Approval of Nebraska Air Quality Implementation Plans; Infrastructure SIP Requirements for the 2010 Nitrogen Dioxide and Sulfur Dioxide and the 2012 Fine Particulate Matter National Ambient Air Quality Standards, 14179-14183 [2018-06654]
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Federal Register / Vol. 83, No. 64 / Tuesday, April 3, 2018 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R07–OAR–2017–0477; FRL–9976–
09—Region 7]
Approval of Nebraska Air Quality
Implementation Plans; Infrastructure
SIP Requirements for the 2010
Nitrogen Dioxide and Sulfur Dioxide
and the 2012 Fine Particulate Matter
National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action to
approve certain elements of State
Implementation Plan (SIP) submissions
from the State of Nebraska for the 2010
Nitrogen Dioxide (NO2) and Sulfur
Dioxide (SO2) National Ambient Air
Quality Standards (NAAQS) and the
2012 Fine Particulate Matter (PM2.5)
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 to establish that they
have, or to add, the provisions necessary
to address various requirements to
address the new or revised NAAQS.
These SIPs are commonly referred to as
‘‘infrastructure’’ SIPs. The infrastructure
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 Clean Air Act
(CAA).
DATES: This final rule is effective on
May 3, 2018.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2017–0477. 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: Mr.
Gregory Crable, Environmental
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SUMMARY:
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Protection Agency, Air Planning and
Development Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at
(913) 551–7391, or by email at
Crable.Gregory@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 a
SIP revision been met?
IV. EPA’s Response to Comments
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. Background
EPA received Nebraska’s
infrastructure SIP submissions
addressing the 2010 NO2 NAAQS, the
2010 SO2 NAAQS, and the 2012 PM2.5
NAAQS.1 On September 20, 2017, EPA
proposed to approve certain elements of
these infrastructure SIP submissions
from the State of Nebraska. See 82 FR
43926. 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, 2010 SO2, and
2012 PM2.5 NAAQS infrastructure SIP
submissions. See 82 FR 43848.
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 one set of adverse comments
prior to the close of the comment
period. EPA withdrew the DFR on
November 17, 2017. See 82 FR 54299.
This action is a final rule based on the
NPR. A detailed discussion of
Nebraska’s SIP submissions and EPA’s
rationale for approving the SIP
submissions were provided in the DFR
and the associated Technical Support
Document (TSD) in the docket for this
rulemaking and will not be restated
here, except to the extent relevant to our
response to the adverse public comment
we received.
II. What is being addressed in this
document?
EPA is taking final action to approve
the infrastructure submissions as
meeting the applicable submission
requirements section 110(a)(1). EPA is
approving certain elements of the 2010
NO2 and SO2 infrastructure SIP
submissions from the State of Nebraska
1 The EPA received the 2010 NO infrastructure
2
submission on February 7, 2013, the 2010 SO2
infrastructure submission on August 22, 2013, and
the 2012 PM2.5 infrastructure submission on
February 22, 2016.
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14179
received on February 7, 2013, and
August 22, 2013, respectively. EPA is
also taking action to approve certain
elements of the 2012 PM2.5
infrastructure submission received on
February 22, 2016. Specifically, in
regard to the 2010 NO2 NAAQS, EPA is
approving, the following SIP submission
elements related to CAA section
110(a)(2): (A) through (C), (D)(i)(I)—
Prongs 1 and 2, (D)(i)(II)—prong 3,
(D)(ii), (E) through (H), and (J) through
(M).
Regarding the 2010 SO2 and 2012
PM2.5 NAAQS, EPA is approving the
State’s SIP submission addressing the
following infrastructure elements of
section 110(a)(2): (A) through (C), (D) (i)
(II)—Prong 3, (D) (ii), (E) through (H),
and (J) through (M). As discussed in the
TSD, EPA is not acting, at this time, on
section 110(a)(2)(D)(i)(I)— prongs 1 and
2, as it relates to the 2010 SO2 NAAQS
as those elements were not part of the
state SIP submission. Section
110(a)(2)(D)(i)(I)—prongs 1 and 2, as it
relates to the 2012 PM2.5 NAAQS, were
included in the state SIP submission.
The EPA intends to act on section
110(a)(2)(D)(i)(I)—prongs 1 and 2, as it
relates to the 2012 PM2.5 NAAQS in a
subsequent rulemaking action.
Regarding the 2010 NO2 and SO2 and
the 2012 PM2.5 infrastructure
submissions and as explained in the
TSD, EPA is not acting, at this time, on
section 110(a)(2)(D)(i)(II)—prong 4.
As noted, a TSD is included as part
of the docket to discuss the details of
this action.
III. Have the requirements for approval
of a SIP revision been met?
The state has met the public notice
requirements for SIP submissions in
accordance with 40 CFR 51.102. A
public comment period was held for the
NO2 infrastructure SIP from December
27, 2012, to January 28, 2013. The only
comments were from the EPA, and the
infrastructure SIP submission was
revised to address the comments. A
public hearing was held on January 28,
2013.
