[Federal Register Volume 87, Number 96 (Wednesday, May 18, 2022)]
[Rules and Regulations]
[Pages 30105-30108]
[FR Doc No: 2022-10224]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60, 61, 62, and 70

[EPA-R08-OAR-2021-0732; FRL-9829-02-R8]

Approval of Clean Air Act Operating Permit Program Revisions;
Negative Declaration of Existing Hospital/Medical/Infectious Waste
Incinerators and Administrative Updates; South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: With this direct final rule, the Environmental Protection
Agency (EPA or the ``Agency'') is promulgating approval of revisions to
the South Dakota operating permit program for stationary sources under
Clean Air Act (CAA) title V (the ``title V program''), a Clean Air Act
(CAA) section 111(d)/129 negative declaration for incinerators subject
to the Hospital/Medical/Infectious Waste Incinerators (HMIWI) Emissions
Guidelines, and making administrative updates. EPA is taking this final
action in accordance with the CAA.

DATES: This direct final rule is effective on July 18, 2022 without
further notice, unless EPA receives adverse written comments on or
before June 17, 2022. If adverse comments are received, EPA will
publish a timely withdrawal of the direct final rule in the Federal
Register informing the public that the rule will not take effect.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-OAR-2021-0732. All documents in the docket are listed in
the www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available electronically in
www.regulations.gov. To reduce the risk of COVID-19 transmission, for
this action we do not plan to offer hard copy review of the docket.
Please email or call the person listed in the FOR FURTHER INFORMATION
CONTACT section if you need to make alternative arrangements for access
to the docket.

FOR FURTHER INFORMATION CONTACT: Carson Coate, Air and Radiation
Division, EPA, Region 8, Mail code 8ARD, 1595 Wynkoop Street, Denver,
Colorado, 80202-1129, telephone number:<PHONE_NUMBER>, email address:
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means EPA.

I. Why is EPA using a direct final rule?

    EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial action and anticipates no
adverse comments. However, elsewhere in this issue of the Federal
Register publication, EPA is publishing a separate document that will
serve as the proposal to approve South Dakota's title V program
revisions, the negative declaration for 40 CFR part 60, subpart Ce, and
the administrative updates to 40 CFR 60.4 and 61.04, if relevant
adverse comments are filed.
    If EPA receives adverse comments, EPA will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. EPA will address all public
comments in a subsequent final rule based on the proposed rule. EPA
will not institute a second comment period on this action. Any parties
interested in commenting must do so at this time.

II. Background

    Title V of the CAA as amended (42 U.S.C. 7401 et seq.) directs
states to develop and submit to EPA programs for issuing operating
permits to all major stationary sources and to certain other
sources.\1\ As required under title V, EPA promulgated regulations
establishing the minimum elements of an approvable state title V
program and defined the corresponding procedures by which the EPA will
approve, oversee and, when necessary, withdraw approval of a state
title V program.\2\ South Dakota received final, full approval of its
title V program effective on February 28, 1996.\3\
---------------------------------------------------------------------------

    \1\ 42 U.S.C. 7661a.
    \2\ 40 CFR part 70.
    \3\ 61 FR 2720 (Jan. 29, 1996).
---------------------------------------------------------------------------

    Sections 111(d) and 129 of the CAA require states to submit plans
to control certain pollutants (designated pollutants) at existing solid
waste combustor facilities (designated facilities) whenever standards
of performance have been established under section 111(b) for new
sources of the same type, and EPA has established emissions guidelines
for such existing sources.\4\ CAA section 129 directs EPA to establish
standards of performance for new sources (NSPS) and emissions
guidelines for existing sources for each category of solid waste
incineration unit.\5\ Under CAA section 129, NSPS and emissions
guidelines must contain numerical emissions limitations for particulate
matter, opacity (as appropriate), sulfur dioxide, hydrogen chloride,
oxides of nitrogen, carbon monoxide, lead, cadmium, mercury, and
dioxins and dibenzofurans.\6\ While NSPS are directly applicable to
affected facilities, emissions guidelines for existing units are
intended for states to use to develop a state plan to submit to EPA.\7\
When an affected facility is located in a state, the state must then
develop and submit a plan for the

control of the designated pollutant.\8\ Once approved by EPA, the state
plan becomes federally enforceable. If a state does not submit an
approvable state plan to EPA, EPA is responsible for developing,
implementing, and enforcing a federal plan.\9\
---------------------------------------------------------------------------

    \4\ 42 U.S.C. 7411(d), 7429(b)(2).
    \5\ 42 U.S.C. 7429(a).
    \6\ Id. 7429(a)(4).
    \7\ Id. 7429(b)(2).
    \8\ Id. See also id. 7411(d)(1).
    \9\ Id.
---------------------------------------------------------------------------

    The regulations at 40 CFR part 60, subpart B (Subpart B), contain
general provisions applicable to the adoption and submittal of state
plans for controlling designated pollutants. Additionally, 40 CFR part
62, subpart A, provides the procedural framework by which EPA will
approve or disapprove such plans submitted by a state. However, 40 CFR
60.23(b) and 62.06 provide that if there are no existing sources of the
designated pollutant in the state, the state may submit a letter of
certification to that effect (i.e., a negative declaration) in lieu of
a plan. The negative declaration exempts the state from the
requirements of Subpart B that require the submittal of a CAA section
111(d)/129 plan.\10\
---------------------------------------------------------------------------

    \10\ 40 CFR 60.23(b).
---------------------------------------------------------------------------

    EPA promulgated the HMIWI NSPS and emissions guidelines in 1997 and
2009. The emissions guidelines are codified at 40 CFR part 60, subpart
Ce. Thus, states were required to submit plans for incinerators subject
to the HMIWI emissions guidelines pursuant to sections 111(d) and 129
of the Act and Subpart B or negative declarations pursuant to 40 CFR
60.23(b) and 62.06.\11\
---------------------------------------------------------------------------

    \11\ 40 CFR 60.39e.
---------------------------------------------------------------------------

III. State Submittal

    On January 3, 2020, in accordance with 40 CFR 70.4(i), South Dakota
submitted a request for approval of title V program revisions to
incorporate updated federal regulations through July 1, 2018, thereby
aligning state rules in South Dakota's Administrative Rules of South
Dakota (ARSD) with federal rules at 40 CFR part 70.\12\ Specifically,
South Dakota requested this change to Chapter 74:36:05--Operating
Permits for Part 70 Sources (sections 74:36:05:04(2) and (3), and
74:36:05:16.01(4), (8), (9), (17) and (18)) and Chapter 74:36:13--
Continuous Emission Monitoring Systems (section 74:36:13:08).\13\ South
Dakota's submittal included clean and redlined copies of the revised
ARSD, which are available in the docket for this action. The submittal
also included evidence that public notice of the State's proposed
submittal ran in eleven South Dakota newspapers, that impacted sources
and other interested parties were notified, and a public hearing was
held on October 17, 2019.\14\ The State received no adverse public
comments on the requested changes to 74:36:05 and 74:36:13.
---------------------------------------------------------------------------

