
[Federal Register Volume 77, Number 146 (Monday, July 30, 2012)]
[Proposed Rules]
[Pages 44555-44560]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18547]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0398; FRL-9707-5]


Partial Approval and Disapproval of Air Quality Implementation 
Plans; Arizona; State Board Requirements for Ozone and Fine Particulate 
Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to partially approve and partially disapprove 
a State

[[Page 44556]]

Implementation Plan (SIP) revision submitted by the State of Arizona to 
address the requirements of section 110(a)(2)(E)(ii) of the Clean Air 
Act (CAA) for the 1997 8-hour ozone national ambient air quality 
standards (NAAQS) and the 1997 and 2006 NAAQS for fine particulate 
matter (PM2.5). EPA is proposing to approve the state's 
provisions regarding disclosure of potential conflicts of interest 
under 128(a)(2), but is proposing to disapprove, on narrow grounds, 
their 128(a)(1) provisions regarding board composition because these 
provisions do not apply to enforcement orders. We encourage the State 
to submit a revised SIP to address this very narrow deficiency, and we 
stand ready to work with the State to develop a revised plan. We are 
taking comments on this proposal and plan to follow with a final 
action.

DATES: Written comments must be received on or before August 29, 2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R09-OAR-2012-0398, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: r9_airplanning@epa.gov.
    3. Fax: 415-947-3579.
    4. Mail or deliver: Rory Mays (AIR-2), U.S. Environmental 
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 
94105-3901. Deliveries are only accepted during the Regional Office's 
normal hours of operation.
    Instructions: All comments 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 Confidential Business Information (CBI) or 
other information whose disclosure is restricted by statute. 
Information that you consider CBI or otherwise protected should be 
clearly identified as such and should not be submitted through http://www.regulations.gov or email. http://www.regulations.gov is an 
anonymous access system, and EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send email directly to EPA, your email address will be automatically 
captured and included as part of the public comment. 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.
    Docket: Generally, documents in the docket for this action are 
available electronically at www.regulations.gov and in hard copy at EPA 
Region IX, 75 Hawthorne Street, San Francisco, California. While all 
documents in the docket are listed at www.regulations.gov, some 
information may be publicly available only at the hard copy location 
(e.g., copyrighted material, large maps), and some may not be publicly 
available in either location (e.g., CBI). To inspect the hard copy 
materials, please schedule an appointment during normal business hours 
with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3227, 
mays.rory@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' refer to EPA.

Table of Contents

I. Background
    A. Regulatory History
    B. EPA Guidance
II. The State's Submittal
III. EPA's Evaluation
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. Background

A. Regulatory History

    On July 18, 1997, EPA issued a revised NAAQS for ozone\1\ and a new 
NAAQS for fine particulate matter (PM2.5).\2\ EPA 
subsequently revised the 24-hour PM2.5 NAAQS on September 
21, 2006.\3\ Each of these actions triggered a requirement for states 
to submit an infrastructure SIP to address the applicable requirements 
of section 110(a)(2) within three years of issuance of the new or 
revised NAAQS. Section 110(a)(2) includes a list of specific elements 
that each such plan submission must meet, including section 
110(a)(2)(E)(ii), which requires compliance with the requirements of 
section 128 of the CAA.
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    \1\ The 8-hour averaging period replaced the previous 1-hour 
averaging period, and the level of the NAAQS was changed from 0.12 
parts per million (ppm) to 0.08 ppm (62 FR 38856).
    \2\ The annual PM2.5 standard was set at 15 
micrograms per cubic meter ([mu]g/m\3\), based on the 3-year average 
of annual arithmetic mean PM2.5 concentrations from 
single or multiple community-oriented monitors and the 24-hour 
PM2.5 standard was set at 65 [mu]g/m\3\, based on the 3-
year average of the 98th percentile of 24-hour PM2.5 
concentrations at each population-oriented monitor within an area 
(62 FR 38652).
    \3\ The final rule revising the 24-hour NAAQS for 
PM2.5 from 65 [mu]g/m\3\ to 35 [mu]g/m\3\ was published 
in the Federal Register on October 17, 2006 (71 FR 61144).
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    On March 10, 2005, EPA entered into a Consent Decree with 
EarthJustice that obligated EPA to make official findings in accordance 
with section 110(k)(1) of the CAA as to whether states had made 
required complete SIP submissions, pursuant to sections 110(a)(1) and 
(2), by December 15, 2007 for the 1997 8-hour ozone NAAQS and by 
October 5, 2008 for the 1997 PM2.5 NAAQS. EPA made such 
findings for the 1997 8-hour ozone NAAQS on March 27, 2008 (73 FR 
16205) and for the 1997 PM2.5 NAAQS on October 22, 2008 (73 
FR 62902). In each case, EPA found that Arizona had failed to make a 
complete submittal to satisfy the requirements of section 
110(a)(2)(E)(ii).
    The State board SIP provisions in section 128 require each state to 
submit a SIP that contains requirements that (1) any board or body 
which approves permits or enforcement orders under the CAA shall have 
at least a majority of members who represent the public interest and do 
not derive any significant portion of their income from persons subject 
to permits or enforcement orders under the CAA; and (2) any potential 
conflicts of interest by members of such board or body or the head of 
an executive agency with similar powers be adequately disclosed. 42 
U.S.C. 7428.

