Approval and Promulgation of Implementation Plans; State of Missouri, 40619-40624 [2011-17253]
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Federal Register / Vol. 76, No. 132 / Monday, July 11, 2011 / Rules and Regulations
does not create an environmental risk to
health or risk to safety that may
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
Energy Effects
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
under Executive Order 12866 and is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. The Administrator of the Office
of Information and Regulatory Affairs
has not designated it as a significant
energy action. Therefore, it does not
require a Statement of Energy Effects
under Executive Order 13211.
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Technical Standards
The National Technology Transfer
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321–4370f), and
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have concluded this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule is categorically
excluded, under figure 2–1, paragraph
(34)(g), of the Instruction. This rule
involves the establishment of security
zones. An environmental analysis
checklist and a categorical exclusion is
available in the docket where indicated
under ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and record keeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR Part 165, as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for Part 165
continues to read as follows:
■
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.
Chapter 701, 3306, 3703; 50 U.S.C. 191, 195;
33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L.
107–295, 116 Stat. 2064; Department of
Homeland Security Delegation No. 0170.1
2. Add § 165.T13–186 to read as
follows:
■
§ 165.T13–186 Security Zone; 2011 Seattle
Seafair Fleet Week Moving Vessels, Puget
Sound, Washington
(a) Location. The following areas are
security zones: All waters within the
Captain of the Port Puget Sound Zone
encompassed within 500 yards of the
HMCS WHITEHORSE (NCSM 705),
HMCS NANAIMO (NCSM 702), and the
USCGC MELLON (WHEC 717) while
each vessel is participating in the
Seafair Fleet Week Parade of Ships and
while moored at Pier 66, Terminal 25,
and Terminal 46, Elliott Bay, Seattle,
WA.
(b) Regulations. In accordance with
the general regulations in 33 CFR Part
165, Subpart D, no person or vessel may
enter or remain in the security zones
without the permission of the COTP or
Designated Representative. The COTP
has granted general permission for
vessels that operate at the minimum
speed necessary to maintain course to
enter the outer 400 yards of the security
zone. In the event the COTP must
revoke the general permission to enter,
notice will be provided to the public via
a Broadcast Notice to Mariners. See 33
CFR Part 165, Subpart D, for additional
requirements. The COTP may be
assisted by other federal, state or local
agencies with the enforcement of the
security zones.
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(c) Authorization. All vessel operators
who desire to transit through the outer
400 yards of the security zones at greater
than minimum speed necessary to
maintain course, enter the inner 100
yards of the security zones, or enter any
portion of the security zones when
general permission to transit through
outer 400 yards of the security zones at
minimum speed necessary to maintain
course has been revoked must obtain
permission from the COTP or
Designated Representative by contacting
the on-scene Coast Guard patrol craft on
VHF 13 or Ch 16. Requests must include
the reason why movement within the
security zones is necessary. Vessel
operators granted permission to enter
the security zones will be escorted by
the on-scene Coast Guard patrol craft
until they are outside of the security
zones, except that vessels operating in
the security zones under general
permission to transit through the outer
400 yards of the security zones at
minimum speed necessary to maintain
course will not be escorted.
(d) Enforcement period. This rule is
effective from 8 a.m. on August 3, 2011,
through 5 p.m. on August 8, 2011.
Dated: June 27, 2011.
S.J. Ferguson,
Captain, U.S. Coast Guard, Captain of the
Port, Puget Sound.
[FR Doc. 2011–17261 Filed 7–8–11; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2011–0309; FRL–9429–1]
Approval and Promulgation of
Implementation Plans; State of
Missouri
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is approving the State
Implementation Plan (SIP) submittal
from the State of Missouri addressing
the requirements of Clean Air Act (CAA
or Act) sections 110(a)(1) and (2) to
implement, maintain, and enforce the
1997 revisions to the National Ambient
Air Quality Standards (NAAQS) for
ozone. The rationale for this action is
explained in this rule and in more detail
in the notice of proposed rulemaking for
this action. EPA received no comments
on the proposal.
DATES: Effective Date: This rule is
effective August 10, 2011.
SUMMARY:
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Federal Register / Vol. 76, No. 132 / Monday, July 11, 2011 / Rules and Regulations
EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2011–0309. All
documents in the docket are listed on
the https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(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 through
https://www.regulations.gov or in hard
copy at the U.S. Environmental
Protection Agency, Region 7, in the Air
Planning and Development Branch, of
the Air and Waste Management
Division, 901 North 5th Street, Kansas
City, Kansas 66101. EPA requests that,
if at all possible, you contact the person
listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your
inspection. The interested persons
wanting to examine these documents
should make an appointment with the
office at least 24 hours in advance.
Regional Office official hours of
business are Monday through Friday,
8:00 to 4:30, excluding Federal holidays.
ADDRESSES:
Ms.
Elizabeth Kramer, Air Planning and
Development Branch, U.S.