The state held a public comment
period for the SO2 infrastructure SIP
from April 25, 2013, to May 28, 2013.
NDEQ received comments from the
Sierra Club on May 28, 2013. The state
addressed the Sierra Club’s comments
with no revisions to its proposed SIP. A
public hearing was held on May 27,
2013.
A public comment period was held
for the PM2.5 infrastructure SIP from
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November 23, 2015, to December 29,
2015. A public hearing was held on
December 29, 2015. No comments were
received.
All three submissions satisfied the
completeness criteria of 40 CFR part 51,
appendix V. As explained in more detail
in the TSD, which is part of this docket,
the revisions meet the 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 20,
2017 the date of its publication in the
Federal Register and closed on October
20, 2017. During this period, EPA
received one comment letter. No
changes were made to the proposals in
this final action after consideration of
the adverse comments received.
Comment 1: The commenter stated
that with regard to 2010 NO2 NAAQS,
EPA has not shown that Nebraska is not
significantly contributing to downwind
problems due to interstate transport of
NOX. The commenter specifically
asserted that EPA should have
addressed NOX emissions in Nebraska
rather than only evaluated national level
data, and that the lack of a requirement
for near road monitors for phase 3 is not
adequate to show no downwind issues.
The commenter further contended that
EPA must analyze all source categories
including point sources and conduct
modeling to show large point sources
are not causing downwind contribution.
Response 1: The EPA disagrees with
the commenter’s assertions. As an initial
matter, the question of whether
emissions from Nebraska significantly
contribute to nonattainment or interfere
with maintenance of the NAAQS in
violation of section 110(a)(2)(D)(i)(I)
depends on whether there are areas in
downwind states having or expected to
have trouble attaining or maintaining
the NAAQS. In the EPA’s TSD, the EPA
analyzed a variety of data and
determined that there were no
downwind areas in other states with air
quality concerns with respect to the
2010 NO2 NAAQS. EPA cited several
pieces of data to support this
conclusion. EPA first explained that at
the time of designations for NO2 in
January of 2012, no areas of the country
were violating the 2010 NO2 NAAQS.
EPA further reviewed monitoring and
emissions trends since the designations
and identified no areas that are having
problems attaining or maintaining the
NAAQS. In fact, the highest NO2 nearroad monitoring design value recorded
in Colorado based on the most current
available information at the time of
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publication of the proposed rule (e.g.
2013 to 2015 data) is 72 parts per billion
(ppb). Based on the most current
available, certified and quality assured
information (e.g. 2014 to 2016 data), the
highest NO2 near-road monitoring
design value recorded in Colorado is 74
ppb. Both of these design values are
well below the 2010 NO2 NAAQS of 100
ppb. Thus, in the absence of any
downwind air quality concerns,
Nebraska cannot be found to contribute,
let alone significantly contribute to
downwind nonattainment or interfere
with maintenance of the NAAQS. The
commenter does not identify any flaws
with EPA’s assessment of the data.
Thus, the commenter is incorrect to
state that EPA only relied on the lack of
near-road monitors in Nebraska in
concluding that the state is in
compliance with the requirements of
section 110(a)(2)(D)(i)(I). Moreover,
because neither EPA nor the commenter
have identified any downwind air
quality problems to which Nebraska
could contribute, the EPA does not
agree that it was necessary to evaluate
the impact of individual point sources
in Nebraska, via modeling or any other
analyses, on air quality in other states.
Finally, the commenter is incorrect in
asserting that EPA failed to evaluate
NOX emissions in Nebraska. In the TSD,
EPA reviewed NOX emission trends in
the state, which demonstrated that NOX
emissions in Nebraska have followed a
downward trend for 2011 to 2016.
EPA has demonstrated that Nebraska
is not significantly contributing to
downwind nonattainment or interfering
with maintenance of the 2010 NO2
NAAQS. Therefore, the EPA disagrees
with the commenter’s assertions and
will approve elements of
110(a)(2)(D)(i)(I)—Prongs 1 and 2 for
Nebraska’s NO2 infrastructure SIP
submission.
Comment 2: The commenter stated
that with respect to the PM2.5 NAAQS,
EPA does not have the discretion to ‘‘act
at a later date.’’ In addition, the
commenter states that EPA is mandated
by statute to act within 18 months of the
state’s submission, and that since the
state’s submission was received in
February 2016, EPA has failed to act in
a timely manner and does not have the
luxury of acting at a later date. If EPA
cannot approve the state’s plan, the EPA
must disapprove.
Response 2: EPA acknowledges the
commenter’s concern for the interstate
transport of air pollutants. However,
EPA disagrees with the commenter’s
argument that EPA cannot approve
certain elements of an infrastructure SIP
submission without also taking action
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on the elements related to interstate
transport.
EPA agrees with the commenter that
it has an obligation to take action under
section 110(k) on SIP submissions.
