[Federal Register Volume 83, Number 56 (Thursday, March 22, 2018)]
[Rules and Regulations]
[Pages 12486-12488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05631]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2017-0267; FRL-9975-78--Region 7]


Approval of Implementation Plans; State of Iowa; Elements of the 
Infrastructure SIP Requirements for the 2010 Sulfur Dioxide National 
Ambient Air Quality Standard (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve certain elements of a 2013 State Implementation Plan 
(SIP) submission from the State of Iowa for the 2010 Sulfur Dioxide 
(SO2) National Ambient Air Quality Standard (NAAQS). States 
are required to have a SIP that provides for the implementation, 
maintenance, and enforcement of the NAAQS. Whenever EPA promulgates a 
new or revised NAAQS, states are required to make a SIP submission 
establishing that the existing approved SIP has provisions necessary to 
address various requirements to address the new or revised NAAQS or to 
add such provisions. These SIPs submissions are commonly referred to as 
``infrastructure'' SIPs. The infrastructure SIP requirements are 
designed to ensure that the structural components of each state's air 
quality management program are adequate to meet the state's 
responsibilities under the CAA.

DATES: This final rule is effective on April 23, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R07-OAR-2017-0267. All documents in the docket are listed on 
the https://www.regulations.gov website. 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 through https://www.regulations.gov or please contact the person identified in the FOR 
FURTHER INFORMATION CONTACT section for additional information.

FOR FURTHER INFORMATION CONTACT: Heather Hamilton, Environmental 
Protection Agency, Air Planning and Development Branch, 11201 Renner 
Boulevard, Lenexa, Kansas 66219 at 913-551-7039, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refer to EPA. This section provides additional information by 
addressing the following:

I. Background
II. What is being addressed in this document?
III. Have the requirements for approval of the SIP submission been 
met?
IV. EPA's Response to Comments
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. Background

    EPA received Iowa's 2010 SO2 NAAQS infrastructure SIP 
submission on July 29, 2013. On September 29, 2017, EPA proposed to 
approve elements of this submission. See 82 FR 45550. In conjunction 
with the September 29, 2017 notice of proposed rulemaking (NPR), EPA 
issued a direct final rule (DFR) approving the same elements of the 
2010 SO2 NAAQS infrastructure SIP. See 82 FR 45497. However, 
in the DFR, EPA stated that if EPA received adverse comments by October 
30, 2017, the action would be withdrawn and not take effect. EPA 
received three comments prior to the close of the comment period which 
were adverse. EPA withdrew the DFR on November 14,2017. See 82 FR 
54300. This action is a final rule based on the NPR. A detailed 
discussion of Iowa's SIP submission and EPA's rationale for approving 
the SIP submission were provided in the DFR and the associated 
Technical Support Document in the docket for this rulemaking and will 
not be restated here, except to the extent relevant to our response to 
the public comment we received.

II. What is being addressed in this document?

    EPA is approving certain elements of the 2010 SO2 NAAQS 
infrastructure SIP submission from the State of Iowa received on July 
29, 2013. Specifically, EPA is approving Iowa's submission with regard 
to the following elements of section 110(a)(2): (A), (B), (C), 
(D)(i)(II)--prevent of significant deterioration of air quality (prong 
3), (D)(ii), (E) through (H), and (J) through (M).
    EPA is not taking action at this time on the following elements for 
the 2010 SO2 NAAQS: Section 110(a)(2)(D)(i)(I)--significant 
contribution to nonattainment (prong 1) and interfering with 
maintenance of the NAAQS (prong 2), and section 110(a)(2)(D)(i)(II)--
protection of visibility (prong 4).

III. Have the requirements for approval of the SIP submission been met?

    The state met the public notice requirements for SIP submission in 
accordance with 40 CFR 51.102. The state initiated public comment from 
April 6, 2013, to May 8, 2013. One comment was received and adequately 
addressed in the final SIP submission. This submission also satisfied 
the completeness criteria of 40 CFR part 51, appendix V. In addition, 
as explained above and in more detail in the technical support document 
which is part of the docket for this rulemaking, the submission meets 
the applicable substantive SIP requirements of the CAA, including 
section 110 and implementing regulations.

