the 2006 24-hour 
PM2.5 NAAQS by other States. The modeling performed for the 
proposed Transport Rule shows that New Jersey and New York 
significantly contribute to nonattainment or interfere with maintenance 
of the 2006 24-hour PM2.5 NAAQS in downwind areas.
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    \2\ See ``Federal Implementation Plans to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75 
FR 45210 (August 2, 2010).
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    On January 20, 2010, EPA received a SIP revision from the State of 
New Jersey that was to address the requirements of section 
110(a)(2)(D)(i) pertaining to interstate transport and sections 
110(a)(1) and (2) pertaining to infrastructure for the 2006 24-hour 
PM2.5 NAAQS. On March 23, 2010, EPA received a SIP revision 
from the State of New York that was to address the requirements of 
section 110(a)(2)(D)(i) pertaining to interstate transport and sections 
110(a)(1) and (2) pertaining to infrastructure for the 2006 24-hour 
PM2.5 NAAQS. In this rulemaking, EPA is addressing only the 
requirements that pertain to prohibiting sources in New Jersey and New 
York from emitting air pollutants that will significantly contribute to 
nonattainment or interfere with maintenance of the 2006 24-hour 
PM2.5 NAAQS in other States.
    In its submission, the State of New Jersey provided an analysis 
showing that the State significantly contributed to nonattainment or 
interferes with the maintenance of the 2006 24 hour PM2.5 
NAAQS in seven northeastern and Mid-Atlantic States (i.e. Connecticut, 
Delaware, Maryland, Massachusetts, New Hampshire, New York, and 
Pennsylvania). New Jersey included a list of measures that were 
recently adopted by the State to reduce PM2.5, 
SO2, NOX, and volatile organic carbon (VOC) 
emissions.
    In its submission, the State of New York provided a list of 
measures from the attainment SIP revision for the 1997 PM2.5 
NAAQS submitted by New York on October 27, 2009, including CAIR program 
rules, and the attainment SIP revision submitted by New York on 
February 8, 2008 for the 1997 8-hour Ozone NAAQS, that are expected to 
help achieve compliance with the 2006 24-hour PM2.5 NAAQS. 
New York also provided a commitment to the adoption of measures 
identified by EPA as needed as to address the interstate transport for 
the 2006 PM2.5 NAAQS upon EPA's completion of the 
rulemaking.

III. What is EPA's evaluation of New Jersey's submittal?

    On January 20, 2010, New Jersey submitted a SIP revision to address 
the requirements of 110(a)(2)(D)(i)(I) with respect to the 2006 
PM2.5 NAAQS. New Jersey provided an analysis showing that 
the State significantly contributed to seven northeastern and Mid-
Atlantic States (i.e. Connecticut, Delaware, Maryland, Massachusetts, 
New Hampshire, New York, and Pennsylvania). New Jersey based its 
assessment on a weight-of-evidence analysis approach using the results 
of four modeling analysis to determine significant contribution: EPA 
modeling performed for CAIR and the NOX SIP call,\3\ 
Regional Haze SIP modeling performed by the Northeast States for 
Coordinated Air Use Management (NECAUM), and State Collaborative 
Modeling performed by the Midwestern, Mid-Atlantic, and Northeastern 
States to estimate interstate impacts and assess future control 
programs for ozone and particulate matter standards. New Jersey 
included a list of measures that were recently adopted by the State to 
reduce PM2.5, SO2, NOX, and VOC 
emissions. In its SIP revision, New Jersey indicated that it was 
confident that these actions were more than adequate to address its 
contribution to downwind areas. New Jersey also provided a list of 
measures that it was either proposing or evaluating that would further 
reduce PM2.5 emissions. However, modeling conducted by EPA 
for the proposed Transport Rule demonstrates that emissions from New 
Jersey significantly contribute to nonattainment or interfere with 
maintenance of the 2006 24-hour PM2.5 NAAQS in downwind 
areas. EPA's 2009 Guidance directed that a State's SIP submission 
pertaining to the requirement of section 110(a)(2)(D)(i)(I) must be 
supported by an adequate technical analysis. In the 2009 Guidance, EPA 
recommended the various types of information that could be relevant to 
support a State's SIP submission. EPA has determined that the New 
Jersey demonstration does not meet the requirements of

[[Page 4582]]

