[Federal Register Volume 84, Number 53 (Tuesday, March 19, 2019)]
[Proposed Rules]
[Pages 9995-9999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05040]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2018-0754; FRL-9990-98-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
District of Columbia; Nonattainment New Source Review Requirements for
2008 8-Hour Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a revision to the District of Columbia's state implementation
plan (SIP). The revision is in response to EPA's February 3, 2017
Findings of Failure to Submit for various requirements relating to the
2008 8-hour ozone national ambient air quality standards (NAAQS). This
SIP revision is specific to nonattainment new source review (NNSR)
requirements. This action is being taken under the Clean Air Act (CAA).
DATES: Written comments must be received on or before April 18, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2018-0754 at http://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be confidential business information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the For Further Information Contact section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www2.epa.gov/dockets/commenting-epa-dockets.
[[Page 9996]]
FOR FURTHER INFORMATION CONTACT: Amy Johansen, (215) 814-2156, or by
email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
On May 23, 2018, the Department of Energy and Environment (DOEE)
submitted on behalf of the District of Columbia (District) a formal SIP
revision, requesting EPA's approval of its NNSR Certification for the
2008 8-hour ozone NAAQS. This SIP revision is in response to EPA's
final 2008 8-hour ozone NAAQS Findings of Failure to Submit for NNSR
requirements. See 82 FR 9158 (February 3, 2017). Specifically, the
District is certifying that its existing NNSR program, covering the
District portion of the Washington, DC-MD-VA Nonattainment Area
(Washington Area) for the 2008 8-hour ozone NAAQS, is at least as
stringent as the requirements at 40 CFR 51.165, as amended by the final
rule titled ``Implementation of the 2008 National Ambient Air Quality
Standards for Ozone: State Implementation Plan Requirements'' (SIP
Requirements Rule), for ozone and its precursors.1 2 See 80
FR 12264 (March 6, 2015).
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\1\ The SIP Requirements Rule addresses a range of nonattainment
area SIP requirements for the 2008 8-hour ozone NAAQS, including
requirements pertaining to attainment demonstrations, reasonable
further progress (RFP), reasonably available control technology,
reasonably available control measures, major new source review,
emission inventories, and the timing of SIP submissions and of
compliance with emission control measures in the SIP. The rule also
revokes the 1997 ozone NAAQS and establishes anti-backsliding
requirements.
\2\ On February 16, 2018, the United States Court of Appeals for
the District of Columbia Circuit (D.C. Cir. Court or Court) issued
an opinion on the EPA's SIP Requirements Rule. South Coast Air
Quality Mgmt. Dist. v. EPA, 882 F.3d 1138, 2018 U.S. App. LEXIS 3636
(D.C. Cir. Feb. 16, 2018). The D.C. Cir. Court found certain
provisions from the SIP Requirements Rule to be inconsistent with
the statute or unreasonable and vacated those provisions. Id. The
Court found other parts of the SIP Requirements Rule unrelated to
this action reasonable and denied the petition for appeal on those
provisions. Id.
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A. 2008 8-Hour Ozone NAAQS
On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of
0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under
EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is
attained when the three-year average of the annual fourth-highest daily
maximum 8-hour average ambient air quality ozone concentration is less
than or equal to 0.075 ppm.
Upon promulgation of a new or revised NAAQS, the CAA requires EPA
to designate as nonattainment any area that is violating the NAAQS
based on the three most recent years of ambient air quality data at the
conclusion of the designation process. The Washington Area was
classified as marginal nonattainment for the 2008 8-hour ozone NAAQS on
May 21, 2012 (effective July 20, 2012) using 2008-2010 ambient air
quality data. See 77 FR 30088. On March 6, 2015, EPA issued the final
SIP Requirements Rule, which establishes the requirements that state,
tribal, and local air quality management agencies must meet as they
develop implementation plans for areas where air quality exceeds the
2008 8-hour ozone NAAQS. See 80 FR 12264. Areas that were designated as
marginal ozone nonattainment areas were required to attain the 2008 8-
hour ozone NAAQS no later than July 20, 2015, based on 2012-2014
monitoring data. See 40 CFR 51.1103. The Washington Area did not attain
the 2008 8-hour ozone NAAQS by July 20, 2015; however, the area did
meet the CAA section 181(a)(5) criteria, as interpreted in 40 CFR
51.1107, for a one-year attainment date extension. See 81 FR 26697 (May
4, 2016). Therefore, on April 11, 2016, the EPA Administrator signed a
final rule extending the Washington Area 8-hour ozone NAAQS attainment
date from July 20, 2015 to July 20, 2016. Id.\3\
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\3\ EPA approved a Determination of Attainment (DOA) for the
2008 8-hour ozone NAAQS for the Washington Area. This action was
based on complete, certified, and quality assured ambient air
quality monitoring data for the 2013-2015 monitoring period. See 82
FR 52651 (November 14, 2017). It should be noted that a DOA does not
alleviate the need for the District to certify that their existing
SIP approved NNSR program is as stringent as the requirements at 40
CFR 51.165, as NNSR applies in nonattainment areas until an area has
been redesignated to attainment.
