[Federal Register Volume 76, Number 17 (Wednesday, January 26, 2011)]
[Proposed Rules]
[Pages 4592-4597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1625]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2010-1015-201067; FRL-9257-4]


Approval and Promulgation of Air Quality Implementation Plan; 
North Carolina; Disapproval of Interstate Transport Submission for the 
2006 24-Hour PM[ihel2].[ihel5] Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On September 21, 2009, the State of North Carolina, through 
the North Carolina Department of Environment and Natural Resources (NC 
DENR), provided a letter to EPA with certification that North 
Carolina's state implementation plan (SIP) meets the interstate 
transport requirements with regard to the 2006 24-hour fine particulate 
matter (PM2.5) national ambient air quality standard 
(NAAQS). Specifically, the interstate transport requirements under the 
Clean Air Act (CAA or Act) prohibit a state's emissions from 
significantly contributing to nonattainment or interfering with the 
maintenance of the NAAQS in any other state. In this action, EPA is 
proposing to disapprove the portion of North Carolina's September 21, 
2009, submission which was intended to meet the requirement to address 
interstate transport for the 2006 24-hour PM2.5 NAAQS.

DATES: Comments must be received on or before February 25, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2010-1015 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected].
    3. Fax: (404) 562-9019.
    4. Mail: EPA-R04-OAR-2010-1015, Regulatory Development Section, Air 
Planning Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency,

[[Page 4593]]

Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960.
    5. Hand Delivery or Courier: Ms. Lynorae Benjamin, Chief, 
Regulatory Development Section, Air Planning Branch, Air, Pesticides 
and Toxics Management Division, U.S. Environmental Protection Agency, 
Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Such 
deliveries are only accepted during the Regional Office's normal hours 
of operation. The Regional Office's official hours of business are 
Monday through Friday, 8:30 to 4:30, excluding Federal holidays.
    Instructions: Direct your comments to Docket ID No. ``EPA-R04-OAR-
2010-1015.'' EPA's policy is that all comments received will be 
included in the public docket without change and may be made available 
online at www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit through 
www.regulations.gov or e-mail, information that you consider to be CBI 
or otherwise protected. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. 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 either electronically in www.regulations.gov or 
in hard copy at the Regulatory Development Section, Air Planning 
Branch, Air, Pesticides and Toxics Management Division, U.S. 
Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., 
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you 
contact the person listed in the FOR FURTHER INFORMATION CONTACT 
section to schedule your inspection. The Regional Office's official 
hours of business are Monday through Friday, 8:30 to 4:30, excluding 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the North 
Carolina SIP, contact Mr. Zuri Farngalo, Regulatory Development 
Section, Air Planning Branch, Air, Pesticides and Toxics Management 
Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth 
Street, SW., Atlanta, Georgia 30303-8960. Mr. Farngalo's telephone 
number is (404) 562-9152; e-mail address: [email protected]. For 
information regarding the PM2.5 interstate transport 
requirements under section 110(a)(2)(D)(i), contact Mr. Steven 
Scofield, Regulatory Development Section, at the same address above. 
Mr. Scofield's telephone number is (404) 562-9034; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: This section provides additional information 
by addressing the following questions:

I. What action is EPA proposing in today's notice?
II. What is the background for this proposed action?
III. What is EPA's analysis of North Carolina's submission for 
section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 
NAAQS?
IV. Proposed Action
V. Statutory and Executive Order Reviews

