Approval of Implementation Plans; State of Iowa; Elements of the Infrastructure SIP Requirements for the 2012 Particulate Matter (PM2.5, 12488-12491 [2018-05540]
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<![CDATA[
12488
Federal Register / Vol. 83, No. 56 / Thursday, March 22, 2018 / Rules and Regulations
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 Clean Air Act;
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, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by May 21, 2018.
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,
Sulfur dioxide, Reporting and
recordkeeping requirements.
Dated: March 8, 2018.
James B. Gulliford,
Regional Administrator, Region 7.
For the reasons stated in the
preamble, EPA amends 40 CFR part 52
as set forth below:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart Q—Iowa
2. Section 52.820 is amended by
adding new paragraph (e)(47) to read as
follows:
■
§ 52.820
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED IOWA NONREGULATORY SIP PROVISIONS
Name of nonregulatory
SIP revision
Applicable geographic
or nonattainment area
State submittal
date
*
*
*
(47) Sections 110(a)(1)
Statewide .....................
and (2) Infrastructure
Requirements 2010
Sulfur Dioxide NAAQS.
*
*
7/23/2013
*
[FR Doc. 2018–05631 Filed 3–21–18; 8:45 am]
BILLING CODE 6560–50–P
EPA approval date
Explanation
*
*
3/22/2018, [Insert Federal Register citation].
*
*
This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), D(i)(II) prong 3
only, D(ii), (E), (F), (G), (H), (J), (K), (L), and
(M).
[EPA–R07–OAR–2017–0267;
FRL–
9975–78–Region 7].
*
*
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R07–OAR–2017–0517; FRL–9975–
68—Region 7]
Approval of Implementation Plans;
State of Iowa; Elements of the
Infrastructure SIP Requirements for
the 2012 Particulate Matter (PM2.5)
National Ambient Air Quality Standard
(NAAQS)
Environmental Protection
Agency (EPA).
AGENCY:
ACTION:
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*
*
The Environmental Protection
Agency (EPA) is taking final action to
approve certain elements of a 2015 State
Implementation Plan (SIP) submission
from the State of Iowa for the 2012
Particulate Matter (PM2.5) National
Ambient Air Quality Standard
(NAAQS). States are required to have a
SIP that provides for the
implementation, maintenance, and
enforcement of the NAAQS. Whenever
EPA promulgates a new or revised
NAAQS, states are required to make a
SIP submission establishing that the
existing approved SIP has provisions
necessary to address various
requirements to address the new or
revised NAAQS or to add such
SUMMARY:
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Federal Register / Vol. 83, No. 56 / Thursday, March 22, 2018 / Rules and Regulations
provisions. These SIP submissions are
commonly referred to as
‘‘infrastructure’’ SIPs. The infrastructure
SIP requirements are designed to ensure
that the structural components of each
state’s air quality management program
are adequate to meet the state’s
responsibilities under the CAA.
DATES: This final rule is effective on
April 23, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2017–0517. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, i.e., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional information.
FOR FURTHER INFORMATION CONTACT:
Heather Hamilton, Environmental
Protection Agency, Air Planning and
Development Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at
(913) 551–7039, or by email at
hamilton.heather@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to EPA. This section
provides additional information by
addressing the following:
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I. Background
II. What is being addressed in this document?
III. Have the requirements for approval of the
SIP revisions been met?
IV. EPA’s Response to Comments
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. Background
EPA received Iowa’s 2012 PM2.5
infrastructure SIP submission on
December 22, 2015. On September 29,
2017, EPA proposed to approve certain
elements of this SIP submission. See 82
FR 45550. In conjunction with the
September 29, 2017, notice of proposed
rulemaking (NPR), EPA issued a direct
final rule (DFR) approving the same
elements of the 2012 PM2.5 NAAQS
infrastructure SIP. See 82 FR 45479.