B. EPA Guidance

    In 1978, EPA issued a guidance memorandum recommending ways States 
could meet the requirements of section 128 (``1978 Guidance''), 
including suggested interpretations of certain terms in section 128.\4\ 
EPA has not issued further guidance or regulations of general 
applicability on the subject since that time. However, as part of our 
proposals on other recent infrastructure actions, EPA has proposed 
certain interpretations of section 128 and invited comment on these 
interpretations. See, e.g., EPA's proposed rule on infrastructure SIP 
requirements for Hawaii (77 FR 21913, April 12, 2012). We are now 
proposing these same interpretations in relation to the Arizona 
infrastructure SIP.\5\
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    \4\ See Memorandum from David O. Bickart to Regional Air 
Directors, ``Guidance to States for Meeting Conflict of Interest 
Requirements of Section 128,'' Suggested Definitions, March 2, 1978.
    \5\ If EPA finalizes this action, the proposed interpretations 
will supersede (to the extent that they are inconsistent with) 
interpretations suggested in the 1978 guidance, at least for 
Arizona's SIP.
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II. The State's Submittals

    On October 14, 2009, ADEQ submitted the ``Arizona State 
Implementation Plan Revision under Clean Air Act Section 110(a)(2) and 
(2); 2006 PM2.5 NAAQS, 1997 PM2.5 NAAQS

[[Page 44557]]

and 1997 8-hour Ozone NAAQS,'' to address all of the CAA section 
110(a)(2) requirements except for section 110(a)(2)(G) \6\ for these 
three NAAQS (``2009 Infrastructure Submittal'').\7\ The 2009 
Infrastructure Submittal includes public process documentation 
(including public comments) and evidence of adoption.
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    \6\ In a separate rulemaking, EPA proposed to fully approve 
Arizona's SIP to address the requirements regarding air pollution 
emergency episodes in CAA section 110(a)(2)(G) for the 1997 8-hour 
ozone NAAQS. 77 FR 21911 (April 12, 2012).
    \7\ See letter dated October 14, 2009, from Eric C. Massey, Air 
Quality Director, ADEQ, to Laura Yoshii, Acting Regional 
Administrator, EPA Region 9.
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    On June 1, 2012, ADEQ submitted the ``Proposed Supplement to the 
Arizona State Implementation Plan under Clean Air Act Section 110(a)(1) 
and (2): Implementation of [1997 PM2.5 and 8-hour ozone 
NAAQS and 2006 PM2.5 NAAQS], Parallel Processing Version'' 
(``2012 Supplement''). The 2012 Supplement includes a number of 
statutes and regulations that are currently effective under State law 
but that have not been adopted specifically for submittal to EPA as a 
SIP revision under CAA section 110. By letter dated June 1, 2012, ADEQ 
submitted unofficial copies of these statutes and regulations to EPA 
with a request for ``parallel processing'' \8\ and stated its intention 
to submit these statutes and regulations as a formal SIP submittal, 
following reasonable notice and public hearings, by late August 
2012.\9\ ADEQ amended this request by letter dated June 14, 2012, to 
remove several statutes and regulations from the 2012 Supplement.\10\
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    \8\ Under EPA's ``parallel processing'' procedure, EPA proposes 
rulemaking action concurrently with the State's proposed rulemaking. 
If the State's proposed plan is changed, EPA will evaluate that 
subsequent change and may publish another notice of proposed 
rulemaking. If no significant change is made, EPA will publish a 
final rulemaking on the plan after responding to any submitted 
comments. Final rulemaking action by EPA will occur only after the 
plan has been fully adopted by Arizona and submitted formally to EPA 
for approval into the SIP. See 40 CFR part 51, appendix V, section 
2.3. We note that because ADEQ's rulemaking process here is solely 
for purposes of adopting the 2012 Supplement as a SIP revision under 
CAA section 110 and not for purposes of revising any of the statutes 
or regulations contained therein, we do not expect any significant 
changes between the proposed and final plans.
    \9\ See letter dated June 1, 2012, from Eric C. Massey, Air 
Quality Director, ADEQ, to Jared Blumenfeld, Regional Administrator, 
EPA Region 9.
    \10\ See letter dated June 14, 2012, from Eric C. Massey, Air 
Quality Director, ADEQ, to Jared Blumenfeld, Regional Administrator, 
EPA Region 9.
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    We are proposing to act on the 2009 Infrastructure Submittal, as 
supplemented and amended by the 2012 Supplement. We refer to the 2009 
Infrastructure Submittal and 2012 Supplement collectively as the ``2009 
Infrastructure SIP.''

