[Federal Register Volume 85, Number 105 (Monday, June 1, 2020)]
[Proposed Rules]
[Pages 33052-33059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-11182]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2019-0643; FRL-10009-77-Region 8]
Promulgation of State Implementation Plan Revisions;
Infrastructure Requirements for the 2015 Ozone National Ambient Air
Quality Standards; Utah
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On October 1, 2015, the Environmental Protection Agency (EPA)
promulgated the 2015 ozone National Ambient Air Quality Standard
(NAAQS), revising the standard to 0.070 parts per million. Whenever a
new or revised is promulgated, the Clean Air Act (CAA or Act) requires
each state to submit a State Implementation Plan (SIP) revision for the
implementation, maintenance, and enforcement of the new standard. This
submission is commonly referred to as an infrastructure SIP. In this
action we are proposing to approve the State of Utah's 2015 ozone NAAQS
infrastructure SIP submitted to the EPA on January 29, 2020.
DATES: Written comments must be received on or before July 1, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2019-0643, to the Federal Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
www.regulations.gov. The 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. The 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, 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. To reduce the risk of
COVID-19 transmission, for this action we will not be accepting
comments submitted by mail or hand delivery
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will not be placed on the internet. Publicly
available docket materials are available electronically at
www.regulations.gov. To reduce the risk of COVID-19 transmission, for
this action we do not plan to offer hard copy review of the docket.
Please email or call the person listed in the FOR FURTHER INFORMATION
CONTACT section if you need to make alternative arrangements for access
to the docket.
FOR FURTHER INFORMATION CONTACT: Kate Gregory, (303) 312-6175,
[email protected]. Mail can be directed to the Air and Radiation
Division, U.S. EPA, Region 8, Mail-code 8ARD-QP, 1595 Wynkoop Street,
Denver, Colorado 80202-1129.
SUPPLEMENTARY INFORMATION: Throughout this document, ``reviewing
authority,'' ``we,'' ``us,'' and ``our'' refer to the EPA.
I. Background
On March 12, 2008, the EPA promulgated a new NAAQS for ozone,
revising the levels of the primary and secondary 8-hour ozone standards
from 0.08 parts per million (ppm) to 0.075 ppm.\1\ More recently, on
October 1, 2015, the EPA promulgated and revised the NAAQS for ozone,
further strengthening the primary and secondary 8-hour standards to
0.070 ppm.\2\ The October 1, 2015 standards are known as the 2015 ozone
NAAQS.
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\1\ Final rule, National Ambient Air Quality Standards for
Ozone, 73 FR 16436, 16483 (March 27, 2008).
\2\ Final rule, National Ambient Air Quality Standards for
Ozone, 80 FR 65292, 65362 (Oct. 26, 2015).
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Under sections 110(a)(1) and (2) of the CAA, after the promulgation
of a new or revised NAAQS states are required to submit infrastructure
SIPs to ensure their SIPs provide for implementation, maintenance, and
enforcement of the NAAQS.\3\ These submissions must contain any
revisions needed for meeting the applicable SIP requirements of section
110(a)(2), or certifications that the existing SIPs already meet those
requirements. The EPA highlighted and explained this statutory
requirement in a series of guidance documents.\4\
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\3\ 42 U.S.C. 7410(a)(1), (2).
\4\ ``Guidance on SIP Elements Required Under Sections 110(a)(1)
and (2) for the 1997 8-hour Ozone and PM2.5 National
Ambient Air Quality Standards'' (Oct. 2, 2007); ``Guidance on SIP
Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS)'' (Sep. 25, 2009); ``Guidance on Infrastructure
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2008
Lead (Pb) National Ambient Air Quality Standards (NAAQS)'' (Oct. 14,
2011); ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and (2)'' (Sep. 13,
2013) (2013 Memo).
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A. What infrastructure elements are required under Sections 110(a)(1)
and (2)?
CAA section 110(a)(1) provides the procedural and timing
requirements for SIP submissions after a new or revised NAAQS is
promulgated. Section 110(a)(2) lists specific elements the SIP
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must contain or satisfy. These infrastructure elements include
requirements such as modeling, monitoring, and emissions inventories,
which are designed to assure attainment and maintenance of the NAAQS.
The elements that are the subject of this action are listed below.
110(a)(2)(A): Emission limits and other control measures.
110(a)(2)(B): Ambient air quality monitoring/data system.
110(a)(2)(C): Program for enforcement of control measures.
110(a)(2)(D): Interstate transport.
110(a)(2)(E): Adequate resources and authority, conflict
of interest, and oversight of local governments and regional agencies.
110(a)(2)(F): Stationary source monitoring and reporting.
110(a)(2)(G): Emergency powers.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(J): Consultation with government officials,
public notification, and prevention of significant deterioration (PSD)
and visibility protection.
110(a)(2)(K): Air quality modeling/data.
110(a)(2)(L): Permitting fees.
110(a)(2)(M): Consultation/participation by affected local
entities.
A detailed discussion of each of these elements for Utah is
contained in section III of this document.
B. How did the State address the infrastructure elements of Sections
110(a)(1) and (2)?