I. What action is EPA proposing in today's notice?

    On September 21, 2009, the State of North Carolina, through NC 
DENR, provided a letter to EPA with certification that the North 
Carolina SIP meets the interstate transport requirements with regard to 
the 2006 24-hour PM2.5 NAAQS.\1\ Specifically, North 
Carolina certified that its current SIP adequately addresses the 
elements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour 
PM2.5 NAAQS. CAA section 110(a)(2)(D)(i)(I) requires that 
implementation plans for each state contain adequate provisions to 
prohibit air pollutant emissions from sources within a state from 
significantly contributing to nonattainment in or interfering with 
maintenance of the NAAQS (in this case the 2006 24-hour 
PM2.5 NAAQS) in any other state. In today's action, EPA is 
proposing to disapprove the portion of North Carolina's September 21, 
2009, submission related to interstate transport for the 2006 24-hour 
PM2.5 NAAQS because EPA has made the preliminary 
determination that this submission does not meet the requirements of 
section 110(a)(2)(D)(i)(I) of the CAA for this NAAQS. EPA's rationale 
for this proposed disapproval is provided in the Section III of this 
rulemaking.
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    \1\ North Carolina's September 21, 2009, certification letter 
also explained that North Carolina's current SIP sufficiently 
addresses other requirements of section 110(a)(2) for the 2006 24-
hour PM2.5 NAAQS, however, today's proposed action only 
relates to the section 110(a)(2)(D)(i)(I) requirements for the 2006 
24-hour PM2.5 NAAQS. EPA will address the other section 
110(a)(2) requirements for the 2006 24-hour PM2.5 NAAQS 
in relation to North Carolina's SIP in rulemaking separate from 
today's proposed rulemaking.
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II. What is the background for this proposed action?

    On December 18, 2006, EPA revised the 24-hour average 
PM2.5 primary and secondary NAAQS from 65 micrograms per 
cubic meter ([micro]g/m \3\) to 35 [micro]g/m \3\. Section 110(a)(1) of 
the CAA requires states to submit ``infrastructure'' SIPs to address a 
new or revised NAAQS within 3 years after promulgation of such 
standards, or within such shorter period as EPA may prescribe.\2\ As 
provided by section 110(k)(2), within 12 months of a determination that 
a submitted SIP is complete under 110(k)(1), the Administrator shall 
act on the plan. As authorized in sections 110(k)(3) of the Act, where 
portions of the state submittals are severable, within that 12 month 
period EPA may decide to approve only those severable portions of the 
submittals that meet the requirements of the Act. When the deficient 
provisions are not severable from the other submitted provisions, EPA 
must propose disapproval of the submittals, consistent with section 
110(k)(3) of the Act.
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    \2\ The rule for the revised PM2.5 NAAQS was signed 
by the Administrator and publically disseminated on September 21, 
2006. Because EPA did not prescribe a shorter period for 110(a) SIP 
submittals, these submittals for the 2006 24-hour NAAQS were due on 
September 21, 2009, three years from the September 21, 2006, 
signature date.
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    Section 110(a)(2) lists the elements that such new infrastructure 
SIPs must address, as applicable, including section 110(a)(2)(D)(i), 
which pertains to interstate transport of certain emissions.

[[Page 4594]]