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Based on initial nonattainment designations for the 2008 8-hour
ozone NAAQS, as well as the March 6, 2015 final SIP Requirements Rule,
the District was required to develop a SIP revision addressing certain
CAA requirements for the Washington Area, and submit to EPA a NNSR
Certification SIP or SIP revision no later than 36 months after the
effective date of area designations for the 2008 8-hour ozone NAAQS
(i.e., July 20, 2015).\4\ See 80 FR 12264 (March 6, 2015). EPA is
proposing to approve the District's May 23, 2018 NNSR Certification SIP
revision. EPA's analysis of how this SIP revision addresses the NNSR
requirements for the 2008 8-hour ozone NAAQS is provided in Section II
below.
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\4\ Neither the District's obligation to submit the NNSR
Certification SIP nor the requirements governing that submission
were affected by the D.C. Circuit's February 16, 2018 decision on
portions of the SIP Requirements Rule in South Coast Air Quality
Mgmt. Dist. v. EPA.
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B. 2017 Findings of Failure To Submit SIP for the 2008 8-Hour Ozone
NAAQS
Areas designated nonattainment for the ozone NAAQS are subject to
the general nonattainment area planning requirements of CAA section 172
and also to the ozone-specific planning requirements of CAA section
182.\5\ States in the ozone transport region (OTR), such as the
District, are additionally subject to the requirements outlined in CAA
section 184.
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\5\ Ozone nonattainment areas are classified based on the
severity of their ozone levels (as determined based on the area's
``design value,'' which represents air quality in the area for the
most recent three years). The possible classifications for ozone
nonattainment areas are Marginal, Moderate, Serious, Severe, and
Extreme. See CAA section 181(a)(1).
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Ozone nonattainment areas in the lower classification levels have
fewer and/or less stringent mandatory air quality planning and control
requirements than those in higher classifications. For marginal areas,
such as the Washington Area, a state is required to submit a baseline
emissions inventory, adopt a SIP requiring emissions statements from
stationary sources, and implement a NNSR program for the relevant ozone
standard. See CAA section 182(a). For each higher ozone nonattainment
classification, a state needs to comply with all lower area
classification requirements, plus additional emissions controls and
more expansive NNSR offset requirements.
The CAA sets out specific requirements for states in the OTR.\6\
Upon promulgation of the 2008 8-hour ozone NAAQS, states in the OTR
were required to submit a SIP revision addressing reasonable available
control technology (RACT). See 40 CFR 51.1116. This requirement is the
only recurring obligation for an OTR state upon revision of a NAAQS,
unless that state also contains some portion of a nonattainment area
for the revised NAAQS.\7\ In that case, the nonattainment requirements
described previously also apply to those portions of that state (the
District in this case).
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\6\ CAA section 184 details specific requirements for a group of
states (and the District of Columbia) that make up the OTR. States
in the OTR are required to submit RACT SIP revisions and mandate a
certain level of emissions control for the pollutants that form
ozone, even if the areas in the state meet the ozone standards.
While not the subject of this action, the District did submit their
OTR RACT SIP to EPA on August 30, 2018. This SIP revision will be
acted on in a separate rulemaking action.
\7\ NNSR requirements continue to apply in the OTR. See CAA
section 184(b).