The Utah 2015 ozone NAAQS infrastructure SIP submissions
demonstrates how the State, where applicable, has plans in place that
meet the requirements of section 110 for the 2015 ozone NAAQS. The
State submittals are available in the electronic docket for today's
proposed action at www.regulations.gov.\5\
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\5\ Utah made a submittal to address the 2015 ozone NAAQS
infrastructure SIP requirements on October 24, 2019, but then made a
second submittal on January 29, 2020, to address public
participation requirements. The second submittal is comprehensive
and includes all of the substantive material in the first, but for
completeness the docket includes both submittals (see `UT 2015 Ozone
ISIP Submission--10.24.19' and 01.29.20 UT 2015 ISIP Submission' in
docket).
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The Utah Department of Environmental Quality (UDEQ) submitted a
certification of Utah's infrastructure SIP for the 2015 ozone NAAQS on
January 29, 2020. The State's submission references the current Utah
Division of Air Quality (UDAQ) Rules (UAR).\6\
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\6\ See https://rules.utah.gov/publicat/code/r307/r307.htm (as
in effect December 1, 2019; site accessed April 13, 2020); Utah's
approved SIP can be found at 40 CFR 52.2320.
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II. What is the scope of this proposed rule?
The EPA is acting upon SIP submissions from Utah that address the
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for
the 2015 ozone NAAQS. The requirement for states to make a SIP
submission of this type arises out of CAA section 110(a)(1). Pursuant
to section 110(a)(1), states must make SIP submissions ``within 3 years
(or such shorter period as the Administrator may prescribe) after the
promulgation of a national primary ambient air quality standard (or any
revision thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon the EPA taking any action other than promulgating a
new or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
Whenever the EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make SIP submissions to provide for the
implementation, maintenance, and enforcement of the NAAQS. This
particular type of SIP submission is commonly referred to as an
``infrastructure SIP.'' These submissions must meet the various
requirements of CAA section 110(a)(2), as applicable. The EPA has
previously provided comprehensive guidance on the application of these
provisions through a guidance document for infrastructure SIP
submissions and through regional actions on infrastructure
submissions.\7\ Unless otherwise noted below, we are following that
approach in acting on this submission. In addition, in the context of
acting on infrastructure submissions, the EPA generally evaluates the
state's SIP for facial compliance with statutory and regulatory
requirements, not for the state's implementation of its SIP.\8\ The EPA
has other authority to address any issues concerning a state's
implementation of the rules, regulations, consent orders, and other
materials that comprise its SIP.
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\7\ The EPA explains and elaborates on these ambiguities and its
approach to address them in its 2013 Infrastructure SIP Guidance
(available at https://www.epa.gov/sites/production/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf), as well as in agency actions on infrastructure SIPs. See,
e.g., Proposed Rule, Promulgation of State Implementation Plan
Revisions; Infrastructure Requirements for the 1997 and 2006
PM2.5, 2008 Lead, 2008 Ozone, and 2010 NO2 National
Ambient Air Quality Standards; South Dakota, 79 FR 71040 (December
1, 2014).
\8\ See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d 971, 978
(9th Cir. 2018).
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III. The EPA's Evaluation of the State Submittal
A. CAA Section 110(a)(2)(A): Emission Limits and Other Control Measures
Section 110(a)(2)(A) requires SIPs to include enforceable emission
limitations and other control measures, means, or techniques (including
economic incentives such as fees, marketable permits, and auctions of
emissions rights), as well as schedules and timetables for compliance
as may be necessary or appropriate to meet the applicable requirements
of this Act.
Multiple SIP-approved UDAQ Rules cited in Utah's certification
provide enforceable emission limitations and other control measures,
means or techniques, schedules for compliance, and other related
matters necessary to meet the requirements of the CAA section
110(a)(2)(A) for the 2015 NAAQS. The State's submission cites SIP
section I (Legal Authority), which allows the adoption of emission
standards and other limits necessary for attainment and maintenance of
the NAAQS. SIP section I, in combination with other specific control
measures adopted by the Utah Air Quality Board (AQB), and multiple SIP-
approved state air quality regulations cited in Utah's certification,
including SIP sections II (Review of New and Modified Air Pollution
Sources), VIII (Prevention of Significant Deterioration), IX (Part D: 8
Hour Ozone Provisions), X (Part A, B, C: Vehicle Inspection and
Maintenance Program General Provisions), ozone Reasonable Available
Control Technology (RACT) rules and R307-325 (Ozone Nonattainment and
Maintenance Areas: General Requirement), R307-326 (Ozone Nonattainment
and Maintenance Areas: Control of Hydrocarbon Emissions), R307-327
(Ozone Nonattainment and Maintenance Areas: Petroleum Liquid Storage),
R307-328 (Gasoline Transfer and Storage), R307-335 (Ozone Nonattainment
and Maintenance Areas: Degreasing and Solvent Cleaning Operations),
R307-340 (Ozone Nonattainment and Maintenance Areas: Surface Coating
Processes) provide enforceable emission limitations and other control
measures, means of techniques, schedules for compliance, and other
related matters necessary to meet the requirements of the CAA section
110(a)(2)(A) for the 2015 ozone
[[Page 33054]]
NAAQS, subject to the following clarifications.\9\
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\9\ Utah 2015 Ozone Infrastructure SIP Submission, pp. 1, 2.