110(a)(2)(D)(i)(I) because the State did not evaluate or demonstrate 
with a technical analysis that the emissions reduction measures 
provided in the SIP revision assure that New Jersey does not contribute 
significantly to nonattainment, or interfere with maintenance of the 
2006 24-hour PM2.5 NAAQS. Additionally, the SIP submittal 
did not go through public notice and comment.
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    \3\ In October, 1998, EPA finalized the ``Finding of Significant 
Contribution and Rulemaking for Certain States in the Ozone 
Transport Assessment Group Region for Purposes of Reducing Regional 
Transport of Ozone''--commonly called the ``NOX SIP 
Call.'' See 63 FR 57356 (October 27, 1998).
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    The submitted provisions are severable. Therefore, EPA is proposing 
to disapprove those provisions which address the 110(a)(2)(D)(i)(I) 
demonstration and to take no action at this time on the remainder of 
the demonstration.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a Part D Plan (42 U.S.C. 7501-515) or 
is required in response to a finding of substantial inadequacy as 
described in 7410(k)(5) (SIP call) starts a sanctions clock. The 
provisions in the submittal we are disapproving were not submitted to 
meet either of those requirements. Therefore, if EPA takes final action 
to disapprove this submittal, no sanctions will be triggered.
    The full or partial disapproval of a State implementation plan 
revision triggers the requirement under section 110(c) that EPA 
promulgate a FIP no later than 2 years from the date of the disapproval 
unless the State corrects the deficiency, and the Administrator 
approves the plan or plan revision before the Administrator promulgates 
such FIP. The proposed Transport Rule, when final, is the FIP that EPA 
intends to implement for the State.

IV. What is EPA's evaluation of New York's submittal?

    On March 23, 2010, New York submitted a SIP revision to address the 
requirements of 110(a)(2)(D)(i)(I) with respect to the 2006 24-hour 
PM2.5 NAAQS. New York indicated that emission reductions 
from measures proposed in the attainment SIP revision submitted by New 
York on October 27, 2009 for the 1997 PM2.5 NAAQS, including 
CAIR program rules, are expected to help achieve compliance with the 
2006 24-hour PM2.5 NAAQS. New York further stated that all 
of the measures are expected to be adequate based on EPA's prior CAIR 
assessment, the effects of New York's attainment SIP revision for the 
1997 PM2.5 NAAQS, the attainment SIP revision submitted by 
New York on February 8, 2008 for the 1997 8-hour Ozone NAAQS, and the 
supporting effects of New York's permitting programs. The State of New 
York also commits to the adoption of measures identified by EPA as 
needed as to address the interstate transport for the 2006 
PM2.5 NAAQS upon EPA's completion of the rulemaking.
    The modeling conducted by EPA for the proposed Transport Rule 
demonstrates that emissions from New York significantly contribute to 
nonattainment or interfere with maintenance of the 2006 24-hour 
PM2.5 NAAQS in downwind areas. EPA's 2009 Guidance directed 
that a State's SIP submission pertaining to the requirement of section 
110(a)(2)(D)(i)(I) must be supported by an adequate technical analysis. 
EPA recommended the various types of information that could be relevant 
to support a State's SIP submission. The State did not evaluate or 
demonstrate with a technical analysis that the emission reduction 
measures provided in the SIP revision assure that New York does not 
contribute significantly to, or interfere with maintenance of the 2006 
24-hour PM2.5 NAAQS. The State's submittal indicates that it 
is meeting its 110(a)(2)(D)(i)(I) obligations with respect to the 2006 
PM2.5 NAAQS in part by virtue of the continuing 
applicability of CAIR program requirements at both the Federal and 
State levels. However, CAIR was promulgated before the 24-hour 
PM2.5 NAAQS were revised in 2006 and does not address 
interstate transport with respect to the 2006 PM2.5 
NAAQS.\4\ Thus, EPA's 2009 Guidance explicitly notes that reliance on 
CAIR cannot be used to comply with section 110(a)(2)(D)(i)(I) for the 
respective 2006 NAAQS. Because New York's submittal relies on CAIR to 
address the requirements of 110(a)(2)(D)(i)(I) with respect to the 2006 
PM2.5 NAAQS this submission is deficient. Several States 
claim that controls planned for, or already installed on, sources 
within the State to meet the CAIR provisions satisfied section 
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. 
However, States will not be able to permanently rely upon the emissions 
reductions predicted by CAIR, because EPA needs to address the concerns 
of the Court as outlined in its decision remanding CAIR. For this 
reason, EPA cannot approve New York's SIP submission pertaining to the 
requirements of section 110(a)(2)(D)(i)(I) because it relies on CAIR 
for emission reduction measures. Based upon our evaluation, EPA is 
proposing to disapprove the New York SIP revision because it does not 
meet the requirements of section 110(a)(2)(D)(i)(I) of the CAA.
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    \4\ Further, as explained above and in the Transport Rule 
proposal [75 FR 45210 (August 2, 2010)], the DC Circuit in North 
Carolina v. EPA found that EPA's quantification of States' 
significant contribution and interference with maintenance in CAIR 
was improper and remanded the rule to EPA. CAIR remains in effect 
only temporarily.
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    The submitted provisions are severable from each other. Therefore, 
EPA is proposing to disapprove those provisions that relate to the 
110(a)(2)(D)(i)(I) demonstration and to take no action on the remainder 
of the demonstration at this time.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a Part D Plan (42 U.S.C. 7501-7515) or 
is required in response to a finding of substantial inadequacy as 
described in section 7410(k)(5) of the Act (SIP call) starts a 
sanctions clock. The provisions in the submittal we are disapproving 
were not submitted to meet either of those requirements. Therefore, if 
EPA takes final action to disapprove this submittal, no sanctions will 
be triggered.
    The full or partial disapproval of a State implementation plan 
revision triggers the requirement under section 110(c) that EPA 
promulgate a FIP no later than 2 years from the date of the 
disapproval, unless the State corrects the deficiency, and the 
Administrator approves the plan or plan revision before the 
Administrator promulgates such FIP. The proposed Transport Rule, when 
final, is the FIP that EPA intends to implement for the State.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to act on State law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by State law.

