[Federal Register Volume 77, Number 146 (Monday, July 30, 2012)]
[Proposed Rules]
[Pages 44555-44560]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18547]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R09-OAR-2012-0398; FRL-9707-5]
Partial Approval and Disapproval of Air Quality Implementation
Plans; Arizona; State Board Requirements for Ozone and Fine Particulate
Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to partially approve and partially disapprove
a State
[[Page 44556]]
Implementation Plan (SIP) revision submitted by the State of Arizona to
address the requirements of section 110(a)(2)(E)(ii) of the Clean Air
Act (CAA) for the 1997 8-hour ozone national ambient air quality
standards (NAAQS) and the 1997 and 2006 NAAQS for fine particulate
matter (PM2.5). EPA is proposing to approve the state's
provisions regarding disclosure of potential conflicts of interest
under 128(a)(2), but is proposing to disapprove, on narrow grounds,
their 128(a)(1) provisions regarding board composition because these
provisions do not apply to enforcement orders. We encourage the State
to submit a revised SIP to address this very narrow deficiency, and we
stand ready to work with the State to develop a revised plan. We are
taking comments on this proposal and plan to follow with a final
action.
DATES: Written comments must be received on or before August 29, 2012.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R09-OAR-2012-0398, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: 415-947-3579.
4. Mail or deliver: Rory Mays (AIR-2), U.S. Environmental
Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901. Deliveries are only accepted during the Regional Office's
normal hours of operation.
Instructions: All comments will be included in the public docket
without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.
Information that you consider CBI or otherwise protected should be
clearly identified as such and should not be submitted through http://www.regulations.gov or email. http://www.regulations.gov is an
anonymous access system, and EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send email directly to EPA, your email address will be automatically
captured and included as part of the public comment. 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.
Docket: Generally, documents in the docket for this action are
available electronically at www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed at www.regulations.gov, some
information may be publicly available only at the hard copy location
(e.g., copyrighted material, large maps), and some may not be publicly
available in either location (e.g., CBI). To inspect the hard copy
materials, please schedule an appointment during normal business hours
with the contact listed in the FOR FURTHER INFORMATION CONTACT section.
FOR FURTHER INFORMATION CONTACT: Rory Mays, Air Planning Office (AIR-
2), U.S. Environmental Protection Agency, Region IX, (415) 972-3227,
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to EPA.
Table of Contents
I. Background
A. Regulatory History
B. EPA Guidance
II. The State's Submittal
III. EPA's Evaluation
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background
A. Regulatory History
On July 18, 1997, EPA issued a revised NAAQS for ozone\1\ and a new
NAAQS for fine particulate matter (PM2.5).\2\ EPA
subsequently revised the 24-hour PM2.5 NAAQS on September
21, 2006.\3\ Each of these actions triggered a requirement for states
to submit an infrastructure SIP to address the applicable requirements
of section 110(a)(2) within three years of issuance of the new or
revised NAAQS. Section 110(a)(2) includes a list of specific elements
that each such plan submission must meet, including section
110(a)(2)(E)(ii), which requires compliance with the requirements of
section 128 of the CAA.
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\1\ The 8-hour averaging period replaced the previous 1-hour
averaging period, and the level of the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm (62 FR 38856).
\2\ The annual PM2.5 standard was set at 15
micrograms per cubic meter ([mu]g/m\3\), based on the 3-year average
of annual arithmetic mean PM2.5 concentrations from
single or multiple community-oriented monitors and the 24-hour
PM2.5 standard was set at 65 [mu]g/m\3\, based on the 3-
year average of the 98th percentile of 24-hour PM2.5
concentrations at each population-oriented monitor within an area
(62 FR 38652).
\3\ The final rule revising the 24-hour NAAQS for
PM2.5 from 65 [mu]g/m\3\ to 35 [mu]g/m\3\ was published
in the Federal Register on October 17, 2006 (71 FR 61144).
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On March 10, 2005, EPA entered into a Consent Decree with
EarthJustice that obligated EPA to make official findings in accordance
with section 110(k)(1) of the CAA as to whether states had made
required complete SIP submissions, pursuant to sections 110(a)(1) and
(2), by December 15, 2007 for the 1997 8-hour ozone NAAQS and by
October 5, 2008 for the 1997 PM2.5 NAAQS. EPA made such
findings for the 1997 8-hour ozone NAAQS on March 27, 2008 (73 FR
16205) and for the 1997 PM2.5 NAAQS on October 22, 2008 (73
FR 62902). In each case, EPA found that Arizona had failed to make a
complete submittal to satisfy the requirements of section
110(a)(2)(E)(ii).