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In the March 6, 2015 SIP Requirements Rule, EPA detailed the
requirements applicable to ozone nonattainment areas, as well as
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requirements that apply in the OTR, and provided specific deadlines for
SIP submittals. See 80 FR 12264.
On February 3, 2017, EPA found that 15 states and the District of
Columbia failed to submit SIP revisions in a timely manner to satisfy
certain requirements for the 2008 8-hour ozone NAAQS that apply to
nonattainment areas and/or states in the OTR. See 82 FR 9158. As
explained in that rulemaking action, consistent with the CAA and EPA
regulations, these Findings of Failure to Submit established certain
deadlines for the imposition of sanctions, if a state does not submit a
timely SIP revision addressing the requirements for which the finding
is being made, and for the EPA to promulgate a Federal implementation
plan (FIP) to address any outstanding SIP requirements.
EPA found, inter alia, that the District failed to submit SIP
revisions in a timely manner to satisfy NNSR requirements for the
Washington Area.\8\ The District submitted its May 23, 2018 SIP
revision to address the specific NNSR requirements for the 2008 8-hour
ozone NAAQS, located in 40 CFR 51.160-165, as well as its obligations
under EPA's February 3, 2017 Findings of Failure to Submit. EPA's
analysis of how this SIP revision addresses the NNSR requirements for
the 2008 8-hour ozone NAAQS and the Findings of Failure to Submit is
provided in Section II of this rulemaking action.
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\8\ The EPA found that the District also failed to submit SIP
revisions for the Control Techniques Guidelines (CTG) for volatile
organic compound (VOC) RACT (for all 44 CTGs), Non-CTG VOC RACT for
Major Sources, and nitrogen oxide (NOX) RACT for Major
Sources. As noted previously, these SIP requirements will be
addressed in separate rulemaking actions and will not be discussed
here. See 82 FR 9158 (February 3, 2017).
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II. Summary of SIP Revision and EPA Analysis
This rulemaking action is specific to the District's NNSR
requirements. NNSR is a preconstruction review permit program that
applies to new major stationary sources or major modifications at
existing sources located in a nonattainment area.\9\ The specific NNSR
requirements for the 2008 8-hour ozone NAAQS are located in 40 CFR
51.160-165. As set forth in the SIP Requirements Rule, for each
nonattainment area, a NNSR plan or plan revision was due no later than
36 months after the July 20, 2012 effective date of area designations
for the 2008 8-hour ozone standard (i.e., July 20,
2015).10 11
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\9\ See CAA sections 172(c)(5), 173 and 182.
\10\ With respect to states with nonattainment areas subject to
a Findings of Failure to Submit NNSR SIP revisions, such revisions
would no longer be required if the area were redesignated to
attainment. The CAA's prevention of significant deterioration (PSD)
program requirements apply in lieu of NNSR after an area is
redesignated to attainment. For areas outside the OTR, NNSR
requirements do not apply in areas designated as attainment.
\11\ While not the subject of this rulemaking action, as the
District noted in their May 23, 2018 submittal, the District does
not have a SIP-approved PSD program; however, the District is
subject to a Federal Implementation Plan (FIP) which incorporates
EPA's PSD permitting requirements from 40 CFR 52.21 into the
District's SIP. See 40 CFR 52.499. Therefore, should the District
submit, and EPA approve, a redesignation request for attainment of
an ozone NAAQS for the Washington Area, the federal regulations
would apply, and EPA would issue any necessary PSD air quality
permits.
