Approval of Implementation Plans; State of Iowa; Elements of the Infrastructure SIP Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard (NAAQS), 12486-12488 [2018-05631]
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Federal Register / Vol. 83, No. 56 / Thursday, March 22, 2018 / Rules and Regulations
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Carrie Lavigne,
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[FR Doc. 2018–05781 Filed 3–21–18; 8:45 am]
BILLING CODE 4910–61–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2017–0267; FRL–9975–
78—Region 7]
Approval of Implementation Plans;
State of Iowa; Elements of the
Infrastructure SIP Requirements for
the 2010 Sulfur Dioxide National
Ambient Air Quality Standard (NAAQS)
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
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I. Background
II. What is being addressed in this document?
III. Have the requirements for approval of the
SIP submission been met?
IV. EPA’s Response to Comments
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. Background
The Environmental Protection
Agency (EPA) is taking final action to
approve certain elements of a 2013 State
Implementation Plan (SIP) submission
from the State of Iowa for the 2010
Sulfur Dioxide (SO2) 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 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–2017–0267. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
SUMMARY:
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:
EPA received Iowa’s 2010 SO2
NAAQS infrastructure SIP submission
on July 29, 2013. On September 29,
2017, EPA proposed to approve
elements of this 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 2010 SO2 NAAQS
infrastructure SIP. See 82 FR 45497.
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 three comments prior to the
close of the comment period which
were adverse. EPA withdrew the DFR
on November 14,2017. See 82 FR 54300.
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 2010 SO2 NAAQS infrastructure SIP
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submission from the State of Iowa
received on July 29, 2013. 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 of 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 for the 2010
SO2 NAAQS: 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).
III. Have the requirements for approval
of the SIP submission been met?
The state met the public notice
requirements for SIP submission in
accordance with 40 CFR 51.102. The
state initiated public comment from
April 6, 2013, to May 8, 2013. One
comment was received and adequately
addressed in the final SIP submission.
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 three public comments on the
proposal to approve certain elements of
Iowa’s 2010 SO2 infrastructure SIP
submission, one of which is addressed
below. The other two comments were
not specific to this action, which is
concerned with evaluating whether
Iowa has the required elements in place
to implement, maintain, and enforce the
NAAQS, and thus no further response is
required.
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
went on to state that EPA was therefore
stating that it ‘‘will never act and does
not need to act on these elements.’’ The
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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 2010
SO2 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
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
1 www.regulations.gov, Docket: EPA–R07–OAR–
2017–0267, Supporting Documents; R7 Technical
Support Document.
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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
2010 SO2 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 2010 SO2
infrastructure SIP submission in a
separate rulemaking action or actions.
In EPA’s rulemaking proposing to
approve Iowa’s infrastructure SIP for the
2010 1-hour SO2 NAAQS, EPA stated
that it was not taking any action with
respect to the good neighbor provisions
in section 110(a)(2)(D)(i)(I) for this
NAAQS. EPA understands the
commenter’s concern with respect to
interstate transport. EPA will evaluate
whether it is appropriate to make a
finding of failure to submit in a separate
action as the state did not make a
submission to satisfy 110(a)(2)(D)(i)(I).
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 SO2 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
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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12487
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
Iowa’s 2013 infrastructure SIP
submission for the 2010 SO2 NAAQS
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 sections
110(a)(2)(D)(i)(I), prongs 1 and 2, and
110(a)(2)(D)(i)(II), prong 4. The agency
will act on those elements of the SIP
submission in a separate rulemaking
action or action.
VI. 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 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
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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.
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(e) * * *
*
*
EPA-APPROVED IOWA NONREGULATORY SIP PROVISIONS
Name of nonregulatory
SIP revision
Applicable geographic
or nonattainment area
State submittal
date
*
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*
(47) Sections 110(a)(1)
Statewide .....................
and (2) Infrastructure
Requirements 2010
Sulfur Dioxide NAAQS.