States were required to provide submissions to address the applicable 
110(a)(2) infrastructure requirements, including section 
110(a)(2)(D)(i), by September 21, 2009.
    On September 25, 2009, EPA issued a guidance entitled ``Guidance on 
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS)'' (2006 PM2.5 NAAQS Infrastructure 
Guidance). EPA developed the 2006 PM2.5 NAAQS Infrastructure 
Guidance to make recommendations to states for making submissions to 
meet the requirements of section 110, including 110(a)(2)(D)(i) for the 
revised 2006 24-hour PM2.5 NAAQS.
    As identified in the 2006 PM2.5 NAAQS Infrastructure 
Guidance, the ``good neighbor'' provisions in section 110(a)(2)(D)(i) 
require each state to submit a SIP that prohibits emissions that 
adversely affect another state in the ways contemplated in the statute. 
Section 110(a)(2)(D)(i) contains four distinct requirements related to 
the impacts of interstate transport. Specifically, the SIP must prevent 
sources in the state from emitting pollutants in amounts which will: 
(1) Contribute significantly to nonattainment of the NAAQS in other 
states; (2) interfere with maintenance of the NAAQS in other states; 
(3) interfere with provisions to prevent significant deterioration of 
air quality in other states; or (4) interfere with efforts to protect 
visibility in other states.
    In the 2006 PM2.5 NAAQS Infrastructure Guidance, EPA 
explained that submissions from states pertaining to the ``significant 
contribution'' and ``interfere with maintenance'' requirements in 
section 110(a)(2)(D)(i)(I) must contain adequate provisions to prohibit 
air pollutant emissions from within the state that contribute 
significantly to nonattainment or interfere with maintenance of the 
NAAQS in any other state. EPA described a number of considerations for 
states for providing an adequate demonstration to address interstate 
transport requirements in the 2006 PM2.5 NAAQS 
Infrastructure Guidance. First, EPA noted that the state's submission 
should explain whether or not emissions from the state contribute 
significantly to nonattainment or interfere with maintenance of the 
NAAQS in any other state and, if so, address the impact. EPA stated 
that the state's conclusion must be supported by an adequate technical 
analysis. Second, EPA recommended the various types of information that 
could be relevant to support the state's submission, such as 
information concerning emissions in the state, meteorological 
conditions in the state and the potentially impacted states, monitored 
ambient concentrations in the state, and air quality modeling. Third, 
EPA explained that states should address the ``interfere with 
maintenance'' requirement independently which requires an evaluation of 
impacts on areas of other states that are meeting the 2006 24-hour 
PM2.5 NAAQS, not merely areas designated nonattainment. 
Lastly, EPA explained that states could not rely on the Clean Air 
Interstate Rule (CAIR) to comply with CAA section 110(a)(2)(D)(i) 
requirements for the 2006 24-hour PM2.5 NAAQS because CAIR 
does not address this NAAQS. Recognizing that the demonstration 
required may be a challenging task for the affected states, EPA also 
noted in the 2006 PM2.5 NAAQS Infrastructure Guidance the 
Agency's intention to complete a rule to address interstate pollution 
transport in the eastern half of the continental United States.
    EPA promulgated CAIR on May 12, 2005 (see 70 FR 25162). CAIR 
required states to reduce emissions of sulfur dioxide and nitrogen 
oxides that significantly contribute to, and interfere with maintenance 
of the 1997 PM2.5 and/or ozone NAAQS in any downwind state. 
CAIR was intended to provide states covered by the rule with a 
mechanism to satisfy their CAA section 110(a)(2)(D)(i)(I) obligations 
to address significant contribution to downwind nonattainment and 
interference with maintenance in another state with respect to the 1997 
ozone and PM2.5 NAAQS. Many states adopted the CAIR 
provisions and submitted SIPs to EPA to demonstrate compliance with the 
CAIR requirements in satisfaction of their 110(a)(2)(D)(i)(I) 
obligations for those two pollutants.
    EPA was sued by a number of parties on various aspects of CAIR, and 
on July 11, 2008, the U.S. Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit or Court) issued its decision to vacate 
and remand both CAIR and the associated CAIR Federal Implementation 
Plans (FIPs) in their entirety. North Carolina v. EPA, 531 F.3d 836 
(D.C. Circuit, July 11, 2008). However, in response to EPA's petition 
for rehearing, the Court issued an order remanding CAIR to EPA without 
vacating either CAIR or the CAIR FIPs. North Carolina v. EPA, 550 F.3d 
1176 (D.C. Circuit, December 23, 2008). The Court thereby left CAIR in 
place in order to ``temporarily preserve the environmental values 
covered by CAIR'' until EPA replaces it with a rule consistent with the 
Court's opinion. Id. at 1178. The Court directed EPA to ``remedy CAIR's 
flaws'' consistent with its July 11, 2008, opinion, but declined to 
impose a schedule on EPA for completing that action. Id.
    In order to address the judicial remand of CAIR, EPA has proposed a 
new rule to address interstate transport pursuant to section 
110(a)(2)(D)(i)(I), the ``Federal Implementation Plans to Reduce 
Interstate Transport of Fine Particulate Matter and Ozone'' (Transport 
Rule).\3\ As part of the proposed Transport Rule, EPA specifically 
examined the section 110(a)(2)(D)(i)(I) requirements that emissions 
from sources in a state must not ``significantly contribute to 
nonattainment'' and ``interfere with maintenance'' of the 2006 24-hour 
PM2.5 NAAQS by other states. The modeling performed for the 
proposed Transport Rule shows that North Carolina significantly 
contributes to nonattainment or interferes with maintenance of the 2006 
24-hour PM2.5 NAAQS in downwind areas.
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    \3\ See ``Federal Implementation Plans to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75 
FR 45210 (August 2, 2010).
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III. What is EPA's analysis of North Carolina's submission for section 
110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS?