However, EPA disagrees with the
commenter’s argument that the Agency
cannot elect to act on individual parts
or elements of a state’s infrastructure
SIP submission in separate rulemaking
actions, 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 Nebraska’s
infrastructure SIP submission for the
2012 PM2.5 NAAQS. EPA views discrete
infrastructure SIP requirements, such as
the requirements of section
110(a)(2)(D)(i)(I), 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 believes it has the discretion
under section 110(k) of the CAA to act
upon the various individual elements of
the State’s infrastructure SIP
submission, separately or together, as
appropriate. EPA will address the
remaining elements of Nebraska’s 2012
PM2.5 NAAQS, infrastructure SIP
submission in a separate rulemaking
action or actions.
Comment 3: The commenter stated
that with respect to the SO2 NAAQS,
since the state has not submitted a plan
with regards to interstate transport, EPA
must make a finding of failure to
submit. The commenter further stated
that acting is on a SIP is not
discretionary and that EPA had yet to
act.
Response 3: Please refer to Response
2. Additionally, in EPA’s rulemaking
proposing to approve Nebraska’s
infrastructure SIP for the 2010 1-hour
SO2 NAAQS, EPA stated that it was not
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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.
Comment 4: The commenter stated
that for all three NAAQS, EPA does not
have the discretion to not act on prong
4 and must act within 18 months of the
state’s submission. The commenter
stated that EPA ‘‘does not have the
luxury’’ of acting on a submission at a
later date. If EPA cannot approve due to
the state not having an approved
Regional Haze SIP then EPA is required
to disapprove.
Response 4: Please refer to Response
2. EPA is not required to act on the
prong 4 elements of Nebraska’s 2010
NO2, 2010 SO2, and 2012 PM2.5
infrastructure SIP submissions in this
particular rulemaking. Like the elements
of section 110(a)(2)(D)(i)(I), prong 4 is
severable from other infrastructure SIP
elements and EPA interprets section
110(k) as allowing it to act on individual
severable elements or requirements in a
SIP submission.
With respect to the comment on prong
4, although EPA’s evaluation of a state’s
SIP submission can be related to the
status of that state’s regional haze
program,2 Nebraska’s regional haze
program 3 is not relevant here because
EPA is not taking action on that element
of Nebraska’s 2010 NO2, 2010 SO2, and
2012 PM2.5 infrastructure SIP
submissions in this rulemaking.
Comment 5: Initially in comments 2
through 4, the commenter indicated that
this was the commenter’s official notice
of intent to EPA for failure to perform
its nondiscretionary duty to act on the
state’s submission with respect to
element D(i)(II)—prong 4 for the 2010
NO2, 2010 SO2, and 2012 PM2.5 NAAQS,
failure to perform its nondiscretionary
duty to make a finding of failure to
submit with respect to the interstate
transport portions of SO2 NAAQS, and
for failing to perform its
nondiscretionary duty to act on the
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.
3 Federal Implementation Plan for Best Available
Retrofit Technology Determination, 77 FR 40150
(July 6, 2012).
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state’s submission with regards to
interstate transport of PM2.5.
Response 5: 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 a 60-day
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 approving elements the
infrastructure SIP submissions from
Nebraska, which address the
requirements of CAA sections 110(a)(1)
and (2) as applicable to the 2010 NO2
and SO2 and 2012 PM2.5 NAAQS. As
stated in the above preamble, EPA is
approving certain elements of the state’s
submission as meeting the submission
requirements of section 110(a)(1) for all
three submissions.
Regarding the 2010 NO2 NAAQS, EPA
is approving the following infrastructure
elements of 110(a)(2): (A) through (C),
(D)(i)(I)—Prongs 1 and 2, (D)(i)(II)—
prong 3, (D)(ii), (E) through (H), and (J)
through (M). As explained in the TSD,
EPA intends to act on section
110(a)(2)(D)(i)(II)—prong 4, in a
subsequent rulemaking.
EPA is approving the following
infrastructure elements of 110(a)(2) as it
relates to the 2010 SO2 and the 2012
PM2.5 NAAQS: (A) through (C), (D) (i)
(II)—Prong 3, (D) (ii), (E) through (H),
and (J) through (M). As discussed in the
TSD, EPA intends to act on section
110(a)(2)(D)(i)(II)—prong 4, in a
subsequent rulemaking and is not acting
at this time on section
110(a)(2)(D)(i)(I)—prongs 1 and 2, for
both the 2010 SO2 and 2012 PM2.5
NAAQS.
Based upon review of the state’s
infrastructure SIP submissions for the
2010 NO2 and SO2 NAAQS as well as
the 2012 PM2.5 NAAQS, and relevant
statutory and regulatory authorities and
provisions referenced in the
submissions or referenced in Nebraska’s
SIP, EPA believes that Nebraska has the
infrastructure to address all applicable
required elements of sections 110(a)(1)
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and (2) (except otherwise noted) to
ensure that the 2010 NO2 and SO2
NAAQS and the 2012 PM2.5 NAAQS are
implemented in the state.
