[Federal Register Volume 78, Number 154 (Friday, August 9, 2013)]
[Rules and Regulations]
[Pages 48615-48617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19200]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2012-0350; FRL-9844-9]


Disapproval of State Implementation Plans; State of Utah; 
Interstate Transport of Pollution for the 2006 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to disapprove a portion of a State 
Implementation Plan (SIP) submission from the State of Utah that is 
intended to demonstrate that its SIP meets certain interstate transport 
requirements of the Clean Air Act (``Act'' or ``CAA'') for the 2006 
fine particulate matter (``PM2.5'') National Ambient Air 
Quality Standards (NAAQS). Specifically, EPA is disapproving the 
portion of the Utah SIP submission that addresses the CAA requirement 
prohibiting emissions from Utah sources from significantly contributing 
to nonattainment of the 2006 PM2.5 NAAQS in any other state 
or interfering with maintenance of the 2006 PM2.5 NAAQS by 
any other state. Under a recent court decision, this disapproval does 
not trigger an obligation for EPA to promulgate a Federal 
Implementation Plan (FIP) to address these interstate transport 
requirements.

DATES: Effective Date: This final rule is effective September 9, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-OAR-2012-0350. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (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 through www.regulations.gov or in hard copy at the Air 
Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop 
Street, Denver, Colorado 80202-1129. EPA requests that if at all 
possible, you contact the individual listed in the FOR FURTHER 
INFORMATION CONTACT section to view the hard copy of the docket. You 
may view the hard copy of the docket Monday through Friday, 8:00 a.m. 
to 4:00 p.m., excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Adam Clark, Air Program, U.S. 
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 
Wynkoop, Denver, Colorado 80202-1129, (303) 312-7104, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The initials NAAQS mean or refer to National Ambient Air 
Quality Standards.
    (iv) The initials SIP mean or refer to State Implementation Plan.
    (v) The initials UDEQ mean or refer to the Utah Department of 
Environmental Quality.
    (vi) The words Utah and State mean the State of Utah.

Table of Contents

I. Background
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background

    On October 17, 2006 EPA promulgated a new NAAQS for 
PM2.5, revising the level of the 24-hour PM2.5 
standard to 35 [mu]g/m\3\ and retaining the level of the annual 
PM2.5 standard at 15 [mu]g/m\3\. (71 FR 61144). By statute, 
SIPs

[[Page 48616]]

meeting the ``infrastructure'' requirements of CAA sections 110(a)(1) 
and (2) are to be submitted by states within three years after 
promulgation of a new or revised standard. Among the infrastructure 
requirements of section 110(a)(2) are the ``interstate transport'' 
requirements of section 110(a)(2)(D).
    CAA section 110(a)(2)(D)(i) identifies four distinct elements 
related to the evaluation of impacts of interstate transport of air 
pollutants. In this action for the state of Utah, EPA is addressing the 
first two elements of section 110(a)(2)(D)(i) with respect to the 2006 
PM2.5 NAAQS.\1\ The first element of section 110(a)(2)(D)(i) 
requires that each SIP for a new or revised NAAQS contain adequate 
provisions to prohibit any source or other type of emissions activity 
within the state from emitting air pollutants that will ``contribute 
significantly to nonattainment'' of the NAAQS in another state. The 
second element of CAA section 110(a)(2)(D)(i) requires that each SIP 
for a new or revised NAAQS contain adequate provisions to prohibit any 
source or other type of emissions activity in the state from emitting 
pollutants that will ``interfere with maintenance'' of the applicable 
NAAQS in any other state.
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    \1\ This action does not address the two elements of the 
transport SIP provision (in CAA section 110(a)(2)(D)(i)(II)) 
regarding interference with measures required to prevent significant 
deterioration of air quality or to protect visibility in another 
state. We will act on these elements in a separate rulemaking.
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    On September 21, 2010, the Utah Department of Environmental Quality 
(UDEQ) provided a submission to EPA certifying that Utah's SIP is 
adequate to implement the 2006 PM2.5 NAAQS for all the 
``infrastructure'' requirements of CAA section 110(a)(2)(D), including 
the requirements of CAA section 110(a)(2)(D)(i)(I).\2\
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    \2\ UDEQ's submission is included in the docket for this action.
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    On May 20, 2013 (78 FR 29314), EPA proposed to disapprove Utah's 
September 2010 submission with regard to the interstate transport 
requirements of CAA section 110(a)(2)(D)(i)(I). As explained in that 
notice, id. at 29317, we proposed to disapprove this element of Utah's 
submission because there is no basis for EPA to conclude that the 
existing SIP is adequate to satisfy the significant contribution to 
nonattainment and interference with maintenance elements of section 
110(a)(2)(D)(i)(I).

