[Federal Register Volume 77, Number 154 (Thursday, August 9, 2012)]
[Rules and Regulations]
[Pages 47530-47533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19301]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0228; FRL-9711-1]


Approval and Promulgation of State Implementation Plans; Hawaii; 
Infrastructure Requirements for the 1997 8-Hour Ozone and the 1997 and 
2006 Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving in part and disapproving in part a State 
Implementation Plan (SIP) revision submitted by the state of Hawaii 
pursuant to the requirements of Section 110(a)(1) and (2) 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).

DATES: Effective Date: This final rule is effective on October 9, 2012.

ADDRESSES: EPA has established a docket for this action, identified by 
Docket ID Number EPA-R09-OAR-2012-0228. The index to the docket for 
this action is available electronically at http://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 in the index, 
some information may be publicly available only at the hard copy 
location (e.g., copyrighted material), 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 directly below.

FOR FURTHER INFORMATION CONTACT: Dawn Richmond, Air Planning Office 
(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-
3207, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,'' 
``us,'' and ``our'' refer to EPA.

Table of Contents

I. Background
II. Final Action
III. Statutory and Executive Order Reviews

I. Background

    On April 12, 2012 (77 FR 21913), EPA proposed to approve in part 
and disapprove in part a SIP revision submitted by Hawaii Department of 
Health (HDOH) on December 14, 2011 to address the infrastructure 
requirements of CAA section 110(a)(2) for the 1997 8-hour ozone NAAQS 
and the 1997 and 2006 NAAQS for PM2.5 (``2011 Hawaii 
Infrastructure SIP''). The rationale supporting EPA's action, including 
the scope of infrastructure SIPs in general, is explained in that 
Notice of Proposed Rulemaking (NPR) and the associated technical 
support document (TSD) and will not be restated here. The TSD is 
available online at http://www.regulations.gov, Docket ID number EPA-
R09-OAR-2012-0228. No public comments were received on the NPR.

II. Final Action

    EPA is approving in part and disapproving in part the 2011 Hawaii 
Infrastructure SIP. EPA is approving the 2011 Hawaii 
Infrastructure SIP with respect to the following requirements:
     Section 110(a)(2)(A): Emission limits and other control 
measures.
     Section 110(a)(2)(B): Ambient air quality monitoring/data 
system.
     Section 110(a)(2)(C) (in part): Program for enforcement of 
control measures and regulation of new stationary sources (minor New 
Source Review (NSR) program only).
     Section 110(a)(2)(D)(i)(I): Interstate transport 
(significant contribution and interference with maintenance).
     Section 110(a)(2)(E): Adequate resources and authority, 
conflict of

[[Page 47531]]

interest, and oversight of local governments and regional agencies.
     Section 110(a)(2)(F): Stationary source monitoring and 
reporting.
     Section 110(a)(2)(G): Emergency episodes.
     Section 110(a)(2)(H): SIP revisions.
     Section 110(a)(2)(J) (in part): Public notification.
     Section 110(a)(2)(K): Air quality modeling and submission 
of modeling data.
     Section 110(a)(2)(L): Permitting fees.
     Section 110(a)(2)(M): Consultation/participation by 
affected local entities.
    In addition, we are approving into the SIP as non-regulatory 
materials the statutory provisions that HDOH included as part of the 
2011 Hawaii Infrastructure SIP.
    We are disapproving the 2011 Hawaii Infrastructure SIP with respect 
to the following infrastructure SIP requirements:
     Section 110(a)(2)(C) (in part): Program for enforcement of 
control measures and regulation of new stationary sources (permit 
program as required in part C of title I of the Act).
     Section 110(a)(2)(D)(i)(II): Interstate transport--
prevention of significant deterioration and visibility protection.
     Section 110(a)(2)(D)(ii): Interstate pollution abatement 
and international air pollution.
     Section 110(a)(2)(J) (in part): Consultation with 
government officials and Prevention of Significant Deterioration (PSD).
    As explained in the NPR and TSD, our disapproval of these elements 
and sub-elements is compelled by the absence of an approvable SIP 
revision from Hawaii that meets the PSD requirements of sections 160 
through 165 of the CAA.\1\ In addition, our disapproval of Section 
110(a)(2)(D)(i)(II) is compelled by the lack of approvable SIP 
revisions to address reasonably attributable visibility impairment 
(RAVI) and regional haze affecting mandatory Class I areas.\2\ 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 2011 Hawaii Infrastructure SIP was not submitted 
to meet either of these requirements. Therefore, this action does not 
trigger sanctions.
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    \1\ See 40 CFR 52.632.
    \2\ See 40 CFR 52.633 (reasonably attributable visibility 
impairment) and 74 FR 2392 (January 15, 2009) (regional haze).
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    In addition, these deficiencies have previously been addressed 
through promulgation of a PSD federal implementation plan (FIP) (43 FR 
26410, June 19, 1978, as amended at 45 FR 52741, August 7, 1980; 68 FR 
11322, March 10, 2003; 68 FR 74488, December 24, 2003) and a FIP 
addressing RAVI (50 FR 28553, July 12, 1985, as amended at 52 FR 45137, 
November 24, 1987). EPA has proposed a FIP to address regional haze in 
Hawaii (77 FR 31692, May 29, 2012) and is required to take final action 
on this FIP (or fully approve a Regional Haze SIP) by September 15, 
2012.\3\ Therefore, this disapproval does not trigger any new FIP 
obligations.
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    \3\ See Consent Decree entered March 30, 2012 in National Parks 
Conservation Association v. Jackson, Case 1:11-cv-01548-ABJ 
(D.D.C.). We have placed a copy of the consent decree in the docket 
for this action.
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    As explained in the NPR, this action does not address section 
110(a)(2)(C) to the extent it refers to permit programs required under 
part D (nonattainment NSR), or section 110(a)(2)(I), which pertains to 
the nonattainment planning requirements of part D of Title I of the 
CAA.

III. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

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. 
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.
    This rule will not have a significant impact on a substantial 
number of small entities because SIP approvals and partial approvals/
partial disapprovals under section 110 and subchapter I, part D of the 
Clean Air Act do not create any new requirements but simply approve 
requirements that the State is already imposing. Therefore, because 
this partial approval/partial disapproval action does not create any 
new requirements, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of State action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the partial approval/partial disapproval 
action promulgated 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 
Federal action approves 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, Federalism (64 FR 43255, August 10, 1999) 
revokes and replaces Executive Orders 12612 (Federalism) and 12875 
(Enhancing the Intergovernmental Partnership). Executive Order 13132 
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

[[Page 47532]]

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.'' Under Executive Order 13132, EPA may 
not issue a regulation that has federalism implications, that imposes 
substantial direct compliance costs, and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or EPA consults with State and local officials early in 
the process of developing the proposed regulation. EPA also may not 
issue a regulation that has federalism implications and that preempts 
State law unless the Agency consults with State and local officials 
early in the process of developing the proposed regulation.
    This rule 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 approves a State rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. Thus, Executive Order 13175 does not 
apply to this rule.

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 
rule is not subject to Executive Order 13045, because it approves a 
State rule implementing a Federal standard.

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

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (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 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

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

    Executive Order 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 rulemaking. In reviewing SIP submissions, EPA's role is 
to approve or disapprove state choices, based on the criteria of the 
Clean Air Act. Accordingly, this action merely approves certain State 
requirements for inclusion into the SIP under CAA section 110 and 
subchapter I, part D and disapproves others, 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.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 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 
rule 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. 
section 804(2). This rule will be effective on October 9, 2012.

L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 9, 2012. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action may not be challenged later in proceedings 
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Oxides of nitrogen, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Volatile 
organic compounds.


[[Page 47533]]


    Dated: July 26, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Therefore, 40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR Part 52 continues to read as 
follows:

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

Subpart M--Hawaii

0
2. Amend Sec.  52.620, the table in paragraph (e) by adding an entry at 
the end of the table for Hawaii Infrastructure State Implementation 
Plan Revision 1997 Ozone, and 1997 and 2006 Fine Particulate Matter 
(PM2.5) National Ambient Air Quality Standards. The added 
text reads as follows:


Sec.  52.620  Identification of plan.

* * * * *
    (e) EPA Approved Nonregulatory Provisions and Quasi-Regulatory 
Measures.

                    EPA-Approved Hawaii Nonregulatory Provisions and Quasi-Regulatory Measures
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                                  Applicable
                                 geographic or        State        EPA approval
     Name of SIP revision        nonattainment      submittal          date                 Explanation
                                     area             date
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                                                  * * * * * * *
Hawaii Infrastructure State    Statewide.......  12/14/12......  8/9/12, [Insert  Excluding all regulations
 Implementation Plan Revision                                     page number      included in the submission,
 1997 Ozone, and 1997 and                                         where the        as these were already
 2006 Fine Particulate Matter                                     document         addressed in separate actions
 (PM2.5) National Ambient Air                                     begins].         as listed in table (c) above.
 Quality Standards.                                                                This action addresses the
                                                                                   following CAA elements or
                                                                                   portions thereof:
                                                                                   110(a)(2)(A), (B), (C),
                                                                                   (D)(i)(I), (E), (F), (G),
                                                                                   (H), (J), (K), (L), and (M).
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[FR Doc. 2012-19301 Filed 8-8-12; 8:45 am]
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