    On September 21, 2009, the State of North Carolina, through NC 
DENR, provided a letter to EPA with certification that North Carolina's 
SIP meets the interstate transport requirements with regard to the 2006 
24-hour PM2.5 NAAQS. In its submission, North Carolina 
refers to their May 25, 2007, submittal and states that North 
Carolina's 110(a)(2)(D)(i)(I) requirements are addressed through 
several regulations and legislation, including 15A NCAC 2D .2400 
``Clean Air Interstate Rules'' and the 2002 North Carolina Clean 
Smokestacks Act (CSA), Session Law 2002-4, NCGS 143-215.107D. North 
Carolina's May 25, 2007, submittal addresses the ``significant 
contribution'' and ``interference with maintenance'' requirements of 
110(a)(2)(D)(i)(I) by relying on North Carolina's CAIR SIP.\4\ Contrary 
to the 2006 PM2.5 NAAQS Infrastructure Guidance explicitly 
noting that reliance on CAIR cannot be used to comply with section 
110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS, North 
Carolina's submission

[[Page 4595]]

indicates that it is meeting its 110(a)(2)(D)(i)(I) obligations with 
respect to the 2006 PM2.5 NAAQS in part by virtue of its 
approved North Carolina CAIR SIP. CAIR was promulgated before the 24-
hour PM2.5 NAAQS were revised in 2006 and does not address 
interstate transport with respect to the 2006 PM2.5 
NAAQS.\5\ Because North Carolina's submission relies on CAIR to address 
the requirements of 110(a)(2)(D)(i)(I) with respect to the 2006 
PM2.5 NAAQS while CAIR does not address that NAAQS, this 
submission is deficient. Several states claim that controls planned for 
or already installed on sources within the state to meet the CAIR 
provisions satisfied section 110(a)(2)(D)(i)(I) for the 2006 24-hour 
PM2.5 NAAQS. However, states will not be able to permanently 
rely upon the emissions reductions predicted by CAIR, because CAIR was 
remanded to EPA and will not remain in force permanently. EPA is in the 
process of developing a new Transport Rule to address the concerns of 
the Court as outlined in its decision remanding CAIR. For this reason, 
EPA cannot approve North Carolina's SIP submission pertaining to the 
requirement of section 110(a)(2)(D)(i)(I) because it relies on CAIR for 
emission reduction measures.
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    \4\ North Carolina explains that their May 25, 2007, submittal 
is in response to EPA's April 25, 2005, finding of failure to submit 
a plan to address interstate transport of pollutants that form ozone 
and particle pollution. EPA notes that the April 25, 2005, finding 
only addresses the 1997 8-hour ozone and PM2.5 NAAQS.
    \5\ Further, as explained above and in the Transport Rule 
proposal, the D.C. Circuit in North Carolina v. EPA found that EPA's 
quantification of states' significant contribution and interference 
with maintenance in CAIR was improper and remanded the rule to EPA. 
CAIR remains in effect only temporarily.
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    Furthermore, EPA's 2006 PM2.5 NAAQS Infrastructure 
Guidance directed that a state's submission pertaining to the 
requirement of section 110(a)(2)(D)(i)(I) must be supported by an 
adequate technical analysis. Additionally, EPA recommended the various 
types of information that could be relevant to support the state's 
submission. While North Carolina did refer to the 2002 North Carolina 
CSA in its submission, it did not further evaluate or demonstrate with 
a technical analysis that this measure and their intention to rely to 
the North Carolina CAIR SIP addresses the ``significant contribution'' 
and ``interference with maintenance'' requirements of 
110(a)(2)(D)(i)(I) as directed by the guidance.
    The modeling conducted by EPA for the proposed Transport Rule 
demonstrates that emissions from North Carolina significantly 
contribute to nonattainment or interfere with maintenance of the 2006 
24-hour PM2.5 NAAQS in downwind areas. Specifically, EPA's 
analysis shows that North Carolina contributes to eleven counties 
containing downwind 24-hour PM2.5 nonattainment sites and 
three counties containing downwind 24-hour PM2.5 maintenance 
sites.
    While North Carolina's submittal indicates that its current SIP 
sufficiently addresses the 110(a)(2)(D)(i)(I) obligations with respect 
to the 2006 PM2.5 NAAQS in part by virtue of the CSA and its 
approved CAIR SIP, EPA has made the preliminary determination that 
North Carolina's current SIP does not meet the 110(a)(2)(D)(i)(I) 
requirements with respect to the 2006 PM2.5 NAAQS. As 
mentioned above, North Carolina did not provide sufficient analysis to 
demonstration to address the ``significant contribution'' and 
``interference with maintenance'' requirements of 110(a)(2)(D)(i)(I). 
As for CAIR, this rule was promulgated before the 24-hour 
PM2.5 NAAQS were revised in 2006 and does not address 
interstate transport with respect to the 2006 PM2.5 
NAAQS.\6\ Based upon our evaluation, EPA is proposing to disapprove 
North Carolina's certification that its SIP meets the requirements of 
110(a)(2)(D)(i)(I) of the CAA for the 2006 PM2.5 NAAQS. The 
submitted provisions are severable from each other. Therefore, EPA is 
proposing to disapprove those provisions which relate to the 
110(a)(2)(D)(i)(I) demonstration and to take no action on the remainder 
of the demonstration at this time.
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    \6\ Further, as explained above and in the Transport Rule 
proposal (75 FR 45210,) the D.C. Circuit in North Carolina v. EPA 
found that EPA's quantification of states' significant contribution 
and interference with maintenance in CAIR was improper and remanded 
the rule to EPA. CAIR remains in effect only temporarily.
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IV. Proposed Action