Environmental Protection Agency,
Region 7, 901 North 5th Street, Kansas
City, Kansas 66101; telephone number:
(913) 551–7186; fax number: (913) 551–
7844; e-mail address:
kramer.elizabeth@epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. These sections provide additional
information on this final action:
Table of Contents
I. Background
II. Summary of Relevant Submissions
III. Scope of Infrastructure SIPs
IV. Final Action
V. Statutory and Executive Order Reviews
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I. Background
On March 30, 2011 (76 FR 17585),
EPA published a proposed rulemaking
for the State of Missouri. This
rulemaking proposed approval of
Missouri’s submittal dated February 27,
2007, as meeting the relevant and
applicable requirements of CAA
sections 110(a)(1) and (2) necessary to
implement, maintain, and enforce the
1997 NAAQS.
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II. Summary of Relevant Submissions
The above referenced submittal
addresses the infrastructure elements
specified in CAA sections 110(a)(1) and
(2). This submittal refers to the
implementation, maintenance and
enforcement of the 1997 8-hour ozone
NAAQS. The rationale supporting EPA’s
proposed action is explained in the
proposal and EPA incorporates by
reference the rationale in the proposal
as supplemented by this rule, as its
rationale for the final rule. No public
comments were received on the
proposed rulemaking.
III. Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that
address the infrastructure requirements
of CAA section 110(a)(1) and (2) for
ozone and PM2.5 NAAQS for various
states across the country. Commenters
on EPA’s recent proposals for some
states raised concerns about EPA
statements that it was not addressing
certain substantive issues in the context
of acting on the infrastructure SIP
submissions.1 The commenters
specifically raised concerns involving
provisions in existing SIPs and with
EPA’s statements that it would address
two issues separately and not as part of
actions on the infrastructure SIP
submissions: (i) existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources, that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); and (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that purport to
permit revisions to SIP approved
emissions limits with limited public
process or without requiring further
approval by EPA, that may be contrary
to the CAA (‘‘director’s discretion’’).
EPA notes that there are two other
substantive issues for which EPA
likewise stated that it would address the
issues separately: (i) existing provisions
for minor source new source review
programs that may be inconsistent with
the requirements of the CAA and EPA’s
regulations that pertain to such
programs (‘‘minor source NSR’’); and (ii)
existing provisions for Prevention of
Significant Deterioration (PSD)
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
1 See, Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket #EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5). EPA notes
that these public comments on another proposal are
not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking. EPA will
respond to these comments in the appropriate
rulemaking action to which they apply.
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NSR Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). In light of the comments, EPA
now believes that its statements in
various proposed actions on
infrastructure SIPs with respect to these
four individual issues should be
explained in greater depth with respect
to these issues.
EPA intended the statements in the
proposals concerning these four issues
merely to be informational, and to
provide general notice of the potential
existence of provisions within the
existing SIPs of some states that might
require future corrective action. EPA did
not want states, regulated entities, or
members of the public to be under the
misconception that the Agency’s
approval of the infrastructure SIP
submission of a given state should be
interpreted as a re-approval of certain
types of provisions that might exist
buried in the larger existing SIP for such
state. Thus, for example, EPA explicitly
noted that the Agency believes that
some states may have existing SIP
approved SSM provisions that are
contrary to the CAA and EPA policy,
but that ‘‘in this rulemaking, EPA is not
proposing to approve or disapprove any
existing State provisions with regard to
excess emissions during SSM of
operations at facilities.’’ EPA further
explained, for informational purposes,
that ‘‘EPA plans to address such State
regulations in the future.’’ EPA made
similar statements, for similar reasons,
with respect to the director’s discretion,
minor source NSR, and NSR Reform
issues. EPA’s objective was to make
clear that approval of an infrastructure
SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or
implicit re-approval of any existing
provisions that relate to these four
substantive issues.
Unfortunately, the commenters and
others evidently interpreted these
statements to mean that EPA considered
action upon the SSM provisions and the
other three substantive issues to be
integral parts of acting on an
infrastructure SIP submission, and
therefore that EPA was merely
postponing taking final action on the
issue in the context of the infrastructure
SIPs. This was not EPA’s intention. To
the contrary, EPA only meant to convey
its awareness of the potential for certain
types of deficiencies in existing SIPs,
and to prevent any misunderstanding
that it was reapproving any such
existing provisions. EPA’s intention was
to convey its position that the statute
does not require that infrastructure SIPs
address these specific substantive issues
in existing SIPs and that these issues
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may be dealt with separately, outside
the context of acting on the
infrastructure SIP submission of a state.
To be clear, EPA did not mean to imply
that it was not taking a full final agency
action on the infrastructure SIP
submission with respect to any
substantive issue that EPA considers to
be a required part of acting on such
submissions under section 110(k) or
under section 110(c). Given the
confusion evidently resulting from
EPA’s statements, however, we want to
explain more fully the Agency’s reasons
for concluding that these four potential
substantive issues in existing SIPs may
be addressed separately.