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The minimum SIP requirements for NNSR permitting programs for the
2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR
51.1114. These NNSR program requirements include those promulgated in
the ``Phase 2 Rule'' implementing the 1997 8-hour ozone NAAQS (75 FR
71018 (November 29, 2005)) and the SIP Requirements Rule implementing
the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, the SIP for each
ozone nonattainment area must contain NNSR provisions that: set major
source thresholds for oxides of nitrogen (NOX) and volatile
organic compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-
(iv) and (2); classify physical changes as a major source if the change
would constitute a major source by itself pursuant to 40 CFR
51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase
of NOX as a significant net emissions increase for ozone
pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of
VOC emissions in extreme ozone nonattainment areas as a significant net
emissions increase and a major modification for ozone pursuant to 40
CFR 51.165(a)(1)(v)(F); set significant emissions rates for VOC and
NOX as ozone precursors pursuant to 40 CFR
51.165(a)(1)(x)(A)-(C) and (E); contain provisions for emissions
reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2);
provide that the requirements applicable to VOC also apply to
NOX pursuant to 40 CFR 51.165(a)(8); and set offset ratios
for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(i)-(iii)
(renumbered as (a)(9)(ii)-(iv) under the SIP Requirements Rule for the
2008 8-hour ozone NAAQS). Under the SIP Requirements Rule for the 2008
8-hour ozone NAAQS, the SIP for each ozone nonattainment area
designated nonattainment for the 2008 8-hour ozone NAAQS and designated
nonattainment for the 1997 ozone NAAQS on April 6, 2015, must also
contain NNSR provisions that include the anti-backsliding requirements
at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).
The District's SIP approved NNSR program, established in Chapters 1
(Air Quality--General Rules) and 2 (Air Quality--General and
Nonattainment Area Permits) in Title 20 of the District of Columbia
Municipal Regulations (DCMR), apply to the construction and
modification of major stationary sources in nonattainment areas. In its
May 23, 2018 SIP revision, the District certifies that the versions of
20 DCMR Chapters 1 and 2 approved in the SIP are at least as stringent
as the Federal NNSR requirements for the Washington Area. EPA last
approved revisions to the District's major NNSR SIP on March 19, 2015.
In that action, EPA approved revisions to the District's SIP which made
DOEE's NNSR program consistent with Federal requirements. See 80 FR
14310.
EPA notes that Title 20 DCMR section 199 and the District's SIP is
more stringent than 40 CFR 51.165(a)(1)(iv)(A)(1), because the
definition of ``major stationary source'' in 20 DCMR section 199
includes a threshold of 25 tons per year or more of NOX or
VOC in any nonattainment area for ozone, which is equivalent to severe
ozone nonattainment area classification. As noted previously, the
Washington Area is classified as marginal nonattainment for the 2008 8-
hour ozone NAAQS. Therefore, by definition, any major stationary source
located in the District is subject to a lower emissions threshold for
NOX and VOC.
Additionally, in its May 23, 2018 SIP revision, the District noted
for various NNSR provisions that, ``Should the District attain the
NAAQS, because the District has not adopted the Prevention of
Significant Deterioration (PSD) portions of New Source Review (NSR),
the federal regulations would apply. In this case, because the District
is in an Ozone Transport Region (OTR), the federal OTR thresholds would
apply.'' In order for a nonattainment area to become attainment and for
OTR emissions thresholds to apply, the District would have to submit,
and EPA would have to approve a redesignation request and maintenance
plan for the applicable ozone NAAQS.\12\ See CAA Section 184(b). The
lack of these provisions in the District's SIP does not impact the
requirement to have a fully-approved NNSR program in place, nor does
the lack of those requirements impact the approvability of this SIP
[[Page 9998]]
revision, as the federal requirements would apply or the District could
undertake a rulemaking action to update their regulations and
subsequently their SIP. For purposes of NNSR, the subject of this
rulemaking action, the District's approved NNSR program is at least as
stringent as the federal requirements.\13\
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\12\ Any source in the OTR is considered major for
NOX and VOC if it emits or has the potential to emit at
least 100 tons per year or 50 tons per year, respectively. See 40
CFR 51.165(a)(iv)(A).
\13\ See CAA sections 172(c)(5), 173, 182 and 40 CFR 51.165.
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Neither Title 20 of the DCMR nor the District's approved SIP have
the regulatory provisions for an emissions change of VOC in extreme
nonattainment areas, specified in 40 CFR 51.165(a)(1)(v)(F) or 40 CFR
51.165(a)(1)(x)(E), because the District's SIP is not required to have
this requirement for VOC in extreme nonattainment areas until such a
time as the District has an extreme nonattainment area. The District
has never been designated as extreme for an ozone NAAQS.\14\
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\14\ As the District noted in their May 23, 2018 revision, the
District is aware that should they be bumped up to extreme
nonattainment or want to be redesignated to attainment for the 2008
8-hour ozone NAAQS, federal requirements would apply, or they could
update their regulations and SIP to meet the necessary applicable
requirements.