    EPA is proposing to disapprove the portion of North Carolina's 
September 21, 2009, submission, relating to section 110(a)(2)(D)(i)(I), 
because EPA has made the preliminary determination that North Carolina 
SIP does not satisfy these requirements for the 2006 PM2.5 
NAAQS. Although EPA is proposing to disapprove the portion of North 
Carolina's September 21, 2009, submission, relating to section 
110(a)(2)(D)(i)(I), EPA does acknowledge the State's efforts to address 
this requirement in its September 21, 2009, submission. Unfortunately, 
without an adequate technical analysis EPA does not believe that states 
can sufficiently address the section 110(a)(2)(D)(i)(I) requirement for 
the 2006 PM2.5 NAAQS. The purpose of the Federal Transport 
Rule that EPA is developing and has proposed is to respond to the 
remand of CAIR by the Court and address the section 110(a)(2)(D)(i)(I) 
requirements for the 2006 PM2.5 NAAQS for the affected 
states. EPA is not proposing to take any action on the remaining 
elements of the submission, including the section 110 infrastructure, 
and section 110(a)(2)(D)(i)(II) portion regarding interference with 
measures required in the applicable SIP for another state designed to 
prevention of significant deterioration of air quality and protect 
visibility but instead will act on those provisions in a separate 
rulemaking.
    Under section 179(a) of the CAA, final disapproval of a submittal 
that addresses a requirement of a Part D Plan (42 U.S.C.A. 7501-7515) 
or is required in response to a finding of substantial inadequacy as 
described in Sec.  7410(k)(5) (SIP call) starts a sanctions clock. 
Section 110(a)(2)(D)(i)(I) provisions (the provisions being proposed 
for disapproval in today's notice) were not submitted to meet 
requirements for Part D, and therefore, if EPA takes final action to 
disapprove this submittal, no sanctions will be triggered. However, if 
this disapproval action is finalized, that final action will trigger 
the requirement under section 110(c) that EPA promulgate a FIP no later 
than 2 years from the date of the disapproval unless the State corrects 
the deficiency, and the Administrator approves the plan or plan 
revision before the Administrator promulgates such FIP. The proposed 
Federal Transport Rule, when final, is the FIP that EPA intends to 
implement to satisfy the 110(a)(2)(D)(i)(I) requirement for North 
Carolina for the 2006 PM2.5 NAAQS.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to act on state law as meeting 
Federal requirements and does not impose additional requirements beyond 
those imposed by state law.