However, in the DFR, EPA stated that if
EPA received adverse comments by
October 30, 2017, the action would be
withdrawn and not take effect. EPA
received one adverse comment prior to
the close of the comment period. EPA
withdrew the DFR on November 20,
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Jkt 244001
2017. See 82 FR 55053. This action is
a final rule based on the NPR. A
detailed discussion of Iowa’s SIP
submission and EPA’s rationale for
approving the SIP submission were
provided in the DFR and the associated
Technical Support Document in the
docket for this rulemaking and will not
be restated here, except to the extent
relevant to our response to the public
comment we received.
II. What is being addressed in this
document?
EPA is approving certain elements of
the 2012 PM2.5 NAAQS infrastructure
SIP submission from the State of Iowa
received on December 22, 2015.
Specifically, EPA is approving Iowa’s
submission with regard to the following
elements of section 110(a)(2): (A), (B),
(C), (D)(i)(II)—prevent significant
deterioration of air quality (prong 3),
(D)(ii), (E) through (H), and (J) through
(M).
EPA is not taking action at this time
on the following elements that were
addressed in Iowa’s infrastructure SIP
submission for the 2012 PM2.5 NAAQS:
Section 110(a)(2)(D)(i)(I)—significant
contribution to nonattainment (prong 1),
interfering with maintenance of the
NAAQS (prong 2), and section
110(a)(2)(D)(i)(II)—protection of
visibility (prong 4).
III. Have the requirements for approval
of the SIP revisions been met?
The state met the public notice
requirements for SIP submissions in
accordance with 40 CFR 51.102. The
state initiated public comment from
October 14, 2015, to November 16, 2015.
No comments were received. This
submission also satisfied the
completeness criteria of 40 CFR part 51,
appendix V. In addition, as explained
above and in more detail in the
technical support document which is
part of the docket for this rulemaking,
the submission meets the applicable
substantive SIP requirements of the
CAA, including section 110 and
implementing regulations.
IV. EPA’s Response to Comments
The public comment period on EPA’s
proposed rule opened September 29,
2017, the date of its publication in the
Federal Register, and closed on October
30, 2017. During this period, EPA
received one adverse comment as
follows:
Comment: The commenter stated that
EPA must act on 110(a)(2)(D)(I) prong 1
(significant contribution to
nonattainment), prong 2 (interference
with maintenance), and 110(a)(2)(D)(II),
prong 4 (interference with visibility
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12489
protection.) The commenter asserted
that EPA had stated in the Technical
Support Document (TSD) for the
proposed action that ‘‘EPA WILL NOT
ACT on [prongs 1, 2 and 4]’’ (emphasis
added in comment). The commenter
claimed that EPA was therefore stating
that it ‘‘will never act and does not need
to act on these elements.’’ The
commenter further stated that EPA does
not have the discretionary authority to
not act on a state’s submission. The
commenter indicated that if EPA does
not believe prongs 1 and 2 are
approvable, then EPA must disapprove;
if EPA does not believe prong 4 is
approvable due to the lack of an
approved regional haze program, then
EPA must disapprove the state’s
submission and promulgate a FIP to
address regional haze. The commenter
concluded by stating that the comment
letter constitutes notice of intent to sue
the agency for failure to perform its
nondiscretionary duty under 110(k)(2)
to act on Iowa’s prongs 1, 2, and 4.
EPA’s response: EPA disagrees with
this comment. First, EPA’s TSD 1 does
not state that ‘‘EPA will not act’’ on the
SIP submission with respect to prongs 1,
2, and 4 of section 110(a)(2)(D), and
does not imply that EPA ‘‘will never act
and does not need to act on these
elements.’’ Rather, the TSD states,
‘‘With this action, EPA will not be
acting on 110(a)(2)(D)(i)(I)—prongs 1
and 2, and 110(a)(2)(D)(i)(II)—prong 4.’’
That is, the TSD merely explains that
EPA is not taking action on prongs 1, 2,
and 4 in this rulemaking, not that it does
not have an obligation to act on those
elements of the SIP submission at issue,
or that it will never do so.