III. EPA's Evaluation

    To determine whether the CAA section 110(a)(2)(E)(ii) requirements 
are satisfied, EPA must determine whether the State SIP has adequate 
board composition and disclosure requirements under section 128 of the 
CAA. In their 2009 Infrastructure Submittal and 2012 Supplement, 
Arizona submitted unofficial copies of Title 38, Chapter 3, Article 8 
Conflict of Interest of Officers and Employees provisions to address 
the section 128 requirements. The June 2012 Supplement also included 
Arizona Revised Statute Sec.  49-478, which addresses compositional 
requirements for county hearing boards. We are proposing to approve 
these statutory provisions into the SIP as non-regulatory 
materials.\11\
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    \11\ Copies of these Arizona statutes are included in the 2012 
Supplement, which is available in the docket for this action and 
online at http://www.regulations.gov, docket number EPA-R09-OAR-
2012-0398.
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A. Evaluation of 128(a)(1) Board Composition Requirements

    As explained further in our Technical Support Document (TSD),\12\ 
Arizona has four heads of executive agencies that approve permits and 
enforcement orders under the Clean Air Act: the Director of Arizona 
Department of Environmental Quality (ADEQ), and the Control Officer of 
each of the following three agencies: Maricopa County Air Quality 
Department (AQD), Pima County Department of Environmental Quality 
(DEQ), and Pinal County Air Quality Control District (AQCD). Permit and 
enforcement order appeals at the state level are heard by an 
administrative law judge in Arizona's Office of Administrative 
Hearings, while those at the county level are heard by an Air Quality 
Hearing Board in each respective county (Maricopa, Pima, and Pinal). 
The only boards in Arizona that approve permits and enforcement orders 
are the Air Quality Hearing Boards in Maricopa, Pima, and Pinal 
counties, which may hear permit and enforcement order appeals and take 
actions to sustain, modify, or reverse (for permits) or affirm or 
modify (for enforcement orders) the actions of each county's respective 
Control Officer. These boards are subject to the board membership 
requirements of section 128(a)(1).
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    \12\ Our Technical Support Document (TSD) describes our 
evaluation in more detail and is available in the public docket for 
this rulemaking, which may be accessed online at http://www.regulations.gov, docket number EPA-R09-OAR-2012-0398.
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    ARS 49-478(B) establishes the compositional requirements of the 
county Air Quality Hearing Boards, namely that they consist of five 
members and that ``[a]t least three members shall not have a 
substantial interest, as defined in section 38-502, in any person 
required to obtain a permit pursuant to [Title 49, Chapter 3 (``Air 
Quality''), Article 3 (``County Air Pollution Control'')].'' It is 
important to note that while this statute explicitly addresses 
interests in persons required to obtain permits, it does not address 
``substantial interest'' with respect to interests in persons subject 
to enforcement orders.
    Pima County Code 17.04.190 (``Composition'') generally mirrors the 
language or ARS 49-478 but also includes the following requirement in 
subsection B: ``At least a majority of the hearing board members shall 
not individually have a substantial interest in an emission source 
subject to permits or enforcement orders issued pursuant to this title. 
Substantial interest means any interest other than a remote interest as 
defined in A.R.S. 38-502, paragraph 10.'' Thus, this local regulation 
extends the majority membership requirement of ARS 49-478 to interests 
in persons subject to enforcement orders. However, this regulation has 
not been submitted for incorporation into the Arizona SIP.
    Maricopa County Air Pollution Control Regulation, Rule 100, Section 
108 also mirrors the language of ARS 49-478 but its majority membership 
requirement is limited to substantial interests ``in any person 
required to obtain an air pollution permit'' (i.e., it does not address 
persons subject to enforcement orders). Arizona's 2009 Infrastructure 
Submittal and 2012 Supplement did not cite any such provisions for 
Pinal County.
    ARS 49-478 in conjunction with the definitions of ``substantial 
interest'' and ``remote interest'' in ARS 38-502, which we propose to 
approve into the Arizona SIP, satisfy the ``public interest'' and 
``significant income'' requirements of CAA section 128(a)(1) for the 
county boards, but only with respect to interests in persons subject to 
permits. ARS 49-478 does not specifically reference interests in 
persons subject to enforcement orders. We view this as a very narrow 
deficiency in the State SIP but one that nonetheless compels 
disapproval of the State's 128(a)(1) board composition provisions.
    EPA takes very seriously a proposal to disapprove a state plan, as 
we believe that it is preferable, and preferred in the provisions of 
the Clean Air Act, that

