83 FR 14179 - Approval of Nebraska Air Quality Implementation Plans; Infrastructure SIP Requirements for the 2010 Nitrogen Dioxide and Sulfur Dioxide and the 2012 Fine Particulate Matter National Ambient Air Quality Standards
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 64 (April 3, 2018)
Federal Register Volume 83, Issue 64 (April 3, 2018)
| Page Range | 14179-14183 | |
| FR Document | 2018-06654 |
[Federal Register Volume 83, Number 64 (Tuesday, April 3, 2018)] [Rules and Regulations] [Pages 14179-14183] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-06654] [[Page 14179]] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2017-0477; FRL-9976-09--Region 7] Approval of Nebraska Air Quality Implementation Plans; Infrastructure SIP Requirements for the 2010 Nitrogen Dioxide and Sulfur Dioxide and the 2012 Fine Particulate Matter National Ambient Air Quality Standards AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is taking final action to approve certain elements of State Implementation Plan (SIP) submissions from the State of Nebraska for the 2010 Nitrogen Dioxide (NO2 ) and Sulfur Dioxide (SO2 ) National Ambient Air Quality Standards (NAAQS) and the 2012 Fine Particulate Matter (PM2.5 ) NAAQS. States are required to have a SIP that provides for the implementation, maintenance, and enforcement of the NAAQS. Whenever EPA promulgates a new or revised NAAQS, states are required to make a SIP submission to establish that they have, or to add, the provisions necessary to address various requirements to address the new or revised NAAQS. These SIPs are commonly referred to as ``infrastructure'' SIPs. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the Clean Air Act (CAA). DATES: This final rule is effective on May 3, 2018. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2017-0477. All documents in the docket are listed on the https://www.regulations.gov website. 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 through https://www.regulations.gov or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional information. FOR FURTHER INFORMATION CONTACT: Mr. Gregory Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, or by email at [email protected]. SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and ``our'' refer to EPA. This section provides additional information by addressing the following: I. Background II. What is being addressed in this document? III. Have the requirements for approval of a SIP revision been met? IV. EPA's Response to Comments V. What action is EPA taking? VI. Statutory and Executive Order Reviews I. Background EPA received Nebraska's infrastructure SIP submissions addressing the 2010 NO2 NAAQS, the 2010 SO2 NAAQS, and the 2012 PM2.5 NAAQS.\1\ On September 20, 2017, EPA proposed to approve certain elements of these infrastructure SIP submissions from the State of Nebraska. See 82 FR 43926. In conjunction with the September 20, 2017, notice of proposed rulemaking (NPR), EPA issued a direct final rule (DFR) approving the same elements of the 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS infrastructure SIP submissions. See 82 FR 43848. However, in the DFR, EPA stated that if EPA received adverse comments by October 20, 2017, the action would be withdrawn and not take effect. EPA received one set of adverse comments prior to the close of the comment period. EPA withdrew the DFR on November 17, 2017. See 82 FR 54299. This action is a final rule based on the NPR. A detailed discussion of Nebraska's SIP submissions and EPA's rationale for approving the SIP submissions were provided in the DFR and the associated Technical Support Document (TSD) in the docket for this rulemaking and will not be restated here, except to the extent relevant to our response to the adverse public comment we received. --------------------------------------------------------------------------- \1\ The EPA received the 2010 NO2 infrastructure submission on February 7, 2013, the 2010 SO2 infrastructure submission on August 22, 2013, and the 2012 PM2.5 infrastructure submission on February 22, 2016. --------------------------------------------------------------------------- II. What is being addressed in this document? EPA is taking final action to approve the infrastructure submissions as meeting the applicable submission requirements section 110(a)(1). EPA is approving certain elements of the 2010 NO2 and SO2 infrastructure SIP submissions from the State of Nebraska received on February 7, 2013, and August 22, 2013, respectively. EPA is also taking action to approve certain elements of the 2012 PM2.5 infrastructure submission received on February 22, 2016. Specifically, in regard to the 2010 NO2 NAAQS, EPA is approving, the following SIP submission elements related to CAA section 110(a)(2): (A) through (C), (D)(i)(I)--Prongs 1 and 2, (D)(i)(II)--prong 3, (D)(ii), (E) through (H), and (J) through (M). Regarding the 2010 SO2 and 2012 PM2.5 NAAQS, EPA is approving the State's SIP submission addressing the following infrastructure elements of section 110(a)(2): (A) through (C), (D) (i) (II)--Prong 3, (D) (ii), (E) through (H), and (J) through (M). As discussed in the TSD, EPA is not acting, at this time, on section 110(a)(2)(D)(i)(I)-- prongs 1 and 2, as it relates to the 2010 SO2 NAAQS as those elements were not part of the state SIP submission. Section 110(a)(2)(D)(i)(I)--prongs 1 and 2, as it relates to the 2012 PM2.5 NAAQS, were included in the state SIP submission. The EPA intends to act on section 110(a)(2)(D)(i)(I)-- prongs 1 and 2, as it relates to the 2012 PM2.5 NAAQS in a subsequent rulemaking action. Regarding the 2010 NO2 and SO2 and the 2012 PM2.5 infrastructure submissions and as explained in the TSD, EPA is not acting, at this time, on section 110(a)(2)(D)(i)(II)-- prong 4. As noted, a TSD is included as part of the docket to discuss the details of this action. III. Have the requirements for approval of a SIP revision been met? The state has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. A public comment period was held for the NO2 infrastructure SIP from December 27, 