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The EPA does not consider the SIP requirements triggered by the
nonattainment area mandates in part D of Title 1 of the CAA to be
governed by the submission deadline of section 110(a)(1). Nevertheless,
Utah has included some SIP provisions originally submitted in response
to part D requirements in its certification for the infrastructure
requirements of section 110(a)(2). For the purposes of this action, the
EPA is reviewing any rules originally submitted in response to part D
requirements solely for the purposes of determining whether they
support a finding that the State has met the basic infrastructure
requirements of section 110(a)(2). For example, in response to the
requirement to have enforceable emission limitations under section
110(a)(2)(A), Utah's certification (contained within this docket)
generally listed provisions within its SIP which regulate pollutants
through various programs, including its stationary source permit
program, which requires sources to demonstrate that emissions will not
cause or contribute to a violation of any NAAQS. The EPA is approving
those rules as meeting the requirement to have enforceable emission
limitations on ozone precursors; any judgment about whether those
emission limitations discharge the State's obligation to impose RACT
under part D will be made separately, in an action reviewing those
rules pursuant to the requirements of part D. This suffices, in the
case of Utah, to meet the requirements of section 110(a)(2)(A) for the
2015 ozone NAAQS.
B. CAA Section 110(a)(2)(B): Ambient Air Quality Monitoring/Data System
Section 110(a)(2)(B) requires SIPs to provide for establishment and
operation of appropriate devices, methods, systems, and procedures
necessary to ``(i) monitor, compile, and analyze data on ambient air
quality, and (ii) upon request, make such data available to the
Administrator.''
As discussed in Utah's submission, the UDEQ periodically submits a
Quality Management Plan and a Quality Assurance Project Plan to the
EPA. These plans cover procedures to monitor and analyze data. As part
of the monitoring SIP, Utah submits an Annual Monitoring Network Plan
(AMNP) each year for the EPA's approval.
A comprehensive AMNP, intended to fully meet the federal
requirements, was submitted to the EPA by Utah on July 3, 2019 and
subsequently approved by the EPA.\10\ Utah's SIP-approved regulations
provide for the design and operation of its monitoring network,
reporting of data obtained from the monitors, and annual network review
including notification to the EPA of any changes, and public
notification of exceedances of NAAQS. As described in its submission,
Utah operates a comprehensive monitoring network, including ozone
monitoring, compiles and analyzes collected data, and submits the data
to the EPA's Air Quality System on a quarterly basis.
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\10\ See Utah AMNP Approval 2019.docx in the docket for this
action. Additionally, Utah's AMNPs can be found at http://www.airmonitoring.utah.gov/network/review.htm.
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Based on this information, we are proposing to approve the Utah SIP
as meeting the requirements of CAA section 110(a)(2)(B) for the 2015
ozone NAAQS.
C. CAA Section 110(a)(2)(C): Program for Enforcement of Control
Measures and for Construction or Modification of Stationary Sources
To generally meet the requirements of section 110(a)(2)(C), the
State is required to have SIP-approved PSD, nonattainment New Source
Review (NSR), and minor NSR permitting programs that are adequate to
implement the 2015 ozone NAAQS. As explained elsewhere in this action,
the EPA is not evaluating nonattainment-related provisions, such as the
nonattainment NSR program required by part D of the Act. The EPA is
evaluating the State's PSD program as required by part C of the Act,
and the State's minor NSR program as required by 110(a)(2)(C).
The State's submissions for the 2015 ozone infrastructure
requirements cite SIP section I (Legal Authority), which provides for
enforcement of applicable laws, regulations, and standards, including
injunctive relief, and also provides authority to prevent construction,
modification, or operation of any stationary source at any location
where emissions from such source will prevent the attainment or
maintenance of a national standard or interfere with PSD requirements.
PSD Requirements
With respect to Element (C), the EPA interprets the CAA to require
each state to make an infrastructure SIP submission for a new or
revised NAAQS demonstrating that the air agency has a complete PSD
permitting program meeting the current requirements for all regulated
NSR pollutants. The requirements for Element (J) in relation to a
comprehensive PSD permitting program are the same as the requirements
with respect to Element (C).\11\
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\11\ The ``Prong 3'' requirements of Element (D)(i)(II) may be
satisfied in part by demonstrating that the air agency has a
complete PSD permitting program that correctly addresses all
regulated NSR pollutants. Our explanation of how the state has
satisfied the Prong 3 requirements is below.
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Utah has shown that it has a PSD program in place that covers all
regulated NSR pollutants, including greenhouse gases (GHGs). SIP
section VIII (Prevention of Significant Deterioration) applies to all
air pollutants regulated under the CAA. Utah implements the PSD program
by, for the most part, incorporating by reference the Federal PSD
program located in 40 CFR 52.21 as it existed on a specific date. On
April 13, 2020, we proposed to approve portions of a Utah SIP revision
revising the date of incorporation by reference of the Federal PSD
program to July 1, 2018.\12\ With this Utah SIP revision, the Utah SIP
now generally reflects all changes to PSD requirements that the EPA has
promulgated through the revised date of incorporation by reference.
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\12\ See Proposed Rule, Revisions to the Utah Division of
Administrative Rules, 85 FR 14606 (April 13, 2020). We did not
receive any comments on our proposed approval and anticipate
finalizing that approval before any final action on this proposal.
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For the above reasons, the EPA is proposing to approve Utah's SIP
for the 2015 ozone NAAQS with respect to the requirement in section
110(a)(2)(C) to include a permit program in the SIP as required by part
C of the Act.