The requirement for the SIP
submissions at issue arises out of CAA
section 110(a)(1). That provision
requires that states must make a SIP
submission ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof)’’ and
that these SIPS are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. Section
110(a)(2) includes a list of specific
elements that ‘‘[e]ach such plan’’
submission must meet. EPA has
historically referred to these particular
submissions that states must make after
the promulgation of a new or revised
NAAQS as ‘‘infrastructure SIPs.’’ This
specific term does not appear in the
statute, but EPA uses the term to
distinguish this particular type of SIP
submission designed to address basic
structural requirements of a SIP from
other types of SIP submissions designed
to address other different requirements,
such as ‘‘nonattainment SIP’’
submissions required to address the
nonattainment planning requirements of
part D, ‘‘regional haze SIP’’ submissions
required to address the visibility
protection requirements of CAA section
169A, new source review permitting
program submissions required to
address the requirements of part D, and
a host of other specific types of SIP
submissions that address other specific
matters.
Although section 110(a)(1) addresses
the timing and general requirements for
these infrastructure SIPs, and section
110(a)(2) provides more details
concerning the required contents of
these infrastructure SIPs, EPA believes
that many of the specific statutory
provisions are facially ambiguous. In
particular, the list of required elements
provided in section 110(a)(2) contains a
wide variety of disparate provisions,
some of which pertain to required legal
authority, some of which pertain to
required substantive provisions, and
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some of which pertain to requirements
for both authority and substantive
provisions.2 Some of the elements of
section 110(a)(2) are relatively
straightforward, but others clearly
require interpretation by EPA through
rulemaking, or recommendations
through guidance, in order to give
specific meaning for a particular
NAAQS.3
Notwithstanding that section 110(a)(2)
states that ‘‘each’’ SIP submission must
meet the list of requirements therein,
EPA has long noted that this literal
reading of the statute is internally
inconsistent, insofar as section
110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met
on the schedule provided for these SIP
submissions in section 110(a)(1).4 This
illustrates that EPA must determine
which provisions of section 110(a)(2)
may be applicable for a given
infrastructure SIP submission.
Similarly, EPA has previously decided
that it could take action on different
parts of the larger, general
‘‘infrastructure SIP’’ for a given NAAQS
without concurrent action on all
subsections, such as section
110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter
‘‘interstate transport’’ provisions within
section 110(a)(2) and worked with states
to address each of the four prongs of
section 110(a)(2)(D)(i) with substantive
administrative actions proceeding on
different tracks with different
schedules.5 This illustrates that EPA
2 For example, section 110(a)(2)(E) provides that
states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; section 110(a)(2)(C) provides
that states must have a substantive program to
address certain sources as required by part C of the
CAA; section 110(a)(2)(G) provides that states must
have both legal authority to address emergencies
and substantive contingency plans in the event of
such an emergency.
3 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each state’s SIP contains
adequate provisions to prevent significant
contribution to nonattainment of the NAAQS in
other states. This provision contains numerous
terms that require substantial rulemaking by EPA in
order to determine such basic points as what
constitutes significant contribution. See, e.g., ‘‘Rule
To Reduce Interstate Transport of Fine Particulate
Matter and Ozone (Clean Air Interstate Rule);
Revisions to Acid Rain Program; Revisions to the
NOx SIP Call; Final Rule,’’ 70 FR 25162 (May 12,
2005)(defining, among other things, the phrase
‘‘contribute significantly to nonattainment’’).
4 See, e.g., Id., 70 FR 25162, at 63–65 (May 12,
2005)(explaining relationship between timing
requirement of section 110(a)(2)(D) versus section
110(a)(2)(I)).
5 EPA issued separate guidance to states with
respect to SIP submissions to meet section
110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5
NAAQS. See, ‘‘Guidance for State Implementation
Plan (SIP) Submissions to Meet Current
Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5
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may conclude that subdividing the
applicable requirements of section
110(a)(2) into separate SIP actions may
sometimes be appropriate for a given
NAAQS where a specific substantive
action is necessitated, beyond a mere
submission addressing basic structural
aspects of the State’s implementation
plan. Finally, EPA notes that not every
element of section 110(a)(2) would be
relevant, or as relevant, or relevant in
the same way, for each new or revised
NAAQS and the attendant infrastructure
SIP submission for that NAAQS. For
example, the monitoring requirements
that might be necessary for purposes of
section 110(a)(2)(B) for one NAAQS
could be very different than what might
be necessary for a different pollutant.
Thus, the content of an infrastructure
SIP submission to meet this element
from a state might be very different for
an entirely new NAAQS, versus a minor
revision to an existing NAAQS.6
Similarly, EPA notes that other types
of SIP submissions required under the
statute also must meet the requirements
of section 110(a)(2), and this also
demonstrates the need to identify the
applicable elements for other SIP
submissions. For example,
nonattainment SIPs required by part D
likewise have to meet the relevant
subsections of section 110(a)(2) such as
section 110(a)(2)(A) or (E). By contrast,
it is clear that nonattainment SIPs
would not need to meet the portion of
section 110(a)(2)(C) that pertains to part
C, i.e., the PSD requirement applicable
in attainment areas. Nonattainment SIPs
required by part D also would not need
to address the requirements of section
110(a)(2)(G) with respect to emergency
episodes, as such requirements would
not be limited to nonattainment areas.