2012, to January 28, 2013. The only comments were from the EPA, and the infrastructure SIP submission was revised to address the comments. A public hearing was held on January 28, 2013. The state held a public comment period for the SO2 infrastructure SIP from April 25, 2013, to May 28, 2013. NDEQ received comments from the Sierra Club on May 28, 2013. The state addressed the Sierra Club's comments with no revisions to its proposed SIP. A public hearing was held on May 27, 2013. A public comment period was held for the PM2.5 infrastructure SIP from [[Page 14180]] November 23, 2015, to December 29, 2015. A public hearing was held on December 29, 2015. No comments were received. All three submissions satisfied the completeness criteria of 40 CFR part 51, appendix V. As explained in more detail in the TSD, which is part of this docket, the revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations. IV. EPA's Response to Comments The public comment period on EPA's proposed rule opened September 20, 2017 the date of its publication in the Federal Register and closed on October 20, 2017. During this period, EPA received one comment letter. No changes were made to the proposals in this final action after consideration of the adverse comments received. Comment 1: The commenter stated that with regard to 2010 NO2 NAAQS, EPA has not shown that Nebraska is not significantly contributing to downwind problems due to interstate transport of NOX . The commenter specifically asserted that EPA should have addressed NOX emissions in Nebraska rather than only evaluated national level data, and that the lack of a requirement for near road monitors for phase 3 is not adequate to show no downwind issues. The commenter further contended that EPA must analyze all source categories including point sources and conduct modeling to show large point sources are not causing downwind contribution. Response 1: The EPA disagrees with the commenter's assertions. As an initial matter, the question of whether emissions from Nebraska significantly contribute to nonattainment or interfere with maintenance of the NAAQS in violation of section 110(a)(2)(D)(i)(I) depends on whether there are areas in downwind states having or expected to have trouble attaining or maintaining the NAAQS. In the EPA's TSD, the EPA analyzed a variety of data and determined that there were no downwind areas in other states with air quality concerns with respect to the 2010 NO2 NAAQS. EPA cited several pieces of data to support this conclusion. EPA first explained that at the time of designations for NO2 in January of 2012, no areas of the country were violating the 2010 NO2 NAAQS. EPA further reviewed monitoring and emissions trends since the designations and identified no areas that are having problems attaining or maintaining the NAAQS. In fact, the highest NO2 near-road monitoring design value recorded in Colorado based on the most current available information at the time of publication of the proposed rule (e.g. 2013 to 2015 data) is 72 parts per billion (ppb). Based on the most current available, certified and quality assured information (e.g. 2014 to 2016 data), the highest NO2 near-road monitoring design value recorded in Colorado is 74 ppb. Both of these design values are well below the 2010 NO2 NAAQS of 100 ppb. Thus, in the absence of any downwind air quality concerns, Nebraska cannot be found to contribute, let alone significantly contribute to downwind nonattainment or interfere with maintenance of the NAAQS. The commenter does not identify any flaws with EPA's assessment of the data. Thus, the commenter is incorrect to state that EPA only relied on the lack of near-road monitors in Nebraska in concluding that the state is in compliance with the requirements of section 110(a)(2)(D)(i)(I). Moreover, because neither EPA nor the commenter have identified any downwind air quality problems to which Nebraska could contribute, the EPA does not agree that it was necessary to evaluate the impact of individual point sources in Nebraska, via modeling or any other analyses, on air quality in other states. Finally, the commenter is incorrect in asserting that EPA failed to evaluate NOX emissions in Nebraska. In the TSD, EPA reviewed NOX emission trends in the state, which demonstrated that NOX emissions in Nebraska have followed a downward trend for 2011 to 2016. EPA has demonstrated that Nebraska is not significantly contributing to downwind nonattainment or interfering with maintenance of the 2010 NO2 NAAQS. Therefore, the EPA disagrees with the commenter's assertions and will approve elements of 110(a)(2)(D)(i)(I)--Prongs 1 and 2 for Nebraska's NO2 infrastructure SIP submission. Comment 2: The commenter stated that with respect to the PM2.5 NAAQS, EPA does not have the discretion to ``act at a later date.'' In addition, the commenter states that EPA is mandated by statute to act within 18 months of the state's submission, and that since the state's submission was received in February 2016, EPA has failed to act in a timely manner and does not have the luxury of acting at a later date. If EPA cannot approve the state's plan, the EPA must disapprove. Response 2: EPA acknowledges the commenter's concern for the interstate transport of air pollutants. However, EPA disagrees with the commenter's argument that EPA cannot approve certain elements of an infrastructure SIP submission without also taking action on the elements related to interstate transport. EPA agrees with the commenter that it has an obligation to take action under section 110(k) on SIP submissions. However, EPA disagrees with the commenter's argument that the Agency cannot elect to act on individual parts or elements of a state's infrastructure SIP submission in separate rulemaking actions, as it deems appropriate. Section 110(k)of the CAA authorizes EPA to approve a SIP submission in full, disapprove it in full, or approve it in part and disapprove it in part, or conditionally approve it in full or in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP submissions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a