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7/23/2013
*
[FR Doc. 2018–05631 Filed 3–21–18; 8:45 am]
BILLING CODE 6560–50–P
EPA approval date
Explanation
*
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3/22/2018, [Insert Federal Register citation].
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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].
*
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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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]]>Agencies
[Federal Register Volume 83, Number 56 (Thursday, March 22, 2018)]
[Rules and Regulations]
[Pages 12486-12488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05631]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2017-0267; FRL-9975-78--Region 7]
Approval of Implementation Plans; State of Iowa; Elements of the
Infrastructure SIP Requirements for the 2010 Sulfur Dioxide National
Ambient Air Quality Standard (NAAQS)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve certain elements of a 2013 State Implementation Plan
(SIP) submission from the State of Iowa for the 2010 Sulfur Dioxide
(SO2) 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 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-2017-0267. 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 submission 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 2010 SO2 NAAQS infrastructure SIP
submission on July 29, 2013. On September 29, 2017, EPA proposed to
approve elements of this 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
2010 SO2 NAAQS infrastructure SIP. See 82 FR 45497. 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 three comments prior to the close of the comment period which
were adverse. EPA withdrew the DFR on November 14,2017. See 82 FR
54300. 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 2010 SO2 NAAQS
infrastructure SIP submission from the State of Iowa received on July
29, 2013. 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 of 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 for
the 2010 SO2 NAAQS: 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).
III. Have the requirements for approval of the SIP submission been met?
The state met the public notice requirements for SIP submission in
accordance with 40 CFR 51.102. The state initiated public comment from
April 6, 2013, to May 8, 2013. One comment was received and adequately
addressed in the final SIP submission. 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 three
public comments on the proposal to approve certain elements of Iowa's
2010 SO2 infrastructure SIP submission, one of which is
addressed below. The other two comments were not specific to this
action, which is concerned with evaluating whether Iowa has the
required elements in place to implement, maintain, and enforce the
NAAQS, and thus no further response is required.
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 went on to state that EPA was therefore
stating that it ``will never act and does not need to act on these
elements.'' The
[[Page 12487]]
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-2017-0267,
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 2010 SO2 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 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 2010 SO2 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 2010 SO2 infrastructure SIP
submission in a separate rulemaking action or actions.
In EPA's rulemaking proposing to approve Iowa's infrastructure SIP
for the 2010 1-hour SO2 NAAQS, EPA stated that it was not
taking any action with respect to the good neighbor provisions in
section 110(a)(2)(D)(i)(I) for this NAAQS. EPA understands the
commenter's concern with respect to interstate transport. EPA will
evaluate whether it is appropriate to make a finding of failure to
submit in a separate action as the state did not make a submission to
satisfy 110(a)(2)(D)(i)(I).
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 SO2 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 Iowa's 2013 infrastructure
SIP submission for the 2010 SO2 NAAQS 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 sections 110(a)(2)(D)(i)(I), prongs 1
and 2, and 110(a)(2)(D)(i)(II), prong 4. The agency will act on those
elements of the SIP submission in a separate rulemaking action or
action.
VI. 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 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
[[Page 12488]]
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
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart Q--Iowa
0
2. Section 52.820 is amended by adding new paragraph (e)(47) to read as
follows:
Sec. 52.820 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Iowa Nonregulatory SIP Provisions
----------------------------------------------------------------------------------------------------------------
Applicable
Name of nonregulatory SIP geographic or State EPA approval date Explanation
revision nonattainment area submittal date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
(47) Sections 110(a)(1) and (2) Statewide......... 7/23/2013 3/22/2018, [Insert This action addresses
Infrastructure Requirements Federal Register the following CAA
2010 Sulfur Dioxide NAAQS. citation]. 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].
* * * * * * *
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[FR Doc. 2018-05631 Filed 3-21-18; 8:45 am]
BILLING CODE 6560-50-P