The State board SIP provisions in section 128 require each state to
submit a SIP that contains requirements that (1) any board or body
which approves permits or enforcement orders under the CAA shall have
at least a majority of members who represent the public interest and do
not derive any significant portion of their income from persons subject
to permits or enforcement orders under the CAA; and (2) any potential
conflicts of interest by members of such board or body or the head of
an executive agency with similar powers be adequately disclosed. 42
U.S.C. 7428.
B. EPA Guidance
In 1978, EPA issued a guidance memorandum recommending ways States
could meet the requirements of section 128 (``1978 Guidance''),
including suggested interpretations of certain terms in section 128.\4\
EPA has not issued further guidance or regulations of general
applicability on the subject since that time. However, as part of our
proposals on other recent infrastructure actions, EPA has proposed
certain interpretations of section 128 and invited comment on these
interpretations. See, e.g., EPA's proposed rule on infrastructure SIP
requirements for Hawaii (77 FR 21913, April 12, 2012). We are now
proposing these same interpretations in relation to the Arizona
infrastructure SIP.\5\
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\4\ See Memorandum from David O. Bickart to Regional Air
Directors, ``Guidance to States for Meeting Conflict of Interest
Requirements of Section 128,'' Suggested Definitions, March 2, 1978.
\5\ If EPA finalizes this action, the proposed interpretations
will supersede (to the extent that they are inconsistent with)
interpretations suggested in the 1978 guidance, at least for
Arizona's SIP.
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II. The State's Submittals
On October 14, 2009, ADEQ submitted the ``Arizona State
Implementation Plan Revision under Clean Air Act Section 110(a)(2) and
(2); 2006 PM2.5 NAAQS, 1997 PM2.5 NAAQS
[[Page 44557]]
and 1997 8-hour Ozone NAAQS,'' to address all of the CAA section
110(a)(2) requirements except for section 110(a)(2)(G) \6\ for these
three NAAQS (``2009 Infrastructure Submittal'').\7\ The 2009
Infrastructure Submittal includes public process documentation
(including public comments) and evidence of adoption.
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\6\ In a separate rulemaking, EPA proposed to fully approve
Arizona's SIP to address the requirements regarding air pollution
emergency episodes in CAA section 110(a)(2)(G) for the 1997 8-hour
ozone NAAQS. 77 FR 21911 (April 12, 2012).
\7\ See letter dated October 14, 2009, from Eric C. Massey, Air
Quality Director, ADEQ, to Laura Yoshii, Acting Regional
Administrator, EPA Region 9.
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On June 1, 2012, ADEQ submitted the ``Proposed Supplement to the
Arizona State Implementation Plan under Clean Air Act Section 110(a)(1)
and (2): Implementation of [1997 PM2.5 and 8-hour ozone
NAAQS and 2006 PM2.5 NAAQS], Parallel Processing Version''
(``2012 Supplement''). The 2012 Supplement includes a number of
statutes and regulations that are currently effective under State law
but that have not been adopted specifically for submittal to EPA as a
SIP revision under CAA section 110. By letter dated June 1, 2012, ADEQ
submitted unofficial copies of these statutes and regulations to EPA
with a request for ``parallel processing'' \8\ and stated its intention
to submit these statutes and regulations as a formal SIP submittal,
following reasonable notice and public hearings, by late August
2012.\9\ ADEQ amended this request by letter dated June 14, 2012, to
remove several statutes and regulations from the 2012 Supplement.\10\
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\8\ Under EPA's ``parallel processing'' procedure, EPA proposes
rulemaking action concurrently with the State's proposed rulemaking.
If the State's proposed plan is changed, EPA will evaluate that
subsequent change and may publish another notice of proposed
rulemaking. If no significant change is made, EPA will publish a
final rulemaking on the plan after responding to any submitted
comments. Final rulemaking action by EPA will occur only after the
plan has been fully adopted by Arizona and submitted formally to EPA
for approval into the SIP. See 40 CFR part 51, appendix V, section
2.3. We note that because ADEQ's rulemaking process here is solely
for purposes of adopting the 2012 Supplement as a SIP revision under
CAA section 110 and not for purposes of revising any of the statutes
or regulations contained therein, we do not expect any significant
changes between the proposed and final plans.