SIP submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)). EPA interprets its authority under section 110(k) of the CAA as affording the Agency the discretion to approve, disapprove, or conditionally approve, individual elements of Nebraska's infrastructure SIP submission for the 2012 PM2.5 NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of section 110(a)(2)(D)(i)(I), as severable from other infrastructure SIP elements and interprets section 110(k) as allowing it to act on individual severable elements or requirements in a SIP submission. In short, EPA believes it has the discretion under section 110(k) of the CAA to act upon the various individual elements of the State's infrastructure SIP submission, separately or together, as appropriate. EPA will address the remaining elements of Nebraska's 2012 PM2.5 NAAQS, infrastructure SIP submission in a separate rulemaking action or actions. Comment 3: The commenter stated that with respect to the SO2 NAAQS, since the state has not submitted a plan with regards to interstate transport, EPA must make a finding of failure to submit. The commenter further stated that acting is on a SIP is not discretionary and that EPA had yet to act. Response 3: Please refer to Response 2. Additionally, in EPA's rulemaking proposing to approve Nebraska's infrastructure SIP for the 2010 1-hour SO2 NAAQS, EPA stated that it was not [[Page 14181]] taking any action with respect to the good neighbor provisions in section 110(a)(2)(D)(i)(I) for this NAAQS. EPA understands the commenter's concern with respect to interstate transport. EPA will evaluate whether it is appropriate to make a finding of failure to submit in a separate action. Comment 4: The commenter stated that for all three NAAQS, EPA does not have the discretion to not act on prong 4 and must act within 18 months of the state's submission. The commenter stated that EPA ``does not have the luxury'' of acting on a submission at a later date. If EPA cannot approve due to the state not having an approved Regional Haze SIP then EPA is required to disapprove. Response 4: Please refer to Response 2. EPA is not required to act on the prong 4 elements of Nebraska's 2010 NO2 , 2010 SO2, and 2012 PM2.5 infrastructure SIP submissions in this particular rulemaking. Like the elements of section 110(a)(2)(D)(i)(I), prong 4 is severable from other infrastructure SIP elements and EPA interprets section 110(k) as allowing it to act on individual severable elements or requirements in a SIP submission. With respect to the comment on prong 4, although EPA's evaluation of a state's SIP submission can be related to the status of that state's regional haze program,\2\ Nebraska's regional haze program \3\ is not relevant here because EPA is not taking action on that element of Nebraska's 2010 NO2 , 2010 SO2, and 2012 PM2.5 infrastructure SIP submissions in this rulemaking. --------------------------------------------------------------------------- \2\ EPA's 2013 Guidance of Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2) provides that ``[o]ne way in which prong 4 may be satisfied for any relevant NAAQS is through an air agency's confirmation in its infrastructure SIP submission that it has an approved regional haze SIP . . . .'' 2013 Guidance at 33, https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf. \3\ Federal Implementation Plan for Best Available Retrofit Technology Determination, 77 FR 40150 (July 6, 2012). --------------------------------------------------------------------------- Comment 5: Initially in comments 2 through 4, the commenter indicated that this was the commenter's official notice of intent to EPA for failure to perform its nondiscretionary duty to act on the state's submission with respect to element D(i)(II)--prong 4 for the 2010 NO2, 2010 SO2 , and 2012 PM2.5 NAAQS, failure to perform its nondiscretionary duty to make a finding of failure to submit with respect to the interstate transport portions of SO2 NAAQS, and for failing to perform its nondiscretionary duty to act on the state's submission with regards to interstate transport of PM2.5 . Response 5: A public comment submitted on a proposal does not constitute notice of intent to sue the Administrator for failure to perform a nondiscretionary duty. Clean Air Act section 304(b)(2) requires a 60-day notice of a civil action against the Administrator for an alleged failure to perform a non-discretionary duty to the Administrator. EPA's regulations require that service of notice to the Administrator ``shall be accomplished by certified mail addressed to the Administrator, Environmental Protection Agency, Washington, DC 20460.'' 40 CFR 54.2(a). The commenter's public comment submitted via regulations.gov does not satisfy the regulatory requirements for notices of intent to file suit against the Administrator for failure to perform a non-discretionary duty. V. What action is EPA taking? EPA is approving elements the infrastructure SIP submissions from Nebraska, which address the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2010 NO2 and SO2 and 2012 PM2.5 NAAQS. As stated in the above preamble, EPA is approving certain elements of the state's submission as meeting the submission requirements of section 110(a)(1) for all three submissions. Regarding the 2010 NO2 NAAQS, EPA is approving the following infrastructure elements of 110(a)(2): (A) through (C), (D)(i)(I)--Prongs 1 and 2, (D)(i)(II)--prong 3, (D)(ii), (E) through (H), and (J) through (M). As explained in the TSD, EPA intends to act on section 110(a)(2)(D)(i)(II)--prong 4, in a subsequent rulemaking. EPA is approving the following infrastructure elements of 110(a)(2) as it relates to the 2010 SO2 and the 2012 PM2.5 NAAQS: (A) through (C), (D) (i) (II)--Prong 3, (D) (ii), (E) through (H), and (J) through (M). As discussed in the TSD, EPA intends to act on section 110(a)(2)(D)(i)(II)--prong 4, in a subsequent rulemaking and is not acting at this time on section 110(a)(2)(D)(i)(I)--prongs 1 and 2, for both the 2010 SO2 and 2012 PM2.5 NAAQS. Based upon review of the state's infrastructure SIP submissions for the 2010 NO2 and SO2 NAAQS as well as the 2012 PM2.5 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in the submissions or referenced in Nebraska's SIP, EPA believes that Nebraska has the infrastructure to address all applicable required elements of sections 110(a)(1) and (2) (except otherwise noted) to ensure that the 2010 NO2 and SO2 NAAQS and the 2012 PM2.5 NAAQS are implemented in the state. 