[[Page 44558]]

these requirements be implemented through state plans. A state plan 
need not contain exactly the same provisions that EPA might require, 
but EPA must be able to find that the state plan is consistent with the 
requirements of the Act. Further, EPA's oversight role requires that it 
assure consistent implementation of Clean Air Act requirements by 
states across the country, even while acknowledging that individual 
decisions from source to source or state to state may not have 
identical outcomes. In this instance, we believe that the 2009 
Infrastructure SIP mostly meets the requirements of 128(a)(1) with 
respect to significant income and representing the public interest, 
except that the submitted provisions do not specifically address 
``substantial interest'' with respect to interests in persons subject 
to enforcement orders. As a result, EPA believes this proposed 
disapproval is the only path that is consistent with the Act at this 
time. Based on the content of Pima County Code 17.04.190, we believe 
that this narrow deficiency can be cured by Maricopa and Pinal counties 
amending their regulations to mirror Pima County Code 17.04.190, and by 
ADEQ submitting such amended regulations for Pima, Maricopa, and Pinal 
counties as a SIP revision.

B. Evaluation of 128(a)(2) Disclosure Requirements

    Arizona's statutes governing disclosure of interests are found in 
ARS Title 38, Chapter 3, Article 8, which ADEQ submitted as a revision 
to the Arizona SIP. As further explained in our TSD, the conflict of 
interest requirements under Article 8 apply to all those individuals 
that approve permits and enforcement orders in the first instance or on 
appeal, including the Director of ADEQ, the administrative law judges 
of the state Office of Administrative Hearings, the Air Pollution 
Control Officers of the three relevant counties (Maricopa, Pima, and 
Pinal), and the members of the Air Quality Hearing Boards in each of 
the three counties.
    ARS 38-503 is the heart of the disclosure provisions in Article 8. 
In particular, ARS 38-503(B) reads as follows: ``Any public officer or 
employee who has, or whose relative has, a substantial interest in any 
decision of a public agency shall make known such interest in the 
official records of such public agency and shall refrain from 
participating in any manner as an officer or employee in such 
decision.'' We interpret ``any decision of a public agency'' to include 
both permit and enforcement order approvals. ARS 38-502(3) defines 
``make known'' as filing a paper or a copy of relevant meeting minutes 
that fully discloses a substantial interest and such filings must be 
maintained in a special file open to public inspection pursuant to ARS 
38-509.
    The disclosure of ``a substantial interest in any decision of a 
public agency'' covers a wide array of potential conflicts, because 
``remote interest'' is narrowly defined, and Article 8 applies to all 
individuals that approve permits and enforcement orders under the CAA. 
Thus, upon Article 8 being approved into the Arizona SIP, the State and 
counties of Arizona will meet the CAA section 128(a)(2) requirement 
that ``any potential conflicts of interest * * * be adequately 
disclosed.''

IV. Proposed Action

    EPA has evaluated the 2009 Infrastructure SIP and the existing 
provisions of the Arizona SIP for compliance with the CAA section 
110(a)(2)(E)(ii) requirements for the 1997 8-hour ozone and 
PM2.5 NAAQS and the 2006 PM2.5 NAAQS. Our TSD 
contains more detailed evaluations and is available in the public 
docket for this rulemaking, which may be accessed online at http://www.regulations.gov, docket number EPA-R09-OAR-2012-0398.
    Based upon this analysis, EPA proposes to approve Arizona's 2009 
Infrastructure SIP with respect to the following infrastructure SIP 
requirements:
     Section 110(a)(2)(E)(ii) (in part): 128(a)(2) relating to 
potential conflicts of interest by members of any state board or body.
    In addition, we are proposing to approve into the SIP certain 
statutory provisions included in the 2009 Infrastructure SIP, as 
discussed in the TSD: \13\
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    \13\ Copies of these Arizona statutes and regulations are 
included in the 2012 Supplement, which is available in the docket 
for this action and online at http://www.regulations.gov, docket 
number EPA-R09-OAR-2012-0398.