    \12\ See South Dakota 111d Package to EPA, p. 100, 120, 123-124,
January 3, 2020 (public notice explaining purpose of the regulations
and Proposed Amendments explaining requested changes).
    \13\ Letter from Hunter Roberts, Secretary, South Dakota
Department of Environment and Natural Resources, to Gregory Sopkin,
Regional Administrator, EPA Region 8, January 3, 2020. This letter
contained multiple requests. In this action we are addressing only
the request to revise South Dakota's title V operating permit
program. See id. at p. 5-6.
    \14\ South Dakota 111d Package to EPA, p. 793-797.
---------------------------------------------------------------------------

    On June 7, 2021, South Dakota submitted a negative declaration for
the HMIWI emissions guidelines in accordance with CAA sections 111(d)
and 129 and 40 CFR 60.23(b) and 62.06. The negative declaration
certified that no incinerators subject to the HMIWI emissions
guidelines and the requirements of sections 111(d) and 129 of the CAA
exist in South Dakota. Specifically, South Dakota had one facility,
located at the University of South Dakota, that was considered a co-
fired combustor under the HMIWI NSPS. The University of South Dakota
disconnected the natural gas supply line to the incinerator in 2012 and
requested that the incinerator be removed from its title V air quality
operating permit in 2019.\15\ Therefore, South Dakota determined that
there were no longer any sources subject to the HMIWI emissions
guidelines.\16\
---------------------------------------------------------------------------

    \15\ Letter from Brian Limoges, Assistant Vice President of
Facilities Management, University of South Dakota, to Kyrik
Rombough, South Dakota Department of Environment and Natural
Resources, Re: Incinerator Permit 28.2201-19, July 13, 2019.
    \16\ Letter from Kyrik Rombough, South Dakota Department of
Agriculture and Natural Resources, to Carl Daly, Acting Director of
Air & Radiation Division, EPA Region 8, June 7, 2021.
---------------------------------------------------------------------------

    On April 16, 2021, South Dakota's Office of Attorney General
submitted a letter notifying EPA of the establishment of the South
Dakota Department of Agriculture and Natural Resources (DANR). The
letter stated that on January 19, 2021, South Dakota Governor, Kristi
Noem, executed Executive Order 2021-03, which provided for the merger
of the South Dakota Department of Agriculture (DOA) and the South
Dakota Department of Environment and Natural Resources (DENR) into one
department--the DANR. According to the South Dakota Constitution,
executive reorganization orders become effective ``within ninety days
after submission'' of the executive order to the South Dakota
Legislature (Legislature) unless one of the two houses of the
Legislature disapproves of the executive reorganization (S.D.
Constitution, Article IV, Section 8).\17\ During the 2021 session,
neither house of the Legislature passed a resolution of disapproval of
Governor Noem's Executive Order 2021-03 and the Order became effective
April 19, 2021.\18\
---------------------------------------------------------------------------

    \17\ SD DANR Merger SIP Submittal, January 21, 2022, p. 27-28,
Letter from Steven R. Blair, Assistant Attorney General, South
Dakota Office of Attorney General, to Deb Thomas, Acting Regional
Administrator, EPA Region 8, Re: Establishment of South Dakota
Department of Agriculture and Natural Resources, April 16, 2021.
    \18\ SD DANR Merger SIP Submittal, p. 1, Letter from Hunter
Roberts, Secretary, South Dakota Department of Agriculture and
Natural Resources, to KC Becker, Regional Administrator, EPA Region
8, January 20, 2022.
---------------------------------------------------------------------------

    In the April 16, 2021 letter, Assistant Attorney General Steven R.
Blair stated that all State programs previously authorized to carry out
EPA programs would continue to function in the same manner and all
current environmental protection activities conducted under existing
EPA approved or delegated programs under the DOA and/or the DENR would
continue intact under the newly established DANR. Further, Mr. Blair
stated that the merger caused no substantive budgetary or personnel
changes, that the new DANR has all the authorities, powers, and duties
of the previous DOA and DENR, and that the laws in effect at the time
EPA approved or delegated authority to DOA and/or DENR continue to be
fully effective and enforceable. Mr. Blair explained that the merger
did not require any substantive changes to state law or administrative
rules; the statutes and rules were merely updated to reflect the name
of the new department.\19\
---------------------------------------------------------------------------

    \19\ SD DANR Merger SIP Submittal, p. 27-28.
---------------------------------------------------------------------------

    In a January 20, 2022 letter, the Secretary of the DANR, Hunter
Roberts (the Governor's designee), submitted a request that EPA
recognize the merger of South Dakota's DOA with the DENR to form the
new DANR and incorporate corresponding revisions to the ARSD related to
South Dakota's state implementation plan (SIP). Secretary Roberts
stated that the ARSD provisions were automatically updated with the
DANR's new name during the merger process. Additionally, Secretary
Roberts stated that South Dakota's Board of Minerals and Environment
approved the DANR's request to ask EPA to recognize the department's
new name in South Dakota's SIP during a public hearing on December 16,
2021. Secretary Roberts further confirmed that the merger did not cause
a substantive change to state law or administrative rules and that DANR
maintains the same authorities, powers, and duties covered and

implemented under the previous department name.\20\
---------------------------------------------------------------------------

    \20\ SD DANR Merger SIP Submittal, p.1, Letter from Hunter
Roberts, Secretary, South Dakota Department of Agriculture and
Natural Resources, to KC Becker, Regional Administrator, EPA Region
8, January 20, 2022.
---------------------------------------------------------------------------

IV. Final Action

    South Dakota submitted the necessary information for EPA to review
the title V program revisions, the 111(d) negative declaration, and the
non-substantive revisions to South Dakota's ARSD to reflect the merger
of South Dakota's DOA with the DENR to form the new DANR. EPA is now
acting to fully approve South Dakota's January 3, 2020 and January 20,
2022 title V program revisions under 40 CFR 70.4(i). Specifically, we
are approving changes to ARSD 74:36:05:04(2) and (3),
74:36:05:16.01(4), (8), (9), (17) and (18), and 74:36:13:08 so that
they align with federal regulations promulgated through July 1, 2018.
    In addition, we are approving the department name change to the
DANR in South Dakota's title V program fees rule at ARSD 74:37:01:08.
In its SIP submittal dated January 20, 2022, South Dakota inadvertently
included this non-SIP provision. In a March 4, 2022 email, Kyrik
Rombough, South Dakota's State Air Director, confirmed that ARSD
74:37:01:08 contains the fee provision for the State's title V
operating permit program and should be included in the update to the
title V program.\21\ Thus, EPA is taking action to approve the change
to ARSD 74:37:08 in this direct final rule. We are also updating 40 CFR
part 70, appendix A to reference the January 3, 2020, and January 20,
2022 requested revisions. We are also making an administrative update
to 40 CFR part 70, appendix A to delete reference to the expiration of
an outdated interim approval and instead include reference to our full
approval of South Dakota's title V program in 1996.
---------------------------------------------------------------------------