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. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this 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 (Public Law 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 Clean Air Act; and Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible [[Page 14182]] 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. 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 June 4, 2018. 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, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: March 15, 2018. James B. Gulliford, Regional Administrator, Region 7. For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart CC--Nebraska 0 2. Amend Sec. 52.1420(e) by adding entries ``(32)'', ``(33)'' and ``(34)'' in numerical order to read as follows: Sec. 52.1420 Identification of Plan. * * * * * (e) * * * EPA-Approved Nebraska Nonregulatory Provisions -------------------------------------------------------------------------------------------------------------------------------------------------------- Applicable geographic or State Name of nonregulatory SIP provision nonattainment area submittal date EPA Approval date Explanation -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * (32) Section 110(a)(2) Infrastructure Statewide............... 2/7/13 4/3/2018, [Insert Federal Register This action addresses the Requirements for the 2010 NO2 NAAQS. citation]. following CAA elements 110(a)(2)(A) through (C), (D)(i)(I)--Prongs 1 and 2, (D)(i)(II)--Prong 3, (D)(ii), (E) through (H), and (J) through (M). [EPA- R07-OAR-2017-0477; FRL-9976- 09-Region 7]. (33) Section 110(a)(2) Infrastructure Statewide............... 8/22/13 4/3/2018, [Insert Federal Register This action addresses the Requirements for the 2010 SO2 NAAQS. citation]. following CAA elements 110(a)(2)(A) through (C), (D)(i)(II)--Prong 3, (D)(ii), (E) through (H), and (J) through (M). [EPA- R07-OAR-2017-0477; FRL-9976- 09-Region 7]. (34) Section 110(a)(2) Infrastructure Statewide............... 2/22/16 4/3/2018 and [Insert Federal Register This action addresses the Requirements for the 2010 PM2.5 citation]. following CAA elements NAAQS. 110(a)(2)(A) through (C), (D)(i)(II)--Prong 3, (D)(ii), (E) through (H), and (J) through (M). [EPA- R07-OAR-2017-0477; FRL-9976- 09-Region 7]. -------------------------------------------------------------------------------------------------------------------------------------------------------- [FR Doc. 2018-06654 Filed 4-2-18; 8:45 am] BILLING CODE 6560-50-P
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ENVIRONMENTAL PROTECTION Protection Agency, Air Planning and received on February 7, 2013, and
AGENCY Development Branch, 11201 Renner August 22, 2013, respectively. EPA is
Boulevard, Lenexa, Kansas 66219 at also taking action to approve certain
40 CFR Part 52 (913) 551–7391, or by email at elements of the 2012 PM2.5
[EPA–R07–OAR–2017–0477; FRL–9976– Crable.Gregory@epa.gov. infrastructure submission received on
09—Region 7] SUPPLEMENTARY INFORMATION: February 22, 2016. Specifically, in
Throughout this document ‘‘we,’’ ‘‘us,’’ regard to the 2010 NO2 NAAQS, EPA is
Approval of Nebraska Air Quality and ‘‘our’’ refer to EPA. This section approving, the following SIP submission
Implementation Plans; Infrastructure provides additional information by elements related to CAA section
SIP Requirements for the 2010 addressing the following: 110(a)(2): (A) through (C), (D)(i)(I)—
Nitrogen Dioxide and Sulfur Dioxide Prongs 1 and 2, (D)(i)(II)—prong 3,
I. Background
and the 2012 Fine Particulate Matter (D)(ii), (E) through (H), and (J) through
II. What is being addressed in this document?
National Ambient Air Quality III. Have the requirements for approval of a (M).
Standards SIP revision been met?
IV. EPA’s Response to Comments
Regarding the 2010 SO2 and 2012
AGENCY: Environmental Protection PM2.5 NAAQS, EPA is approving the
V. What action is EPA taking?
Agency (EPA). State’s SIP submission addressing the
VI. Statutory and Executive Order Reviews
ACTION: Final rule. following infrastructure elements of
SUMMARY: The Environmental Protection I. Background section 110(a)(2): (A) through (C), (D) (i)
Agency (EPA) is taking final action to EPA received Nebraska’s (II)—Prong 3, (D) (ii), (E) through (H),
approve certain elements of State infrastructure SIP submissions and (J) through (M). As discussed in the
Implementation Plan (SIP) submissions addressing the 2010 NO2 NAAQS, the TSD, EPA is not acting, at this time, on
from the State of Nebraska for the 2010 2010 SO2 NAAQS, and the 2012 PM2.5 section 110(a)(2)(D)(i)(I)— prongs 1 and
Nitrogen Dioxide (NO2) and Sulfur NAAQS.1 On September 20, 2017, EPA 2, as it relates to the 2010 SO2 NAAQS
Dioxide (SO2) National Ambient Air proposed to approve certain elements of as those elements were not part of the
Quality Standards (NAAQS) and the these infrastructure SIP submissions state SIP submission. Section
2012 Fine Particulate Matter (PM2.5) from the State of Nebraska. See 82 FR 110(a)(2)(D)(i)(I)—prongs 1 and 2, as it
NAAQS. States are required to have a 43926. In conjunction with the relates to the 2012 PM2.5 NAAQS, were
SIP that provides for the September 20, 2017, notice of proposed included in the state SIP submission.
implementation, maintenance, and rulemaking (NPR), EPA issued a direct The EPA intends to act on section
enforcement of the NAAQS. Whenever final rule (DFR) approving the same 110(a)(2)(D)(i)(I)—prongs 1 and 2, as it
EPA promulgates a new or revised elements of the 2010 NO2, 2010 SO2, and relates to the 2012 PM2.5 NAAQS in a
NAAQS, states are required to make a 2012 PM2.5 NAAQS infrastructure SIP subsequent rulemaking action.