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
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
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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 CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by June 4, 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, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: March 15, 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 CC—Nebraska
2. Amend § 52.1420(e) by adding
entries ‘‘(32)’’, ‘‘(33)’’ and ‘‘(34)’’ in
numerical order to read as follows:
■
§ 52.1420
*
Identification of Plan.
*
*
(e) * * *
*
*
EPA-APPROVED NEBRASKA NONREGULATORY PROVISIONS
Applicable
geographic or
nonattainment
area
Name of nonregulatory SIP provision
State submittal
date
EPA Approval date
*
*
(32) Section 110(a)(2) Infrastructure
Requirements for the 2010 NO2
NAAQS.
*
Statewide .............
*
2/7/13
*
4/3/2018, [Insert Federal
Register citation].
(33) Section 110(a)(2) Infrastructure
Requirements for the 2010 SO2
NAAQS.
Statewide .............
8/22/13
4/3/2018, [Insert Federal
Register citation].
(34) Section 110(a)(2) Infrastructure
Requirements for the 2010 PM2.5
NAAQS.
Statewide .............
2/22/16
4/3/2018 and [Insert Federal Register citation].
Explanation
*
*
This action addresses the following
CAA
elements
110(a)(2)(A)
through (C), (D)(i)(I)—Prongs 1
and 2, (D)(i)(II)—Prong 3, (D)(ii),
(E) through (H), and (J) through
(M). [EPA–R07–OAR–2017–0477;
FRL–9976–09–Region 7].
This action addresses the following
CAA
elements
110(a)(2)(A)
through (C), (D)(i)(II)—Prong 3,
(D)(ii), (E) through (H), and (J)
through (M). [EPA–R07–OAR–
2017–0477; FRL–9976–09–Region
7].
This action addresses the following
CAA
elements
110(a)(2)(A)
through (C), (D)(i)(II)—Prong 3,
(D)(ii), (E) through (H), and (J)
through (M). [EPA–R07–OAR–
2017–0477; FRL–9976–09–Region
7].
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Federal Register / Vol. 83, No. 64 / Tuesday, April 3, 2018 / Rules and Regulations
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
45 CFR Part 5b
[Docket Number NIH–2016–0001]
RIN 0925–AA63
Privacy Act; Implementation
National Institutes of Health
(NIH), Department of Health and Human
Services (HHS).
ACTION: Final rule.
AGENCY:
The Department of Health and
Human Services (HHS or Department),
through the National Institutes of Health
(NIH), is issuing this final rule to make
effective the exemptions that HHS/NIH
proposed for a subset of records covered
in a new Privacy Act system of records,
System No. 09–25–0225, NIH Electronic
Research Administration (eRA) Records
(NIH eRA Records). The new system
covers records used in managing NIH
research and development applications
and awards throughout the award
lifecycle. The listed exemptions are
necessary to maintain the integrity of
the NIH extramural peer review and
award processes, and will enable the
agency to prevent, when appropriate,
individual record subjects from having
access to, and other rights under the
Privacy Act with respect to, confidential
source-identifying material in the
records.
SUMMARY:
This final rule is effective April
3, 2018.
FOR FURTHER INFORMATION CONTACT:
Celeste Dade-Vinson, NIH Privacy Act
Officer, Office of Management
Assessment, National Institutes of
Health, 6011 Executive Boulevard, Suite
601, MSC 7669, Rockville, Maryland
20852, telephone 301–496–4606, fax
301–402–0169, email privacy@
mail.nih.gov.
DATES:
In
accordance with the Privacy Act of 1974
(Privacy Act), the exemptions were
described in a Notice of Proposed
Rulemaking (NPRM) published for
public notice and comment on
December 8, 2016 (81 FR 88637). The
new system of records was described in
a System of Records Notice (SORN)
published for public notice and
comment the same day (81 FR 88690).
Only certain confidential sourceidentifying information was proposed to
be exempted, from the accounting of
disclosures, access and amendment, and
notification provisions in subsections
(c)(3) and (d)(1) through (4) of the
Privacy Act, based on subsection (k)(5)
of the Act. One comment was received
nshattuck on DSK9F9SC42PROD with RULES
SUPPLEMENTARY INFORMATION:
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on the NPRM and no comments were
received on the SORN. No changes to
the proposed exemptions or to the
SORN were made as a result of
comment received. The NIH research
and development award programs
provide funds through contracts,
cooperative agreements, and grants to
support biomedical and behavioral
research and development projects and
centers, training, career development,
small business, and loan repayment and
other research programs. The NIH is
responsible to Congress and the U.S.
taxpayers for carrying out its research
and development award programs in a
manner that facilitates research costeffectively and in compliance with
applicable statutes, rules and
regulations, including 42 U.S.C. 217a,
281, 282, 41 U.S.C. 423 and 45 CFR part
75. The NIH uses an award process that
relies on checks and balances,
separation of responsibilities, and a twolevel peer review system to ensure that
funding applications submitted to the
NIH are evaluated in a manner that is
fair, equitable, timely, and free of bias.