IV. EPA's Response to Comments

    The public comment period on EPA's proposed rule opened September 
29, 2017, the date of its publication in the Federal Register, and 
closed on October 30, 2017. During this period, EPA received three 
public comments on the proposal to approve certain elements of Iowa's 
2010 SO2 infrastructure SIP submission, one of which is 
addressed below. The other two comments were not specific to this 
action, which is concerned with evaluating whether Iowa has the 
required elements in place to implement, maintain, and enforce the 
NAAQS, and thus no further response is required.
    Comment: The commenter stated that EPA must act on 110(a)(2)(D)(I) 
prong 1 (significant contribution to nonattainment), prong 2 
(interference with maintenance), and 110(a)(2)(D)(II), prong 4 
(interference with visibility protection.) The commenter asserted that 
EPA had stated in the Technical Support Document (TSD) for the proposed 
action that ``EPA WILL NOT ACT on [prongs 1, 2 and 4]'' (emphasis added 
in comment). The commenter went on to state that EPA was therefore 
stating that it ``will never act and does not need to act on these 
elements.'' The

[[Page 12487]]

commenter further stated that EPA does not have the discretionary 
authority to not act on a state's submission. The commenter indicated 
that if EPA does not believe prongs 1 and 2 are approvable, then EPA 
must disapprove; if EPA does not believe prong 4 is approvable due to 
the lack of an approved regional haze program, then EPA must disapprove 
the state's submission and promulgate a FIP to address regional haze. 
The commenter concluded by stating that the comment letter constitutes 
notice of intent to sue the agency for failure to perform its 
nondiscretionary duty under 110(k)(2) to act on Iowa's prongs 1, 2, and 
4.
    EPA's response: EPA disagrees with this comment. First, EPA's TSD 
\1\ does not state that ``EPA will not act'' on the SIP submission with 
respect to prongs 1, 2, and 4 of section 110(a)(2)(D), and does not 
imply that EPA ``will never act and does not need to act on these 
elements.'' Rather, the TSD states, ``With this action, EPA will not be 
acting on 110(a)(2)(D)(i)(I)--prongs 1 and 2, and 110(a)(2)(D)(i)(II)--
prong 4.'' That is, the TSD merely explains that EPA is not taking 
action on prongs 1, 2, and 4 in this rulemaking, not that it does not 
have an obligation to act on those elements of the SIP submission at 
issue, or that it will never do so.
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    \1\ www.regulations.gov, Docket: EPA-R07-OAR-2017-0267, 
Supporting Documents; R7 Technical Support Document.
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    EPA is not required to act on the prong 1, 2, or 4 elements of 
Iowa's 2010 SO2 infrastructure SIP submission in this 
particular rulemaking. Although EPA agrees with the commenter that it 
has an obligation to take action under section 110(k) on SIP 
submissions, EPA disagrees with the argument that the Agency cannot 
elect to act on individual parts or elements of a state's 
infrastructure SIP submission in separate rulemakings, as it deems 
appropriate. Section 110(k) of the CAA authorizes EPA to approve a SIP 
submission in full, disapprove it in full, or approve it in part and 
disapprove it in part, or conditionally approve it in full or in part, 
depending on the extent to which such plan meets the requirements of 
the CAA. This authority to approve state 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 EPA 
could not approve individual measures in a SIP 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. EPA, 832 F.2d 1071 (9th Cir. 1987)).
    EPA interprets its authority under section 110(k) of the CAA as 
affording the Agency the discretion to approve, disapprove, or 
conditionally approve, individual elements of Iowa's infrastructure SIP 
submission for the 2010 SO2 NAAQS. EPA views discrete 
infrastructure SIP requirements, such as the requirements of 
110(a)(2)(d)(i)(I) and (II), as severable from other infrastructure SIP 
elements and interprets section 110(k) as allowing it to act on 
individual severable elements or requirements in a SIP submission. In 
short, EPA has the discretion under section 110(k) of the CAA to act 
upon the various individual elements of a state's infrastructure SIP 
submission, separately or together, as appropriate. EPA will address 
the remaining elements of Iowa's 2010 SO2 infrastructure SIP 
submission in a separate rulemaking action or actions.
    In EPA's rulemaking proposing to approve Iowa's infrastructure SIP 
for the 2010 1-hour SO2 NAAQS, EPA stated that it was not 
taking any action with respect to the good neighbor provisions in 
section 110(a)(2)(D)(i)(I) for this NAAQS. EPA understands the 
commenter's concern with respect to interstate transport. EPA will 
evaluate whether it is appropriate to make a finding of failure to 
submit in a separate action as the state did not make a submission to 
satisfy 110(a)(2)(D)(i)(I).
    With respect to the comment on prong 4 in particular, although 
EPA's evaluation of a state's SIP submission can be related to the 
status of that state's regional haze program,\2\ Iowa's regional haze 
program is not relevant here because EPA is not taking action on that 
element of Iowa's SO2 infrastructure SIP submission in this 
rulemaking.
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    \2\ EPA's 2013 Guidance of Infrastructure State Implementation 
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 
110(a)(2) provides that ``[o]ne way in which prong 4 may be 
satisfied for any relevant NAAQS is through an air agency's 
confirmation in its infrastructure SIP submission that it has an 
approved regional haze SIP. . . . .'' 2013 Guidance at 33, https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.
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    Finally, a public comment submitted on a proposal does not 
constitute notice of intent to sue the Administrator for failure to 
perform a nondiscretionary duty. Clean Air Act section 304(b)(2) 
requires 60 days' notice of a civil action against the Administrator 
for an alleged failure to perform a non-discretionary duty to the 
Administrator. EPA's regulations require that service of notice to the 
Administrator ``shall be accomplished by certified mail addressed to 
the Administrator, Environmental Protection Agency, Washington, DC 
20460.'' 40 CFR 54.2(a). The commenter's public comment submitted via 
regulations.gov does not satisfy the regulatory requirements for 
notices of intent to file suit against the Administrator for failure to 
perform a non-discretionary duty.