\9\ See letter dated June 1, 2012, from Eric C. Massey, Air
Quality Director, ADEQ, to Jared Blumenfeld, Regional Administrator,
EPA Region 9.
\10\ See letter dated June 14, 2012, from Eric C. Massey, Air
Quality Director, ADEQ, to Jared Blumenfeld, Regional Administrator,
EPA Region 9.
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We are proposing to act on the 2009 Infrastructure Submittal, as
supplemented and amended by the 2012 Supplement. We refer to the 2009
Infrastructure Submittal and 2012 Supplement collectively as the ``2009
Infrastructure SIP.''
III. EPA's Evaluation
To determine whether the CAA section 110(a)(2)(E)(ii) requirements
are satisfied, EPA must determine whether the State SIP has adequate
board composition and disclosure requirements under section 128 of the
CAA. In their 2009 Infrastructure Submittal and 2012 Supplement,
Arizona submitted unofficial copies of Title 38, Chapter 3, Article 8
Conflict of Interest of Officers and Employees provisions to address
the section 128 requirements. The June 2012 Supplement also included
Arizona Revised Statute Sec. 49-478, which addresses compositional
requirements for county hearing boards. We are proposing to approve
these statutory provisions into the SIP as non-regulatory
materials.\11\
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\11\ Copies of these Arizona statutes are included in the 2012
Supplement, which is available in the docket for this action and
online at http://www.regulations.gov, docket number EPA-R09-OAR-
2012-0398.
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A. Evaluation of 128(a)(1) Board Composition Requirements
As explained further in our Technical Support Document (TSD),\12\
Arizona has four heads of executive agencies that approve permits and
enforcement orders under the Clean Air Act: the Director of Arizona
Department of Environmental Quality (ADEQ), and the Control Officer of
each of the following three agencies: Maricopa County Air Quality
Department (AQD), Pima County Department of Environmental Quality
(DEQ), and Pinal County Air Quality Control District (AQCD). Permit and
enforcement order appeals at the state level are heard by an
administrative law judge in Arizona's Office of Administrative
Hearings, while those at the county level are heard by an Air Quality
Hearing Board in each respective county (Maricopa, Pima, and Pinal).
The only boards in Arizona that approve permits and enforcement orders
are the Air Quality Hearing Boards in Maricopa, Pima, and Pinal
counties, which may hear permit and enforcement order appeals and take
actions to sustain, modify, or reverse (for permits) or affirm or
modify (for enforcement orders) the actions of each county's respective
Control Officer. These boards are subject to the board membership
requirements of section 128(a)(1).
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\12\ Our Technical Support Document (TSD) describes our
evaluation in more detail and is available in the public docket for
this rulemaking, which may be accessed online at http://www.regulations.gov, docket number EPA-R09-OAR-2012-0398.
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ARS 49-478(B) establishes the compositional requirements of the
county Air Quality Hearing Boards, namely that they consist of five
members and that ``[a]t least three members shall not have a
substantial interest, as defined in section 38-502, in any person
required to obtain a permit pursuant to [Title 49, Chapter 3 (``Air
Quality''), Article 3 (``County Air Pollution Control'')].'' It is
important to note that while this statute explicitly addresses
interests in persons required to obtain permits, it does not address
``substantial interest'' with respect to interests in persons subject
to enforcement orders.
Pima County Code 17.04.190 (``Composition'') generally mirrors the
language or ARS 49-478 but also includes the following requirement in
subsection B: ``At least a majority of the hearing board members shall
not individually have a substantial interest in an emission source
subject to permits or enforcement orders issued pursuant to this title.
Substantial interest means any interest other than a remote interest as
defined in A.R.S. 38-502, paragraph 10.'' Thus, this local regulation
extends the majority membership requirement of ARS 49-478 to interests
in persons subject to enforcement orders. However, this regulation has
not been submitted for incorporation into the Arizona SIP.
Maricopa County Air Pollution Control Regulation, Rule 100, Section
108 also mirrors the language of ARS 49-478 but its majority membership
requirement is limited to substantial interests ``in any person
required to obtain an air pollution permit'' (i.e., it does not address
persons subject to enforcement orders). Arizona's 2009 Infrastructure
Submittal and 2012 Supplement did not cite any such provisions for
Pinal County.