The two-level peer review system is
authorized by 42 U.S.C. 216, 42 U.S.C.
282(b)(6), 42 U.S.C. 284(c)(3), and 42
U.S.C. 289a and governed by regulations
at 42 CFR part 52h, ‘‘Scientific Peer
Review of Research Grant Applications
and Research and Development Contract
Projects.’’ The two-level system
separates the scientific assessment of
proposed projects from policy decisions
about scientific areas to be supported
and the level of resources to be
allocated, which permits a more
objective and complete evaluation than
would result from a single level of
review. The two-level review system is
designed to provide NIH officials with
the best available advice about scientific
and technical merit as well as program
priorities and policy considerations.
The initial or first level review involves
panels of experts established according
to scientific disciplines, generally
referred to as Scientific Review Groups
(SRGs), whose primary function is to
evaluate the scientific merit of grant
applications. The second level of review
of grant applications is performed by
National Advisory Boards or Councils
composed of both scientific and lay
representatives. The recommendations
made by these Boards or Councils are
based not only on considerations of
scientific merit as judged by the SRG
but also on the relevance of a proposed
project to the programs and priorities of
the NIH. Referees are those individuals
who supply reference or other letters of
recommendations for a grant or
cooperative agreement applicant.
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Confidential referee and peer reviewer
identifying material is contained in
records such as reference or
recommendation letters, reviewer
critiques, preliminary or final
individual overall impact/priority score
records, and/or assignment of peer
reviewers to an application and other
evaluative materials and data, which
referees and peer reviewers provide to
the NIH Office of Extramural Research
(OER) under express promises that they
will not be identified as the sources of
the information, and which NIH/OER
compiles solely for the purpose of
determining applicants’ suitability,
eligibility, or qualifications for federal
contracts, grants, or cooperative
agreements. To the extent that records
in System No. 09–25–0225 are retrieved
by personal identifiers for individuals
other than the referees and reviewers
(for example, individual applicants), the
exemptions for the new system will
enable the agency to prevent, when
appropriate, those individual record
subjects from having access to, and
other rights under the Privacy Act with
respect to, confidential sourceidentifying material in the records.
Under the Privacy Act (5 U.S.C. 552a),
individuals have a right of access to
records about them in federal agency
systems of records, and other rights with
respect to those records (such as
notification, amendment, and an
accounting of disclosures), but the Act
permits certain types of systems of
records (identified in section 552a (j)
and (k)) to be exempted from certain
requirements of the Act. Subsection
(k)(5) permits the head of an agency to
promulgate rules to exempt from the
requirements in subsections (c)(3) and
(d)(1) through (4) of the Act
investigatory material compiled solely
for the purpose of determining
suitability, eligibility, or qualifications
for Federal contracts, to the extent that
the disclosure of such material would
reveal the identity of a source who
furnished information to the
Government under an express promise
that the identity of the source would be
held in confidence.
On December 8, 2016, HHS/NIH
published a System of Records Notice
(SORN) describing the new system (81
FR 88690). On the same date, HHS/NIH
also published a Notice of Proposed
Rulemaking (NPRM) (81 FR 88637)
proposing to exempt a subset of records
in the system of records under
subsection (k)(5) of the Privacy Act from
requirements pertaining to providing an
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]]>Agencies
[Federal Register Volume 83, Number 64 (Tuesday, April 3, 2018)]
[Rules and Regulations]
[Pages 14179-14183]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06654]
[[Page 14179]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R07-OAR-2017-0477; FRL-9976-09--Region 7]
Approval of Nebraska Air Quality Implementation Plans;
Infrastructure SIP Requirements for the 2010 Nitrogen Dioxide and
Sulfur Dioxide and the 2012 Fine Particulate Matter National Ambient
Air Quality Standards
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 State Implementation Plan (SIP)
submissions from the State of Nebraska for the 2010 Nitrogen Dioxide
(NO2) and Sulfur Dioxide (SO2) National Ambient
Air Quality Standards (NAAQS) and the 2012 Fine Particulate Matter
(PM2.5) 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 to establish that they have, or to
add, the provisions necessary to address various requirements to
address the new or revised NAAQS. These SIPs are commonly referred to
as ``infrastructure'' SIPs. The infrastructure 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 Clean Air Act (CAA).
DATES: This final rule is effective on May 3, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R07-OAR-2017-0477. 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: Mr. Gregory Crable, Environmental
Protection Agency, Air Planning and Development Branch, 11201 Renner
Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, 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 a SIP revision been met?
IV. EPA's Response to Comments
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews
I. Background
EPA received Nebraska's infrastructure SIP submissions addressing
the 2010 NO2 NAAQS, the 2010 SO2
NAAQS, and the 2012 PM2.5 NAAQS.\1\ On September 20, 2017,
EPA proposed to approve certain elements of these infrastructure SIP
submissions from the State of Nebraska. See 82 FR 43926. 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, 2010 SO2, and 2012 PM2.5
NAAQS infrastructure SIP submissions. See 82 FR 43848. 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
one set of adverse comments prior to the close of the comment period.