Minor NSR Requirements
The State has a SIP-approved minor NSR program, adopted under
section 110(a)(2)(C) of the Act.\13\ Since approval of the minor NSR
program, the State and the EPA have relied on the program to assure
that new and modified sources not captured by the major NSR permitting
programs do not interfere with attainment and maintenance of the NAAQS.
Utah's minor NSR program, as approved into the SIP, covers the
construction and modification of stationary sources of regulated NSR
pollutants, including PM2.5, lead, and ozone and its
precursors.
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\13\ See Final Rule, Approval and Promulgation of Air Quality
Implementation Plans; Utah; Revisions to Utah Administrative Code--
Permit: New and Modified Sources, 79 FR 7072, 7076 (July 19, 2016).
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The EPA is proposing to approve Utah's infrastructure SIP for the
2015 ozone NAAQS with respect to the general requirement in section
110(a)(2)(C) to include a program in the SIP that regulates the
enforcement,
[[Page 33055]]
modification, and construction of any stationary source as necessary to
assure that the NAAQS are achieved.
D. CAA Section 110(a)(2)(D): Interstate Transport
CAA section 110(a)(2)(D)(i) consists of four separate elements, or
``prongs.'' CAA section 110(a)(2)(D)(i)(I) requires SIPs to contain
adequate provisions prohibiting emissions that will contribute
significantly to nonattainment of the NAAQS in any other state (prong
1), and adequate provisions prohibiting emissions that will interfere
with maintenance of the NAAQS by any other state (prong 2). CAA section
110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions
prohibiting emissions that will interfere with any other state's
required measures to prevent significant deterioration of its air
quality (prong 3), and adequate provisions prohibiting emissions which
will interfere with any other state's required measures to protect
visibility (prong 4). This proposed action will not address the prongs
1, 2, and 4 portions of the Utah 2015 ozone infrastructure SIP. We will
act on these portions of Utah's infrastructure SIP in a separate
rulemaking action.
Prong 3: Interference With PSD Measures
As to in-state sources subject to PSD permitting, the prong 3 (PSD)
requirement of CAA section 110(a)(2)(D)(II) may be met for all NAAQS by
a state's confirmation in an infrastructure SIP submission that new
major sources and major modifications in the state are subject to a
comprehensive EPA-approved PSD permitting program in the SIP that
applies to all regulated NSR pollutants and that satisfies the
requirements of the EPA's PSD implementation rule(s).\14\ As discussed
above in connection with Element (C), Utah has provided that
confirmation by demonstrating that it has a federally approved PSD
program, current as of the most recent revisions to 40 CFR 52.21.
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\14\ See 2013 Memo at 31 (``This is because in order to be
approved by the EPA, a major source PSD permitting program would
need to fully consider source impacts on air quality in other
states.'').
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In-state sources that are not subject to PSD permitting--that is,
in-state sources not subject to PSD for any one or more of the
pollutants subject to regulation under the CAA because they are in a
nonattainment area for a NAAQS related to those particular pollutants--
may also have the potential to interfere with PSD in an attainment or
unclassifiable area of another state. One way a state may satisfy prong
3 with respect to these sources is by citing the air agency's EPA-
approved nonattainment NSR provisions addressing all pollutants for
which the state has designated nonattainment areas. Utah has a SIP-
approved nonattainment NSR program \15\ which ensures regulation of
major sources and major modifications in nonattainment areas, and
therefore we find that this satisfies prong 3 with regard to this
requirement.
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\15\ See Final Rule, Approval and Promulgation of Air Quality
Implementation Plans; State of Utah; Revisions to Nonattainment
Permitting Regulations, 84 FR 35831 (July 25, 2019).
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Accordingly, the EPA is proposing to approve the infrastructure SIP
submission as meeting the applicable prong 3 requirements of section
110(a)(2)(D)(i)(II) for the 2015 ozone NAAQS.
110(a)(2)(D)(ii): Interstate and International Transport Provisions
CAA section 110(a)(2)(D)(ii) requires SIPs to include provisions
ensuring compliance with the applicable requirements of CAA sections
126 and 115 (relating to interstate and international pollution
abatement). CAA section 126 requires notification to neighboring states
of potential impacts from a new or modified major stationary source and
specifies how a state may petition the EPA when a major source or group
of stationary sources in a state is thought to contribute to certain
pollution problems in another state. CAA section 115 governs the
process for addressing air pollutants emitted in the United States that
cause or contribute to air pollution that may reasonably be anticipated
to endanger public health or welfare in a foreign country.
To address CAA section 110(a)(2)(D)(ii), Utah states that no
sources within the State are the subject of an active finding under CAA
section 126 with respect to the 2015 ozone NAAQS, and that there are no
final findings under CAA section 115 against Utah with respect to the
2015 ozone NAAQS. In the assessing CAA section 110(a)(2)(D)(ii), we
reviewed the information presented by Utah in its 2015 ozone
infrastructure SIP submission, as well as relevant portions of the EPA-
approved Utah SIP. As required by 40 CFR 51.166(q)(2)(iv), Utah's SIP-
approved PSD program requires major new or modified sources to provide
notice to states whose air quality may be impacted by the emissions of
sources subject to PSD.\16\ This suffices to meet the notice
requirement of section 126(a). Utah also has no pending obligations
under sections 126(c) or 115(b) of the CAA. Therefore, the Utah
infrastructure SIP currently meets the requirements of those sections.