SIP submission to establish that they submissions. See 82 FR 43848. Regarding the 2010 NO2 and SO2 and
have, or to add, the provisions necessary However, in the DFR, EPA stated that if the 2012 PM2.5 infrastructure
to address various requirements to EPA received adverse comments by submissions and as explained in the
address the new or revised NAAQS. October 20, 2017, the action would be TSD, EPA is not acting, at this time, on
These SIPs are commonly referred to as withdrawn and not take effect. EPA section 110(a)(2)(D)(i)(II)—prong 4.
‘‘infrastructure’’ SIPs. The infrastructure received one set of adverse comments
requirements are designed to ensure that prior to the close of the comment As noted, a TSD is included as part
the structural components of each period. EPA withdrew the DFR on of the docket to discuss the details of
state’s air quality management program November 17, 2017. See 82 FR 54299. this action.
are adequate to meet the state’s This action is a final rule based on the III. Have the requirements for approval
responsibilities under the Clean Air Act NPR. A detailed discussion of of a SIP revision been met?
(CAA). Nebraska’s SIP submissions and EPA’s
DATES: This final rule is effective on rationale for approving the SIP The state has met the public notice
May 3, 2018. submissions were provided in the DFR requirements for SIP submissions in
ADDRESSES: EPA has established a and the associated Technical Support accordance with 40 CFR 51.102. A
docket for this action under Docket ID Document (TSD) in the docket for this public comment period was held for the
No. EPA–R07–OAR–2017–0477. All rulemaking and will not be restated NO2 infrastructure SIP from December
documents in the docket are listed on here, except to the extent relevant to our 27, 2012, to January 28, 2013. The only
the https://www.regulations.gov response to the adverse public comment comments were from the EPA, and the
website. Although listed in the index, we received. infrastructure SIP submission was
some information is not publicly revised to address the comments. A
available, i.e., CBI or other information II. What is being addressed in this
document? public hearing was held on January 28,
whose disclosure is restricted by statute. 2013.
Certain other material, such as EPA is taking final action to approve
copyrighted material, is not placed on the infrastructure submissions as The state held a public comment
the internet and will be publicly meeting the applicable submission period for the SO2 infrastructure SIP
available only in hard copy form. requirements section 110(a)(1). EPA is from April 25, 2013, to May 28, 2013.
Publicly available docket materials are approving certain elements of the 2010 NDEQ received comments from the
Sierra Club on May 28, 2013. The state
nshattuck on DSK9F9SC42PROD with RULES
available through https:// NO2 and SO2 infrastructure SIP
www.regulations.gov or please contact submissions from the State of Nebraska addressed the Sierra Club’s comments
the person identified in the FOR FURTHER with no revisions to its proposed SIP. A
INFORMATION CONTACT section for 1 The EPA received the 2010 NO infrastructure
2
public hearing was held on May 27,
additional information. submission on February 7, 2013, the 2010 SO2 2013.
infrastructure submission on August 22, 2013, and
FOR FURTHER INFORMATION CONTACT: Mr. the 2012 PM2.5 infrastructure submission on A public comment period was held
Gregory Crable, Environmental February 22, 2016. for the PM2.5 infrastructure SIP from
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taking any action with respect to the state’s submission with regards to and (2) (except otherwise noted) to
good neighbor provisions in section interstate transport of PM2.5. ensure that the 2010 NO2 and SO2
110(a)(2)(D)(i)(I) for this NAAQS. EPA Response 5: A public comment NAAQS and the 2012 PM2.5 NAAQS are
understands the commenter’s concern submitted on a proposal does not implemented in the state.
with respect to interstate transport. EPA constitute notice of intent to sue the
Administrator for failure to perform a VI. Statutory and Executive Order
will evaluate whether it is appropriate
nondiscretionary duty. Clean Air Act Reviews
to make a finding of failure to submit in
a separate action. section 304(b)(2) requires a 60-day Under the CAA, the Administrator is
Comment 4: The commenter stated notice of a civil action against the required to approve a SIP submission
that for all three NAAQS, EPA does not Administrator for an alleged failure to that complies with the provisions of the
have the discretion to not act on prong perform a non-discretionary duty to the Act and applicable Federal regulations.
