[Federal Register Volume 77, Number 232 (Monday, December 3, 2012)]
[Proposed Rules]
[Pages 71568-71572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29107]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2012-0237; FRL-9757-2]
Approval and Promulgation of Implementation Plans; Tennessee;
Interstate Transport Infrastructure Requirements (Prevention of
Significant Deterioration) for the 2008 8-Hour Ozone National Ambient
Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Supplemental proposed rule.
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SUMMARY: EPA is proposing to conditionally approve the State
Implementation Plan (SIP) submission, submitted by the State of
Tennessee through the Tennessee Department of Environment and
Conservation (TDEC). This proposal pertains to the Clean Air Act (CAA)
requirements pertaining to prevention of significant deterioration
(PSD) (concerning the PM2.5 increments) for the for the 2008
8-hour ozone national ambient air quality standards (NAAQS)
infrastructure SIPs. The CAA requires that each state adopt and submit
a SIP for the implementation, maintenance, and enforcement of each
NAAQS promulgated by EPA, which is commonly referred to as an
``infrastructure'' SIP. TDEC certified that the Tennessee SIP contains
provisions that ensure the 2008 8-hour ozone NAAQS are implemented,
enforced, and maintained in Tennessee (hereafter referred to as
``infrastructure submission''). EPA is proposing to supplement the
earlier proposed approval related to sections related to prevention of
significant deterioration (PSD) (concerning the PM2.5
increments) by proposing conditional approval of the State's
infrastructure submission based upon a October 4, 2012, commitment by
the State to submit a SIP revision to address current deficiencies in
these sections. EPA is proposing to conditionally approve these
sections related to PSD because the current Tennessee SIP does not
include provisions to fully comply with the requirements of these
sections. All of the other required infrastructure elements for the
2008 8-hour ozone NAAQS are being addressed in a separate rulemaking.
DATES: Written comments must be received on or before December 24,
2012.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
OAR-2012-0237, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (404) 562-9019.
4. Mail: ``EPA-R04-OAR-2012-0237,'' Regulatory Development Section,
Air Planning Branch, Air, Pesticides and Toxics Management Division,
U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960.
5. Hand Delivery or Courier: Lynorae Benjamin, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are
only accepted during the Regional Office's normal hours of operation.
The Regional Office's official hours of business are Monday through
Friday, 8:30 to 4:30, excluding federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-
2012-0237. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
[[Page 71569]]
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or
email, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at the Regulatory Development Section, Air Planning
Branch, Air, Pesticides and Toxics Management Division, U.S.
Environmental Protection Agency, Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you
contact the person listed in the FOR FURTHER INFORMATION CONTACT
section to schedule your inspection. The Regional Office's official
hours of business are Monday through Friday, 8:30 to 4:30, excluding
federal holidays.
FOR FURTHER INFORMATION CONTACT: Nacosta C. Ward, Regulatory
Development Section, Air Planning Branch, Air, Pesticides and Toxics
Management Division, U.S. Environmental Protection Agency, Region 4, 61
Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number
is (404) 562-9140. Ms. Ward can be reached via electronic mail at
[email protected].
Table of Contents
I. Background
II. What elements are required under sections 110(a)(1) and (2)?
III. Scope of Infrastructure SIPs
IV. What is EPA's analysis of how tennessee addressed sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J)
``infrastructure'' provisions?
V. Proposed Action
VI. Statutory and Executive Order Reviews
I. Background
On March 27, 2008, EPA promulgated a new NAAQS for ozone based on
8-hour average concentrations. EPA revised the level of the 8-hour
standard to 0.075 parts per million (ppm). See 77 FR 16436. Pursuant to
section 110(a)(1) of the CAA, states are required to submit SIPs
meeting the requirements of section 110(a)(2) within three years after
promulgation of a new or revised NAAQS. Section 110(a)(2) requires
states to address basic SIP requirements, including emissions
inventories, monitoring, and modeling to assure attainment and
maintenance of the NAAQS. States were required to submit such SIPs for
the 2008 8-hour ozone NAAQS to EPA no later than March 2011.
Midwest Environmental Defense and Sierra Club submitted a complaint
on November 20, 2011, related to EPA's failure to issue findings of
failure to submit related to the infrastructure requirements for the
2008 8-hour ozone NAAQS. On December 13, 2011, and March 6, 2012,
Midwest Environmental Defense and Sierra Club submitted amended
complaints for failure to promulgate prevention of significant
deterioration (PSD) regulations within two years and failure to approve
or disapprove SIP submittals, and to remove claims regarding states
that have submitted SIPs for the 2008 8-hour ozone NAAQS, respectively.