ARS 49-478 in conjunction with the definitions of ``substantial
interest'' and ``remote interest'' in ARS 38-502, which we propose to
approve into the Arizona SIP, satisfy the ``public interest'' and
``significant income'' requirements of CAA section 128(a)(1) for the
county boards, but only with respect to interests in persons subject to
permits. ARS 49-478 does not specifically reference interests in
persons subject to enforcement orders. We view this as a very narrow
deficiency in the State SIP but one that nonetheless compels
disapproval of the State's 128(a)(1) board composition provisions.
EPA takes very seriously a proposal to disapprove a state plan, as
we believe that it is preferable, and preferred in the provisions of
the Clean Air Act, that
[[Page 44558]]
these requirements be implemented through state plans. A state plan
need not contain exactly the same provisions that EPA might require,
but EPA must be able to find that the state plan is consistent with the
requirements of the Act. Further, EPA's oversight role requires that it
assure consistent implementation of Clean Air Act requirements by
states across the country, even while acknowledging that individual
decisions from source to source or state to state may not have
identical outcomes. In this instance, we believe that the 2009
Infrastructure SIP mostly meets the requirements of 128(a)(1) with
respect to significant income and representing the public interest,
except that the submitted provisions do not specifically address
``substantial interest'' with respect to interests in persons subject
to enforcement orders. As a result, EPA believes this proposed
disapproval is the only path that is consistent with the Act at this
time. Based on the content of Pima County Code 17.04.190, we believe
that this narrow deficiency can be cured by Maricopa and Pinal counties
amending their regulations to mirror Pima County Code 17.04.190, and by
ADEQ submitting such amended regulations for Pima, Maricopa, and Pinal
counties as a SIP revision.
B. Evaluation of 128(a)(2) Disclosure Requirements
Arizona's statutes governing disclosure of interests are found in
ARS Title 38, Chapter 3, Article 8, which ADEQ submitted as a revision
to the Arizona SIP. As further explained in our TSD, the conflict of
interest requirements under Article 8 apply to all those individuals
that approve permits and enforcement orders in the first instance or on
appeal, including the Director of ADEQ, the administrative law judges
of the state Office of Administrative Hearings, the Air Pollution
Control Officers of the three relevant counties (Maricopa, Pima, and
Pinal), and the members of the Air Quality Hearing Boards in each of
the three counties.
ARS 38-503 is the heart of the disclosure provisions in Article 8.
In particular, ARS 38-503(B) reads as follows: ``Any public officer or
employee who has, or whose relative has, a substantial interest in any
decision of a public agency shall make known such interest in the
official records of such public agency and shall refrain from
participating in any manner as an officer or employee in such
decision.'' We interpret ``any decision of a public agency'' to include
both permit and enforcement order approvals. ARS 38-502(3) defines
``make known'' as filing a paper or a copy of relevant meeting minutes
that fully discloses a substantial interest and such filings must be
maintained in a special file open to public inspection pursuant to ARS
38-509.
The disclosure of ``a substantial interest in any decision of a
public agency'' covers a wide array of potential conflicts, because
``remote interest'' is narrowly defined, and Article 8 applies to all
individuals that approve permits and enforcement orders under the CAA.
Thus, upon Article 8 being approved into the Arizona SIP, the State and
counties of Arizona will meet the CAA section 128(a)(2) requirement
that ``any potential conflicts of interest * * * be adequately
disclosed.''
IV. Proposed Action
EPA has evaluated the 2009 Infrastructure SIP and the existing
provisions of the Arizona SIP for compliance with the CAA section
110(a)(2)(E)(ii) requirements for the 1997 8-hour ozone and
PM2.5 NAAQS and the 2006 PM2.5 NAAQS. Our TSD
contains more detailed evaluations and is available in the public
docket for this rulemaking, which may be accessed online at http://www.regulations.gov, docket number EPA-R09-OAR-2012-0398.
Based upon this analysis, EPA proposes to approve Arizona's 2009
Infrastructure SIP with respect to the following infrastructure SIP
requirements:
Section 110(a)(2)(E)(ii) (in part): 128(a)(2) relating to
potential conflicts of interest by members of any state board or body.
In addition, we are proposing to approve into the SIP certain
statutory provisions included in the 2009 Infrastructure SIP, as
discussed in the TSD: \13\
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\13\ Copies of these Arizona statutes and regulations are
included in the 2012 Supplement, which is available in the docket
for this action and online at http://www.regulations.gov, docket
number EPA-R09-OAR-2012-0398.