EPA is not required to act on the
prong 1, 2, or 4 elements of Iowa’s 2012
PM2.5 infrastructure SIP submission in
this particular rulemaking. Although
EPA agrees with the commenter that it
has an obligation to take action under
section 110(k) on SIP submissions, EPA
disagrees with the argument that the
Agency cannot elect to act on individual
parts or elements of a state’s
infrastructure SIP submission in
separate rulemakings, as it deems
appropriate. Section 110(k) of the CAA
authorizes EPA to approve a SIP
submission in full, disapprove it in full,
or approve it in part and disapprove it
in part, or conditionally approve it in
full or in part, depending on the extent
to which such plan meets the
requirements of the CAA. This authority
to approve state SIP submissions in
separable parts was included in the
1 www.regulations.gov, Docket: EPA–R07–OAR–
2017–0517, Supporting Documents; R7 Technical
Support Document
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Federal Register / Vol. 83, No. 56 / Thursday, March 22, 2018 / Rules and Regulations
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1990 Amendments to the CAA to
overrule a decision in the Court of
Appeals for the Ninth Circuit holding
that EPA could not approve individual
measures in a SIP submission without
either approving or disapproving the
plan as a whole. See S. Rep. No. 101–
228, at 22, 1990 U.S.C.C.A.N. 3385,
3408 (discussing the express overruling
of Abramowitz v. EPA, 832 F.2d 1071
(9th Cir. 1987)).
EPA interprets its authority under
section 110(k) of the CAA as affording
the Agency the discretion to approve,
disapprove, or conditionally approve,
individual elements of Iowa’s
infrastructure SIP submission for the
2012 PM2.5 NAAQS. EPA views discrete
infrastructure SIP requirements, such as
the requirements of 110(a)(2)(D)(i)(I) and
(II), as severable from other
infrastructure SIP elements and
interprets section 110(k) as allowing it
to act on individual severable elements
or requirements in a SIP submission. In
short, EPA has the discretion under
section 110(k) of the CAA to act upon
the various individual elements of a
state’s infrastructure SIP submission,
separately or together, as appropriate.
EPA will address the remaining
elements of Iowa’s 2012 PM2.5
infrastructure SIP submission in a
separate rulemaking action or actions.
With respect to the comment on prong
4 in particular, although EPA’s
evaluation of a state’s SIP submission
can be related to the status of that state’s
regional haze program,2 Iowa’s regional
haze program is not relevant here
because EPA is not taking action on that
element of Iowa’s 2012 PM2.5
infrastructure SIP submission in this
rulemaking.
Finally, a public comment submitted
on a proposal does not constitute notice
of intent to sue the Administrator for
failure to perform a nondiscretionary
duty. Clean Air Act section 304(b)(2)
requires 60 days’ notice of a civil action
against the Administrator for an alleged
failure to perform a non-discretionary
duty to the Administrator. EPA’s
regulations require that service of notice
to the Administrator ‘‘shall be
accomplished by certified mail
addressed to the Administrator,
Environmental Protection Agency,
Washington, DC 20460.’’ 40 CFR 54.2(a).
2 EPA’s 2013 Guidance of Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2) provides
that ‘‘[o]ne way in which prong 4 may be satisfied
for any relevant NAAQS is through an air agency’s
confirmation in its infrastructure SIP submission
that it has an approved regional haze
SIP. . . . . . .’’ 2013 Guidance at 33, https://
www3.epa.gov/airquality/urbanair/sipstatus/docs/
Guidance_on_Infrastructure_SIP_Elements_
Multipollutant_FINAL_Sept_2013.pdf.
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The commenter’s public comment
submitted via regulations.gov does not
satisfy the regulatory requirements for
notices of intent to file suit against the
Administrator for failure to perform a
non-discretionary duty.
V. What action is EPA taking?
EPA is taking final action to approve
elements of the 2012 PM2.5 NAAQS
infrastructure SIP submission from the
State of Iowa received on December 22,
2015. Specifically, EPA is approving the
infrastructure submission with regard to
the following elements of section
110(a)(2): (A), (B), (C), (D)(i)(II)—prevent
significant deterioration of air quality
(prong 3), (D)(ii), (E) through (H), and (J)
through (M). EPA is not taking action on
elements of the SIP submission relevant
to section 110(a)(2)(D)(i)(I)—significant
contribution to nonattainment (prong 1)
and interfering with maintenance of the
NAAQS (prong 2), and section
110(a)(2)(D)(i)(II)—protection of
visibility (prong 4). The agency will act
on those elements of the SIP submission
in a separate rulemaking action or
actions.