For these reasons, the EPA is proposing to approve the Utah SIP as
fully meeting the requirements of CAA section 110(a)(2)(D)(ii) for the
2015 ozone NAAQS.
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\16\ See Final Rule, Approval, Disapproval, and Promulgation of
Air Quality Implementation Plans; Utah; Revisions to New Source
Review Rules, 76 FR 41712 (July 15, 2011) (approving incorporation
of most 40 CFR 52.21 requirements into state program).
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E. CAA Section 110(a)(2)(E): Adequate Resources
Section 110(a)(2)(E)(i) requires each state to provide necessary
assurances that it will have adequate personnel, funding, and authority
under state law to carry out the SIP (and is not prohibited by any
provision of federal or state law from carrying out the SIP or portion
thereof). Section 110(a)(2)(E)(ii) requires each state to comply with
the requirements respecting state boards under CAA section 128. Section
110(a)(2)(E)(iii) requires each state to ``provide necessary assurances
that, where the State has relied on a local or regional government,
agency, or instrumentality for the implementation of any [SIP]
provision, the State has responsibility for ensuring adequate
implementation of such [SIP] provision.''
The provisions in Chapter 2 of Title 19 of the Utah Code and Utah
SIP section I (Legal Authority) provide the UDAQ and the AQB adequate
authority to carry out SIP obligations with respect to the 2015 ozone
NAAQS. The State receives section 105 grant funds through its
Performance Partnership Grant, along with required state matching funds
to provide funding necessary to carry out Utah's SIP requirements (Utah
SIP section V, Resources). Utah's Performance Partnership Agreement
with the EPA documents that the State has the resources needed to carry
out agreed environmental program goals, measures, and commitments,
including developing and implementing appropriate SIPs for all areas of
the State. Annually, states update these grant commitments based on
current SIP requirements, air quality planning, and applicable
requirements related to the NAAQS. Furthermore, R307-414, Permits: Fees
for Approval Orders, requires the owner and operator of each new major
source or major modification to pay a fee sufficient to cover
reasonable costs of reviewing and acting upon the notice of intent and
implementing and enforcing requirements placed on such source by any
approval order issued. Collectively, these rules and commitments
provide evidence that UDEQ has adequate
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personnel, funding, and legal authority to carry out the State's
implementation plan and related issues.
With respect to section 110(a)(2)(E)(iii), the regulations cited by
Utah in their submittals (Utah SIP section VI, Intergovernmental
Cooperation) also provide the necessary assurances that the State has
responsibility for adequate implementation of SIP provisions by local
governments. Therefore, we propose to approve Utah's SIP as meeting the
requirements of section 110(a)(2)(E)(i) and (E)(iii) for the 2015 ozone
NAAQS.
Section 110(a)(2)(E)(ii) requires each state's SIP to contain
provisions that comply with the requirements of section 128 of the CAA.
Section 128 contains two explicit requirements: (i) That ``any board or
body which approves permits or enforcement orders under [the CAA] shall
have at least a majority of members who represent the public interest
and do not derive any significant portion of their income from persons
subject to permits or enforcement orders'' under the CAA; and (ii) that
``any potential conflicts of interest by members of such board or body
or the head of an executive agency with similar powers be adequately
disclosed.''
On February 14, 2006, EPA approved SIP section 1 (Legal Authority)
into the Utah SIP as codified in UAR R307-110-2.\17\ Utah SIP section 1
(Legal Authority) specifies certain requirements regarding the
composition of the State board and disclosure by its members of
potential conflicts of interest. Details on how this portion of the
Procedural Rules meet the requirements of section 128 are provided in
our April 26, 2016 proposal.\18\ In our August 2, 2016 final action, we
correspondingly approved Utah's infrastructure SIP for the 2008 ozone
NAAQS for element (E)(ii).\19\ Section 128 is not NAAQS-specific, and
once the State has met the requirements of section 128, that is
sufficient for purposes of section 110(a)(2)(E)(ii) for all NAAQS.
Therefore, Utah's SIP continues to meet the requirements of section
110(a)(2)(E)(ii). We are proposing to approve the State's January 29,
2020 SIP submission as meeting the requirements of section 128 because
it continues to comply with the statutory requirements and is
consistent with the EPA's guidance recommendations concerning section
128.
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\17\ See Final Rule, Approval and Promulgation of Air Quality
Implementation Plans; Utah; Rule Recodification, 71 FR 7679, 7682
(February 14, 2006); 40 CFR 52.2320.
\18\ See Proposed Rule, Promulgation of State Implementation
Plan Revisions; Infrastructure Requirements for the 2008 Lead, 2008
Ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5
National Ambient Air Quality Standards; Utah, 81 FR 24525, 24531-
24532 (April 26, 2016).
\19\ See Final Rule, Promulgation of State Implementation Plan
Revisions; Infrastructure Requirements for the 2008 Lead, 2008
Ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5
National Ambient Air Quality Standards; Utah, 81 FR 50626 (Aug. 2,
2016).
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F. CAA Section 110(a)(2)(F): Stationary Source Monitoring System
Under section 110(a)(2)(F), the SIP must require, as may be
prescribed by the EPA: (i) The installation, maintenance, and
replacement of equipment, and the implementation of other necessary
steps, by owners or operators of stationary sources to monitor
emissions from such sources; (ii) Periodic reports on the nature and
amounts of emissions and emissions-related data from such sources; and
(iii) Correlation of such reports by the state agency with any emission
limitations or standards established pursuant to the Act, which reports
shall be available at reasonable times for public inspection.
