[Federal Register Volume 87, Number 94 (Monday, May 16, 2022)]
[Proposed Rules]
[Pages 29707-29710]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10424]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 87, No. 94 / Monday, May 16, 2022 / Proposed
Rules
[[Page 29707]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2022-0145; FRL-9844-01-R4]
Air Plan Approval; Alabama; NOX SIP Call
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted by the
State of Alabama, through the Alabama Department of Environmental
Management (ADEM), in a letter dated October 18, 2021. The revision
includes corrections to deficiencies to Alabama's regulation titled
``NOX Budget Program Monitoring and Reporting'' (AL
NOX SIP Call Monitoring Rule), which EPA previously
conditionally approved into the SIP. Specifically, the AL
NOX SIP Call Monitoring Rule establishes monitoring and
reporting requirements for units subject to the nitrogen oxides
(NOX) SIP Call, including alternative monitoring options for
certain sources of NOX. EPA is also proposing to convert the
conditional approval to a full approval. In addition, EPA is proposing
to approve other minor changes into the SIP.
DATES: Comments must be received on or before June 15, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2022-0145 at www.regulations.gov. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from Regulations.gov. 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, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Steven Scofield, Air Regulatory
Management Section, Air Planning and Implementation Branch, Air and
Radiation Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW, Atlanta, Georgia 30303-8960. The telephone number is
(404) 562-9034. Mr. Scofield can also be reached via electronic mail at
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Under Clean Air Act (CAA or Act) section 110(a)(2)(D)(i)(I), also
called the good neighbor provision, states are required to address the
interstate transport of air pollution. Specifically, the good neighbor
provision requires that each state's implementation plan contain
adequate provisions to prohibit air pollutant emissions from within the
state that will significantly contribute to nonattainment of the
national ambient air quality standards (NAAQS), or that will interfere
with maintenance of the NAAQS, in any other state.
In October 1998 (63 FR 57356), EPA finalized the ``Finding of
Significant Contribution and Rulemaking for Certain States in the Ozone
Transport Assessment Group Region for Purposes of Reducing Regional
Transport of Ozone'' (NOX SIP Call). The NOX SIP
Call required eastern states, including Alabama, to submit SIPs that
prohibit excessive emissions of ozone season NOX by
implementing statewide emissions budgets.\1\ The NOX SIP
Call addressed the good neighbor provision for the 1979 ozone NAAQS and
was designed to mitigate the impact of transported NOX
emissions, one of the precursors of ozone.\2\ EPA developed the
NOX Budget Trading Program, an allowance trading program
that states could adopt to meet their obligations under the
NOX SIP Call. This trading program allowed the following
sources to participate in a regional cap and trade program: Generally,
electricity generating units (EGUs) with capacity greater than 25
megawatts (MW); and large industrial non-EGUs, such as boilers and
combustion turbines, with a rated heat input greater than 250 million
British thermal units per hour (MMBtu/hr). The NOX SIP Call
also identified potential reductions from cement kilns and stationary
internal combustion engines.
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\1\ See 63 FR 57356 (October 27, 1998).
\2\ As originally promulgated, the NOX SIP Call also
addressed good neighbor obligations under the 1997 8-hour ozone
NAAQS, but EPA subsequently stayed and later rescinded the rule's
provisions with respect to that standard. See 65 FR 56245 (September
18, 2000); 84 FR 8422 (March 8, 2019).
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To comply with the NOX SIP Call requirements, in 2001,
ADEM submitted a revision to add new rule sections to the SIP-approved
version of Alabama Administrative Code Chapter 335-3-1, General
Provisions, and Chapter 335-3-8, Control of Nitrogen Oxides Emissions.
EPA approved the revision as compliant with Phase I of the
NOX SIP Call in 2001. See 66 FR 36919 (July 16, 2001). The
approved revision required EGUs and large non-EGUs in the State to
participate in the NOX Budget Trading Program beginning in
2004. In 2005, Alabama submitted, and EPA approved, a SIP revision to
address additional emissions reductions required for the NOX
SIP Call under Phase II. See 70 FR 76694 (December 28, 2005).