As this example illustrates, each type of
SIP submission may implicate some
subsections of section 110(a)(2) and not
others.
Given the potential for ambiguity of
the statutory language of section
110(a)(1) and (2), EPA believes that it is
appropriate for EPA to interpret that
language in the context of acting on the
infrastructure SIPs for a given NAAQS.
Because of the inherent ambiguity of the
list of requirements in section 110(a)(2),
EPA has adopted an approach in which
it reviews infrastructure SIPs against
this list of elements ‘‘as applicable.’’ In
other words, EPA assumes that Congress
National Ambient Air Quality Standards,’’ from
William T. Harnett, Director Air Quality Policy
Division OAQPS, to Regional Air Division Director,
Regions I–X, dated August 15, 2006.
6 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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could not have intended that each and
every SIP submission, regardless of the
purpose of the submission or the
NAAQS in question, would meet each
of the requirements, or meet each of
them in the same way. EPA elected to
use guidance to make recommendations
for infrastructure SIPs for these NAAQS.
On October 2, 2007, EPA issued
guidance making recommendations for
the infrastructure SIP submissions for
both the 1997 8-hour ozone NAAQS and
the 1997 PM2.5 NAAQS.7 Within this
guidance document, EPA described the
duty of states to make these submissions
to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for
SIPs, which it further described as the
‘‘basic SIP requirements, including
emissions inventories, monitoring, and
modeling to assure attainment and
maintenance of the standards.’’ 8 As
further identification of these basic
structural SIP requirements,
‘‘attachment A’’ to the guidance
document included a short description
of the various elements of section
110(a)(2) and additional information
about the types of issues that EPA
considered germane in the context of
such infrastructure SIPs. EPA
emphasized that the description of the
basic requirements listed on attachment
A was not intended ‘‘to constitute an
interpretation of’’ the requirements, and
was merely a ‘‘brief description of the
required elements.’’ 9 EPA also stated its
belief that with one exception, these
requirements were ‘‘relatively self
explanatory, and past experience with
SIPs for other NAAQS should enable
States to meet these requirements with
assistance from EPA Regions.’’ 10 For the
one exception to that general
assumption, however, i.e., how states
should proceed with respect to the
7 See, ‘‘Guidance on SIP Elements Required
Under Section 110(a)(1) and (2) for the 1997 8-hour
Ozone and PM2.5 National Ambient Air Quality
Standards,’’ from William T. Harnett, Director Air
Quality Policy Division, to Air Division Directors,
Regions I–X, dated October 2, 2007 (the ‘‘2007
Guidance’’). EPA issued comparable guidance for
the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2)
for the 2006 24–Hour Fine Particle (PM2.5) National
Ambient Air Quality Standards (NAAQS),’’ from
William T, Harnett, Director Air Quality Policy
Division, to Regional Air Division Directors,
Regions I–X, dated September 25, 2009 (the ‘‘2009
Guidance’’).
8 Id., at page 2.
9 Id., at attachment A, page 1.
10 Id., at page 4. In retrospect, the concerns raised
by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is
not so ‘‘self explanatory,’’ and indeed is sufficiently
ambiguous that EPA needs to interpret it in order
to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs
and may be addressed at other times and by other
means.
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requirements of section 110(a)(2)(G) for
the 1997 PM2.5 NAAQS, EPA gave
much more specific recommendations.
But for other infrastructure SIP
submittals, and for certain elements of
the submittals for the 1997 PM2.5
NAAQS, EPA assumed that each State
would work with its corresponding EPA
regional office to refine the scope of a
State’s submittal based on an
assessment of how the requirements of
section 110(a)(2) should reasonably
apply to the basic structure of the State’s
implementation plan for the NAAQS in
question.
Significantly, the 2007 Guidance did
not explicitly refer to the SSM,
director’s discretion, minor source NSR,
or NSR Reform issues as among specific
substantive issues EPA expected states
to address in the context of the
infrastructure SIPs, nor did EPA give
any more specific recommendations
with respect to how states might address
such issues even if they elected to do so.
The SSM and director’s discretion
issues implicate section 110(a)(2)(A),
and the minor source NSR and NSR
Reform issues implicate section
110(a)(2)(C). In the 2007 Guidance,
however, EPA did not indicate to states
that it intended to interpret these
provisions as requiring a substantive
submission to address these specific
issues in the context of the
infrastructure SIPs for these NAAQS.