4 and must act within 18 months of the Administrator. EPA’s regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a).
state’s submission. The commenter require that service of notice to the Thus, in reviewing SIP submissions,
stated that EPA ‘‘does not have the Administrator ‘‘shall be accomplished EPA’s role is to approve state choices,
luxury’’ of acting on a submission at a by certified mail addressed to the provided that they meet the criteria of
later date. If EPA cannot approve due to Administrator, Environmental the CAA. Accordingly, this action
the state not having an approved Protection Agency, Washington, DC merely approves state law as meeting
Regional Haze SIP then EPA is required 20460.’’ 40 CFR 54.2(a). The Federal requirements and does not
to disapprove. commenter’s public comment submitted impose additional requirements beyond
via regulations.gov does not satisfy the those imposed by state law. For that
Response 4: Please refer to Response regulatory requirements for notices of
2. EPA is not required to act on the reason, this action:
intent to file suit against the • Is not a significant regulatory action
prong 4 elements of Nebraska’s 2010 Administrator for failure to perform a
NO2, 2010 SO2, and 2012 PM2.5 subject to review by the Office of
non-discretionary duty. Management and Budget under
infrastructure SIP submissions in this
particular rulemaking. Like the elements V. What action is EPA taking? Executive Orders 12866 (58 FR 51735,
of section 110(a)(2)(D)(i)(I), prong 4 is October 4, 1993) and 13563 (76 FR 3821,
EPA is approving elements the
severable from other infrastructure SIP January 21, 2011);
infrastructure SIP submissions from
elements and EPA interprets section • Is not an Executive Order 13771 (82
Nebraska, which address the
110(k) as allowing it to act on individual FR 9339, February 2, 2017) regulatory
requirements of CAA sections 110(a)(1)
severable elements or requirements in a action because SIP approvals are
and (2) as applicable to the 2010 NO2
SIP submission. exempted under Executive Order 12866.
and SO2 and 2012 PM2.5 NAAQS. As
With respect to the comment on prong stated in the above preamble, EPA is • Does not impose an information
4, although EPA’s evaluation of a state’s approving certain elements of the state’s collection burden under the provisions
SIP submission can be related to the submission as meeting the submission of the Paperwork Reduction Act (44
status of that state’s regional haze requirements of section 110(a)(1) for all U.S.C. 3501 et seq.);
program,2 Nebraska’s regional haze three submissions. • Is certified as not having a
program 3 is not relevant here because Regarding the 2010 NO2 NAAQS, EPA significant economic impact on a
EPA is not taking action on that element is approving the following infrastructure substantial number of small entities
of Nebraska’s 2010 NO2, 2010 SO2, and elements of 110(a)(2): (A) through (C), under the Regulatory Flexibility Act (5
2012 PM2.5 infrastructure SIP (D)(i)(I)—Prongs 1 and 2, (D)(i)(II)— U.S.C. 601 et seq.);
submissions in this rulemaking. prong 3, (D)(ii), (E) through (H), and (J) • Does not contain any unfunded
through (M). As explained in the TSD, mandate or significantly or uniquely
Comment 5: Initially in comments 2
EPA intends to act on section affect small governments, as described
through 4, the commenter indicated that
110(a)(2)(D)(i)(II)—prong 4, in a in the Unfunded Mandates Reform Act
this was the commenter’s official notice
subsequent rulemaking. of 1995 (Public Law 104–4);
of intent to EPA for failure to perform
EPA is approving the following • Does not have Federalism
its nondiscretionary duty to act on the
infrastructure elements of 110(a)(2) as it implications as specified in Executive
state’s submission with respect to
relates to the 2010 SO2 and the 2012 Order 13132 (64 FR 43255, August 10,
element D(i)(II)—prong 4 for the 2010
PM2.5 NAAQS: (A) through (C), (D) (i) 1999);
NO2, 2010 SO2, and 2012 PM2.5 NAAQS,
(II)—Prong 3, (D) (ii), (E) through (H), • Is not an economically significant
failure to perform its nondiscretionary
and (J) through (M). As discussed in the regulatory action based on health or
duty to make a finding of failure to
TSD, EPA intends to act on section safety risks subject to Executive Order
submit with respect to the interstate
110(a)(2)(D)(i)(II)—prong 4, in a 13045 (62 FR 19885, April 23, 1997);
transport portions of SO2 NAAQS, and
for failing to perform its subsequent rulemaking and is not acting • Is not a significant regulatory action
nondiscretionary duty to act on the at this time on section subject to Executive Order 13211 (66 FR
110(a)(2)(D)(i)(I)—prongs 1 and 2, for 28355, May 22, 2001);
2 EPA’s 2013 Guidance of Infrastructure State
both the 2010 SO2 and 2012 PM2.5 • Is not subject to requirements of
Implementation Plan (SIP) Elements under Clean NAAQS. Section 12(d) of the National
Air Act Sections 110(a)(1) and 110(a)(2) provides Based upon review of the state’s Technology Transfer and Advancement
that ‘‘[o]ne way in which prong 4 may be satisfied infrastructure SIP submissions for the Act of 1995 (15 U.S.C. 272 note) because
for any relevant NAAQS is through an air agency’s 2010 NO2 and SO2 NAAQS as well as application of those requirements would
confirmation in its infrastructure SIP submission
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that it has an approved regional haze SIP . . . .’’ the 2012 PM2.5 NAAQS, and relevant be inconsistent with the Clean Air Act;
2013 Guidance at 33, https://www3.epa.gov/ statutory and regulatory authorities and and
airquality/urbanair/sipstatus/docs/Guidance_on_ provisions referenced in the • Does not provide EPA with the
Infrastructure_SIP_Elements_Multipollutant_ submissions or referenced in Nebraska’s discretionary authority to address, as
FINAL_Sept_2013.pdf.