 ARS Title 38, Chapter 3, Article 8 (``Conflict of Interest of 
Officers and Employees'')
 ARS 49-435 (``Hearings on orders of abatement'')
 ARS 49-461 (``Violations; order of abatement'')
 ARS 49-478 (``Hearing board'')
 ARS 49-482 (``Appeals to hearing board'')
 ARS 49-490 (``Hearings on orders of abatement'')

    Simultaneously, we are proposing to disapprove Arizona's 2009 
Infrastructure SIP with respect to the following infrastructure SIP 
requirements:
     Section 110(a)(2)(E)(ii) (in part): 128(a)(1) relating to 
``significant income'' and representing the ``public interest'' board 
composition requirements for Pima, Maricopa, and Pinal counties.
    As explained more fully in the TSD, we are proposing to disapprove 
the 2009 Infrastructure SIP with respect to this requirement of CAA 
section 110(a)(2)(E)(ii) because the Arizona SIP does not fully satisfy 
the statutory requirements for board composition under section 
128(a)(1) of the Act.
    Section 110(l) of the Act prohibits EPA from approving any SIP 
revision that would interfere with any applicable requirement 
concerning attainment and reasonable further progress (RFP) or any 
other applicable requirement of the Act. The portion of 
110(a)(2)(E)(ii) of the 2009 Infrastructure SIP that we are proposing 
to approve, as explained in the TSD, would improve the SIP by replacing 
obsolete statutes or regulations and by updating the state and local 
agencies' SIP implementation and enforcement authorities. We propose to 
determine that our approval of this element of the 2009 Infrastructure 
SIP would comply with CAA section 110(l) because the proposed SIP 
revision would not interfere with the on-going process for ensuring 
that requirements for RFP and attainment of the NAAQS are met, and the 
submitted SIP revision clarifies and updates the SIP. Our TSD contains 
a more detailed discussion of our evaluation.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of part D, title I of the CAA (CAA 
sections 171-193) or is required in response to a finding of 
substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) 
starts a sanctions clock. The 2009 Infrastructure SIP was not submitted 
to meet either of these requirements. Therefore, any action we take to 
finalize the described partial disapprovals will not trigger mandatory 
sanctions under CAA section 179.
    In addition, CAA section 110(c)(1) provides that EPA must 
promulgate a Federal Implementation Plan (FIP) within two years after 
finding that a State has failed to make a required submission or 
disapproving a State implementation plan submission in whole or in 
part, unless EPA approves a SIP revision correcting the deficiencies 
within that two-year period.

[[Page 44559]]

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

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

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 partial approval and partial disapproval of SIP 
revisions under CAA section 110 will not in-and-of itself create any 
new information collection burdens but simply proposes to approve 
certain State requirements, and to disapprove certain other 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 proposed action will not have a 
significant impact on a substantial number of small entities. This 
proposed rule does not impose any requirements or create impacts on 
small entities. This proposed partial SIP approval and partial SIP 
disapproval under CAA section 110 will not in-and-of itself create any 
new requirements but simply proposes to approve certain State 
requirements, and to disapprove certain other 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. 
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 partial approval and 
partial 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 approve certain pre-existing 
requirements, and to disapprove certain other 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 proposed 
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 proposes to 
approve certain State requirements, and to disapprove certain other 
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 
on which EPA is proposing action 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 proposed action.

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

    EPA interprets EO 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 EO has the 
potential to influence the regulation. This proposed action is not 
subject to EO 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 partial 
approval and partial disapproval under CAA section 110 will not in-and-
of itself create any new regulations but simply proposes to approve 
certain State requirements, and to disapprove certain other State 
requirements, for inclusion into the SIP.

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

    This proposed rule 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, 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

[[Page 44560]]

available and applicable voluntary consensus standards.
    The EPA believes that this proposed 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 Population

    Executive Order (EO) 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 proposed rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Nitrogen dioxide, 
Ozone, Particulate matter, Volatile organic compounds.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: July 20, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-18547 Filed 7-27-12; 8:45 am]
BILLING CODE 6560-50-P