EPA withdrew the DFR on November 17, 2017. See 82 FR 54299. This action
is a final rule based on the NPR. A detailed discussion of Nebraska's
SIP submissions and EPA's rationale for approving the SIP submissions
were provided in the DFR and the associated Technical Support Document
(TSD) in the docket for this rulemaking and will not be restated here,
except to the extent relevant to our response to the adverse public
comment we received.
---------------------------------------------------------------------------
\1\ The EPA received the 2010 NO2 infrastructure
submission on February 7, 2013, the 2010 SO2
infrastructure submission on August 22, 2013, and the 2012
PM2.5 infrastructure submission on February 22, 2016.
---------------------------------------------------------------------------
II. What is being addressed in this document?
EPA is taking final action to approve the infrastructure
submissions as meeting the applicable submission requirements section
110(a)(1). EPA is approving certain elements of the 2010 NO2
and SO2 infrastructure SIP submissions from the State of
Nebraska received on February 7, 2013, and August 22, 2013,
respectively. EPA is also taking action to approve certain elements of
the 2012 PM2.5 infrastructure submission received on
February 22, 2016. Specifically, in regard to the 2010 NO2
NAAQS, EPA is approving, the following SIP submission elements related
to CAA section 110(a)(2): (A) through (C), (D)(i)(I)--Prongs 1 and 2,
(D)(i)(II)--prong 3, (D)(ii), (E) through (H), and (J) through (M).
Regarding the 2010 SO2 and 2012 PM2.5 NAAQS,
EPA is approving the State's SIP submission addressing the following
infrastructure elements of section 110(a)(2): (A) through (C), (D) (i)
(II)--Prong 3, (D) (ii), (E) through (H), and (J) through (M). As
discussed in the TSD, EPA is not acting, at this time, on section
110(a)(2)(D)(i)(I)-- prongs 1 and 2, as it relates to the 2010
SO2 NAAQS as those elements were not part of the state SIP
submission. Section 110(a)(2)(D)(i)(I)--prongs 1 and 2, as it relates
to the 2012 PM2.5 NAAQS, were included in the state SIP
submission. The EPA intends to act on section 110(a)(2)(D)(i)(I)--
prongs 1 and 2, as it relates to the 2012 PM2.5 NAAQS in a
subsequent rulemaking action.
Regarding the 2010 NO2 and SO2 and the 2012
PM2.5 infrastructure submissions and as explained in the
TSD, EPA is not acting, at this time, on section 110(a)(2)(D)(i)(II)--
prong 4.
As noted, a TSD is included as part of the docket to discuss the
details of this action.
III. Have the requirements for approval of a SIP revision been met?
The state has met the public notice requirements for SIP
submissions in accordance with 40 CFR 51.102. A public comment period
was held for the NO2 infrastructure SIP from December 27,
2012, to January 28, 2013. The only comments were from the EPA, and the
infrastructure SIP submission was revised to address the comments. A
public hearing was held on January 28, 2013.
The state held a public comment period for the SO2
infrastructure SIP from April 25, 2013, to May 28, 2013. NDEQ received
comments from the Sierra Club on May 28, 2013. The state addressed the
Sierra Club's comments with no revisions to its proposed SIP. A public
hearing was held on May 27, 2013.
A public comment period was held for the PM2.5
infrastructure SIP from
[[Page 14180]]
November 23, 2015, to December 29, 2015. A public hearing was held on
December 29, 2015. No comments were received.
All three submissions satisfied the completeness criteria of 40 CFR
part 51, appendix V. As explained in more detail in the TSD, which is
part of this docket, the revisions meet the 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
20, 2017 the date of its publication in the Federal Register and closed
on October 20, 2017. During this period, EPA received one comment
letter. No changes were made to the proposals in this final action
after consideration of the adverse comments received.
Comment 1: The commenter stated that with regard to 2010
NO2 NAAQS, EPA has not shown that Nebraska is not
significantly contributing to downwind problems due to interstate
transport of NOX. The commenter specifically asserted that
EPA should have addressed NOX emissions in Nebraska rather
than only evaluated national level data, and that the lack of a
requirement for near road monitors for phase 3 is not adequate to show
no downwind issues. The commenter further contended that EPA must
analyze all source categories including point sources and conduct
modeling to show large point sources are not causing downwind
contribution.