    \21\ See Email dated March 4, 2022, from Kyrik Rombough,
Engineer Manager III, South Dakota Department of Agriculture and
Natural Resources, to Monica Morales, Acting Deputy Director, EPA
Region 8 Air and Radiation Division.
---------------------------------------------------------------------------

    EPA is also approving South Dakota's June 7, 2021 negative
declaration certifying that no incinerators subject to the HMIWI
emissions guidelines and the requirements of sections 111(d) and 129 of
the CAA exist in South Dakota per CAA sections 111(d) and 129 and 40
CFR 60.23(b) and 62.06. We are also updating 40 CFR part 62, subpart
QQ, and 40 CFR part 62, subpart A. The negative declaration fulfills
South Dakota's obligations under CAA sections 111(d) and 129. The
submittal of this negative declaration exempts South Dakota from the
requirement to submit a state plan for incinerators subject to the
HMIWI emissions guidelines under 40 CFR part 60, subpart Ce.
    EPA is also changing ``Department of Environment and Natural
Resources'' to ``Department of Agriculture and Natural Resources'' in
40 CFR 60.4(b)(43) and changing ``Department of Water and Natural
Resources'' to ``Department of Agriculture and Natural Resources'' in
61.04(b)(43). These are non-substantive, administrative changes that
reflect DANR's new name.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a state
title V program submittal that complies with the provisions of the Act
and applicable federal regulations; 40 CFR 70.4(i). Thus, in reviewing
title V program submittals, EPA's role is to approve state choices,
provided they meet the criteria of the CAA and the criteria, standards
and procedures defined in 40 CFR part 70. The Administrator is also
required by the CAA to approve a CAA section 111(d)/129 submission that
complies with the provisions of the Act and applicable Federal
regulations. 42 U.S.C. 7411(d); 42 U.S.C. 7429; 40 CFR part 60,
subparts B and Ce; and 40 CFR part 62, subpart A. Accordingly, this
action merely approves state law as meeting Federal 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);
     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 action is not approved to apply in Indian country, as defined at
18 U.S.C. 1151, or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. As such, this 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 18, 2022. 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

40 CFR Part 60

    Environmental protection, Administrative practice and procedure,

Air pollution control, Aluminum, Beverages, Carbon monoxide, Chemicals,
Coal, Electric power plants, Fluoride, Gasoline, Glass and glass
products, Grains, Greenhouse gases, Hazardous substances, Household
appliances, Industrial facilities, Insulation, Intergovernmental
relations, Iron, Labeling, Lead, Lime, Metals, Motor vehicle pollution,
Natural gas, Nitrogen dioxide, Petroleum, Phosphate, Plastics materials
and synthetics, Polymers, Reporting and recordkeeping requirements,
Rubber and rubber products, Sewage disposal, Steel, Sulfur oxides,
Vinyl, Volatile organic compounds, Waste treatment and disposal, Zinc.

40 CFR Part 61

    Environmental protection, Administrative practice and procedure,
Air pollution control, Arsenic, Asbestos, Benzene, Beryllium, Hazardous
substances, Intergovernmental relations, Mercury, Radioactive
materials, Radon, Reporting and recordkeeping requirements, Uranium,
Vinyl chloride.

40 CFR Part 62

    Environmental protection, Administrative practice and procedure,
Air pollution control, Aluminum, Fertilizers, Fluoride, Industrial
facilities, Intergovernmental relations, Methane, Ozone, Phosphate,
Reporting and recordkeeping requirements, Sulfur oxides, Volatile
organic compounds, Waste treatment and disposal.

40 CFR Part 70

    Environmental protection, Air pollution control, Intergovernmental
relations, Title V.

    Dated: May 8, 2022.
KC Becker,
Regional Administrator, Region 8.
    40 CFR parts 60, 61, 62 and 70 are amended as follows:

PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES

0
1. The authority citation for part 60 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq. 42 U.S.C. 7401-7601.

Subpart A--General Provisions

0
2. In Sec.  60.4, revise paragraph (b)(43) to read as follows:

Sec.  60.4  Address.

* * * * *
    (b) * * *
    (43) State of South Dakota, Air Quality Program, Department of
Agriculture and Natural Resources, Joe Foss Building, 523 East Capitol,
Pierre, SD 57501-3181.
* * * * *

PART 61--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS

0
3. The authority citation for part 61 continues to read as follows:

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

Subpart A-General Provisions

0
4. In Sec.  61.04, revise paragraph (b)(43) to read as follows:

Sec.  61.04  Address.

* * * * *
    (b) * * *
    (43) State of South Dakota, Department of Agriculture and Natural
Resources, Air Quality Program, Joe Foss Building, 523 East Capitol,
Pierre, SD 57501-3181.
* * * * *

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED
FACILITIES AND POLLUTANTS

0
5. The authority citation for part 62 continues to read as follows:

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

Subpart QQ--South Dakota

0
6. Revise Sec.  62.10360 to read as follows:

Sec.  62.10360  Identification of plan.

    The State of South Dakota submitted a letter on June 7, 2021,
certifying that there are no designated facilities subject to the
emissions guidelines for existing hospital medical infectious waste
incinerators under 40 CFR part 60, subpart Ce, operating within the
State's jurisdiction.

Sec. Sec.  62.10361 and 62.10362   [Removed]

0
7. Remove Sec. Sec.  62.10361 and 62.10362.

PART 70--STATE OPERATING PERMIT PROGRAMS

    The authority citation for part 70 continues to read as follows:

0
8. The authority citation for part 70 continues to read as follows:

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

0
9. In appendix A to part 70 the entry ``South Dakota'' is amended by
revising paragraph (a) and adding paragraph (d) to read as follows:

Appendix A to Part 70--Approval Status of State and Local Operating
Permits Programs

* * * * *

South Dakota

    (a) South Dakota Department of Agriculture and Natural
Resources: Submitted on November 12, 1993; full approval effective
on February 28, 1996.
* * * * *
    (d) The State of South Dakota submitted operating permit program
revisions on January 3, 2020 and January 22, 2022. On January 3,
2020, South Dakota submitted for program approval revisions to the
Administrative Rules of South Dakota, Chapters 74:36:05:04(2),
74:36:05:04(3), 74:36:05:16.01(4), 74:36:05:16.01(8),
74:36:05:16.01(9), 74:36:05:16.01(17), 74:36:05:16.01(18), and
74:36:13:08. The state effective date of these revisions is November
25, 2019. On January 22, 2022, South Dakota submitted for program
approval revisions to Administrative Rules of South Dakota, Chapter
74:37:01:08. The state effective date is April 19, 2021. The
revisions are effective on July 18, 2022.
* * * * *
[FR Doc. 2022-10224 Filed 5-17-22; 8:45 am]
BILLING CODE 6560-50-P