Tennessee was among the states named in the November 2011 complaint,
and the December 2011 and March 2012 amended complaints. Specifically,
the plaintiffs claim that EPA has failed to perform its mandatory duty
by not approving in full, disapproving in full, or approving in part
and disapproving in part Tennessee's 2008 ozone infrastructure SIP
addressing sections 110(a)(2)(A)-(H) and (J)-(M) by no later than April
19, 2011.
Tennessee's infrastructure submission was received by EPA on
October 19, 2009, for the 2008 8-hour ozone NAAQS. The submission was
determined to be complete on April 19, 2010. On July 3, 2012, Tennessee
submitted a letter to EPA withdrawing the portion of its October 19,
2009, SIP submission that purported to address the requirements related
to section 110(a)(2)(D)(i)(I) interstate transport. On August 22, 2012,
EPA proposed approval of Tennessee's 2008 8-hour ozone infrastructure
SIP, with the exception of section 110(a)(2)(D)(i)(I).\1\ See 77 FR
50651. The proposed approval included sections 110(a)(2)(C),
110(a)(2)(D)(i)(II), and 110(a)(2)(J); however, it was subsequently
found that Tennessee's SIP did not contain all of the requisite
provisions in its SIP necessary to fully approve these elements. The
deficient portion of Tennessee's SIP pertains to PM2.5 PSD
increments.
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\1\ Section 110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS
will be addressed through a separate rulemaking.
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On October 4, 2012, Tennessee submitted a request for conditional
approval of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) with respect to
the PSD requirements (hereafter referred to as prong 3 of
110(a)(2)(D)(i)),\2\ and 110(a)(2)(J) to address the SIP deficiencies
concerning PM2.5 PSD increments for these elements. Today's
action proposes conditional approval for these sections based upon a
commitment by Tennessee to submit the necessary SIP revisions to
address PM2.5 PSD increments for the 2008 8-hour ozone
NAAQS.
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\2\ Section 110(a)(2)(D)(i) includes four requirements referred
to as prongs 1 through 4. Prongs 1 and 2 are provided at section
110(a)(2)(D)(i)(I); prongs 3 and 4 are provided at section
110(a)(2)(D)(i)(II).
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II. What elements are required under sections 110(a)(1) and (2)?
Section 110(a) of the CAA requires states to submit SIPs to provide
for the implementation, maintenance, and enforcement of a new or
revised NAAQS within three years following the promulgation of such
NAAQS, or within such shorter period as EPA may prescribe. Section
110(a) imposes the obligation upon states to make a SIP submission to
EPA for a new or revised NAAQS, but the contents of that submission may
vary depending upon the facts and circumstances. In particular, the
data and analytical tools available at the time the state develops and
submits the SIP for a new or revised NAAQS affects the content of the
submission. The contents of such SIP
[[Page 71570]]
submissions may also vary depending upon what provisions the state's
existing SIP already contains. In the case of the 2008 8-hour ozone
NAAQS, states typically have met the basic program elements required in
section 110(a)(2) through earlier SIP submissions in connection with
the 1997 8-hour ozone NAAQS.
More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned above, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The requirements that are the
subject of this proposed rulemaking are listed below.\3\
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\3\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by 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 (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. Today's proposed
rulemaking does not address infrastructure elements related to
section 110(a)(2)(I) or the nonattainment planning requirements of
110(a)(2)(C).
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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.\4\
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\4\ This rulemaking only addresses requirements for this element
as they relate to attainment areas.
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110(a)(2)(D): Interstate transport.\5\
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\5\ Today's proposed rulemaking does not address element
110(a)(2)(D)(i)(I) (Interstate Transport) for the 2008 8-hour ozone
NAAQS. Interstate transport requirements were formerly addressed by
Tennessee consistent with the Clean Air Interstate Rule (CAIR) for
the 1997 8-hour ozone NAAQS. On December 23, 2008, CAIR was remanded
by the D.C. Circuit Court of Appeals, without vacatur, back to EPA.
See North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). Prior to
this remand, EPA took final action to approve Tennessee's SIP
revision, which was submitted to comply with CAIR. See 72 FR 46388
(August 20, 2007). In so doing, Tennessee's CAIR SIP revision
addressed the interstate transport provisions in section
110(a)(2)(D)(i)(I) for the 1997 8-hour ozone NAAQS. In response to
the remand of CAIR, EPA has promulgated a new rule to address
interstate transport. See 76 FR 48208 (August 8, 2011) (the
Transport Rule). That rule was recently vacated by the D.C. Circuit
Court of Appeals. As a result of both the remand of CAIR and vacatur
of the Transport Rule, Tennessee has not yet made a submission to
address interstate transport. EPA's action on element
110(a)(2)(D)(i)(I) for the 2008 8-hour ozone NAAQS will be addressed
in a separate action.