A. Executive Order 12866, Regulatory Planning and Review

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

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction

[[Page 4596]]

Act, 44 U.S.C. 3501 et seq, because this proposed SIP disapproval under 
section 110 and subchapter I, part D of the CAA will not in-and-of 
itself create any new information collection burdens but simply 
disapproves certain state requirements for inclusion into the SIP. 
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act (RFA)

    The RFA generally requires an agency to conduct a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions. For purposes of 
assessing the impacts of today's rule on small entities, small entity 
is defined as: (1) A small business as defined by the Small Business 
Administration's regulations at 13 CFR 121.201; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
impact on a substantial number of small entities. This rule does not 
impose any requirements or create impacts on small entities. This 
proposed SIP disapproval under section 110 and subchapter I, part D of 
the CAA will not in-and-of itself create any new requirements but 
simply disapproves certain state requirements for inclusion into the 
SIP. Accordingly, it affords no opportunity for EPA to fashion for 
small entities less burdensome compliance or reporting requirements or 
timetables or exemptions from all or part of the rule. The fact that 
the CAA prescribes that various consequences (e.g., higher offset 
requirements) may or will flow from this disapproval does not mean that 
EPA either can or must conduct a regulatory flexibility analysis for 
this action. Therefore, this action will not have a significant 
economic impact on a substantial number of small entities. EPA 
continues to be interested in the potential impacts of this proposed 
rule on small entities and welcome comments on issues related to such 
impacts.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. EPA has determined that the proposed disapproval action does 
not include a Federal mandate that may result in estimated costs of 
$100 million or more to either state, local, or tribal governments in 
the aggregate, or to the private sector. This action proposes to 
disapprove pre-existing requirements under state or local law, and 
imposes no new requirements. Accordingly, no additional costs to state, 
local, or tribal governments, or to the private sector, result from 
this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132, because it merely disapproves 
certain state requirements for inclusion into the SIP and does not 
alter the relationship or the distribution of power and 
responsibilities established in the CAA. Thus, Executive Order 13132 
does not apply to this action.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP 
EPA is proposing to disapprove would not apply in Indian country 
located in the state, and EPA notes that it will not impose substantial 
direct costs on tribal governments or preempt tribal law. Thus, 
Executive Order 13175 does not apply to this action.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying only to those regulatory actions that concern health or 
safety risks, such that the analysis required under section 5-501 of 
the Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it because it is 
not an economically significant regulatory action based on health or 
safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 
1997). This proposed SIP disapproval under section 110 and subchapter 
I, part D of the CAA will not in-and-of itself create any new 
regulations but simply disapproves certain state requirements for 
inclusion into the SIP.

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

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA, Public Law 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. NTTAA directs EPA to 
provide Congress, through the Office of Management and Budget, 
explanations when the Agency decides not to use available and 
applicable voluntary consensus standards. EPA believes that this action 
is not subject to requirements of Section 12(d) of NTTAA because 
application of those requirements would be inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to

[[Page 4597]]

make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA lacks the discretionary authority to address environmental 
justice in this proposed action. In reviewing SIP submissions, EPA's 
role is to approve or disapprove state choices, based on the criteria 
of the CAA. Accordingly, this action merely proposes to disapprove 
certain State requirements for inclusion into the SIP under section 110 
and subchapter I, part D of the CAA and will not in-and-of itself 
create any new requirements. Accordingly, it 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Particulate matter, and Reporting and recordkeeping 
requirements.

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

    Dated: January 14, 2011.
Gwendolyn Keyes Fleming,
Regional Administrator, Region 4.
[FR Doc. 2011-1625 Filed 1-25-11; 8:45 am]
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