2016, as discussed above, we propose to conditionally approve the
quantitative milestone component of the 2015 PM2.5 Plan.
    We note that, consistent with the requirements of CAA section
189(c)(2) as interpreted in longstanding EPA policy, each of the
milestone reports due March 31, 2018 (for the December 31, 2017
milestone date) and March 31, 2021 (for the December 31, 2020 milestone
date) should include technical support sufficient to document
completion statistics for appropriate milestones, e.g., calculations
and any assumptions made concerning emission reductions to date.\508\
---------------------------------------------------------------------------

    \508\ Addendum at 42017.
---------------------------------------------------------------------------

G. Contingency Measures

1. Requirements for Contingency Measures
    Under CAA section 172(c)(9), PM2.5 attainment plans must
include contingency measures to be implemented if an area fails to meet
RFP (``RFP contingency measures'') or fails to attain the
PM2.5 standards by the applicable attainment date
(``attainment contingency measures''). Under subpart 4, however, the
EPA interprets section 172(c)(9) in light of the specific requirements
for particulate matter nonattainment areas. Section 189(b)(1)(A)
differentiates between attainment plans that provide for timely
attainment and those that demonstrate that attainment is impracticable.
The 2015 PM2.5 Plan is a Serious area plan that demonstrates
attainment of the 1997 24-hour PM2.5 NAAQS by December 31,
2018 and attainment of the 1997 annual PM2.5 NAAQS by
December 31, 2020, and thus, must include contingency measures for RFP
and attainment.
    The purpose of contingency measures is to continue progress in
reducing emissions while a state revises its SIP to meet the missed RFP
requirement or to correct continuing nonattainment. The principle
requirements for contingency measures are: \509\
---------------------------------------------------------------------------

    \509\ General Preamble at 13543-13544 and Addendum at 42014-
42015.
---------------------------------------------------------------------------

     Contingency measures must be fully adopted rules or
control measures that are ready to be implemented quickly upon failure
to meet RFP or failure of the area to meet the relevant NAAQS by the
applicable attainment date.
     The SIP should contain trigger mechanisms for the
contingency measures, specify a schedule for implementation, and
indicate that the measures will be implemented without further action
by the State or by the EPA. In general, we expect all actions needed to
affect full implementation of the measures to occur within 60 days
after EPA notifies the State of a failure.
     The contingency measures should consist of other control
measures for the area that are not already relied upon to

demonstrate attainment (e.g., to meet RACM/RACT, BACM/BACT, or MSM
requirements) or to meet RFP.
     The measures should provide for emissions reductions
equivalent to approximately one year of reductions needed for RFP
calculated as the overall level of reductions needed to demonstrate
attainment divided by the number of years from the base year to the
attainment year.
    Finally, we note that contingency measures can include federal,
state, and local measures that are already scheduled for implementation
or already implemented that provide for additional emissions reductions
that are not relied on to demonstrate RFP or attainment. In other
words, contingency measures are intended to achieve reductions over and
beyond those relied on in the RFP and attainment demonstrations.
Nothing in the CAA precludes a state from implementing such measures
before they are triggered by a failure to meet RFP or a failure to
attain by the applicable attainment date. EPA has approved numerous
SIPs under this interpretation.\510\
---------------------------------------------------------------------------

    \510\ See, for example, 62 FR 15844 (April 3, 1997) (direct
final rule approving Indiana ozone SIP revision); 62 FR 66279
(December 18, 1997) (final rule approving Illinois ozone SIP
revision); 66 FR 30811 (June 8, 2001) (direct final rule approving
Rhode Island ozone SIP revision); 66 FR 586 (January 3, 2001) (final
rule approving District of Columbia, Maryland, and Virginia ozone
SIP revisions); and 66 FR 634 (January 3, 2001) (final rule
approving Connecticut ozone SIP revision); see also LEAN v. EPA, 382
F.3d 575 (5th Cir. 2004) (upholding contingency measures that were
previously required and implemented where they were in excess of the
attainment demonstration and RFP SIP).
---------------------------------------------------------------------------

2. Contingency Measures in the 2015 PM2.5 Plan
    The 2015 PM2.5 Plan addresses the contingency measure
requirement in Chapter 6, section 6.4 (``Contingency Measures'') of the
Plan and in the CARB Staff Report, pages 26-27. Chapter 6, section 6.4
addresses contingency measure requirements for the 2014 and 2017 RFP
milestone years and for the 2020 attainment year by discussing emission
reductions to be achieved by already adopted measures, voluntary
incentive programs, and inter-pollutant trading between
PM2.5 and NOX for the 2020 attainment year. The
CARB Staff Report, p. 26-27, provides a brief statement on contingency
measures for the 2018 attainment year for the 24-hour PM2.5
NAAQS and identifies several additional control measures to address the
2020 attainment year for the annual PM2.5 NAAQS. Chapter 6
states that a year's worth of annual average emission reductions needed
to demonstrate RFP (``One year's worth of RFP'') is calculated by
taking the overall level of emission reductions needed to demonstrate
attainment and dividing it by the number of years between the base year
and attainment year.\511\ Table 6-9 of the Plan (Contingency Emissions
Reductions Target (tpd)) is reproduced below:
---------------------------------------------------------------------------

    \511\ 2015 PM2.5 Plan, Chapter 6, Section 6.4, p. 6-
9, Table 6-9.

------------------------------------------------------------------------
                                                        Contingency Need
                                                         = ``One year's
                                                         worth of RFP''
------------------------------------------------------------------------
Direct PM2.5..........................................               0.4
NOX...................................................              15.7
SOX...................................................               0
------------------------------------------------------------------------
Source: 2015 PM2.5 Plan, Chapter 6, Section 6.4, Table 6-9.

    Chapter 6 of the Plan identifies emission reductions to be achieved
by the control strategy in the Plan in 2014 and 2017 that the District
considers ``surplus'' to those reductions necessary to demonstrate RFP.
The District states that these emission reductions are thus available
to meet the contingency measure requirement.\512\ Table 6-10 of the
Plan (Reductions Surplus to RFP for Contingency (tpd)), reproduced
below, identifies the PM2.5 and NOX emission
reductions in 2014 and 2017 that the District considers ``surplus'' to
RFP requirements:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               2014                                            2017
                                                         -----------------------------------------------------------------------------------------------
                          Year                              RFP target       Projected                      RFP target       Projected
                                                             emissions       emissions      Contingency      emissions       emissions      Contingency
                                                               level         inventory                         level         inventory
--------------------------------------------------------------------------------------------------------------------------------------------------------
PM2.5...................................................            65.2            63.3             1.9            64.0            62.5             1.5
NOX.....................................................           300.9           284.2            16.7           253.9           235.7            18.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: 2015 PM2.5 Plan, Chapter 6, Section 6.4, Table 6-10.