In its submission, Utah includes reference to EPA-approved section
III (Source Surveillance) which describes the State's program of
periodic emissions testing, emissions inventories, plant inspections
and source monitoring.\20\Additionally, the State cites EPA-approved
SIP section II (Review of New and Modified Air Pollution Sources) and
SIP section VIII (Prevention of Significant Deterioration) as the
State's program for new or modified sources to submit plans to UDEQ
(and receive approval) prior to construction or modification of
stationary sources. Utah also cites UAR rules in its submission
(including R307-150, R307-165 and R307-170) that require certain large
sources to install and maintain continuous emission monitors to assure
compliance with emission limitations established in approval orders and
the SIP.\21\ In addition, Utah provides for monitoring, recordkeeping,
and reporting requirements for sources subject to minor and major
source permitting.
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\20\ Utah 2015 Ozone Infrastructure SIP Submission, p. 15; see
40 CFR 52.2320.
\21\ Utah 2015 Ozone Infrastructure SIP Submission, p. 15.
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Additionally, Utah is required to submit emissions data to the EPA
for purposes of the National Emissions Inventory (NEI). The NEI is the
EPA's central repository for air emissions data. The EPA published the
Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified
the requirements for collecting and reporting air emissions data (73 FR
76539). The AERR shortened the time states had to report emissions data
from 17 to 12 months, giving states one calendar year to submit
emissions data. All states are required to submit a comprehensive
emissions inventory every three years and report emissions for certain
larger sources annually through the EPA's online Emissions Inventory
System. States report emissions data for the six criteria pollutants
and their associated precursors--nitrogen oxides, sulfur dioxide,
ammonia, lead, carbon monoxide, particulate matter and volatile organic
compounds. Many states also voluntarily report emissions of hazardous
air pollutants. Utah made its latest update to the NEI in November
2019. The EPA compiles the emissions data, supplementing it where
necessary, and releases it to the general public through the website
https://www.epa.gov/air-emissions-inventories.
Based on the analysis above, we propose to approve the Utah SIP as
meeting the requirements of CAA section 110(a)(2)(F) for the 2015 ozone
NAAQS.
G. CAA Section 110(a)(2)(G): Emergency Powers
Section 110(a)(2)(G) of the CAA requires infrastructure SIPs to
``provide for authority comparable to that in [CAA Section 303] and
adequate contingency plans to implement such authority.'' Under CAA
section 303, the Administrator has authority to file suit to
immediately restrain an air pollution source that presents an imminent
and substantial endangerment to public health or welfare, or the
environment. If it is not practicable to assure prompt protection by
filing suit, then the Administrator has authority to issue temporary
administrative orders to protect the public health or welfare, or the
environment. Those orders can be extended if the EPA subsequently files
a civil suit.
In our April 2016 proposed Utah infrastructure SIP action, we
explained how Utah meets the requirement that the plan provide for
State authority comparable to that in CAA section 303.\22\ For the
reasons stated in the April 2016 document, we are proposing to approve
the State's submittal for this requirement of section 110(a)(2)(G) with
respect to the 2015 ozone NAAQS.
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\22\ See 81 FR at 24534 (proposing to approve Utah SIP as
meeting CAA section 110(a)(2)(G) requirement to provide authority
comparable to that in CAA section 303); 81 FR 50626 (taking final
action on proposal).
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As discussed above, each state must also have adequate contingency
plans adopted into the SIP to implement the air agency's emergency
episode authority. This can be done by
[[Page 33057]]
submitting a plan that meets the applicable requirements of 40 CFR part
51, subpart H for the relevant NAAQS, if the NAAQS is covered by those
regulations. Evaluating Utah's plan in our 2016 infrastructure SIP
action, we found that Utah's air pollution emergency rules, consistent
with the subpart H requirements, address ozone (as well as several
other pollutants); establish stages of episode criteria; provide for
public announcement whenever any episode stage has been determined to
exist; and specify emission control actions to be taken at each episode
stage.\23\ The 2016 action concerned the 2008 ozone standard, but as to
ozone, Utah's SIP-approved criteria for emergency episodes remain
consistent with the Significant Harm Levels established in EPA's
regulations.\24\ Accordingly, Utah's contingency plans remain
approvable with respect to the 2015 ozone standard.
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\23\ See 81 FR 24525, 24533 (proposal); 81 FR 50626 (final
rule).
\24\ Compare UAC R307-105-1 with 40 CFR 51.151.
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For these reasons, we propose approval of Utah's SIP as meeting the
requirements of CAA section 110(a)(2)(G) for the 2015 ozone NAAQS.
H. CAA Section 110(a)(2)(H): Future SIP Revisions
Section 110(a)(2)(H) requires that SIPs provide for revision ``(i)
from time to time as may be necessary to take account of revisions of
such national primary or secondary ambient air quality standard or the
availability of improved or more expeditious methods of attaining such
standard, and (ii), except as provided in paragraph (3)(C), whenever
the Administrator finds on the basis of information available to the
Administrator that the SIP is substantially inadequate to attain the
NAAQS which it implements or to otherwise comply with any additional
requirements'' under the Act.