In 2005, EPA published the Clean Air Interstate Rule (CAIR), which
required several eastern states, including Alabama, to submit SIPs that
prohibited emissions consistent with revised ozone season
NOX budgets (as well as annual budgets for NOX
and sulfur dioxide). See 70 FR 25162 (May 12, 2005); see also 71 FR
25328 (April 28, 2006). CAIR addressed the good neighbor provision for
the 1997 ozone NAAQS and 1997 fine particulate matter
(PM2.5) NAAQS and was designed to mitigate the impact of
transported NOX emissions with respect to ozone and
PM2.5. CAIR established several trading programs that EPA
implemented through federal implementation plans (FIPs) for EGUs
[[Page 29708]]
greater than 25 MW in each affected state, but not large non-EGUs;
states could submit SIPs to replace the FIPs that achieved the required
emission reductions from EGUs and/or other types of sources.\3\ When
the CAIR trading program for ozone season NOX was
implemented beginning in 2009, EPA discontinued administration of the
NOX Budget Trading Program; however, the requirements of the
NOX SIP Call continued to apply.
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\3\ CAIR had separate trading programs for annual sulfur dioxide
(SO2) emissions, seasonal NOX emissions, and
annual NOX emissions.
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On October 1, 2007 (72 FR 55659), EPA approved revisions to
Alabama's SIP that incorporated requirements for CAIR. Consistent with
CAIR's requirements, EPA approved a SIP revision in which Alabama
regulations: (1) Sunset its NOX Budget Trading Program
requirements, and (2) incorporated CAIR annual and ozone season
NOX state trading programs. See 72 FR 55659. Participation
of EGUs in the CAIR ozone season NOX trading program
addressed the State's obligation under the NOX SIP Call for
those units, and Alabama also chose to require non-EGUs subject to the
NOX SIP Call to participate in the same CAIR trading
program. In this manner, Alabama's CAIR rules incorporated into the SIP
addressed the State's obligations under the NOX SIP Call
with respect to both EGUs and non-EGUs.
The United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately
remanded the rule to EPA without vacatur to preserve the environmental
benefits provided by CAIR. See North Carolina v. EPA, 531 F.3d 896,
modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The ruling
allowed CAIR to remain in effect temporarily until a replacement rule
consistent with the court's opinion was developed. While EPA worked on
developing a replacement rule, the CAIR program continued to be
implemented with the NOX annual and ozone season trading
programs beginning in 2009 and the SO2 annual trading
program beginning in 2010.
Following the D.C. Circuit's remand of CAIR, EPA promulgated the
Cross-State Air Pollution Rule (CSAPR) to replace CAIR and address good
neighbor obligations for the 1997 ozone NAAQS, the 1997
PM2.5 NAAQS, and the 2006 PM2.5 NAAQS. See 76 FR
48208 (August 8, 2011). Through FIPs, CSAPR required EGUs in eastern
states, including Alabama, to meet annual and ozone season
NOX emission budgets and annual SO2 emission
budgets implemented through new trading programs. Implementation of
CSAPR began on January 1, 2015.\4\ CSAPR also contained provisions that
would sunset CAIR-related obligations on a schedule coordinated with
the implementation of the CSAPR compliance requirements. Participation
by a state's EGUs in the CSAPR trading program for ozone season
NOX generally addressed the state's obligation under the
NOX SIP Call for EGUs. CSAPR did not initially contain
provisions allowing states to incorporate large non-EGUs into that
trading program to meet the requirements of the NOX SIP Call
for non-EGUs. EPA also stopped administering CAIR trading programs with
respect to emissions occurring after December 31, 2014.\5\
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\4\ See 79 FR 71663 (December 3, 2014).
\5\ See 79 FR 71663 (December 3, 2014) and 81 FR 13275 (March
14, 2016).
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To comply with CSAPR, Alabama adopted SO2 and
NOX CSAPR trading program rules, including budgets, in ADEM
Administrative Code Chapters 335-3-5 and 335-3-8. On August 31, 2016,
EPA approved Alabama's CSAPR annual SO2 and annual
NOX trading program rules into the SIP.\6\ See 81 FR 59869.