Instead, EPA’s 2007 Guidance merely
indicated its belief that the states should
make submissions in which they
established that they have the basic SIP
structure necessary to implement,
maintain, and enforce the NAAQS. EPA
believes that states can establish that
they have the basic SIP structure,
notwithstanding that there may be
potential deficiencies within the
existing SIP. Thus, EPA’s proposals
mentioned these issues not because the
Agency considers them issues that must
be addressed in the context of an
infrastructure SIP as required by section
110(a)(1) and (2), but rather because
EPA wanted to be clear that it considers
these potential existing SIP problems as
separate from the pending infrastructure
SIP actions.
EPA believes that this approach to the
infrastructure SIP requirement is
reasonable, because it would not be
feasible to read section 110(a)(1) and (2)
to require a top to bottom, stem to stern,
review of each and every provision of an
existing SIP merely for purposes of
assuring that the state in question has
the basic structural elements for a
functioning SIP for a new or revised
NAAQS. Because SIPs have grown by
accretion over the decades as statutory
and regulatory requirements under the
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CAA have evolved, they may include
some outmoded provisions and
historical artifacts that, while not fully
up to date, nevertheless may not pose a
significant problem for the purposes of
‘‘implementation, maintenance, and
enforcement’’ of a new or revised
NAAQS when EPA considers the overall
effectiveness of the SIP. To the contrary,
EPA believes that a better approach is
for EPA to determine which specific SIP
elements from section 110(a)(2) are
applicable to an infrastructure SIP for a
given NAAQS, and to focus attention on
those elements that are most likely to
need a specific SIP revision in light of
the new or revised NAAQS. Thus, for
example, EPA’s 2007 Guidance
specifically directed states to focus on
the requirements of section 110(a)(2)(G)
for the 1997 PM2.5 NAAQS because of
the absence of underlying EPA
regulations for emergency episodes for
this NAAQS and an anticipated absence
of relevant provisions in existing SIPs.
Finally, EPA believes that its
approach is a reasonable reading of
section 110(a)(1) and (2) because the
statute provides other avenues and
mechanisms to address specific
substantive deficiencies in existing SIPs.
These other statutory tools allow the
Agency to take appropriate tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a State’s
implementation plan is substantially
inadequate to attain or maintain the
NAAQS, to mitigate interstate transport,
or otherwise to comply with the CAA.11
Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as
past approvals of SIP submissions.12
Significantly, EPA’s determination that
an action on the infrastructure SIP is not
the appropriate time and place to
address all potential existing SIP
problems does not preclude the
11 EPA has recently issued a SIP call to rectify a
specific SIP deficiency related to the SSM issue.
See, ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revision,’’ 74 FR 21639 (April
18, 2011).
12 EPA has recently utilized this authority to
correct errors in past actions on SIP submissions
related to PSD programs. See, ‘‘Limitation of
Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’
75 FR 82536 (Dec. 30, 2010). EPA has previously
used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency
determined it had approved in error. See, e.g., 61
FR 38664 (July 25, 1996) and 62 FR 34641 (June 27,
1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062
(November 16, 2004) (corrections to California SIP);
and 74 FR 57051 (November 3, 2009) (corrections
to Arizona and Nevada SIPs).
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Agency’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action at a later time. For
example, although it may not be
appropriate to require a state to
eliminate all existing inappropriate
director’s discretion provisions in the
course of acting on the infrastructure
SIP, EPA believes that section
110(a)(2)(A) may be among the statutory
bases that the Agency cites in the course
of addressing the issue in a subsequent
action.13
IV. Final Action
EPA is taking final action to approve
Missouri’s submittal that provides the
basic program elements to meet the
applicable requirements in CAA
sections 110(a)(2)(A),(B),(C),
(D)(ii),(E),(F),(G),(H),(J),(K),(L), and (M)
necessary to implement, maintain, and
enforce the 1997 8-hour ozone NAAQS.
As explained in the proposed
rulemaking, this action does not address
the requirements of section
110(a)(2)(D)(i) for the 1997 8-hour ozone
NAAQS, because it has already been
addressed in a separate rulemaking. See
72 FR 25975. The scope of this action
is further discussed in section III, above.
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
Act 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 approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves state law as meeting
federal requirements and does not
impose additional requirements beyond
those imposed by State law. For those
reasons, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
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13 EPA has recently disapproved a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010)(proposed disapproval of director’s
discretion provisions); 76 FR 4540 (January 26,
2011)(final disapproval of such provisions).
VerDate Mar<15>2010
15:08 Jul 08, 2011
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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 EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to 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.
The Congressional Review Act, 5
U.S.C. 801 et seq., as amended 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
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
40623
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.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by September 9, 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Ozone.
Dated: June 28, 2011.
Karl Brooks,
Regional Administrator, Region 7.
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42.U.S.C. 7401 et seq.
Subpart AA—Missouri
2. In § 52.1320 (e) the table is
amended by adding an entry in
numerical order to read as follows:
■
§ 52.1320
*
Identification of plan.
