2019-19540. Approval and Promulgation of Implementation Plans; Utah; Interstate Transport Requirements for Nitrogen Dioxide, Sulfur Dioxide, and Fine Particulate Matter

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving five State Implementation Plan (SIP) submissions from the State of Utah regarding certain interstate transport requirements of the Clean Air Act (CAA or “Act”). These submissions respond to the EPA's promulgation of the 2010 nitrogen dioxide (NO₂) national ambient air quality standards (NAAQS), the 2010 sulfur dioxide (SO₂) NAAQS, and the 2012 fine particulate matter (PM_2.5) NAAQS. The submissions address the requirement that each SIP contain adequate provisions prohibiting air emissions that will significantly contribute to nonattainment or interfere with maintenance of these NAAQS in any other state. The EPA is taking this action pursuant to section 110 of the Clean Air Act (CAA).

DATES:

This rule is effective on October 11, 2019.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R08-OAR-2019-0180. All documents in the docket are listed on the http://www.regulations.gov website. 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, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov,, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

Adam Clark, Air and Radiation Division, EPA, Region 8, Mailcode 8ARD-IO, 1595 Wynkoop Street, Denver, Colorado, 80202-1129, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document “we,” “us,” and “our” means the EPA.

I. Background

The background for this action is discussed in detail in our June 20, 2019 proposed rulemaking (84 FR 28776). In that document we proposed to approve the CAA section 110(a)(2)(D)(i)(I) portion of Utah's January 31, 2013, June 2, 2013, December 22, 2015 and two May 8, 2018 infrastructure submissions based on our determination that emissions from Utah will not significantly contribute to nonattainment, or interfere with maintenance, of the 2010 NO₂, 2010 SO₂, and 2012 PM_2.5 NAAQS in any other state.

We received one anonymous comment letter on our proposal. Our responses to this comment letter are provided below.

II. Response to Comments

Comment: The commenter stated that the EPA should review all sources of SO₂ in Utah located within 50 km of another state's border, rather than focus our analysis on sources in this area emitting greater than 100 tons per year (tpy) of SO_2. The commenter stated that “the EPA does not appear to support the 100 tons per year cutoff and has no basis to support this arbitrary cutoff.”

Response: The EPA disagrees with the commenter that we did not provide support for our decision to focus our analysis on sources emitting greater than 100 tpy of SO_2. In the proposal, we noted that Utah limited its analysis to sources emitting greater than 100 tpy of SO₂, and stated that “we agree with Utah's choice to limit its analysis in this way, because in the absence of special factors, for example the presence of a nearby larger source or unusual physical factors, Utah sources emitting less than 100 tpy can appropriately be presumed to not be adversely impacting SO₂ concentrations in downwind states.” ^[1] The EPA continues to find this statement accurate.

We also note that the commenter has not provided any additional information regarding Utah sources emitting below 100 tpy, such as the special factors identified in our proposal. While the EPA may at its discretion develop additional information to assess transport issues, the commenter's unsupported speculation does not require us to do so. For these reasons, the EPA finds that our analysis of the Utah sources in the proposal, considered alongside other weight of evidence factors described in that document, support the EPA's conclusion that Utah has satisfied CAA section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO₂ NAAQS.

Comment: The commenter stated that a footnote under Table 5 (84 FR 28780, June 20, 2019) in the proposed rulemaking is confusing. The commenter noted that the footnote states Table 5 does not include sources that are duplicative of those in Table 3, and that this does not make sense because Table 3 lists monitoring locations rather than sources. The commenter asserts that the EPA “needs to re-propose with the correct information so the public can review and make educated comments.”

Response: The EPA acknowledges that the footnote under Table 5 was meant to indicate that this table did not include sources duplicative of those in Table 4, and that the reference to Table 3 was a typographical error. However, the EPA disagrees that this error might reasonably create any confusion, let alone a level of confusion that justifies re-proposal. In the paragraph preceding Table 5, the proposed rulemaking states “the EPA also reviewed the location of sources in neighboring states emitting more than 100 tpy of SO₂ and located within 50 km of the Utah border (see Table 5) that were not already addressed in Table 4.” 84 FR 28780. This statement appears after Table 4 and before Table 5 in the proposal, in a portion of the document where the discussion focuses on sources of SO₂ above 100 tpy within 50 km of the Utah border, all of which are covered in either Table 4 or 5. Table 4 of the proposal is titled “Utah SO₂ Sources Near Neighboring States,” and Table 5, which appears on the same page, is titled “Neighboring State SO₂ Sources Near Utah,” indicating that any duplicative sources would be duplicative amongst the two tables rather than amongst the sources in Table 5 and the monitoring data presented in Table 3. For all these reasons, the EPA disagrees with the commenter that the typographical error in the footnote following Table 5 requires the Agency to re-propose action or prevented those in the public from making educated comments.

III. Final Action

As discussed in our June 20, 2019 proposed rulemaking (84 FR 28776), and after considering public comment, we have determined that emissions from Utah will not significantly contribute to nonattainment, or interfere with maintenance, of the 2010 NO₂, 2010 SO₂, and 2012 PM_2.5 NAAQS in any other state. We are therefore approving the January 31, 2013, June 2, 2013, December 22, 2015, and two May 8, 2018 Utah SIP submissions as satisfying the requirements of CAA section 110(a)(2)(D)(i)(I) for these NAAQS. This completes the EPA's obligations under CAA section 110(k)(2) to act on the May 8, 2018 submissions. The EPA has already taken final action on most of the other infrastructure elements addressed in the January 31, 2013, June 2, 2013, and December 22, 2015 submissions (81 FR 50626, August 2, 2016).

IV. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the 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 approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, 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, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 12, 2019. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Nitrogen dioxide
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides

Dated: September 4, 2019.

Gregory Sopkin,

Regional Administrator, Region 8.

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart TT—Utah

2. Section 52.2354 is amended by adding paragraph (d) to reads as follows:

§ 52.2354

Interstate transport.

* * * * *

(d) Addition to the Utah State Implementation Plan regarding the 2010 NO₂, 2010 SO₂, and 2012 PM_2.5 Standards for Clean Air Act section 110(a)(2)(D)(i)(I) prongs 1 and 2, submitted to EPA on January 31, 2013, June 2, 2013, December 22, 2015, and May 8, 2018.

Footnotes

1.  n. 16, 84 FR 28779.