Because EPA stopped administering the CAIR trading programs after 2014,
the approved CAIR rules in Alabama's SIP have not been implemented for
several years. Furthermore, ADEM repealed all CAIR and CAIR-related
regulations from Alabama Administrative Code Chapters 335-3-1, 335-3-5,
and 335-3-8 on December 9, 2011.\7\ Even though the CAIR programs were
not being implemented in Alabama, ozone season NOX emissions
have remained well below the NOX SIP Call budget levels.
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\6\ In the 2016 action, EPA did not act on the portion of
Alabama's SIP submittal intended to replace Alabama units'
obligations to participate in CSAPR's federal trading program for
ozone-season NOX emissions.
\7\ Although CAIR-related regulations were repealed from ADEM
Administrative Code on December 11, 2011, the repeal of the
regulations was not effective until February 20, 2015. EPA removed
the repealed regulations from the SIP, effective August 6, 2021. See
86 FR 35610 (July 7, 2021).
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After litigation that reached the Supreme Court, the D.C. Circuit
generally upheld CSAPR but remanded several state budgets to EPA for
reconsideration. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118,
129-30 (D.C. Cir. 2015). EPA addressed the remanded ozone season
NOX budgets in the Cross-State Air Pollution Rule Update for
the 2008 Ozone NAAQS (CSAPR Update), which also partially addressed
eastern states' good neighbor obligations for the 2008 ozone NAAQS. See
81 FR 74504 (October 26, 2016). The air quality modeling for the CSAPR
Update demonstrated that Alabama contributes significantly to
nonattainment and/or interferes with maintenance of the 2008 ozone
NAAQS in other states. The CSAPR Update reestablished an option for
most states to meet their ongoing obligations for non-EGUs under the
NOX SIP Call by including the units in the CSAPR Update
trading program.
The CSAPR Update trading program replaced the original CSAPR
trading program for ozone season NOX for most covered
states. On October 6, 2017, EPA approved Alabama's CSAPR Update ozone
season NOX trading program rules for EGUs into Alabama's
SIP.\8\ See 82 FR 46674.\9\ Alabama's EGUs participate in the CSAPR
Update trading program, generally also addressing the state's
obligations under the NOX SIP Call for EGUs. However,
Alabama elected not to include its large non-EGUs in the CSAPR Update
ozone season trading program. Because Alabama's large non-EGUs no
longer participate in any CSAPR or CSAPR Update trading program for
ozone season NOX emissions, the NOX SIP Call
regulations at 40 CFR 51.121(r)(2), as well as anti-backsliding
provisions at 40 CFR 51.905(f) and 40 CFR 51.1105(e), require these
non-EGUs to maintain compliance with NOX SIP Call
requirements in some other way.
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\8\ This action approved CSAPR and CSAPR Update-related
provisions of Alabama SIP submissions dated October 26, 2015, and
May 19, 2017.
\9\ In subsequent litigation, the D.C. Circuit upheld the CSAPR
Update in virtually all respects but remanded it because it was
partial in nature and did not fully eliminate upwind states'
significant contribution to nonattainment or interference with
maintenance of the 2008 ozone NAAQS by ``the relevant downwind
attainment deadlines'' in the CAA. Wisconsin v. EPA, 938 F.3d 303,
313-15 (D.C. Cir. 2019). To address the remand, in 2021 EPA issued
the Revised CSAPR Update, in which the Agency determined (among
other things) that the requirements established for Alabama in the
CSAPR Update did in fact constitute a full remedy for the state's
good neighbor obligations with respect to the 2008 ozone NAAQS. 86
FR 23054, 23054 (April. 30, 2021).
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Under 40 CFR 51.121(f)(2) of the NOX SIP Call
regulations, where a state's implementation plan contains control
measures for EGUs and large non-EGU boilers and combustion turbines,
the SIP must contain enforceable limits on the ozone season
NOX mass emissions from these sources. In addition, under 40
CFR 51.121(i)(4) of the NOX SIP Call regulations as
originally promulgated, the SIP also had to require these sources to
monitor emissions according to the provisions of 40 CFR part 75, which
generally entails the use of continuous
[[Page 29709]]
emission monitoring systems (CEMS). Alabama triggered these
requirements by including control measures in its SIP for these types
of sources, and the requirements have remained in effect despite the
discontinuation of the NOX Budget Trading Program after the
2008 ozone season.