VI. Statutory and Executive Order
Reviews
Under the Clean Air Act, 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
that reason, this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866.
• 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
PO 00000
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Fmt 4700
Sfmt 4700
in the Unfunded Mandates Reform Act
of 1995 (Public Law 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 Clean Air Act;
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, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by May 21, 2018.
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,
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Federal Register / Vol. 83, No. 56 / Thursday, March 22, 2018 / Rules and Regulations
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,
Particulate matter, Reporting and
recordkeeping requirements.
Dated: March 7, 2018.
James B. Gulliford,
Regional Administrator, Region 7.
12491
Authority: 42 U.S.C. 7401 et seq.
Subpart Q—Iowa
For the reasons stated in the
preamble, EPA amends 40 CFR part 52
as set forth below:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
2. Section 52.820 is amended by
adding paragraph (e)(49) to read as
follows:
■
§ 52.820
*
1. The authority citation for part 52
continues to read as follows:
■
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED IOWA NONREGULATORY SIP PROVISIONS
Name of nonregulatory
SIP revision
Applicable geographic
or nonattainment area
*
(49) Sections 110(a)(1)
and (2) Infrastructure
Requirements 2012
annual fine Particulate
Matter NAAQS.
*
*
Statewide .....................
[FR Doc. 2018–05540 Filed 3–21–18; 8:45 a.m.]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2017–0208; FRL–9975–
69—Region 7]
Approval of Implementation Plans;
State of Iowa; Elements of the
Infrastructure SIP Requirements for
the 2010 Nitrogen Dioxide National
Ambient Air Quality Standard (NAAQS)
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve certain elements of Iowa’s 2013
State Implementation Plan (SIP)
submission, and a 2017 amendment to
that submission, for the 2010 Nitrogen
Dioxide (NO2) National Ambient Air
Quality Standard (NAAQS). States are
required to have a SIP that provides for
the implementation, maintenance, and
enforcement of the NAAQS. Whenever
EPA promulgates a new or revised
NAAQS, states are required to make a
SIP submission establishing that the
existing approved SIP has provisions
necessary to address various
requirements to address the new or
revised NAAQS or to add such
provisions. These SIPs are commonly
referred to as ‘‘infrastructure’’ SIPs. The
infrastructure requirements are designed
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SUMMARY:
VerDate Sep<11>2014
17:42 Mar 21, 2018
Jkt 244001
State submittal
date
12/15/2015
EPA approval date
Explanation
*
*
3/22/2018, [Insert .........
Federal Register citation].
*
*
This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), D(i)(II) prong 3
only, D(ii), (E), (F), (G), (H), (J), (K), (L), and
(M).
[EPA–R07–OAR–2017–0517;
FRL–
9975–68– Region 7].
to ensure that the structural components
of each state’s air quality management
program are adequate to meet the state’s
responsibilities under the CAA.
DATES: This final rule is effective on
April 23, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2017–0208. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, i.e., CBI or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available through https://
www.regulations.gov or please contact
the person identified in the FOR FURTHER
INFORMATION CONTACT section for
additional information.
FOR FURTHER INFORMATION CONTACT:
Heather Hamilton, Environmental
Protection Agency, Air Planning and
Development Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at
(913) 551–7039, or by email at
hamilton.heather@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document ‘‘we,’’ ‘‘us,’’
and ‘‘our’’ refer to EPA. This section
provides additional information by
addressing the following:
I. Background
II. What is being addressed in this document?
III. Have the requirements for approval of the
SIP revisions been met?