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110(a)(2)(E): Adequate resources.
110(a)(2)(F): Stationary source monitoring system.
110(a)(2)(G): Emergency power.
110(a)(2)(H): Future SIP revisions.
110(a)(2)(I): Areas designated nonattainment and meet the
applicable requirements of part D.\6\
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\6\ This requirement was inadvertently omitted from EPA's
October 2, 2007, memorandum entitled ``Guidance on SIP Elements
Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone
and PM2.5 National Ambient Air Quality Standards,'' but
as mentioned above is not relevant to today's proposed rulemaking.
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110(a)(2)(J): Consultation with government officials;
public notification; and 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.
III. Scope of Infrastructure SIPs
EPA notes that this rulemaking does not address four substantive
issues that are not integral to the state's infrastructure SIP
submission. These four issues are: (i) Existing provisions related to
excess emissions during periods of start-up, shutdown, or malfunction
at sources (SSM), that may be contrary to the CAA and EPA's policies
addressing such excess emissions; (ii) existing provisions related to
``director's variance'' or ``director's discretion'' that purport to
permit revisions to SIP approved emissions limits with limited public
process or without requiring further approval by EPA, that may be
contrary to the CAA (director's discretion); (iii) existing provisions
for minor source new source review (NSR) programs that may be
inconsistent with the requirements of the CAA and EPA's regulations
that pertain to such programs (minor source NSR); and, (iv) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR
Reform).
Instead, EPA has indicated that it has other authority to address
any such existing SIP defects in other rulemakings, as appropriate. A
detailed rationale for why these four substantive issues are not part
of the scope of infrastructure SIP rulemakings can be found in EPA's
June 11, 2012, proposed rule entitled, ``Approval and Promulgation of
Implementation Plans; Tennessee 110(a)(1) and (2) Infrastructure
Requirements for the 1997 and 2006 Fine Particulate Matter National
Ambient Air Quality Standards'' in the section entitled, ``Scope of
Infrastructure SIPs'' (See 77 FR 34306). It can also be found in EPA's
August 22, 2012, proposed rule entitled, ``Approval and Promulgation of
Implementation Plans; Tennessee 110(a)(1) and (2) Infrastructure
Requirements for the 2008 8-Hour Ozone Matter National Ambient Air
Quality Standards'' in the section entitled, ``Scope of Infrastructure
SIPs.'' See 77 FR 50651.
IV. What is EPA's analysis of how Tennessee addressed sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J)
``infrastructure'' provisions?
In this action, EPA is proposing to conditionally approve
Tennessee's infrastructure SIP for the following infrastructure
sections for the 2008 8-hour ozone NAAQS: (1) Section 110(a)(2)(C) to
include a program in the SIP that regulates the modification and
construction of any stationary source as necessary to assure that the
NAAQS are achieved, (2) prong 3 of section 110(a)(2)(D)(i) to include
adequate provisions prohibiting any source or other type of emissions
activity within the State from emitting any air pollutant in amount
which will interfere with measure required to be include in the
applicable SIP for any State necessary to prevent significant
deterioration, and (3) section 110(a)(2)(J) to include a program in the
SIP that regulates the modification and construction of any stationary
source as necessary to assure that the NAAQS are achieved.
There are four revisions to the Tennessee SIP that are necessary to
meet the requirements of infrastructure requirements of sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J). These four
revisions are related to (1) the Ozone Implementation NSR Update
(November 29, 2005, 70 FR 71612), (2) the ``Prevention of Significant
Deterioration and Title V Greenhouse Gas Tailoring Rule'' (June 3,
2010, 75 FR 31514), (3) the NSR PM2.5 Rule (May 16, 2008, 73
FR 28321), and (4) the portion of the final rulemaking entitled ``Final
Rule Prevention of Significant Deterioration (PSD) for Particulate
Matter Less Than 2.5 Micrometers (PM2.5)--Increments,
Significant Impact Levels (SILs) and Significant Monitoring
Concentration (SMC): Final Rule'' that relates to the PM2.5
PSD increments requirements (hereafter referred to as the
PM2.5 PSD Increment-SILs-SMC Rule (only as it relates to
PM2.5 PSD Increments) (75 FR 64864).