II. Response to Comments

    EPA received one letter on June 14, 2013 containing comments from 
the Sierra Club. The letter supported our proposed disapproval of 
Utah's submission, but disagreed with other aspects of our proposal. 
The significant comments in the letter and EPA's responses are given 
below.
    Comment 1: The commenter disagrees with EPA's statement that 
disapproval of Utah's infrastructure SIP, as it relates to section 
110(a)(2)(D)(i)(I) requirements, would not trigger a mandatory duty for 
EPA to promulgate a FIP to address these requirements. Specifically, 
the commenter contends that the plain language of the CAA requires EPA 
to issue a FIP within two years of a disapproval action. In addition, 
the commenter contends that the decision in EME Homer City Generation 
v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted, 2013 U.S. LEXIS 
4801 (U.S. June 24, 2013) (No. 12-1182) (EME Homer City), is not 
binding or persuasive because it was incorrectly decided. The commenter 
also contends that the decision is inconsistent with previous decisions 
by the District of Columbia (D.C.) Circuit Court of Appeals. The 
commenter further suggests that EPA should not voluntarily follow the 
incorrectly decided EME Homer City opinion, particularly in the context 
of an infrastructure action that only impacts sources in Utah, a state 
within the jurisdiction of the Tenth Circuit Court of Appeals rather 
than the D.C. Circuit Court of Appeals.
    Response 1: EPA has historically adopted the commenter's 
interpretation: disapproval of section 110(a)(2)(D)(i)(I) would trigger 
an obligation for the Agency to promulgate a FIP within two years 
unless the state submitted and EPA approved a SIP to correct the 
deficiency within that time. EPA continues to agree that the plain 
language of the statute establishes these obligations, and for those 
reasons, we asked the U.S. Supreme Court to review the D.C. Circuit's 
decision in EME Homer City. On June 24, 2013 the Supreme Court agreed 
to do so.
    In the meantime and because the mandate from the D.C. Circuit was 
issued to EPA in February 2012, EPA intends to act in accordance with 
the EME Homer City opinion. In particular, the D.C. Circuit court 
concluded that EPA does not have authority to promulgate a FIP to 
address the requirements of section 110(a)(a)(2)(D)(i)(I) until EPA has 
identified emissions in a state that significantly contribute to 
nonattainment or interfere with maintenance of the NAAQS in another 
state and given the state an opportunity to submit a SIP to address 
those emissions. EME Homer City, 696 F.3d at 28. Because EPA has not 
identified or quantified any potential contribution and or interference 
from Utah to other states, or given the State an opportunity to submit 
a SIP to address any potential downwind contribution following action 
by EPA to quantify that contribution, our disapproval action today does 
not obligate Utah to take any action or make a new SIP submission, nor 
does it trigger an obligation for EPA to promulgate a FIP.
    EPA also disagrees with the commenter's suggestion that the Agency 
need not follow the D.C. Circuit's decision in EME Homer City in the 
context of an infrastructure action for Utah. The EPA rule reviewed by 
the court in EME Homer City--``Federal Implementation Plans: Interstate 
Transport of Fine Particulate Matter and Ozone and Correction of SIP 
Approvals,'' 76 FR 48207 (August 8, 2011), also known as the Cross 
State Air Pollution Rule (CSAPR)--was designated by EPA as a 
``nationally applicable'' rule within the meaning of section 307(b)(1) 
of the CAA. See id. at 48352. Accordingly, all petitions for review of 
the CSAPR had to be filed in the U.S. Court of Appeals for the D.C. 
Circuit and could not be filed in any other federal court. 42 U.S.C. 
7607(b)(1). Accordingly, EPA believes the D.C. Circuit's decision in 
EME Homer City vacating this rule is also nationally applicable.\3\ As 
such, EPA does not intend to take any actions, even if they are only 
reviewable in another federal Circuit Court of Appeals, that are 
inconsistent with the decision of the D.C. Circuit. EPA acknowledges, 
however, that if the EME Homer City decision is reversed or otherwise 
modified by the Supreme Court, at that time EPA may need to revisit its 
conclusion that this action does not trigger an obligation for EPA to 
promulgate a FIP.
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    \3\ In this respect, the D.C. Circuit's EME Homer City decision 
is distinguishable from decisions of other Courts of Appeal 
involving petitions for review of EPA actions under the CAA that are 
``regionally or locally applicable'' within the meaning of section 
307(b)(1). E.g., Summit Petroleum Corp. v. U.S. EPA, 690 F.3d 733 
(6th Cir. 2012).
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    Comment 2: The commenter contends that even if EPA chose to follow 
the EME Homer City Generation decision, EPA should acknowledge that the 
disapproval starts a FIP clock and then move expeditiously to provide 
Utah with the information the EME Homer City court said EPA must 
provide.
    Response 2: EPA disagrees. As discussed in the response to comment 
1, unless the D.C. Circuit's decision in EME Homer City is reversed or