3 Federal Implementation Plan for Best Available SIP, EPA believes that Nebraska has the appropriate, disproportionate human
Retrofit Technology Determination, 77 FR 40150 infrastructure to address all applicable health or environmental effects, using
(July 6, 2012). required elements of sections 110(a)(1) practicable and legally permissible
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![14182 Federal Register / Vol. 83, No. 64 / Tuesday, April 3, 2018 / Rules and Regulations
methods, under Executive Order 12898 the Federal Register. A major rule matter, Reporting and recordkeeping
(59 FR 7629, February 16, 1994). cannot take effect until 60 days after it requirements, Sulfur oxides, Volatile
In addition, the SIP is not approved is published in the Federal Register. organic compounds.
to apply on any Indian reservation land This action is not a ‘‘major rule’’ as Dated: March 15, 2018.
or in any other area where EPA or an defined by 5 U.S.C. 804(2).
James B. Gulliford,
Indian tribe has demonstrated that a Under section 307(b)(1) of the CAA,
tribe has jurisdiction. In those areas of petitions for judicial review of this Regional Administrator, Region 7.
Indian country, the rule does not have action must be filed in the United States For the reasons stated in the
tribal implications and will not impose Court of Appeals for the appropriate preamble, EPA amends 40 CFR part 52
substantial direct costs on tribal circuit by June 4, 2018. Filing a petition as set forth below:
governments or preempt tribal law as for reconsideration by the Administrator
specified by Executive Order 13175 (65 of this final rule does not affect the PART 52—APPROVAL AND
FR 67249, November 9, 2000). finality of this action for the purposes of PROMULGATION OF
The Congressional Review Act, 5 judicial review nor does it extend the IMPLEMENTATION PLANS
U.S.C. 801 et seq., as added by the Small time within which a petition for judicial
Business Regulatory Enforcement review may be filed, and shall not ■ 1. The authority citation for part 52
Fairness Act of 1996, generally provides postpone the effectiveness of such rule continues to read as follows:
that before a rule may take effect, the or action. This action may not be Authority: 42 U.S.C. 7401 et seq.
agency promulgating the rule must challenged later in proceedings to
submit a rule report, which includes a enforce its requirements. (See section Subpart CC—Nebraska
copy of the rule, to each House of the 307(b)(2).)
Congress and to the Comptroller General ■ 2. Amend § 52.1420(e) by adding
of the United States. EPA will submit a List of Subjects in 40 CFR Part 52 entries ‘‘(32)’’, ‘‘(33)’’ and ‘‘(34)’’ in
report containing this action and other Environmental protection, Air numerical order to read as follows:
required information to the U.S. Senate, pollution control, Carbon monoxide,
§ 52.1420 Identification of Plan.
the U.S. House of Representatives, and Incorporation by reference,
the Comptroller General of the United Intergovernmental relations, Lead, * * * * *
States prior to publication of the rule in Nitrogen dioxide, Ozone, Particulate (e) * * *
EPA-APPROVED NEBRASKA NONREGULATORY PROVISIONS
Applicable
geographic or State submittal
Name of nonregulatory SIP provision EPA Approval date Explanation
nonattainment date
area
* * * * * * *
(32) Section 110(a)(2) Infrastructure Statewide ............. 2/7/13 4/3/2018, [Insert Federal This action addresses the following
Requirements for the 2010 NO2 Register citation]. CAA elements 110(a)(2)(A)
NAAQS. through (C), (D)(i)(I)—Prongs 1
and 2, (D)(i)(II)—Prong 3, (D)(ii),
(E) through (H), and (J) through
(M). [EPA–R07–OAR–2017–0477;
FRL–9976–09–Region 7].
(33) Section 110(a)(2) Infrastructure Statewide ............. 8/22/13 4/3/2018, [Insert Federal This action addresses the following
Requirements for the 2010 SO2 Register citation]. CAA elements 110(a)(2)(A)
NAAQS. through (C), (D)(i)(II)—Prong 3,
(D)(ii), (E) through (H), and (J)
through (M). [EPA–R07–OAR–
2017–0477; FRL–9976–09–Region
7].
(34) Section 110(a)(2) Infrastructure Statewide ............. 2/22/16 4/3/2018 and [Insert Fed- This action addresses the following
Requirements for the 2010 PM2.5 eral Register citation]. CAA elements 110(a)(2)(A)
NAAQS. through (C), (D)(i)(II)—Prong 3,
(D)(ii), (E) through (H), and (J)
through (M). [EPA–R07–OAR–
2017–0477; FRL–9976–09–Region
7].