Utah SIP section I cites 19-2-104 (describing the powers of the Air
Quality Board) and 19-2-109 (the State's Air Conservation Act) and of
the Utah Code. We have previously found that these provisions give the
AQB sufficient authority to meet the requirements of CAA section
110(a)(2)(H), and find that the basis for that finding is still
valid.\25\ We therefore propose to approve Utah's SIP as meeting the
requirements of CAA section 110(a)(2)(H).
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\25\ See 81 FR 24525, 24533-24534 (proposal); 81 FR 50626 (final
rule).
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I. CAA Section 110(a)(2)(I): Nonattainment Area Plan Revision Under
Part D
There are two elements identified in CAA section 110(a)(2) that are
not governed by the three-year submission deadline of CAA section
110(a)(1) because SIPs incorporating necessary local nonattainment area
controls are due on nonattainment area plan schedules pursuant to
section 172 and the various pollutant-specific subparts 2 through 5 of
part D. These are submissions required by: (i) CAA section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required in
part D, Title I of the CAA; and (ii) section 110(a)(2)(I) which pertain
to the nonattainment planning requirements of part D, Title I of the
CAA. As a result, this action does not address CAA section 110(a)(2)(C)
with respect to nonattainment NSR or CAA section 110(a)(2)(I).
J. CAA Section 110(a)(2)(J): Consultation With Government Officials,
Public Notification, PSD and Visibility Protection
CAA section 110(a)(2)(J) requires states to provide a process for
consultation with local governments and FLMs pursuant to CAA section
121. In addition, states must satisfy the requirements of CAA section
127 concerning measures to notify the public if NAAQS are exceeded in
an area, and to enhance public awareness of measures that can be taken
to prevent exceedances and of the ways for the public to participate in
air quality improvement efforts. Finally, as noted above, CAA section
110(a)(2)(J) requires states to meet applicable requirements of part C,
Title I of the CAA related to PSD and visibility protection.
In its submittals, the State cites SIP section I (Legal Authority)
adopting requirements for transportation consultation, SIP section VI
(Intergovernmental Cooperation), and SIP section XII (Transportation
Conformity Consultation) to meet the requirements of CAA section
121.\26\ The State has thereby demonstrated that it has the authority
and rules in place to provide a process of consultation with general
purpose local governments, designated organizations of elected
officials of local governments and any Federal Land Manager having
authority over federal land to which the SIP applies, consistent with
the requirements of CAA section 121. In its submission, Utah cites SIP
section XVI (Public Notification), which is the State's plan to report
monitored levels of emissions both daily and annually, which meets the
general requirements of CAA section 127 to notify the public when the
NAAQS have been exceeded.
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\26\ Utah 2015 Ozone Infrastructure SIP Submission, p. 17.
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As to the section 110(a)(2)(J) requirement to address Part C's PSD
requirements, we have discussed the State's program above in connection
with section 110(a)(2)(C). As we have noted, the requirements for
Element (J) in relation to a comprehensive PSD permitting program are
the same as the requirements with respect to Element (C). Our proposed
approval of the State's submissions with respect to Element (C)
therefore applies to the PSD component of Element (J).
Finally, with regard to the applicable requirements for visibility
protection, the EPA recognizes that states are subject to visibility
and regional haze program requirements under Part C of the Act. In the
event of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under Part C do not change. Thus, we
find that there are no newly applicable visibility requirements under
section 110(a)(2)(J) when a new NAAQS becomes effective, and thus no
requirement for Utah to address the visibility component of Element (J)
in its infrastructure SIP.
For these reasons, we propose to approve the Utah SIP as meeting
the requirements of CAA section 110(a)(2)(J) for the 2015 ozone NAAQS.
K. CAA Section 110(a)(2)(K): Air Quality and Modeling/Data
CAA section 110(a)(2)(K) requires that SIPs provide for (i) the
performance of air quality modeling as the Administrator may prescribe
for the purpose of predicting the effect on ambient air quality of any
emissions of any NAAQS pollutant, and (ii) the submission, upon
request, of data related to such air quality modeling to the
Administrator. Applicable EPA requirements for air quality modeling for
criteria pollutants are found in 40 CFR part 51, appendix W, Guideline
on Air Quality Models.\27\
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\27\ In its most recent revision to appendix W, the EPA stated
that revised requirements must be ``integrated into the regulatory
processes of respective reviewing authorities and followed by
applicants by no later than January 17, 2018.'' Final Rule,
Revisions to the Guideline on Air Quality Models: Enhancements to
the AERMOD Dispersion Modeling System and Incorporation of
Approaches to Address Ozone and Fine Particulate Matter, 82 FR 5182
(Jan. 17, 2017). On April 13, 2020, we proposed to approve portions
of a Utah SIP revision that revised the date of incorporation by
reference for appendix W to comply with EPA's January 17, 2017
revisions to appendix W. See 85 FR 14606. As noted previously, we
did not receive any comments on our proposed approval and anticipate
that that approval will be final before any final action on this
proposal.
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[[Page 33058]]
In its submissions, Utah cites UAR rule R307-405-13, which
incorporates by reference the air quality model provisions of 40 CFR
52.21(l), which includes the air quality model requirements of appendix
W of 40 CFR part 51, pertaining to the Guideline on Air Quality
Models.\28\ Additionally, the State cites EPA-approved SIP section II
(Review of New and Modified Air Pollution Sources) and SIP section VIII
(Prevention of Significant Deterioration) as the State's program for
new or modified sources to submit plans to UDEQ (and receive approval)
prior to construction or modification of stationary sources. Utah's PSD
program incorporates by reference the federal program at 40 CFR 52.21,
including the provision at 52.21(l)(1) requiring that estimates of
ambient air concentrations be based on applicable air quality models
specified in appendix W of 40 CFR part 51, and the provision at
52.21(l)(2) requiring that modification or substitution of a model
specified in appendix W must be approved by the Administrator.