PO 00000
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Fmt 4700
Sfmt 4700
IV. EPA’s response to comments
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. Background
EPA received Iowa’s initial 2010 NO2
NAAQS infrastructure SIP submission
on July 29, 2013. On March 9, 2017,
EPA received a revised submission
addressing the requirements of section
110(a)(2)(D)(i)(I). On September 20,
2017, EPA proposed to approve
elements of the 2010 NO2 NAAQS
infrastructure SIP submission from the
State of Iowa. See 82 FR 43925. In
conjunction with the September 20,
2017, notice of proposed rulemaking
(NPR), EPA issued a direct final rule
(DFR) approving the same elements of
the 2010 NO2 NAAQS infrastructure
SIP. See 82 FR 43836. However, in the
DFR, EPA stated that if EPA received
adverse comments by October 20, 2017,
the action would be withdrawn and not
take effect. EPA received three
comments prior to the close of the
comment period; one in favor of the
rulemaking, and two adverse. EPA
withdrew the DFR on November17,2017. See 82 FR 54299. This action
is a final rule based on the NPR. A
detailed discussion of Iowa’s SIP
revision and EPA’s rationale for
approving the SIP revision were
provided in the DFR and the associated
Technical Support Document in the
docket and will not be restated here,
except to the extent relevant to our
response to the public comment we
received.
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]]>Agencies
[Federal Register Volume 83, Number 56 (Thursday, March 22, 2018)]
[Rules and Regulations]
[Pages 12488-12491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05540]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2017-0517; FRL-9975-68--Region 7]
Approval of Implementation Plans; State of Iowa; Elements of the
Infrastructure SIP Requirements for the 2012 Particulate Matter (PM2.5)
National Ambient Air Quality Standard (NAAQS)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve certain elements of a 2015 State Implementation Plan
(SIP) submission from the State of Iowa for the 2012 Particulate Matter
(PM2.5) National Ambient Air Quality Standard (NAAQS).
States are required to have a SIP that provides for the implementation,
maintenance, and enforcement of the NAAQS. Whenever EPA promulgates a
new or revised NAAQS, states are required to make a SIP submission
establishing that the existing approved SIP has provisions necessary to
address various requirements to address the new or revised NAAQS or to
add such
[[Page 12489]]
provisions. These SIP submissions are commonly referred to as
``infrastructure'' SIPs. The infrastructure SIP requirements are
designed to ensure that the structural components of each state's air
quality management program are adequate to meet the state's
responsibilities under the CAA.
DATES: This final rule is effective on April 23, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R07-OAR-2017-0517. All documents in the docket are listed on
the https://www.regulations.gov website. Although listed in the index,
some information is not publicly available, i.e., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available through https://www.regulations.gov or please contact the person identified in the FOR
FURTHER INFORMATION CONTACT section for additional information.
FOR FURTHER INFORMATION CONTACT: Heather Hamilton, Environmental
Protection Agency, Air Planning and Development Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at (913) 551-7039, or by email at
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' refer to EPA. This section provides additional information by
addressing the following:
I. Background
II. What is being addressed in this document?
III. Have the requirements for approval of the SIP revisions been
met?
IV. EPA's Response to Comments
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. Background
EPA received Iowa's 2012 PM2.5 infrastructure SIP
submission on December 22, 2015. On September 29, 2017, EPA proposed to
approve certain elements of this SIP submission. See 82 FR 45550. In
conjunction with the September 29, 2017, notice of proposed rulemaking
(NPR), EPA issued a direct final rule (DFR) approving the same elements
of the 2012 PM2.5 NAAQS infrastructure SIP. See 82 FR 45479.
However, in the DFR, EPA stated that if EPA received adverse comments
by October 30, 2017, the action would be withdrawn and not take effect.
EPA received one adverse comment prior to the close of the comment
period. EPA withdrew the DFR on November 20, 2017. See 82 FR 55053.
This action is a final rule based on the NPR. A detailed discussion of
Iowa's SIP submission and EPA's rationale for approving the SIP
submission were provided in the DFR and the associated Technical
Support Document in the docket for this rulemaking and will not be
restated here, except to the extent relevant to our response to the
public comment we received.
II. What is being addressed in this document?
EPA is approving certain elements of the 2012 PM2.5
NAAQS infrastructure SIP submission from the State of Iowa received on
December 22, 2015. Specifically, EPA is approving Iowa's submission
with regard to the following elements of section 110(a)(2): (A), (B),
(C), (D)(i)(II)--prevent significant deterioration of air quality
(prong 3), (D)(ii), (E) through (H), and (J) through (M).