On March 8, 2019, EPA revised some of the regulations that were
originally promulgated in 1998 to implement the NOX SIP
Call.\10\ The revision gave states covered by the NOX SIP
Call greater flexibility concerning the form of the NOX
emissions monitoring requirements that the states must include in their
SIPs for certain emissions sources. The revision amended 40 CFR
51.121(i)(4) to make part 75 monitoring, recordkeeping, and reporting
optional, such that SIPs may establish alternative monitoring
requirements for NOX SIP Call budget units that meet the
general requirements of 40 CFR 51.121(f)(1) and (i)(1). Under the
updated provision, a state's implementation plan still needs to include
some form of emissions monitoring requirements for these types of
sources, consistent with the NOX SIP Call's general
enforceability and monitoring requirements at 40 CFR 51.121(f)(1) and
(i)(1), respectively, but states are no longer required to satisfy
these general NOX SIP Call requirements specifically through
the adoption of 40 CFR part 75 monitoring requirements.
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\10\ See ``Emissions Monitoring Provisions in State
Implementation Plans Required Under the NOX SIP Call,''
84 FR 8422 (March 8, 2019).
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Through a letter to EPA dated February 27, 2020, ADEM provided a
SIP revision to incorporate changes to ADEM Administrative Code Chapter
335-3-8 to include Rule 335-3-8-.71, ``NOX Budget Program,''
and Rule 335-3-8-.72, ``NOX Budget Program Monitoring and
Reporting,'' to maintain state compliance with the federal
NOX SIP Call regulations at 40 CFR 51.121 and 51.122, and to
provide alternative monitoring options for certain large non-EGUs.
Subsequently, on September 15, 2020, ADEM sent a letter requesting that
EPA conditionally approve ADEM Rule 335-3-8-.72 and committing to
provide a SIP revision to EPA by July 7, 2022 to address a deficiency
related to misplacement of stack testing requirements within ADEM Rule
335-3-8-.72(1).\11\ Based on the State's commitment to submit a SIP
revision addressing the identified deficiency, EPA conditionally
approved the February 27, 2017, submission. See 86 FR 35610.\12\
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\11\ These stack testing requirements were mistakenly added to
335-3-8-.72(1)(c), which allows sources to fulfill NOX
SIP call monitoring requirements by operating a NOX CEMS
outside of Part 75 requirements, instead of 335-3-8-.72(1)(d), which
uses emissions factors.
\12\ In the same action, EPA approved removal of the CAIR
trading program, removal of the NOX Budget Trading
Program rules, and the State's renumbering of the existing
regulation titled ``New Combustion Sources'' from Rule 335-3-8-.14
to Rule 335-3-8-.05.
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II. Why is EPA proposing this action?
In accordance with its commitment letter, ADEM submitted a SIP
revision on October 18, 2021,\13\ requesting that EPA approve into the
SIP a revision that would correct the deficiency found in Rule 335-3-
8-.72 by moving the stack testing requirement from 335-3-8-.72(1)(c) to
335-3-8-.72(1)(d) in order to satisfy the prior conditional approval.
EPA is proposing to approve the October 18, 2021, SIP revision, as well
as proposing to convert EPA's July 7, 2021, conditional approval to a
full approval. In addition, EPA is proposing to approve other minor
changes into the SIP which correct references to NOX mass
emissions rather than NOX concentrations.
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\13\ EPA notes that the October 18, 2021, submittal was received
by EPA on October 20, 2021.
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III. Analysis of Alabama's Submission
As discussed above, ADEM revised its regulations to include Rule
335-3-8-.71, ``NOX Budget Program,'' and Rule 335-3-8-.72,
``NOX Budget Program Monitoring and Reporting,'' which
require non-EGUs to maintain compliance with NOX SIP Call
requirements without participation in an interstate trading program.
Through a letter to EPA dated February 27, 2020, ADEM provided a SIP
revision to incorporate changes to ADEM Administrative Code Chapter
335-3-8 to include Rule 335-3-8-.71, ``NOX Budget Program,''
and Rule 335-3-8-.72, ``NOX Budget Program Monitoring and
Reporting,'' to maintain state compliance with the federal
NOX SIP Call regulations at 40 CFR 51.121 and 51.122, and to
provide alternative monitoring options for certain large non-EGUs.