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Tennessee's Ozone Implementation NSR Update revision was submitted
by TDEC on May 28, 2009, and approved by EPA on February 7, 2012. See
77 FR 6016. Tennessee submitted its Greenhouse Gas (GHG) Tailoring
Rule, to EPA on January 11, 2012, and EPA approved it on February 28,
2012. See 77 FR 11744. Tennessee submitted its NNSR requirements
related to the implementation of the NSR PM2.5 Rule on July
29, 2011, and EPA approved this revision on July 30, 2012. See 77 FR
44481. On October 4, 2012, Tennessee submitted a letter to EPA
requesting conditional approval of specific enforceable measures
related to 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J)
concerning the October 20, 2010, PSD PM2.5 Increments, SILs
and SMC Rule because Tennessee's SIP does not currently contain
provisions to address requirements associated with PM2.5
increments. Tennessee's October 4, 2012, letter to EPA contained a
schedule and commitment to provide the necessary SIP revision to
address its SIP deficiencies related to the PM2.5
increments. Today's conditional approval applies only to the
PM2.5 increments portion of the PM2.5 Increments,
SILs and SMC Rule. The PM2.5 Increments, SILs and SMC Rule
provided additional regulatory requirements under the PSD program
regarding the implementation of the PM2.5 NAAQS for NSR by
specifically establishing PM2.5 increments pursuant to
section 166(a) of the CAA to prevent significant deterioration of air
quality in areas meeting the NAAQS. The letter can be accessed at
www.regulations.gov using Docket ID No. EPA-R04-OAR-2012-0237. The four
SIP revisions outlined above \7\ address the requisite requirements of
sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and 110(a)(2)(J) and
are necessary for approval of these infrastructure requirements.
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\7\ (1) EPA's approval of Tennessee's PSD/NSR regulations which
address the Ozone Implementation NSR Update requirements, (2) EPA's
approval of Tennessee's PSD GHG Tailoring Rule revisions which
addresses the thresholds for GHG permitting applicability in
Tennessee, (3) EPA's approval of Tennessee's NSR PM2.5
Rule, which adopts required federal PSD and NNSR permitting
provisions governing the implementation of the NSR program for
PM2.5 as promulgated in the NSR PM2.5 Rule,
and (4) EPA's proposed conditional approval of Tennessee's PSD
PM2.5 Increments, SILs, and SMC rulemaking to the extent
it addresses the PM2.5 Increments portion of the
PM2.5 PSD Increment-SILs-SMC Rule..
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In accordance with section 110(k)(4) of the CAA, EPA is proposing
to conditionally approve these sections based upon a commitment from
Tennessee that the State will submit a SIP revision addressing the
increments associated with the PM2.5 PSD Increment-SILs-SMC
Rule (only as it relates to PM2.5 Increments) to EPA for
approval within one year from EPA's final conditional approval action.
In its October 4, 2012, letter, TDEC committed to adopt the above-
specified provisions and submit them to EPA for incorporation into the
SIP by no later than one year from the publication date of EPA's final
conditional approval action for that requirement. Failure by the State
to adopt these provisions and submit them to EPA for incorporation into
the SIP within one year from the effective date of EPA's final
conditional approval action would result in this proposed conditional
approval being treated as a disapproval. Should that occur, EPA would
provide the public with notice of such a disapproval in the Federal
Register.\8\
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\8\ EPA notes that pursuant to section 110(k)(4), a conditional
approval is treated as a disapproval in the event that a State fails
to comply with its commitment. Notification of this disapproval
action in the Federal Register is not subject to public notice and
comment.
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As a result of Tennessee's formal commitment to correct the
deficiency contained in the Tennessee SIP pertaining to
PM2.5 PSD increments, EPA is proposing to conditionally
approve sections 110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), and
110(a)(2)(J) requirements consistent with section 110(k)(4) of the Act.
V. Proposed Action
As described above, EPA is proposing to conditionally approve
Tennessee's infrastructure submissions pertaining to sections
110(a)(2)(C), prong 3 of 110(a)(2)(D)(i), 110(a)(2)(J) related to PSD,
provided to EPA on October 4, 2012, as addressing the infrastructure
requirements for the 2008 8-hour ozone NAAQS. Specifically, this
conditional approval is based upon Tennessee's commitment that TDEC
will provide the necessary SIP revision to address its SIP deficiencies
related to the October 20, 2010, final rulemaking related to PSD
PM2.5 Increments. EPA is proposing to conditionally approve
Tennessee's SIP submission consistent with section 110(k)(4) of the
CAA.
VI. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 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. Accordingly, this
proposed 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 Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because 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 does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
[[Page 71572]]
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: November 21, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-29107 Filed 11-30-12; 8:45 am]
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