    For the 2020 attainment year, the Plan provides estimates of
emission reductions projected in 2021 from a combination of adopted
state and local measures, including District Rules 4901, 4306, 4308,
and 4905 for direct PM2.5 and NOX and mobile
source measures for several source categories for NOX.\513\
Table 6-11 of the Plan identifies 1.6 tpd of direct PM2.5
and 12.0 tpd of NOX emission reductions as reductions that
are available to meet the 2020 attainment contingency measure
requirement. In order to address a shortfall of needed NOX
emission reductions, the District relies on inter-pollutant trading of
direct PM2.5 emission reductions for NOX emission
reductions at a ratio of 1:9 and, based on this analysis, concludes
that there are sufficient emission reductions to meet the attainment
contingency requirement.\514\ The CARB Staff Report also addresses
contingency measures for the 2020 attainment year. It identifies
additional direct PM2.5 and NOX emission
reductions to be achieved by the following control measures: ARB mobile
source measures, the Portable Equipment Registration Program (PERP) and
Airborne Toxic Control Measure (ATCM), Indirect Source Review (ISR) on-
site mitigation (i.e., District Rule 9510), and the AERO \515\ rule
(i.e., District Rule 4320). Based on these analyses, CARB concludes
that the SIP control strategy achieves emission reductions sufficient
to meet the attainment contingency measure requirement for the annual
PM2.5 NAAQS.
---------------------------------------------------------------------------

    \513\ 2015 PM2.5 Plan, Chapter 6, Section 6.4, p. 6-
11, Table 6-11.
    \514\ 2015 PM2.5 Plan, p. 6-12, Table 6-12.
    \515\ AERO stands for Advanced Emission Reduction Options for
Boilers, Steam Generators, and Process Heaters Greater Than 5.0
MMBtu/hr.
---------------------------------------------------------------------------

    Finally, for the 2018 attainment year for the 24-hour
PM2.5 NAAQS, the CARB Staff Report states that ``additional
reductions in 2019 provide 0.2 tpd of PM2.5 and 10 tpd of
NOX reductions'' but does not identify the control measures
that achieve these emission reductions.\516\
---------------------------------------------------------------------------

    \516\ 2015 PM2.5 Plan, CARB Staff Report, p. 27.
---------------------------------------------------------------------------

3. EPA's Evaluation of the 2015 PM2.5 Plan's Contingency
Measures
    The contingency measures portion of the 2015 PM2.5 Plan
contains several deficiencies.
    First, the Plan incorrectly calculates one year's worth of RFP
emission

reductions. Although Chapter 6 of the Plan correctly describes the
required steps for calculating one year's worth of annual average
emission reductions needed to demonstrate RFP, the actual calculation
in the Plan is based on 2020 baseline emission reductions estimates
\517\ rather than the attainment targets of 60.8 tpd of direct
PM2.5 and 206.5 tpd NOX.\518\ EPA recalculated
one year's worth of RFP emission reductions based on the attainment
emission levels presented in the Plan, as shown in Table 12 below.
---------------------------------------------------------------------------

    \517\ See 2015 PM2.5 Plan, Chapter 6, Section 6.3,
Table 6-6, Total Reductions Necessary to Reach Attainment (tpd). The
``Attainment Emissions Level'' used in Table 6-6 of the Plan reflect
the projected emission inventory levels found in Appendix B Emission
Inventory Tables, and does not reflect the attainment target levels
identified by the CARB Staff Report, section II.B. Attainment
Emission Levels, Table 1.
    \518\ CARB Staff Report, section II.B. Attainment Emission
Levels, p. 9.

          Table 12--EPA's Calculation of ``One Year's Worth of RFP'' Using Attainment Emissions Levels
----------------------------------------------------------------------------------------------------------------
                                                                    Calculation of ``One Year's Worth of RFP''
                                                                      Using Attainment Emissions Levels (tpd)
                                                                 -----------------------------------------------
                                                  2012 Base year                                    One year's
                                                     emissions         2020       Total emission   worth of RFP
                                                       (tpd)        Attainment       reduction       emission
                                                                     emissions         (tpd)        reductions
                                                                       (tpd)                           (tpd)
----------------------------------------------------------------------------------------------------------------
Direct PM2.5....................................            66.0            60.8             5.2            0.65
NOX.............................................           332.2           206.5           125.7            15.7
SOX.............................................             8.1             7.8             0.3             0.0
----------------------------------------------------------------------------------------------------------------
Source: 2015 PM2.5 Plan, Chapter 6, Section 6.4, Table 6-6 and CARB Staff Report, p. 9.

    Thus, according to EPA's calculation, one year's worth of RFP is
0.65 tpd of direct PM2.5, 15.7 tpd of NOX and 0.0
tpd of SOX. The NOX and SOX values are
essentially identical to the values identified in Chapter 6 of the Plan
(and reproduced in Table 6-9 above), but EPA's calculation of the
direct PM2.5 emission reductions representing one year's
worth of RFP is significantly higher than the value identified in
Chapter 6 of Plan. Consequently, the Plan significantly underestimates
the direct PM2.5 emission reductions necessary to satisfy
contingency measure requirements.
    Second, the 2015 PM2.5 Plan does not provide an adequate
basis for the State's and District's conclusion that the emission
reductions identified for contingency measure purposes are in fact
``surplus'' to the reductions needed to demonstrate RFP and timely
attainment (e.g., for RACM/RACT, BACM/BACT, or MSM). Section 6.4.2 of
the Plan states that regulatory emission reductions to be achieved by
2014 and 2017 exceed the minimum emission reductions needed to
demonstrate RFP in those years but does not provide a basis for the
District's conclusion that the identified emission reductions are not
relied on to satisfy RFP requirements. Similarly, the Plan provides no
support for either the District's conclusion that ``additional
PM2.5 and NOX reductions occurring between 2020
and 2021 can serve as attainment contingencies'' or the State's
conclusion that ``[f]or the interim 24-hour 2018 attainment deadline,
additional reductions in 2019 provide for 0.2 tpd of PM2.5
and 10 tpd of NOX reductions.'' \519\
---------------------------------------------------------------------------

    \519\ 2015 PM2.5 Plan, Chapter 6, Section 6.4.2 and
CARB Staff Report, p. 27.
---------------------------------------------------------------------------