*
*
(e) * * *
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*
*
40624
Federal Register / Vol. 76, No. 132 / Monday, July 11, 2011 / Rules and Regulations
EPA-APPROVED MISSOURI NONREGULATORY SIP PROVISIONS
Name of non-regulatory
SIP revision
Applicable geographic
or nonattainment area
State submittal
date
*
*
(54) Section 110(a)(2) Infrastructure Requirements for the
1997 8-Hour Ozone NAAQS.
*
Statewide ...................
*
02/27/2007
[FR Doc. 2011–17253 Filed 7–8–11; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2011–0304; FRL–9434–3]
Approval and Promulgation of
Implementation Plans; State of Kansas
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
EPA is approving the State
Implementation Plan (SIP) submittal
from the State of Kansas addressing the
requirements of Clean Air Act (CAA or
Act) sections 110(a)(1) and (2) to
implement, maintain, and enforce the
1997 revisions to the National Ambient
Air Quality Standards (NAAQS) for
ozone. The rationale for this action is
explained in this notice and in more
detail in the notice of proposed
rulemaking for this action. EPA received
no comments on the proposal.
DATES: Effective Date: This rule is
effective August 10, 2011.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2011–0304. All
documents in the docket are listed on
the https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(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 through
https://www.regulations.gov or in hard
copy at the U.S. Environmental
Protection Agency, Region 7, in the Air
Planning and Development Branch of
the Air and Waste Management
Division, 901 North 5th Street, Kansas
City, Kansas 66101. EPA requests that,
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SUMMARY:
VerDate Mar<15>2010
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EPA approval date
Explanation
*
07/11/2011, [Insert citation of
publication].
*
*
This action addresses the following CAA elements, as applicable: 110(a)(2)(A), (B), (C),
(D)(ii), (E), (F), (G), (H), (J),
(K), (L), and (M).
if at all possible, you contact the person
listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your
inspection. The interested persons
wanting to examine these documents
should make an appointment with the
office at least 24 hours in advance. The
Regional Office official hours of
business are Monday through Friday, 8
to 4:30, excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ms.
Elizabeth Kramer, Air Planning and
Development Branch, U.S.
Environmental Protection Agency,
Region 7, 901 North 5th Street, Kansas
City, Kansas 66101; telephone number:
(913) 551–7186; fax number: (913) 551–
7844; e-mail address:
kramer.elizabeth@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. These sections provide additional
information on this final action:
Table of Contents
I. Background
II. Summary of Relevant Submissions
III. Scope of Infrastructure SIPs
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
On March 30, 2011 (76 FR 17599),
EPA published a proposed rulemaking
for the State of Kansas. This rulemaking
proposed approval of Kansas’ submittals
dated January 8, 2008 and July 20, 2009
as meeting the relevant and applicable
requirements of CAA sections 110(a)(1)
and (2) necessary to implement,
maintain, and enforce the 1997 8-hour
ozone NAAQS.
II. Summary of Relevant Submissions
The above referenced submittals
address the infrastructure elements
specified in CAA sections 110(a)(1) and
(2). These submittals refer to the
implementation, maintenance and
enforcement of the 1997 8-hour ozone
NAAQS. The rationale supporting EPA’s
proposed action is explained in the
proposal and EPA incorporates by
reference the rationale in the proposal,
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
as supplemented by this notice, as its
rationale for the final rule. No public
comments were received on the
proposed rulemaking.
III. Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that
address the infrastructure requirements
of CAA section 110(a)(1) and (2) for
ozone and PM2.5 NAAQS for various
states across the country. Commenters
on EPA’s recent proposals for some
states raised concerns about EPA
statements that it was not addressing
certain substantive issues in the context
of acting on the infrastructure SIP
submissions.1 The commenters
specifically raised concerns involving
provisions in existing SIPs and with
EPA’s statements that it would address
two issues separately and not as part of
actions on the infrastructure SIP
submissions: (i) existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources, that may be
contrary to the CAA and EPA’s policies
addressing such excess emissions
(‘‘SSM’’); and (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that purport to
permit revisions to SIP approved
emissions limits with limited public
process or without requiring further
approval by EPA, that may be contrary
to the CAA (‘‘director’s discretion’’).
EPA notes that there are two other
substantive issues for which EPA
likewise stated that it would address the
issues separately: (i) Existing provisions
for minor source new source review
programs that may be inconsistent with
the requirements of the CAA and EPA’s
regulations that pertain to such
programs (‘‘minor source NSR’’); and (ii)
existing provisions for Prevention of
Significant Deterioration (PSD)
1 See, Comments of Midwest Environmental
Defense Center, dated May 31, 2011. Docket # EPA–
R05–OAR–2007–1179 (adverse comments on
proposals for three states in Region 5). EPA notes
that these public comments on another proposal are
not relevant to this rulemaking and do not have to
be directly addressed in this rulemaking. EPA will
respond to these comments in the appropriate
rulemaking action to which they apply.