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\28\ Utah 2015 Ozone Infrastructure SIP Submission, p.19.
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Therefore, we propose to approve the Utah SIP as meeting the CAA
section 110(a)(2)(K) for the 20015 ozone NAAQS.
L. CAA Section 110(a)(2)(L): Permitting Fees
CAA section 110(a)(2)(L) provides that SIPs must require each major
stationary source to pay permitting fees to cover the cost of
reviewing, approving, implementing and enforcing a permit. Utah's SIP-
approved rules require the owner and operator of each new major source
or major modification to pay a fee sufficient to cover the reasonable
costs of reviewing and acting upon the notice of intent and
implementing and enforcing requirements placed on such source by any
approval order issued.\29\ Likewise, SIP section I (Legal Authority)
``identifies the statutory authority to charge a fee to major sources
to cover permit and enforcement expenses.'' \30\ Finally, the State's
submissions cite R307-415, which is the state regulation that provides
for collection of permitting fees under Utah's approved title V permit
program.\31\ As discussed in that approval, the State demonstrated that
the fees collected were sufficient to administer the program.\32\
Therefore, we propose to approve the submissions as supplemented by the
State for the 2015 ozone NAAQS.
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\29\ See UAC rule R307-414, Permits: Fees for Approval Orders;
40 CFR 52.2320.
\30\ See SIP Section I (Legal Authority), codified at UAC R307-
10-2; 40 CFR 52.2320.
\31\ See Clean Air Act Final Full Approval of Operating Permits
Program; Approval of Construction Permit Program Under Section
112(l); State of Utah, 60 FR 30192 (June 8, 1995); 40 CFR 52.2320.
\32\ Utah 2015 Ozone Infrastructure SIP Submission, p.19.
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M. CAA Section 110(a)(2)(M): Consultation/Participation by Affected
Local Entities
CAA section 110(a)(2)(M) requires states to provide for
consultation and participation in SIP development by local political
subdivisions affected by the SIP. To satisfy this requirement, Utah
refers to SIP section VI (Intergovernmental Cooperation), codified at
R307-110-7. The provisions of this section require and provide
authority for public hearings, notice of hearings, public comment
periods, and the consultation and coordination between state and local
governments. The EPA most recently approved this rule on February 14,
2006.\33\ The rules and regulations cited by Utah provide for the
consultation and participation by local political subdivisions affected
by the SIP; therefore, we are proposing to approve the Utah SIP as
meeting the requirements of CAA section 110(a)(2)(M) for the 2015 ozone
NAAQS.
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\33\ 71 FR 7679.
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IV. Proposed Action
In this rulemaking, we are proposing approval for multiple elements
of the infrastructure SIP requirements for the 2015 ozone NAAQS for
Utah along with a proposed no action for three infrastructure elements
for Utah. Our proposed actions are contained in Table 1 below.
The EPA is proposing to approve Utah's January 29, 2020 SIP
submission for the following CAA section 110(a)(2) infrastructure
elements for the 2015 ozone NAAQS: (A), (B), (C), (D)(i)(II) Prong 3,
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). The EPA is
proposing no action on (D)(i)(I) Prongs 1 and 2, and (D)(i)(II) Prong
4.
In the table below, the key is as follows:
A--Approve.
D--Disapprove.
NA--No Action.
Table 1--Infrastructure Elements That the EPA Is Proposing To Act On
------------------------------------------------------------------------
2015 Ozone NAAQS Infrastructure SIP Elements: Utah
------------------------------------------------------------------------
(A): Emission Limits and Other Control Measures............. A
(B): Ambient Air Quality Monitoring/Data System............. A
(C): Program for Enforcement of Control Measures............ A
(D)(i)(I): Prong 1 Interstate Transport--significant NA
contribution...............................................
(D)(i)(I): Prong 2 Interstate Transport--interference with NA
maintenance................................................
(D)(i)(II): Prong 3 Interstate Transport--prevention of A
significant deterioration..................................
(D)(i)(II): Prong 4 Interstate Transport--visibility........ NA
(D)(ii): Interstate and International Pollution Abatement... A
(E): Adequate Resources..................................... A
(F): Stationary Source Monitoring System.................... A
(G): Emergency Episodes..................................... A
(H): Future SIP revisions................................... A
(J): Consultation with Government Officials, Public A
Notification, PSD and Visibility Protection................
(K): Air Quality and Modeling/Data.......................... A
(L): Permitting Fees........................................ A
(M): Consultation/Participation by Affected Local Entities.. A
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[[Page 33059]]
V. 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, the EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve 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 (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 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, the SIP is not approved to apply on any Indian reservation
land or in any other area where the EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the proposed 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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Greenhouse gases, Incorporation by reference, Intergovernmental
relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting
and recordkeeping requirements, Sulfur oxides, Volatile organic
compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 18, 2020.
Gregory Sopkin,
Regional Administrator, EPA Region 8.
[FR Doc. 2020-11182 Filed 5-29-20; 8:45 am]
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