    Third, two of the control measures identified in the CARB Staff
Report as contingency measures--SJVUAPCD Rule 4320 (AERO Rule) and
SJVUAPCD Rule 9510 (ISR On-Site Mitigation)--are not creditable for SIP
purposes at this time. Rule 4320 (AERO Rule) is not SIP-creditable
because it contains provisions that allow owners and operators to pay a
fee in lieu of complying with the rule's emission limits and which
render the NOX emission limits in the rule
unenforceable.\520\ Rule 9510 (ISR On-Site Mitigation) is not SIP-
creditable because it likewise contains provisions that allow project
developers to pay fees instead of implementing on-site pollution
mitigation plans.\521\
---------------------------------------------------------------------------

    \520\ 75 FR 68294 (November 5, 2010) and 76 FR 16696 (March 25,
2011).
    \521\ 76 FR 26609 at 26612-26613 (May 9, 2011).
---------------------------------------------------------------------------

    Fourth, the contingency measure portion of the 2015
PM2.5 Plan indicates that the District is relying on ``SIP-
creditable incentive-based emissions reductions'' to address
contingency measure requirements but does not identify the specific
incentive grant programs expected to provide the requisite emission
reductions, nor does it provide the documentation and related
enforceable commitments necessary to support a SIP submission that
relies on incentive programs for SIP emission reduction credit.\522\
Finally, the contingency measure portion of the 2015 PM2.5
Plan does not discuss ammonia emissions or provide any basis for a
conclusion that contingency measures for purposes of ammonia are not
necessary to satisfy the statutory requirements.
---------------------------------------------------------------------------

    \522\ The CAA requires that emission reductions resulting from
incentive programs be ``quantifiable, surplus, enforceable and
permanent'' in order to qualify for emission reduction credit in a
SIP. See, e.g., ``Improving Air Quality with Economic Incentive
Programs,'' U.S. EPA, Office of Air and Radiation, January 2001; see
also 80 FR 19020 (April 9, 2015) (final action on SJVUAPCD Rule
9610).
---------------------------------------------------------------------------

    In sum, the 2015 PM2.5 Plan does not contain or identify
SIP-creditable measures that are surplus to RFP and attainment needs
and that are sufficient to achieve at least one year's worth of
emission reductions for each of the RFP and attainment years identified
in the Plan. Accordingly, we propose to disapprove the contingency
measure portion of the 2015 PM2.5 Plan for failure to
satisfy the requirements of CAA section 172(c)(9).

H. Major Stationary Source Control Requirements Under CAA Section
189(e)

    Section 189(e) of the Act specifically requires that the control
requirements applicable to major stationary sources of direct
PM2.5 also apply to major stationary sources of
PM2.5 precursors, except where the Administrator determines
that such sources do not contribute significantly to PM2.5
levels that exceed the standards in the area.\523\ The control
requirements applicable to major stationary sources of direct
PM2.5 in a Serious PM2.5 nonattainment area
include, at minimum, the requirements of a nonattainment new source
review (NNSR) permit program meeting the requirements of CAA sections
172(c)(5)

and 189(b)(3).\524\ As part of our April 7, 2015 final action to
reclassify the SJV area as Serious nonattainment for the 1997
PM2.5 standards, we established a May 7, 2016 deadline for
the State to submit NNSR SIP revisions addressing the requirements of
CAA sections 189(b)(3) and 189(e) of the Act.\525\
---------------------------------------------------------------------------

    \523\ General Preamble at 13539 and 13541-42.
    \524\ CAA section 189(b)(1) (requiring that Serious area plans
include provisions submitted to meet the requirements for Moderate
areas in section 189(a)(1)).
    \525\ 80 FR 18528 at 18533 (April 7, 2015).
---------------------------------------------------------------------------

    California has not yet submitted the NNSR SIP revisions required to
satisfy the subpart 4 requirements for Serious nonattainment areas
because they are not yet due. Accordingly, we are not proposing any
action with respect to these requirements at this time. CARB submitted
amendments to the SJVUAPCD's NNSR rules in 2011 to address the 1997
PM2.5 NAAQS to ensure that new and modified major sources of
PM2.5 undergo pre-construction review, and the EPA approved
these NNSR SIP revisions on September 17, 2014.\526\
---------------------------------------------------------------------------

    \526\ 79 FR 55637 (September 17, 2014).
---------------------------------------------------------------------------

I. Motor Vehicle Emission Budgets

1. Requirements for Motor Vehicle Emissions Budgets
    Section 176(c) of the CAA requires federal actions in nonattainment
and maintenance areas to conform to the SIP's goals of eliminating or
reducing the severity and number of violations of the NAAQS and
achieving expeditious attainment of the standards. Conformity to the
SIP's goals means that such actions will not: (1) Cause or contribute
to violations of a NAAQS, (2) worsen the severity of an existing
violation, or (3) delay timely attainment of any NAAQS or any interim
milestone.
    Actions involving Federal Highway Administration (FHWA) or Federal
Transit Administration (FTA) funding or approval are subject to the
EPA's transportation conformity rule, codified at 40 CFR part 93,
subpart A. Under this rule, metropolitan planning organizations (MPOs)
in nonattainment and maintenance areas coordinate with state and local
air quality and transportation agencies, EPA, FHWA, and FTA to
demonstrate that an area's regional transportation plans (RTP) and
transportation improvement programs (TIP) conform to the applicable
SIP. This demonstration is typically done by showing that estimated
emissions from existing and planned highway and transit systems are
less than or equal to the motor vehicle emissions budgets (budgets)
contained in all control strategy SIPs. An attainment, maintenance, or
RFP SIP should include budgets for the attainment year, each required
RFP milestone year, or the last year of the maintenance plan, as
appropriate. Budgets are generally established for specific years and
specific pollutants or precursors and must reflect all of the motor
vehicle control measures contained in the attainment and RFP
demonstrations.\527\
---------------------------------------------------------------------------

    \527\ 40 CFR 93.118(e)(4)(v).
---------------------------------------------------------------------------

    PM2.5 plans should identify budgets for direct
PM2.5, NOX and all other PM2.5
precursors whose on-road emissions are determined to significantly
contribute to PM2.5 levels in the area for each RFP
milestone year and the attainment year, if the plan demonstrates
attainment. All direct PM2.5 SIP budgets should include
direct PM2.5 motor vehicle emissions from tailpipes, brake
wear, and tire wear. A state must also consider whether re-entrained
paved and unpaved road dust or highway and transit construction dust
are significant contributors and should be included in the direct
PM2.5 budget.\528\
---------------------------------------------------------------------------

    \528\ 40 CFR 93.102(b) and 93.122(f); see also conformity rule
preamble at 69 FR 40004, 40031-40036 (July 1, 2004).
---------------------------------------------------------------------------

