[Federal Register Volume 79, Number 154 (Monday, August 11, 2014)]
[Rules and Regulations]
[Pages 46707-46709]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-18810]



[[Page 46707]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R10-OAR-2013-0708, FRL-9914-90-Region 10]


Approval and Promulgation of Implementation Plans; Idaho: 
Infrastructure Requirements for the 2010 Nitrogen Dioxide and 2010 
Sulfur Dioxide National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
Idaho State Implementation Plan (SIP) as meeting the infrastructure 
requirements of the Clean Air Act (CAA) for the National Ambient Air 
Quality Standards (NAAQS) promulgated for nitrogen dioxide 
(NO2) on January 22, 2010, and sulfur dioxide 
(SO2) on June 2, 2010. Whenever a new or revised NAAQS is 
promulgated, the CAA requires states to submit a plan for the 
implementation, maintenance and enforcement of such NAAQS. The plan is 
required to address basic program elements, including but not limited 
to regulatory structure, monitoring, modeling, legal authority, and 
adequate resources necessary to implement, maintain and enforce the 
standards. These elements are referred to as infrastructure 
requirements.

DATES: This final rule is effective on September 10, 2014.

ADDRESSES: The EPA has established a docket for this action under 
Docket Identification No. EPA-R10-OAR-2013-0708. All documents in the 
docket are listed on the http://www.regulations.gov Web site. Although 
listed in the index, some information may not be publicly available, 
i.e., Confidential Business Information or other information the 
disclosure of which 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 http://www.regulations.gov or in hard copy at EPA Region 10, Office of Air, 
Waste, and Toxics, AWT-107, 1200 Sixth Avenue, Seattle, Washington 
98101. The EPA requests that 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: Kristin Hall at: (206) 553-6357, 
[email protected], or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,'' 
``us'' or ``our'' is used, it is intended to refer to the EPA. 
Information is organized as follows:

Table of Contents

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

I. Background

    Section 110 of the CAA specifies the general requirements for 
states to submit SIPs to implement, maintain and enforce the NAAQS and 
the EPA's actions regarding approval of those SIPs. On September 16, 
2013, Idaho made two SIP submissions to the EPA demonstrating that the 
Idaho SIP meets the infrastructure requirements of the CAA for the 2010 
NO2 and 2010 SO2 NAAQS. Idaho's submissions 
addressed the following CAA section 110(a)(2) elements for the 2010 
NO2 and 2010 SO2 NAAQS: (A), (B), (C), 
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L) and (M). On 
April 17, 2014, we proposed approval of Idaho's September 16, 2013, 
submissions (79 FR 21669). An explanation of the CAA requirements and 
implementing regulations that are met by these SIP submissions, a 
detailed explanation of the submissions, and the EPA's reasons for the 
proposed action were provided in the notice of proposed rulemaking on 
April 17, 2014, and will not be restated here (79 FR 21669). The public 
comment period for our proposed action ended on May 19, 2014, and we 
received one anonymous comment via the www.regulations.gov Web site.

II. Response to Comment

    Comment: ``Due to the recent Supreme Court decision in EME Homer 
City v. EPA, the EPA should disapprove the State's submission with 
regard to Interstate Transport. This is because, due to the decision, a 
State's SIP is obligated to `contain adequate provisions . . . 
prohibiting . . . any source or other type of emissions activity within 
the State from emitting any air pollutant in amounts which will . . . 
contribute significantly to nonattainment in, or interfere with 
maintenance by, any other State with respect to any' [such primary or 
secondary] NAAQS. Even though the lower court's stay of CSAPR may still 
be in effect, the fact remains that a state is required to submit 
something that addresses Interstate Transport. Since the State of Idaho 
did not submit anything for Interstate Transport the EPA is left with 
no other option than to disapprove the state's submission since it does 
not address Interstate Transport. Since this decision was handed down 
after this rule was published the EPA should withdraw this proposed 
rule and re-propose with a disapproval of the Interstate Transport 
section.''
    Response: We disagree with the commenter. In this rulemaking the 
EPA is not taking any final action with respect to the provisions in 
CAA section 110(a)(2)(D)(i)(I), which address emissions that 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS in any other state. Idaho did not make a SIP submission to 
address the requirements of CAA section 110(a)(2)(D)(i)(I) and thus 
there is no such submission upon which the EPA could take action under 
CAA section 110(k). The EPA did not propose to take any action with 
respect to Idaho's obligations pursuant to CAA section 
110(a)(2)(D)(i)(I) and is not, in this rulemaking action, taking any 
such action. Further, the EPA could not, as the commenter urges, act to 
disapprove a SIP that has not been submitted to the EPA.
    The EPA also disagrees with the commenters' assertion that the EPA 
should disapprove Idaho's submissions because they do not address the 
requirements of CAA section 110(a)(2)(D)(i)(I). Section 110(k)(3) of 
the CAA authorizes the EPA to approve a plan in full, disapprove it in 
full, or approve it in part and disapprove it in part, depending on the 
extent to which such plan meets the requirements of the CAA. This 
authority to approve the states' SIP submissions in separable parts was 
included in the 1990 Amendments to the CAA to overrule a decision in 
the Court of Appeals for the Ninth Circuit holding that the EPA could 
not approve individual measures in a plan submission without either 
approving or disapproving the plan as a whole. See S. Rep. No. 101-228, 
at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling 
of Abramowitz v. U.S. EPA, 832 F.2d 1071 (9th Cir. 1987)). The 
authority provided by the 1990 Amendments to act on particular plan 
revisions has been recognized by the Court of Appeals for the Ninth 
Circuit. See Hall v. U.S. EPA, 273 F.3d 1146 (9th Cir. August 29, 
2001).
    As such, the EPA interprets its authority under CAA section 
110(k)(3) as affording the EPA the discretion to approve or 
conditionally approve individual elements of Idaho's