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]]>Agencies
[Federal Register Volume 76, Number 132 (Monday, July 11, 2011)]
[Rules and Regulations]
[Pages 40619-40624]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17253]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2011-0309; FRL-9429-1]
Approval and Promulgation of Implementation Plans; State of
Missouri
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: EPA is approving the State Implementation Plan (SIP) submittal
from the State of Missouri addressing the requirements of Clean Air Act
(CAA or Act) sections 110(a)(1) and (2) to implement, maintain, and
enforce the 1997 revisions to the National Ambient Air Quality
Standards (NAAQS) for ozone. The rationale for this action is explained
in this rule and in more detail in the notice of proposed rulemaking
for this action. EPA received no comments on the proposal.
DATES: Effective Date: This rule is effective August 10, 2011.
[[Page 40620]]
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R07-OAR-2011-0309. All documents in the docket are listed on
the https://www.regulations.gov index. Although listed in the index,
some information is not publicly available, i.e., Confidential Business
Information (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 through https://www.regulations.gov or in hard copy at
the U.S. Environmental Protection Agency, Region 7, in the Air Planning
and Development Branch, of the Air and Waste Management Division, 901
North 5th Street, Kansas City, Kansas 66101. EPA requests that, if at
all possible, you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to schedule your inspection. The interested
persons wanting to examine these documents should make an appointment
with the office at least 24 hours in advance. Regional Office official
hours of business are Monday through Friday, 8:00 to 4:30, excluding
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ms. Elizabeth Kramer, Air Planning and
Development Branch, U.S. Environmental Protection Agency, Region 7, 901
North 5th Street, Kansas City, Kansas 66101; telephone number: (913)
551-7186; fax number: (913) 551-7844; e-mail address:
kramer.elizabeth@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. These sections provide
additional information on this final action:
Table of Contents
I. Background
II. Summary of Relevant Submissions
III. Scope of Infrastructure SIPs
IV. Final Action
V. Statutory and Executive Order Reviews
I. Background
On March 30, 2011 (76 FR 17585), EPA published a proposed
rulemaking for the State of Missouri. This rulemaking proposed approval
of Missouri's submittal dated February 27, 2007, as meeting the
relevant and applicable requirements of CAA sections 110(a)(1) and (2)
necessary to implement, maintain, and enforce the 1997 NAAQS.
II. Summary of Relevant Submissions
The above referenced submittal addresses the infrastructure
elements specified in CAA sections 110(a)(1) and (2). This submittal
refers to the implementation, maintenance and enforcement of the 1997
8-hour ozone NAAQS. The rationale supporting EPA's proposed action is
explained in the proposal and EPA incorporates by reference the
rationale in the proposal as supplemented by this rule, as its
rationale for the final rule. No public comments were received on the
proposed rulemaking.
III. Scope of Infrastructure SIPs
EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and PM2.5 NAAQS
for various states across the country. Commenters on EPA's recent
proposals for some states raised concerns about EPA statements that it
was not addressing certain substantive issues in the context of acting
on the infrastructure SIP submissions.\1\ The commenters specifically
raised concerns involving provisions in existing SIPs and with EPA's
statements that it would address two issues separately and not as part
of actions on the infrastructure SIP submissions: (i) existing
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources, that may be contrary to the CAA
and EPA's policies addressing such excess emissions (``SSM''); and (ii)
existing provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated that it would address the issues
separately: (i) existing provisions for minor source new source review
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (``minor source NSR'');
and (ii) existing provisions for Prevention of Significant
Deterioration (PSD) programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). In light of the comments, EPA now believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth with respect to these issues.
---------------------------------------------------------------------------
\1\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
---------------------------------------------------------------------------
EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP
submission of a given state should be interpreted as a re-approval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and PM2.5 NAAQS
should not be construed as explicit or implicit re-approval of any
existing provisions that relate to these four substantive issues.
Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues
[[Page 40621]]
may be dealt with separately, outside the context of acting on the
infrastructure SIP submission of a state. To be clear, EPA did not mean
to imply that it was not taking a full final agency action on the
infrastructure SIP submission with respect to any substantive issue
that EPA considers to be a required part of acting on such submissions
under section 110(k) or under section 110(c). Given the confusion
evidently resulting from EPA's statements, however, we want to explain
more fully the Agency's reasons for concluding that these four
potential substantive issues in existing SIPs may be addressed
separately.
The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPS are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.
Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\2\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\3\
---------------------------------------------------------------------------
\2\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
\3\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See, e.g.,
``Rule To Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOx SIP Call; Final Rule,'' 70 FR 25162 (May 12,
2005)(defining, among other things, the phrase ``contribute
significantly to nonattainment'').