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Neither 20 DCMR section 204 nor the District's approved SIP contain
a regulatory provision pertaining to establishing emissions reductions
credits (ERC), as specified in 40 CFR 51.165(a)(3)(ii)(C)(2)(i) and 40
CFR 51.165(a)(3)(ii)(C)(2)(ii). However, even if the District's
regulations do not offer this emissions reductions credit option, their
approved SIP is still adequate to meet the standard ERC requirements
found in 40 CFR 51.165(a)(3)(ii)(C)(1), where emissions reductions must
be surplus, permanent, quantifiable, and federally enforceable, for
example. The District has the appropriate ERC requirements approved in
their regulations and their SIP, which enables them to implement the
program appropriately and in accordance with federal requirements. See
20 DCMR Section 204.
Given the D.C. Cir. Court's recent ruling in South Coast Air
Quality Mgmt. Dist. v. EPA vacating the anti-backsliding provisions of
the SIP Requirements Rule, the District remains required to comply with
the anti-backsliding provisions found in 40 CFR 51.165(a)(12). In the
District, neither 20 DCMR Chapters 1 and 2 or the District SIP contain
anti-backsliding provisions found in 40 CFR 51.165(a)(12), which
applied to NNSR requirements for the 1997 ozone NAAQS. However, EPA
finds that 20 DCMR and the District's SIP presently include appropriate
thresholds for major stationary sources and emissions offset ratios for
the worst air quality designations these nonattainment areas have been
designated. For example, in 20 DCMR section 199, a source is considered
a ``major stationary source'' if it emits 25 tons per year of
NOX or VOC in any nonattainment area for ozone, except for
the 10 ton per year or more of NOX and VOC in an extreme
nonattainment area for ozone.\15\ This emissions threshold is
equivalent to an area that was designated as severe nonattainment for
the ozone NAAQS and is therefore more stringent. Additionally,
emissions offset ratios for sources located in the District are more
stringent than the requirements of 40 CFR 51.165(a)(9)(i). 20 DCMR
section 204.18 and the approved District SIP require sources in ozone
nonattainment areas to offset their NOX and VOC emissions at
a ratio of 1.3 to 1 versus the Federal NNSR requirement for a source
located in a marginal nonattainment area to offset NOX and
VOC at a less stringent ratio of 1.1 to 1. See 40 CFR
51.165(a)(9)(i)(A). Therefore, EPA finds that the District's
regulations and approved SIP are more stringent than EPA's NNSR anti-
backsliding requirements and their program is adequate to implement
NNSR for the 2008 ozone NAAQS.
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\15\ As noted in this rulemaking and in the District's May 23,
2018 SIP revision, the Washington Area has never been classified as
Extreme Nonattainment for any ozone NAAQS.
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The versions of 20 DCMR Chapters 1 and 2 that are contained in the
current SIP have not changed, with respect to NNSR since the 2015
rulemaking where EPA last approved the District's NNSR provisions.
These versions of the rules cover the Washington Area and remain
adequate to meet all applicable NNSR requirements for the 2008 8-hour
ozone NAAQS found in 40 CFR 51.165, the Phase 2 Rule and the SIP
Requirements Rule.
III. Proposed Action
EPA is proposing to approve the District's May 23, 2018 SIP
revision addressing the NNSR requirements for the 2008 ozone NAAQS for
the Washington Area. EPA has concluded that the District's submission
fulfills the 40 CFR 51.1114 revision requirement, meets the
requirements of CAA sections 110 and 172 and the minimum SIP
requirements of 40 CFR 51.165, as well as its obligations under EPA's
February 3, 2017 Findings of Failure to Submit. See 82 FR 9158. EPA is
soliciting public comments on the issues discussed in this document.
These comments will be considered before taking final action.
IV. 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, 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 proposed 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 (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 CAA; 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 proposed rule, approving the District's 2008 8-
hour ozone NAAQS Certification SIP revision for NNSR does not have
tribal
[[Page 9999]]
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.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 7, 2019.
Cosmo Servidio,
Regional Administrator, Region III.
[FR Doc. 2019-05040 Filed 3-18-19; 8:45 am]
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