
[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43153-43156]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17742]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R02-OAR-2010-1025; FRL-9436-2]


Approval and Promulgation of Air Quality Implementation Plan; New 
Jersey and New York; Final Disapproval of Interstate Transport State 
Implementation Plan Revision for the 2006 24-Hour PM2.5 
NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action 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 sections of the Clean Air Act (CAA) concerning interstate 
transport requirements, and the sections of the CAA concerning 
infrastructure requirements. On March 23, 2010, New York submitted a 
SIP revision to address the section 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 taking final 
action to disapprove the portion of the New Jersey and the New York SIP 
revisions that addresses the requirement prohibiting a state's 
emissions from significantly contributing to nonattainment or 
interfering with maintenance of the NAAQS in any other state. The 
remaining elements of the submittals are not addressed in this action 
and will be addressed in a separate action. The intended effect of this 
action will be the implementation of a Federal Implementation Plan 
(FIP) for the State no later than 2 years from date of the disapproval. 
The proposed Transport Rule, when final, is the FIP that EPA intends to 
implement for the State.

DATES: Effective Date: This rule is effective on August 19, 2011.

ADDRESSES: EPA has established a docket for this action under Docket 
Identification No. EPA-R02-OAR-2010-1025. All documents in the docket 
are listed at http://www.regulations.gov. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through 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. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The Docket telephone number is 212-
637-4249.

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 comments did EPA receive in response to the proposal?
III. What are EPA's conclusions?
    IV. Statutory and Executive Order Reviews

I. What action is EPA taking?

    EPA is taking final action to disapprove portions of the 
submissions from the State of New Jersey and the State of New York that 
were submitted to demonstrate that those states have adequately 
addressed elements of CAA section 110(a)(2)(D)(i)(I). Those elements 
require a state's SIP to contain

[[Page 43154]]

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. The New Jersey and New York submissions do 
not contain adequate provisions to prohibit air pollutant emissions 
from within the states from significantly contributing to nonattainment 
in or interference with maintenance of the 2006 24-hour 
PM2.5 NAAQS in other downwind states.
    The remaining elements of the New Jersey and New York submittals, 
including the section 110 infrastructure, and section 
110(a)(2)(D)(i)(II) regarding interfering with measures required in the 
applicable SIP for another state designed to prevent significant 
deterioration of air quality and protect visibility, are not addressed 
in this action and will be acted on in a separate rulemaking.
    For additional details on EPA's analysis and findings, the reader 
is referred to the proposal published in the January 26, 2011 Federal 
Register (76 FR 4579) which is available on line at http://www.regulations.gov, Docket number EPA-R02-OAR-2010-1025.

II. What comments did EPA receive in response to the proposal?

    EPA received one comment letter on the January 26, 2011 proposal. 
The letter can be found on the internet in the electronic docket for 
this action. To access the letter, please go to http://www.regulations.gov and search for Docket No. EPA-R02-OAR-2010-1025, or 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
paragraph above. The discussion below addresses those comments and our 
response.

A. Comment From the State of New Jersey Concerning the New Jersey 
Submittal

    Comment: The commenter requests that EPA approve its SIP Revision 
because New Jersey has adopted multi-pollutant performance standards 
and met its rule commitments to address the emissions from electric 
generating units. In addition, New Jersey's air quality levels are in 
compliance with the 2006 24-hour PM2.5 NAAQS.
    EPA Response: EPA recognizes New Jersey's actions in improving air 
quality in the state and reducing the transport of emissions to 
downwind areas, including adopting multi-pollutant performance 
standards for electric generating units. However, despite such actions 
by New Jersey, EPA's evaluation, as discussed in the proposed 
disapproval, demonstrated that New Jersey's submittal is inadequate.
    EPA notes that much of the recent improvement in air quality has 
resulted from the promulgation of the Clean Air Interstate Rule (CAIR). 
This rule was remanded to EPA in 2008 and will not remain in place 
indefinitely. Reductions associated with the CAIR thus also cannot be 
said to be permanent. EPA's modeling analysis, conducted for the 
proposed Transport Rule, as proposed on August 2, 2010, in the Federal 
Register (75 FR 45210) 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. 
Therefore, EPA cannot approve New Jersey's submittal.

III. What are EPA's conclusions?

    EPA has evaluated the New Jersey and New York submittals for 
consistency with the CAA, EPA regulations, and EPA policy. The 
demonstrations submitted by New Jersey and New York do not meet the 
requirements of section 110(a)(2)(D)(i)(I) because the states did not 
evaluate or demonstrate with a technical analysis that the emissions 
reduction measures provided in their SIP revisions assure that they do 
not contribute significantly to nonattainment or interfere with 
maintenance of the 2006 24-hour PM2.5 NAAQS. Accordingly, 
EPA is finalizing the disapproval of the portions of the New Jersey and 
the New York SIP revisions that address 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.
    EPA is taking no action at this time on the remainder of the 
demonstration, including sections 110(a)(1) and (2) regarding 
infrastructure requirements, and section 110(a)(2)(D)(i)(II) regarding 
interference with measures required in the applicable SIP for another 
state designed to prevent significant deterioration of air quality and 
protect visibility. They will be addressed in a separate rulemaking.
    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 110(k)(5) (42 U.S.C. 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, no 
sanctions are triggered for this disapproval.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, 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 Orders 12866 and 
13563 (76 FR 3821, January 21, 2011).

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 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 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 rule on small 
entities, I certify that this action will not have a significant impact 
on a substantial

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number of small entities. This rule does not impose any requirements or 
create impacts on small entities. This 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.

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 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 disapproves 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 disapproving 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 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 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 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 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 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.
    K. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
action and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States prior to publication of the rule in the Federal Register. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register.

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This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
    L. Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by September 19, 2011. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

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, Incorporation by 
reference, Intergovernmental relations, Particulate matter.

     Dated: June 1, 2011.
Judith A. Enck,
Regional Administrator, Region 2.
[FR Doc. 2011-17742 Filed 7-19-11; 8:45 am]
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