---------------------------------------------------------------------------
Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\4\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\5\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the State's
implementation plan. Finally, EPA notes that not every element of
section 110(a)(2) would be relevant, or as relevant, or relevant in the
same way, for each new or revised NAAQS and the attendant
infrastructure SIP submission for that NAAQS. For example, the
monitoring requirements that might be necessary for purposes of section
110(a)(2)(B) for one NAAQS could be very different than what might be
necessary for a different pollutant. Thus, the content of an
infrastructure SIP submission to meet this element from a state might
be very different for an entirely new NAAQS, versus a minor revision to
an existing NAAQS.\6\
---------------------------------------------------------------------------
\4\ See, e.g., Id., 70 FR 25162, at 63-65 (May 12,
2005)(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
\5\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State Implementation Plan
(SIP) Submissions to Meet Current Outstanding Obligations Under
Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National
Ambient Air Quality Standards,'' from William T. Harnett, Director
Air Quality Policy Division OAQPS, to Regional Air Division
Director, Regions I-X, dated August 15, 2006.
\6\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress
[[Page 40622]]
could not have intended that each and every SIP submission, regardless
of the purpose of the submission or the NAAQS in question, would meet
each of the requirements, or meet each of them in the same way. EPA
elected to use guidance to make recommendations for infrastructure SIPs
for these NAAQS.
On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS.\7\ Within this guidance document, EPA
described the duty of states to make these submissions to meet what the
Agency characterized as the ``infrastructure'' elements for SIPs, which
it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \8\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \9\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \10\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS, EPA gave
much more specific recommendations. But for other infrastructure SIP
submittals, and for certain elements of the submittals for the 1997
PM2.5 NAAQS, EPA assumed that each State would work with its
corresponding EPA regional office to refine the scope of a State's
submittal based on an assessment of how the requirements of section
110(a)(2) should reasonably apply to the basic structure of the State's
implementation plan for the NAAQS in question.
---------------------------------------------------------------------------
\7\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National
Ambient Air Quality Standards,'' from William T. Harnett, Director
Air Quality Policy Division, to Air Division Directors, Regions I-X,
dated October 2, 2007 (the ``2007 Guidance''). EPA issued comparable
guidance for the 2006 PM2.5 NAAQS entitled ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality Standards
(NAAQS),'' from William T, Harnett, Director Air Quality Policy
Division, to Regional Air Division Directors, Regions I-X, dated
September 25, 2009 (the ``2009 Guidance'').
\8\ Id., at page 2.
\9\ Id., at attachment A, page 1.
\10\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
---------------------------------------------------------------------------
Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions.
EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence
of underlying EPA regulations for emergency episodes for this NAAQS and
an anticipated absence of relevant provisions in existing SIPs.
Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a State's implementation
plan is substantially inadequate to attain or maintain the NAAQS, to
mitigate interstate transport, or otherwise to comply with the CAA.\11\
Section 110(k)(6) authorizes EPA to correct errors in past actions,
such as past approvals of SIP submissions.\12\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the
[[Page 40623]]
Agency's subsequent reliance on provisions in section 110(a)(2) as part
of the basis for action at a later time. For example, although it may
not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may
be among the statutory bases that the Agency cites in the course of
addressing the issue in a subsequent action.\13\
---------------------------------------------------------------------------
\11\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21639 (April 18, 2011).
\12\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82536 (Dec. 30, 2010). EPA
has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
\13\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010)(proposed disapproval of director's discretion provisions); 76
FR 4540 (January 26, 2011)(final disapproval of such provisions).
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IV. Final Action
EPA is taking final action to approve Missouri's submittal that
provides the basic program elements to meet the applicable requirements
in CAA sections 110(a)(2)(A),(B),(C),
(D)(ii),(E),(F),(G),(H),(J),(K),(L), and (M) necessary to implement,
maintain, and enforce the 1997 8-hour ozone NAAQS.
As explained in the proposed rulemaking, this action does not
address the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour
ozone NAAQS, because it has already been addressed in a separate
rulemaking. See 72 FR 25975. The scope of this action is further
discussed in section III, above.
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 Act 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 approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by State
law. For those reasons, this 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 EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to 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.
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended 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. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 9, 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).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Ozone.
Dated: June 28, 2011.
Karl Brooks,
Regional Administrator, Region 7.
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42.U.S.C. 7401 et seq.
Subpart AA--Missouri
0
2. In Sec. 52.1320 (e) the table is amended by adding an entry in
numerical order to read as follows:
Sec. 52.1320 Identification of plan.
* * * * *
(e) * * *
[[Page 40624]]
EPA-Approved Missouri Nonregulatory SIP Provisions
----------------------------------------------------------------------------------------------------------------
Name of non-regulatory SIP Applicable geographic or State EPA approval
revision nonattainment area submittal date date Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
(54) Section 110(a)(2) Statewide................... 02/27/2007 07/11/2011, This action
Infrastructure Requirements [Insert addresses the
for the 1997 8-Hour Ozone citation of following CAA
NAAQS. publication]. elements, as
applicable:
110(a)(2)(A),
(B), (C),
(D)(ii), (E),
(F), (G), (H),
(J), (K), (L),
and (M).
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[FR Doc. 2011-17253 Filed 7-8-11; 8:45 am]
BILLING CODE 6560-50-P