EPA is not taking action at this time on the following elements
that were addressed in Iowa's infrastructure SIP submission for the
2012 PM2.5 NAAQS: Section 110(a)(2)(D)(i)(I)--significant
contribution to nonattainment (prong 1), interfering with maintenance
of the NAAQS (prong 2), and section 110(a)(2)(D)(i)(II)--protection of
visibility (prong 4).
III. Have the requirements for approval of the SIP revisions been met?
The state met the public notice requirements for SIP submissions in
accordance with 40 CFR 51.102. The state initiated public comment from
October 14, 2015, to November 16, 2015. No comments were received. This
submission also satisfied the completeness criteria of 40 CFR part 51,
appendix V. In addition, as explained above and in more detail in the
technical support document which is part of the docket for this
rulemaking, the submission meets the applicable substantive SIP
requirements of the CAA, including section 110 and implementing
regulations.
IV. EPA's Response to Comments
The public comment period on EPA's proposed rule opened September
29, 2017, the date of its publication in the Federal Register, and
closed on October 30, 2017. During this period, EPA received one
adverse comment as follows:
Comment: The commenter stated that EPA must act on 110(a)(2)(D)(I)
prong 1 (significant contribution to nonattainment), prong 2
(interference with maintenance), and 110(a)(2)(D)(II), prong 4
(interference with visibility protection.) The commenter asserted that
EPA had stated in the Technical Support Document (TSD) for the proposed
action that ``EPA WILL NOT ACT on [prongs 1, 2 and 4]'' (emphasis added
in comment). The commenter claimed that EPA was therefore stating that
it ``will never act and does not need to act on these elements.'' The
commenter further stated that EPA does not have the discretionary
authority to not act on a state's submission. The commenter indicated
that if EPA does not believe prongs 1 and 2 are approvable, then EPA
must disapprove; if EPA does not believe prong 4 is approvable due to
the lack of an approved regional haze program, then EPA must disapprove
the state's submission and promulgate a FIP to address regional haze.
The commenter concluded by stating that the comment letter constitutes
notice of intent to sue the agency for failure to perform its
nondiscretionary duty under 110(k)(2) to act on Iowa's prongs 1, 2, and
4.
EPA's response: EPA disagrees with this comment. First, EPA's TSD
\1\ does not state that ``EPA will not act'' on the SIP submission with
respect to prongs 1, 2, and 4 of section 110(a)(2)(D), and does not
imply that EPA ``will never act and does not need to act on these
elements.'' Rather, the TSD states, ``With this action, EPA will not be
acting on 110(a)(2)(D)(i)(I)--prongs 1 and 2, and 110(a)(2)(D)(i)(II)--
prong 4.'' That is, the TSD merely explains that EPA is not taking
action on prongs 1, 2, and 4 in this rulemaking, not that it does not
have an obligation to act on those elements of the SIP submission at
issue, or that it will never do so.
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\1\ www.regulations.gov, Docket: EPA-R07-OAR-2017-0517,
Supporting Documents; R7 Technical Support Document
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EPA is not required to act on the prong 1, 2, or 4 elements of
Iowa's 2012 PM2.5 infrastructure SIP submission in this
particular rulemaking. Although EPA agrees with the commenter that it
has an obligation to take action under section 110(k) on SIP
submissions, EPA disagrees with the argument that the Agency cannot
elect to act on individual parts or elements of a state's
infrastructure SIP submission in separate rulemakings, as it deems
appropriate. Section 110(k) of the CAA authorizes EPA to approve a SIP
submission in full, disapprove it in full, or approve it in part and
disapprove it in part, or conditionally approve it in full or in part,
depending on the extent to which such plan meets the requirements of
the CAA. This authority to approve state SIP submissions in separable
parts was included in the
[[Page 12490]]
1990 Amendments to the CAA to overrule a decision in the Court of
Appeals for the Ninth Circuit holding that EPA could not approve
individual measures in a SIP submission without either approving or
disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990
U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of
Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).