While ADEM Rule 335-3-8-.72 generally addressed the State's ongoing
obligations under the NOX SIP Call, EPA identified one issue
impacting monitoring under ADEM's rule. The version of Rule 335-3-72
provided in the SIP revision contained an error regarding the placement
of stack testing requirements. These stack testing requirements were
meant to be added to 335-3-8-.72(1)(d), which uses emissions factors,
but instead, were mistakenly added to 335-3-8-.72(1)(c), which allows
sources to fulfill NOX SIP call monitoring requirements by
operating a NOX CEMS outside of part 75 requirements. On
September 15, 2020, \14\ ADEM sent a letter requesting that EPA
conditionally approve ADEM Rule 335-3-8-.72 and committing to provide a
SIP revision to EPA by July 7, 2022 to address the aforementioned
deficiency by moving the stack testing requirements from 35-3-
8-.72(1)(c) to (d) In that letter, ADEM also committed to EPA that it
would make a final submission to EPA within twelve (12) months of the
grant of conditional approval of the February 27, 2020, submittal to
correct this stack testing issue.
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\14\ See ADEM's September 15, 2020, letter from Lance R.
LeFleur, Director, to Mary S. Walker, Regional Administrator, US EPA
Region 4, available in the docket for this proposed action.
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On October 18, 2021, ADEM submitted a SIP revision, requesting that
EPA approve into the SIP a revision that would correct the deficiency
found in Rule 335-3-8-.72, ``NOX Budget Program Monitoring
and Reporting,'' in order to satisfy the prior conditional approval.
See 86 FR 35610 (July 7, 2021). In this revision, the stack testing
requirement has been moved from Rule 335-3-8-.72(1)(c) to Rule 335-3-
8-.72(d). This change ensures that stack testing is performed at least
once every five years, which is necessary to verify historical
NOX concentration and flow rate factors used to compute
NOX mass emissions at units utilizing the alterative
monitoring option under 335-3-8-.72(1)(d). Additionally, ADEM revised
an incorrect reference to calculating the ``NOX
concentration'' to correctly refer to ``NOX mass emissions''
in two instances in Rule 335-3-8-.72(d). In that rule, ADEM intends for
sources to calculate NOX mass emissions utilizing
NOX concentrations.
EPA is proposing to find that ADEM Rule 335-3-8-.72 meets the
State's ongoing obligations under the NOX SIP Call with
respect to monitoring to ensure compliance with required limitations,
and that ADEM has addressed the previously identified deficiency. Thus,
EPA is also proposing to convert the July 7, 2021, conditional approval
of Alabama Rule 335-3-8-.72 to a full approval.
IV. Incorporation by Reference
In this document, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference Alabama Administrative Code Rule 335-3-8-.72,
``NOX Budget Program Monitoring and Reporting,'' which
establishes emission monitoring
[[Page 29710]]
requirements for units subject to the NOX SIP call, state
effective December 13, 2021. EPA has made, and will continue to make,
these materials generally available through www.regulations.gov and at
the EPA Region 4 Office (please contact the person identified in the
FOR FURTHER INFORMATION CONTACT section of this preamble for more
information).
V. Proposed Action
EPA is proposing to approve Alabama's October 18, 2021, submission,
which revises Alabama Rule 335-3-8-.72, ``NOX Budget Program
Monitoring and Reporting'' to correct the stack testing requirement by
moving it from 335-3-8-.72(1)(c) to 335-3-8-.72(1)(d) and correct
language in 335-3-8-.72(d) to refer to NOX mass emissions.
In addition, EPA is proposing to convert the July 7, 2021, conditional
approval of Alabama Rule 335-3-8-.72 to a full approval. EPA requests
comment on these proposals.
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 CAA and applicable
Federal regulations. See 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. This proposed 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 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);
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).
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 as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it 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, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: May 10, 2022.
Daniel Blackman,
Regional Administrator, Region 4.
[FR Doc. 2022-10424 Filed 5-13-22; 8:45 am]
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