[FR Doc. 2018–06654 Filed 4–2–18; 8:45 am]
BILLING CODE 6560–50–P
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![Federal Register / Vol. 83, No. 64 / Tuesday, April 3, 2018 / Rules and Regulations 14183
DEPARTMENT OF HEALTH AND on the NPRM and no comments were Confidential referee and peer reviewer
HUMAN SERVICES received on the SORN. No changes to identifying material is contained in
the proposed exemptions or to the records such as reference or
45 CFR Part 5b SORN were made as a result of recommendation letters, reviewer
[Docket Number NIH–2016–0001] comment received. The NIH research critiques, preliminary or final
and development award programs individual overall impact/priority score
RIN 0925–AA63 provide funds through contracts, records, and/or assignment of peer
cooperative agreements, and grants to reviewers to an application and other
Privacy Act; Implementation support biomedical and behavioral evaluative materials and data, which
AGENCY: National Institutes of Health research and development projects and referees and peer reviewers provide to
(NIH), Department of Health and Human centers, training, career development, the NIH Office of Extramural Research
Services (HHS). small business, and loan repayment and (OER) under express promises that they
ACTION: Final rule. other research programs. The NIH is will not be identified as the sources of
responsible to Congress and the U.S. the information, and which NIH/OER
SUMMARY: The Department of Health and taxpayers for carrying out its research compiles solely for the purpose of
Human Services (HHS or Department), and development award programs in a determining applicants’ suitability,
through the National Institutes of Health manner that facilitates research cost-
eligibility, or qualifications for federal
(NIH), is issuing this final rule to make effectively and in compliance with
contracts, grants, or cooperative
effective the exemptions that HHS/NIH applicable statutes, rules and
agreements. To the extent that records
proposed for a subset of records covered regulations, including 42 U.S.C. 217a,
in a new Privacy Act system of records, 281, 282, 41 U.S.C. 423 and 45 CFR part in System No. 09–25–0225 are retrieved
System No. 09–25–0225, NIH Electronic 75. The NIH uses an award process that by personal identifiers for individuals
Research Administration (eRA) Records relies on checks and balances, other than the referees and reviewers
(NIH eRA Records). The new system separation of responsibilities, and a two- (for example, individual applicants), the
covers records used in managing NIH level peer review system to ensure that exemptions for the new system will
research and development applications funding applications submitted to the enable the agency to prevent, when
and awards throughout the award NIH are evaluated in a manner that is appropriate, those individual record
lifecycle. The listed exemptions are fair, equitable, timely, and free of bias. subjects from having access to, and
necessary to maintain the integrity of The two-level peer review system is other rights under the Privacy Act with
the NIH extramural peer review and authorized by 42 U.S.C. 216, 42 U.S.C. respect to, confidential source-
award processes, and will enable the 282(b)(6), 42 U.S.C. 284(c)(3), and 42 identifying material in the records.
agency to prevent, when appropriate, U.S.C. 289a and governed by regulations Under the Privacy Act (5 U.S.C. 552a),
individual record subjects from having at 42 CFR part 52h, ‘‘Scientific Peer individuals have a right of access to
access to, and other rights under the Review of Research Grant Applications records about them in federal agency
Privacy Act with respect to, confidential and Research and Development Contract systems of records, and other rights with
source-identifying material in the Projects.’’ The two-level system respect to those records (such as
records. separates the scientific assessment of
notification, amendment, and an
DATES: This final rule is effective April proposed projects from policy decisions
accounting of disclosures), but the Act
3, 2018. about scientific areas to be supported
and the level of resources to be permits certain types of systems of
FOR FURTHER INFORMATION CONTACT:
allocated, which permits a more records (identified in section 552a (j)
Celeste Dade-Vinson, NIH Privacy Act objective and complete evaluation than and (k)) to be exempted from certain
Officer, Office of Management would result from a single level of requirements of the Act. Subsection
Assessment, National Institutes of review. The two-level review system is (k)(5) permits the head of an agency to
Health, 6011 Executive Boulevard, Suite designed to provide NIH officials with promulgate rules to exempt from the
601, MSC 7669, Rockville, Maryland the best available advice about scientific requirements in subsections (c)(3) and
20852, telephone 301–496–4606, fax and technical merit as well as program (d)(1) through (4) of the Act
301–402–0169, email privacy@ priorities and policy considerations. investigatory material compiled solely
mail.nih.gov. The initial or first level review involves for the purpose of determining
SUPPLEMENTARY INFORMATION: In panels of experts established according suitability, eligibility, or qualifications
accordance with the Privacy Act of 1974 to scientific disciplines, generally for Federal contracts, to the extent that
(Privacy Act), the exemptions were referred to as Scientific Review Groups the disclosure of such material would
described in a Notice of Proposed (SRGs), whose primary function is to reveal the identity of a source who
Rulemaking (NPRM) published for evaluate the scientific merit of grant furnished information to the
public notice and comment on applications. The second level of review Government under an express promise
December 8, 2016 (81 FR 88637). The of grant applications is performed by that the identity of the source would be
new system of records was described in National Advisory Boards or Councils held in confidence.
a System of Records Notice (SORN) composed of both scientific and lay
published for public notice and representatives. The recommendations On December 8, 2016, HHS/NIH
comment the same day (81 FR 88690). made by these Boards or Councils are published a System of Records Notice
Only certain confidential source- based not only on considerations of (SORN) describing the new system (81
FR 88690). On the same date, HHS/NIH
nshattuck on DSK9F9SC42PROD with RULES
identifying information was proposed to scientific merit as judged by the SRG
be exempted, from the accounting of but also on the relevance of a proposed also published a Notice of Proposed
disclosures, access and amendment, and project to the programs and priorities of Rulemaking (NPRM) (81 FR 88637)
notification provisions in subsections the NIH. Referees are those individuals proposing to exempt a subset of records
(c)(3) and (d)(1) through (4) of the who supply reference or other letters of in the system of records under
Privacy Act, based on subsection (k)(5) recommendations for a grant or subsection (k)(5) of the Privacy Act from
of the Act. One comment was received cooperative agreement applicant. requirements pertaining to providing an
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Document Created: 2018-04-03 00:49:38
Document Modified: 2018-04-03 00:49:38
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on May 3, 2018. | |
| Contact | Mr. Gregory Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, or by email at [email protected] | |
| FR Citation | 83 FR 14179 |
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