EPA interprets its authority under section 110(k) of the CAA as
affording the Agency the discretion to approve, disapprove, or
conditionally approve, individual elements of Iowa's infrastructure SIP
submission for the 2012 PM2.5 NAAQS. EPA views discrete
infrastructure SIP requirements, such as the requirements of
110(a)(2)(D)(i)(I) and (II), as severable from other infrastructure SIP
elements and interprets section 110(k) as allowing it to act on
individual severable elements or requirements in a SIP submission. In
short, EPA has the discretion under section 110(k) of the CAA to act
upon the various individual elements of a state's infrastructure SIP
submission, separately or together, as appropriate. EPA will address
the remaining elements of Iowa's 2012 PM2.5 infrastructure
SIP submission in a separate rulemaking action or actions.
With respect to the comment on prong 4 in particular, although
EPA's evaluation of a state's SIP submission can be related to the
status of that state's regional haze program,\2\ Iowa's regional haze
program is not relevant here because EPA is not taking action on that
element of Iowa's 2012 PM2.5 infrastructure SIP submission
in this rulemaking.
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\2\ EPA's 2013 Guidance of Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2) provides that ``[o]ne way in which prong 4 may be
satisfied for any relevant NAAQS is through an air agency's
confirmation in its infrastructure SIP submission that it has an
approved regional haze SIP. . . . . . .'' 2013 Guidance at 33,
https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.
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Finally, a public comment submitted on a proposal does not
constitute notice of intent to sue the Administrator for failure to
perform a nondiscretionary duty. Clean Air Act section 304(b)(2)
requires 60 days' notice of a civil action against the Administrator
for an alleged failure to perform a non-discretionary duty to the
Administrator. EPA's regulations require that service of notice to the
Administrator ``shall be accomplished by certified mail addressed to
the Administrator, Environmental Protection Agency, Washington, DC
20460.'' 40 CFR 54.2(a). The commenter's public comment submitted via
regulations.gov does not satisfy the regulatory requirements for
notices of intent to file suit against the Administrator for failure to
perform a non-discretionary duty.
V. What action is EPA taking?
EPA is taking final action to approve elements of the 2012
PM2.5 NAAQS infrastructure SIP submission from the State of
Iowa received on December 22, 2015. Specifically, EPA is approving the
infrastructure submission with regard to the following elements of
section 110(a)(2): (A), (B), (C), (D)(i)(II)--prevent significant
deterioration of air quality (prong 3), (D)(ii), (E) through (H), and
(J) through (M). EPA is not taking action on elements of the SIP
submission relevant to section 110(a)(2)(D)(i)(I)--significant
contribution to nonattainment (prong 1) and interfering with
maintenance of the NAAQS (prong 2), and section 110(a)(2)(D)(i)(II)--
protection of visibility (prong 4). The agency will act on those
elements of the SIP submission in a separate rulemaking action or
actions.
VI. Statutory and Executive Order Reviews
Under the Clean Air Act, 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 that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866.
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 (Public Law 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 Clean Air Act; 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, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by May 21, 2018. 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,
[[Page 12491]]
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, Particulate matter, Reporting
and recordkeeping requirements.
Dated: March 7, 2018.
James B. Gulliford,
Regional Administrator, Region 7.
For the reasons stated in the preamble, EPA amends 40 CFR part 52
as set forth below:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart Q--Iowa
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2. Section 52.820 is amended by adding paragraph (e)(49) to read as
follows:
Sec. 52.820 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Iowa Nonregulatory SIP Provisions
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Applicable
Name of nonregulatory SIP geographic or State EPA approval date Explanation
revision nonattainment area submittal date
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* * * * * * *
(49) Sections 110(a)(1) and (2) Statewide......... 12/15/2015 3/22/2018, [Insert This action addresses
Infrastructure Requirements Federal Register the following CAA
2012 annual fine Particulate citation]. elements:
Matter NAAQS. 110(a)(2)(A), (B),
(C), D(i)(II) prong 3
only, D(ii), (E), (F),
(G), (H), (J), (K),
(L), and (M). [EPA-R07-
OAR-2017-0517; FRL-
9975-68- Region 7].
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[FR Doc. 2018-05540 Filed 3-21-18; 8:45 a.m.]
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