V. What action is EPA taking?

    EPA is taking final action to approve Iowa's 2013 infrastructure 
SIP submission for the 2010 SO2 NAAQS with regard to the 
following elements of section 110(a)(2): (A), (B), (C), (D)(i)(II)--
prevent significant deterioration of air quality (prong 3), (D)(ii), 
(E) through (H), and (J) through (M).
    EPA is not taking action on sections 110(a)(2)(D)(i)(I), prongs 1 
and 2, and 110(a)(2)(D)(i)(II), prong 4. The agency will act on those 
elements of the SIP submission in a separate rulemaking action or 
action.

VI. 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 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 Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866.
     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 (Public Law 104-4);
     Does not have Federalism implications as specified in 
Executive

[[Page 12488]]

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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 May 21, 2018. 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, Sulfur dioxide, Reporting and 
recordkeeping requirements.

    Dated: March 8, 2018.
James B. Gulliford,
Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 
as set forth below:

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 Q--Iowa

0
2. Section 52.820 is amended by adding new paragraph (e)(47) to read as 
follows:


Sec.  52.820  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Iowa Nonregulatory SIP Provisions
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                                     Applicable
   Name of nonregulatory SIP        geographic or         State       EPA approval date        Explanation
            revision             nonattainment area  submittal date
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                                                  * * * * * * *
(47) Sections 110(a)(1) and (2)  Statewide.........       7/23/2013  3/22/2018, [Insert  This action addresses
 Infrastructure Requirements                                          Federal Register    the following CAA
 2010 Sulfur Dioxide NAAQS.                                           citation].          elements:
                                                                                          110(a)(2)(A), (B),
                                                                                          (C), D(i)(II) prong 3
                                                                                          only, D(ii), (E), (F),
                                                                                          (G), (H), (J), (K),
                                                                                          (L), and (M). [EPA-R07-
                                                                                          OAR-2017-0267; FRL-
                                                                                          9975-78-Region 7].
 
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[FR Doc. 2018-05631 Filed 3-21-18; 8:45 am]
 BILLING CODE 6560-50-P