A. Executive Order 12866, Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because this proposed SIP disapproval under section 110 and subchapter 
I, part D of the Clean Air Act will not in-and-of itself create any new 
information collection

[[Page 4583]]

burdens but simply disapproves certain State requirements for inclusion 
into the SIP. Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions. For purposes of assessing the impacts of today's rule on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (2) a small governmental jurisdiction that is a government 
of a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the Clean Air Act will not in-and-of itself create any new requirements 
but simply disapproves certain State requirements for inclusion into 
the SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the Clean Air Act prescribes that various consequences (e.g., higher 
offset requirements) may or will flow from this disapproval does not 
mean that EPA either can or must conduct a regulatory flexibility 
analysis for this action. Therefore, this action will not have a 
significant economic impact on a substantial number of small entities.
    We continue to be interested in the potential impacts of this 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or Tribal governments or the private 
sector.'' EPA has determined that the proposed disapproval action does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either State, local, or Tribal governments in 
the aggregate, or to the private sector. This action proposes to 
disapprove pre-existing requirements under State or local law, and 
imposes no new requirements. Accordingly, no additional costs to State, 
local, or Tribal governments, or to the private sector, result from 
this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain State requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, Executive 
Order 13132 does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not apply in Indian country 
located in the State, and EPA notes that it will not impose substantial 
direct costs on Tribal governments or preempt Tribal law. Thus, 
Executive Order 13175 does not apply to this action.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is not an 
economically significant regulatory action based on health or safety 
risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). 
This proposed SIP disapproval under section 110 and subchapter I, part 
D of the Clean Air Act will not in-and-of itself create any new 
regulations but simply disapproves certain State requirements for 
inclusion into the SIP.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    The EPA believes that this action is not subject to requirements of 
Section 12(d) of NTTAA because application of those requirements would 
be inconsistent with the Clean Air Act.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to

[[Page 4584]]

make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove State choices, based on the criteria 
of the Clean Air Act. Accordingly, this action merely proposes to 
disapproves certain State requirements for inclusion into the SIP under 
section 110 and subchapter I, part D of the Clean Air Act and will not 
in-and-of itself create any new requirements. Accordingly, it does not 
provide EPA with the discretionary authority to address, as 
appropriate, disproportionate human health or environmental effects, 
using practicable and legally permissible methods, under Executive 
Order 12898.

Statutory Authority

    The statutory authority for this action is provided by sections 110 
of the CAA, as amended (42 U.S.C. 7410).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter.

    Dated: January 4, 2011.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2011-1624 Filed 1-25-11; 8:45 am]
BILLING CODE 6560-50-P