[[Page 48617]]

otherwise modified, disapproval of Utah's 2006 PM2.5 
infrastructure SIP as it relates to section 110(a)(2)(D)(i)(I) does not 
give EPA authority, much less obligate it, to promulgate a FIP for 
Utah. EPA intends to move forward expeditiously to address the 
interstate transport requirements of the CAA in accordance with all 
applicable court decisions.
    Comment 3: The commenter states that the D.C. Circuit lacked 
jurisdiction in the EME Homer City decision to address whether or not a 
2 year FIP clock should have started to run, because that issue was not 
timely raised in a challenge to the June 9, 2010 (75 FR 32673) finding 
of failure to submit. Citing footnote 34 of the EME Homer City opinion, 
the commenter argues that the opinion acknowledged that the court was 
not overturning the June 9, 2010 finding of failure to submit in which 
EPA stated that a FIP clock was started by the finding.
    Response 3: The Supreme Court granted certiorari and agreed to 
consider all three questions presented in the United States' petition, 
including whether the D.C. Circuit lacked jurisdiction to consider the 
challenges on which it granted relief. However, as explained above we 
do not intend to take any actions that are inconsistent with the D.C. 
Circuit's EME Homer City decision unless that decision is reversed or 
otherwise modified. The D.C. Circuit clearly held that EPA lacked 
authority to promulgate the CSAPR FIPs even though it acknowledged that 
for each state subject to a CSAPR FIP EPA had previously disapproved 
that state's 110(a)(2)(D)(i)(I) SIP submission or had previously found 
that the state had failed to submit a 110(a)(2)(D)(i)(I) SIP. EME Homer 
City, 696 F.3d at 31-37. Also, in the very same footnote cited by the 
commenter, the court stated: ``[A] State cannot be `required' to 
implement its good neighbor obligation in a SIP `submission'-- nor be 
deemed to have submitted a deficient SIP for failure to implement the 
good neighbor obligation--until it knows the target set by EPA.'' Id. 
at 37 n.34. In our disapproval of the Utah submission, we are acting 
consistently with the D.C. Circuit decision, even as expressed in the 
footnote cited by the commenter.

III. Final Action

    EPA is disapproving the 110(a)(2)(D)(i)(I) portion of Utah's 
September 21, 2010 submission. We are disapproving this portion of the 
submission because it fails to demonstrate that the Utah SIP is 
adequate for the requirements of 110(a)(2)(D)(i)(I). As explained in 
detail in our proposal and our response to comments, unless the 
decision of the D.C. Circuit in EME Homer City is reversed or modified, 
this disapproval will not trigger an obligation for EPA to promulgate a 
FIP to address these interstate transport requirements, nor does it 
require Utah to submit a revised interstate transport SIP to meet the 
requirements.

IV. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act. 
Accordingly, this action merely disapproves state law that does not 
meet 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 Order 
12866 (58 FR 51735, October 4, 1993);
     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 (Pub. L. 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 methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 8, 2013. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

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

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

    Dated: July 26, 2013.
 Shaun L. McGrath,
Regional Administrator, Region 8.
[FR Doc. 2013-19200 Filed 8-8-13; 8:45 am]
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