Response 1: The EPA disagrees with the commenter's assertions. As
an initial matter, the question of whether emissions from Nebraska
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS in violation of section 110(a)(2)(D)(i)(I) depends on
whether there are areas in downwind states having or expected to have
trouble attaining or maintaining the NAAQS. In the EPA's TSD, the EPA
analyzed a variety of data and determined that there were no downwind
areas in other states with air quality concerns with respect to the
2010 NO2 NAAQS. EPA cited several pieces of data to support
this conclusion. EPA first explained that at the time of designations
for NO2 in January of 2012, no areas of the country were
violating the 2010 NO2 NAAQS. EPA further reviewed
monitoring and emissions trends since the designations and identified
no areas that are having problems attaining or maintaining the NAAQS.
In fact, the highest NO2 near-road monitoring design value
recorded in Colorado based on the most current available information at
the time of publication of the proposed rule (e.g. 2013 to 2015 data)
is 72 parts per billion (ppb). Based on the most current available,
certified and quality assured information (e.g. 2014 to 2016 data), the
highest NO2 near-road monitoring design value recorded in
Colorado is 74 ppb. Both of these design values are well below the 2010
NO2 NAAQS of 100 ppb. Thus, in the absence of any downwind
air quality concerns, Nebraska cannot be found to contribute, let alone
significantly contribute to downwind nonattainment or interfere with
maintenance of the NAAQS. The commenter does not identify any flaws
with EPA's assessment of the data.
Thus, the commenter is incorrect to state that EPA only relied on
the lack of near-road monitors in Nebraska in concluding that the state
is in compliance with the requirements of section 110(a)(2)(D)(i)(I).
Moreover, because neither EPA nor the commenter have identified any
downwind air quality problems to which Nebraska could contribute, the
EPA does not agree that it was necessary to evaluate the impact of
individual point sources in Nebraska, via modeling or any other
analyses, on air quality in other states.
Finally, the commenter is incorrect in asserting that EPA failed to
evaluate NOX emissions in Nebraska. In the TSD, EPA reviewed
NOX emission trends in the state, which demonstrated that
NOX emissions in Nebraska have followed a downward trend for
2011 to 2016.
EPA has demonstrated that Nebraska is not significantly
contributing to downwind nonattainment or interfering with maintenance
of the 2010 NO2 NAAQS. Therefore, the EPA disagrees with the
commenter's assertions and will approve elements of
110(a)(2)(D)(i)(I)--Prongs 1 and 2 for Nebraska's NO2
infrastructure SIP submission.
Comment 2: The commenter stated that with respect to the
PM2.5 NAAQS, EPA does not have the discretion to ``act at a
later date.'' In addition, the commenter states that EPA is mandated by
statute to act within 18 months of the state's submission, and that
since the state's submission was received in February 2016, EPA has
failed to act in a timely manner and does not have the luxury of acting
at a later date. If EPA cannot approve the state's plan, the EPA must
disapprove.
Response 2: EPA acknowledges the commenter's concern for the
interstate transport of air pollutants. However, EPA disagrees with the
commenter's argument that EPA cannot approve certain elements of an
infrastructure SIP submission without also taking action on the
elements related to interstate transport.
EPA agrees with the commenter that it has an obligation to take
action under section 110(k) on SIP submissions. However, EPA disagrees
with the commenter's argument that the Agency cannot elect to act on
individual parts or elements of a state's infrastructure SIP submission
in separate rulemaking actions, 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 Nebraska's infrastructure
SIP submission for the 2012 PM2.5 NAAQS. EPA views discrete
infrastructure SIP requirements, such as the requirements of section
110(a)(2)(D)(i)(I), 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
believes it has the discretion under section 110(k) of the CAA to act
upon the various individual elements of the State's infrastructure SIP
submission, separately or together, as appropriate. EPA will address
the remaining elements of Nebraska's 2012 PM2.5 NAAQS,
infrastructure SIP submission in a separate rulemaking action or
actions.
Comment 3: The commenter stated that with respect to the
SO2 NAAQS, since the state has not submitted a plan with
regards to interstate transport, EPA must make a finding of failure to
submit. The commenter further stated that acting is on a SIP is not
discretionary and that EPA had yet to act.
Response 3: Please refer to Response 2. Additionally, in EPA's
rulemaking proposing to approve Nebraska's infrastructure SIP for the
2010 1-hour SO2 NAAQS, EPA stated that it was not
[[Page 14181]]
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.
Comment 4: The commenter stated that for all three NAAQS, EPA does
not have the discretion to not act on prong 4 and must act within 18
months of the state's submission. The commenter stated that EPA ``does
not have the luxury'' of acting on a submission at a later date. If EPA
cannot approve due to the state not having an approved Regional Haze
SIP then EPA is required to disapprove.
Response 4: Please refer to Response 2. EPA is not required to act
on the prong 4 elements of Nebraska's 2010 NO2, 2010
SO2, and 2012 PM2.5 infrastructure SIP
submissions in this particular rulemaking. Like the elements of section
110(a)(2)(D)(i)(I), prong 4 is severable from other infrastructure SIP
elements and EPA interprets section 110(k) as allowing it to act on
individual severable elements or requirements in a SIP submission.