[[Page 46708]]

infrastructure SIP submissions for the 2010 NO2 and 2010 
SO2 NAAQS, separate and apart from any action with respect 
to the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2010 
NO2 and 2010 SO2 NAAQS. The EPA views discrete 
infrastructure SIP requirements, such as the requirements of CAA 
section 110(a)(2)(D)(i)(I), as severable from the other infrastructure 
elements and interprets CAA section 110(k)(3) as allowing it to act on 
individual severable measures in a plan submission. In short, we 
believe we have discretion under CAA section 110(k) to act upon the 
various individual elements of the State's infrastructure SIP 
submittals, separately or together, as appropriate.
    We note that the EPA is reviewing the recent Supreme Court case 
reversing and remanding the EME Homer City decision.\1\ We are 
evaluating the opinion's impact on states' CAA section 
110(a)(2)(D)(i)(I) obligations. We are working with state partners, 
including Idaho, to assess next steps to address interstate transport 
of pollution, including interstate transport SIP requirements for the 
2010 NO2 and 2010 SO2 NAAQS.
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    \1\ On August 21, 2012, the U.S. Court of Appeals for the D.C. 
Circuit issued a decision vacating the Transport Rule, see EME Homer 
City Generation, L.P. v. E.P.A., 696 F.3d 7 (D.C. Cir. 2012), and 
ordering the EPA to continue implementing CAIR in the interim. 
However, on April 29, 2014, the U.S. Supreme Court reversed and 
remanded the D.C. Circuit's ruling and upheld the EPA's approach in 
the Transport Rule. EPA v. EME Homer City Generation, L.P., No. 12-
1182, 572 U.S. --------slip op. (2014).
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II. Final Action

    The EPA is approving the Idaho SIP as meeting the requirements of 
sections 110(a)(1) and (2) of the CAA for the 2010 NO2 and 
2010 SO2 NAAQS. Specifically, we find that the Idaho SIP 
meets the following CAA section 110(a)(2) infrastructure elements for 
the 2010 NO2 and 2010 SO2 NAAQS: (A), (B), (C), 
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). This 
action is being taken under section 110 of the CAA.

III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, the EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive 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 this action does not involve technical standards; and 
does not provide the 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 the 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. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 10, 2014. 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and 
recordkeeping requirements, Sulfur oxides, and Volatile organic 
compounds.

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

    Dated: July 29, 2014.
Dennis J. McLerran,
Regional Administrator, Region 10.
    40 CFR Part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart N--Idaho

0
2. Section 52.670 is amended in paragraph (e) in the table entitled 
``EPA-Approved Idaho Nonregulatory Provisions and Quasi-Regulatory 
Measures'' by adding two entries at the end to read as follows:


Sec.  52.670  Identification of plan.

* * * * *
    (e) * * *

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                    EPA-Approved Idaho Nonregulatory Provisions and Quasi-Regulatory Measures
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                                        Applicable          State
      Name of SIP provision         geographic or non-    submittal     EPA approval date         Comments
                                      attainment area        date
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                                                  * * * * * * *
Section 110(a)(2) Infrastructure   State-wide..........    9/16/2013  8/11/2014 [Insert FR  This action
 Requirements for the 2010 NO2                                         citation].            addresses the
 NAAQS.                                                                                      following CAA
                                                                                             elements or
                                                                                             portions thereof:
                                                                                             110(a)(2)(A), (B),
                                                                                             (C), (D)(i)(II),
                                                                                             (D)(ii), (E), (F),
                                                                                             (G), (H), (J), (K),
                                                                                             (L), and (M).
Section 110(a)(2) Infrastructure   State-wide..........    9/16/2013  8/11/2014 [Insert FR  This action
 Requirements for the 2010 SO2                                         citation].            addresses the
 NAAQS.                                                                                      following CAA
                                                                                             elements or
                                                                                             portions thereof:
                                                                                             110(a)(2)(A), (B),
                                                                                             (C), (D)(i)(II),
                                                                                             (D)(ii), (E), (F),
                                                                                             (G), (H), (J), (K),
                                                                                             (L), and (M).
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[FR Doc. 2014-18810 Filed 8-8-14; 8:45 am]
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