ARS Title 38, Chapter 3, Article 8 (``Conflict of Interest of
Officers and Employees'')
ARS 49-435 (``Hearings on orders of abatement'')
ARS 49-461 (``Violations; order of abatement'')
ARS 49-478 (``Hearing board'')
ARS 49-482 (``Appeals to hearing board'')
ARS 49-490 (``Hearings on orders of abatement'')
Simultaneously, we are proposing to disapprove Arizona's 2009
Infrastructure SIP with respect to the following infrastructure SIP
requirements:
Section 110(a)(2)(E)(ii) (in part): 128(a)(1) relating to
``significant income'' and representing the ``public interest'' board
composition requirements for Pima, Maricopa, and Pinal counties.
As explained more fully in the TSD, we are proposing to disapprove
the 2009 Infrastructure SIP with respect to this requirement of CAA
section 110(a)(2)(E)(ii) because the Arizona SIP does not fully satisfy
the statutory requirements for board composition under section
128(a)(1) of the Act.
Section 110(l) of the Act prohibits EPA from approving any SIP
revision that would interfere with any applicable requirement
concerning attainment and reasonable further progress (RFP) or any
other applicable requirement of the Act. The portion of
110(a)(2)(E)(ii) of the 2009 Infrastructure SIP that we are proposing
to approve, as explained in the TSD, would improve the SIP by replacing
obsolete statutes or regulations and by updating the state and local
agencies' SIP implementation and enforcement authorities. We propose to
determine that our approval of this element of the 2009 Infrastructure
SIP would comply with CAA section 110(l) because the proposed SIP
revision would not interfere with the on-going process for ensuring
that requirements for RFP and attainment of the NAAQS are met, and the
submitted SIP revision clarifies and updates the SIP. Our TSD contains
a more detailed discussion of our evaluation.
Under section 179(a) of the CAA, final disapproval of a submittal
that addresses a requirement of part D, title I of the CAA (CAA
sections 171-193) or is required in response to a finding of
substantial inadequacy as described in CAA section 110(k)(5) (SIP Call)
starts a sanctions clock. The 2009 Infrastructure SIP was not submitted
to meet either of these requirements. Therefore, any action we take to
finalize the described partial disapprovals will not trigger mandatory
sanctions under CAA section 179.
In addition, CAA section 110(c)(1) provides that EPA must
promulgate a Federal Implementation Plan (FIP) within two years after
finding that a State has failed to make a required submission or
disapproving a State implementation plan submission in whole or in
part, unless EPA approves a SIP revision correcting the deficiencies
within that two-year period.
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V. Statutory and Executive Order Reviews
A. Executive Order 12866, Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to review under the EO.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq,
because this proposed partial approval and partial disapproval of SIP
revisions under CAA section 110 will not in-and-of itself create any
new information collection burdens but simply proposes to approve
certain State requirements, and to disapprove certain other State
requirements, for inclusion into the SIP. Burden is defined at 5 CFR
1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (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 (SBA) 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 proposed action will not have a
significant impact on a substantial number of small entities. This
proposed rule does not impose any requirements or create impacts on
small entities. This proposed partial SIP approval and partial SIP
disapproval under CAA section 110 will not in-and-of itself create any
new requirements but simply proposes to approve certain State
requirements, and to disapprove certain other 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.
Therefore, this action will not have a significant economic impact on a
substantial number of small entities.
We continue 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 partial approval and
partial 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 approve certain pre-existing
requirements, and to disapprove certain other 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 proposed
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 proposes to
approve certain State requirements, and to disapprove certain other
State requirements, for inclusion into the SIP and does not alter the
relationship or the distribution of power and responsibilities
established in the Clean Air Act. 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
on which EPA is proposing action 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 proposed action.
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets EO 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 EO has the
potential to influence the regulation. This proposed action is not
subject to EO 13045 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 partial
approval and partial disapproval under CAA section 110 will not in-and-
of itself create any new regulations but simply proposes to approve
certain State requirements, and to disapprove certain other State
requirements, for inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule 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
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 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 OMB, explanations when the Agency decides not to use
[[Page 44560]]
available and applicable voluntary consensus standards.
The EPA believes that this proposed action is not subject to
requirements of Section 12(d) of NTTAA because application of those
requirements would be inconsistent with the Clean Air Act.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population
Executive Order (EO) 12898 (59 FR 7629 (Feb. 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 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 rulemaking.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Nitrogen dioxide,
Ozone, Particulate matter, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 20, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-18547 Filed 7-27-12; 8:45 am]
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