    Transportation conformity trading mechanisms are allowed under 40
CFR 93.124 where a SIP establishes appropriate mechanisms for such
trades. The basis for the trading mechanism is the SIP attainment
modeling which established the relative contribution of each
PM2.5 precursor pollutant.
    In general, only budgets in approved SIPs can be used for
transportation conformity purposes. However, section 93.118(e) of the
transportation conformity rule allows budgets in a SIP submission to
apply for conformity purposes before the SIP submission is approved
under certain circumstances. First, there must not be any other
approved SIP budgets that have been established for the same time
frame, pollutant, and CAA requirement. Second, the EPA must find that
the submitted SIP budgets are adequate for transportation conformity
purposes. To be found adequate, the submission must meet the conformity
adequacy requirements of 40 CFR 93.118(e)(4) and (5). The
transportation conformity rule does, however, allow for replacement of
previously approved budgets by submitted motor vehicle emissions
budgets that the EPA has found adequate, if the EPA has limited the
duration of its prior approval to the period before it finds
replacement budgets adequate.\529\
---------------------------------------------------------------------------

    \529\ 40 CFR 93.118(e)(1).
---------------------------------------------------------------------------

2. Motor Vehicle Emissions Budgets in the 2015 PM2.5 Plan
    The 2015 PM2.5 Plan includes budgets for direct
PM2.5 and NOX for 2014 and 2017 (RFP milestone
years), 2018 (projected attainment year for the 1997 24-hour NAAQS),
and 2020 (projected attainment year for the 1997 annual NAAQS).\530\
The budgets were calculated using EMFAC2014, CARB's latest version of
the EMFAC model for estimating emissions from on-road vehicles
operating in California.\531\ The SJV has eight separate county-based
MPOs; therefore, separate budgets are provided for each MPO as well as
a total for the nonattainment area as a whole. The budgets for 2014,
2017, and 2020 reflect annual daily average emissions, and the budgets
for 2018 reflect winter daily average emissions. Winter average day
emissions are used for the 2018 budgets because SJV's exceedances of
the PM2.5 24-hour NAAQS occur almost exclusively during the
winter months and are linked with the District's 2018 attainment
demonstration for the 24-hour PM2.5 NAAQS. Annual average
day emissions are used for the 2014 and 2017 budgets because the
District has determined that annual average day budgets are the more
protective of the two budgets options (i.e., annual versus 24-hour
NAAQS) for the RFP milestone years when both standards apply, as is the
case for the 2015 PM2.5 Plan. Annual average day emissions
are used for the 2020 budgets because those emissions are linked with
the District's attainment demonstration for the annual PM2.5
NAAQS.
---------------------------------------------------------------------------

    \530\ 2015 PM2.5 Plan, Chapter 6, Section 6.5.4 (for
2014, 2017, and 2020 budgets) and 2018 Transportation Conformity
Budgets for the San Joaquin Valley PM2.5 SIP Plan Supplement,''
dated June 19, 2015, and adopted by ARB Board on July 23, 2015, p.
4.
    \531\ EMFAC is short for EMission FACtor. EPA announced the
availability of the EMFAC2014 model for use in state implementation
plan development and transportation conformity in California on
December 14, 2015. EPA's approval of the EMFAC2014 emissions model
for SIP and conformity purposes was effective on the date of
publication of the notice in the Federal Register. EMFAC2014 must be
used for all new regional emissions analyses and CO, PM10
and PM2.5 hot-spot analyses that are started on or after
December 14, 2017, which is the end of the grace period for
EMFAC2014.
---------------------------------------------------------------------------

    The direct PM2.5 budgets include tailpipe, brake wear,
and tire wear emissions but exclude paved road, unpaved road, and road
construction dust based on the District's conclusion that these source
categories are insignificant contributors to PM2.5 levels in
the SJV.\532\ The Plan does not include budgets for SO2,
VOC, and ammonia. Under 40 CFR 93.102(b)(2)(v), the State

is not required to include budgets for VOC, sulfur dioxide
(SO2) and/or ammonia (NH3) unless EPA or the State has made
a finding that transportation-related emissions of any of these
precursors within the nonattainment area are a significant contributor
to the PM2.5 nonattainment problem. The District considered
on-road SO2, VOC, and ammonia emissions and concluded that
it is not necessary to control on-road SO2, VOC, and ammonia
emissions to attain the NAAQS. The District states in the Plan that on-
road mobile exhaust estimates of SOX are less than 1 ton per
day Valley-wide in the budget years; VOC emissions do not contribute
significantly to the formation of secondary PM2.5 in the
SJV; and on-road mobile exhaust estimates of ammonia are less than 1
ton per day Valley-wide in the budget years.\533\
---------------------------------------------------------------------------

    \532\ Plan at Chapter 6, Section 6.5.3.
    \533\ Id.

                                           Table 13--MVEBs for the San Joaquin Valley for 1997 PM2.5 Standard
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            2014                      2017                      2018                      2020
                                                 -------------------------------------------------------------------------------------------------------
                     County                         Annual average,  tpd      Annual average,  tpd      Winter average,  tpd      Annual average,  tpd
                                                 -------------------------------------------------------------------------------------------------------
                                                     PM2.5         NOX         PM2.5         NOX         PM2.5         NOX         PM2.5         NOX
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fresno..........................................          1.2         41.2          1.0         31.2          0.9         29.9          0.9         25.3
Kern (SJV)......................................          1.0         36.5          0.8         28.0          0.8         27.7          0.8         23.3
Kings...........................................          0.2          7.6          0.2          5.7          0.1          5.5          0.1          4.8
Madera..........................................          0.2          7.8          0.2          5.8          0.2          5.5          0.2          4.7
Merced..........................................          0.4         13.9          0.3         10.7          0.3         10.3          0.3          8.9
San Joaquin.....................................          0.7         19.6          0.6         14.9          0.6         14.4          0.6         11.9
Stanislaus......................................          0.5         15.6          0.4         11.9          0.4         11.4          0.4          9.6
Tulare..........................................          0.5         14.9          0.4         11.9          0.4         10.3          0.4          9.6
Totals \a\......................................          4.8        157.0          3.8        119.0          3.6        115.0          3.5         96.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sources: 2015 PM2.5 Plan, Chapter 6, p. 6-16; and Transportation Conformity Budgets for the San Joaquin Valley PM2.5 SIP, Plan Supplement, dated June
  19, 2015, and adopted by ARB Board on July 23, 2015.
\a\ Totals reflect disaggregated emissions and may not add exactly as shown here due to rounding.