With respect to the comment on prong 4, although EPA's evaluation
of a state's SIP submission can be related to the status of that
state's regional haze program,\2\ Nebraska's regional haze program \3\
is not relevant here because EPA is not taking action on that element
of Nebraska's 2010 NO2, 2010 SO2, and 2012
PM2.5 infrastructure SIP submissions in this rulemaking.
---------------------------------------------------------------------------
\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.
\3\ Federal Implementation Plan for Best Available Retrofit
Technology Determination, 77 FR 40150 (July 6, 2012).
---------------------------------------------------------------------------
Comment 5: Initially in comments 2 through 4, the commenter
indicated that this was the commenter's official notice of intent to
EPA for failure to perform its nondiscretionary duty to act on the
state's submission with respect to element D(i)(II)--prong 4 for the
2010 NO2, 2010 SO2, and 2012 PM2.5
NAAQS, failure to perform its nondiscretionary duty to make a finding
of failure to submit with respect to the interstate transport portions
of SO2 NAAQS, and for failing to perform its
nondiscretionary duty to act on the state's submission with regards to
interstate transport of PM2.5.
Response 5: 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 a 60-day 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 approving elements the infrastructure SIP submissions from
Nebraska, which address the requirements of CAA sections 110(a)(1) and
(2) as applicable to the 2010 NO2 and SO2 and
2012 PM2.5 NAAQS. As stated in the above preamble, EPA is
approving certain elements of the state's submission as meeting the
submission requirements of section 110(a)(1) for all three submissions.
Regarding the 2010 NO2 NAAQS, EPA is approving the
following infrastructure elements of 110(a)(2): (A) through (C),
(D)(i)(I)--Prongs 1 and 2, (D)(i)(II)--prong 3, (D)(ii), (E) through
(H), and (J) through (M). As explained in the TSD, EPA intends to act
on section 110(a)(2)(D)(i)(II)--prong 4, in a subsequent rulemaking.
EPA is approving the following infrastructure elements of 110(a)(2)
as it relates to the 2010 SO2 and the 2012 PM2.5
NAAQS: (A) through (C), (D) (i) (II)--Prong 3, (D) (ii), (E) through
(H), and (J) through (M). As discussed in the TSD, EPA intends to act
on section 110(a)(2)(D)(i)(II)--prong 4, in a subsequent rulemaking and
is not acting at this time on section 110(a)(2)(D)(i)(I)--prongs 1 and
2, for both the 2010 SO2 and 2012 PM2.5 NAAQS.
Based upon review of the state's infrastructure SIP submissions for
the 2010 NO2 and SO2 NAAQS as well as the 2012
PM2.5 NAAQS, and relevant statutory and regulatory
authorities and provisions referenced in the submissions or referenced
in Nebraska's SIP, EPA believes that Nebraska has the infrastructure to
address all applicable required elements of sections 110(a)(1) and (2)
(except otherwise noted) to ensure that the 2010 NO2 and
SO2 NAAQS and the 2012 PM2.5 NAAQS are
implemented in the state.
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 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
[[Page 14182]]
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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 4, 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: March 15, 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 CC--Nebraska
0
2. Amend Sec. 52.1420(e) by adding entries ``(32)'', ``(33)'' and
``(34)'' in numerical order to read as follows:
Sec. 52.1420 Identification of Plan.
* * * * *
(e) * * *
EPA-Approved Nebraska Nonregulatory Provisions
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Applicable geographic or State
Name of nonregulatory SIP provision nonattainment area submittal date EPA Approval date Explanation
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* * * * * * *
(32) Section 110(a)(2) Infrastructure Statewide............... 2/7/13 4/3/2018, [Insert Federal Register This action addresses the
Requirements for the 2010 NO2 NAAQS. citation]. following CAA elements
110(a)(2)(A) through (C),
(D)(i)(I)--Prongs 1 and 2,
(D)(i)(II)--Prong 3,
(D)(ii), (E) through (H),
and (J) through (M). [EPA-
R07-OAR-2017-0477; FRL-9976-
09-Region 7].
(33) Section 110(a)(2) Infrastructure Statewide............... 8/22/13 4/3/2018, [Insert Federal Register This action addresses the
Requirements for the 2010 SO2 NAAQS. citation]. following CAA elements
110(a)(2)(A) through (C),
(D)(i)(II)--Prong 3,
(D)(ii), (E) through (H),
and (J) through (M). [EPA-
R07-OAR-2017-0477; FRL-9976-
09-Region 7].
(34) Section 110(a)(2) Infrastructure Statewide............... 2/22/16 4/3/2018 and [Insert Federal Register This action addresses the
Requirements for the 2010 PM2.5 citation]. following CAA elements
NAAQS. 110(a)(2)(A) through (C),
(D)(i)(II)--Prong 3,
(D)(ii), (E) through (H),
and (J) through (M). [EPA-
R07-OAR-2017-0477; FRL-9976-
09-Region 7].
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[FR Doc. 2018-06654 Filed 4-2-18; 8:45 am]
BILLING CODE 6560-50-P