    The 2015 PM2.5 Plan also includes a proposed trading
mechanism for transportation conformity analyses that would allow
future decreases in NOX emissions from on-road mobile
sources to offset any on-road increases in PM2.5, using a
NOX to PM2.5 ratio of 9:1.\534\ The State is
proposing to use the same 9:1 ratio that was in the 2008
PM2.5 Plan and approved by the EPA.\535\
---------------------------------------------------------------------------

    \534\ 2015 PM2.5 Plan, Chapter 6, p. 6-17.
    \535\ 76 FR 69896 (November 9, 2011).
---------------------------------------------------------------------------

    Using the same Community Multiscale Air Quality modeling
application \536\ underlying the attainment demonstrations in the prior
SJV 2008 PM2.5 Plan and the current 2015 PM2.5
Plan, CARB previously developed an equivalency ratio between emission
reductions of direct PM2.5 and of NOX. For each
pollutant, CARB modeled the ambient effect of a 10% reduction of
emissions over the modeling domain. The concentration change per
emission change gave a precursor effectiveness value for NOX
and an effectiveness value for direct PM2.5. The ratio of
these two effectiveness values provided the
NOX:PM2.5 trading ratio.
---------------------------------------------------------------------------

    \536\ The EPA approved this air quality modeling as part of its
approval of the attainment demonstration in the SJV PM2.5
Plan. See 76 FR 41338, 41349 and 76 FR 69896, 69924.
---------------------------------------------------------------------------

    To ensure that the trading mechanism does not affect the ability of
the SJV to meet the NOX budget, the NOX emission
reductions available to supplement the PM2.5 budget would
only be those remaining after the NOX budget has been met.
Each MPO responsible for demonstrating transportation conformity must
clearly document the calculations used in the trading, along with any
additional reductions of NOX or PM2.5 emissions
in the conformity analysis.
3. Evaluation and Proposed Actions
    We have evaluated the budgets against our adequacy criteria in 40
CFR 93.118(e)(4) and (5) as part of our review of the budgets'
approvability (see section V in the EPA's General TSD for this
proposal) and will complete the adequacy review of these budgets
concurrent with our final action on the 2015 PM2.5
Plan.\537\ On September 18, 2015, the EPA announced the availability of
the 2015 PM2.5 Plan with MVEBs and a 30-day public comment
period. This announcement was posted on EPA's Adequacy Web site at:
http://www.epa.gov/otaq/stateresources/transconf/reg9sips.htm#ca. The
comment period for this notification ended on October 19, 2015.
---------------------------------------------------------------------------

    \537\ Under the Transportation Conformity regulations, the EPA
may review the adequacy of submitted motor vehicle emission budgets
simultaneously with the EPA's approval or disapproval of the
submitted implementation plan. 40 CFR 93.118(f)(2).
---------------------------------------------------------------------------

    Based on the information about re-entrained road dust in the Plan
and in accordance with 40 CFR 93.102(b)(3), we propose to concur with
the District's finding that re-entrained road dust emissions from paved
roads, unpaved roads, and road construction are not significant
contributors to the PM2.5 nonattainment problem in the
Valley and that these emissions therefore do not need to be addressed
in the MVEBs (see discussion in section V.A.2 of this proposed rule).
Additionally, based on the information about VOC, SO2, and
ammonia emissions in the Plan and in accordance with 40 CFR
93.102(b)(2)(v), we propose to find that it is not necessary to
establish motor vehicle emissions budgets for transportation-related
emissions of VOC, SO2, and ammonia to attain the 1997
PM2.5 standards in the SJV.
    For the reasons discussed in section V.E.2 of this proposed rule,
we are proposing to approve the State's demonstration that it is
impracticable to attain the 1997 PM2.5 NAAQS in the SJV by
the applicable Serious area attainment date of December 15, 2015 and
proposing to extend the attainment dates to December 31, 2018 and
December 31, 2020 for the 24-hour and annual NAAQS, respectively.
    For the reasons discussed in sections V.E.v and V.F of this
proposed rule, we are proposing to approve the RFP and attainment
demonstrations in the 2015 PM2.5 Plan. The budgets, as given
in

Table 13 of this proposed rule, are consistent with these
demonstrations, are clearly identified and precisely quantified, and
meet all other applicable statutory and regulatory requirements
including the adequacy criteria in 93.118(e)(4) and (5). For these
reasons, the EPA proposes to approve the budgets listed in Table 13
above. We provide a more detailed discussion in section V of the EPA's
General TSD, which can be found in the docket for today's action.
    CARB has requested that we limit the duration our approval of the
budgets only until the effective date of the EPA's adequacy finding for
any subsequently submitted budgets.\538\ The transportation conformity
rule allows us to limit the approval of budgets.\539\ However, we will
consider a state's request to limit an approval of its MVEB only if the
request includes the following elements: \540\
---------------------------------------------------------------------------

    \538\ Letter, Richard W. Corey, Executive Officer, California
Air Resources Board, to Jared Blumenfeld, Regional Administrator,
EPA Region 9, June 25, 2015.
    \539\ 40 CFR 93.118(e)(1).
    \540\ 67 FR 69141 (November 15, 2002), limiting our prior
approval of MVEB in certain California SIPs.
---------------------------------------------------------------------------

     An acknowledgement and explanation as to why the budgets
under consideration have become outdated or deficient;
     A commitment to update the budgets as part of a
comprehensive SIP update; and
     A request that the EPA limit the duration of its approval
to the time when new budgets have been found to be adequate for
transportation conformity purposes.
    Because CARB's request does not include all of these elements, we
cannot at this time propose to limit the duration of our approval of
the submitted budgets until new budgets have been found adequate. In
order to limit the approval, we would need the information described
above in order to determine whether such limitation is reasonable and
appropriate in this case. Once CARB has adequately addressed that
information, we intend to review it and take appropriate action. If we
propose to limit the duration of our approval of the MVEB in the 2015
PM2.5 Plan, we will provide the public an opportunity to
comment. The duration of the approval of the budgets, however, would
not be limited until we complete such a rulemaking.
    We have previously approved motor vehicle emissions budgets for the
1997 annual and 24-hour PM2.5 NAAQS.\541\ These budgets will
continue to apply for the 1997 PM2.5 NAAQS in the SJV area
until we finalize our approval of the budgets in the 2015
PM2.5 Plan or find them adequate.
---------------------------------------------------------------------------

    \541\ 76 FR 69896, 69923 (November 9, 2011).
---------------------------------------------------------------------------

    As noted above, the State included a trading mechanism to be used
in transportation conformity analyses that would use the proposed
budgets in the 2015 PM2.5 Plan as allowed for under 40 CFR
93.124. This trading mechanism would allow future decreases in
NOX emissions from on-road mobile sources to offset any on-
road increases in PM2.5, using a NOX for
PM2.5 ratio of 9:1. To ensure that the trading mechanism
does not affect the ability to meet the NOX budget, the Plan
provides that the NOX emission reductions available to
supplement the PM2.5 budget would only be those remaining
after the NOX budget has been met. The Plan also provides
that each MPO responsible for demonstrating transportation conformity
shall clearly document the calculations used in the trading, along with
any additional reductions of NOX or PM2.5
emissions in the conformity analysis.
    The EPA has reviewed the trading mechanism as described on page 6-
17 in section 6.5.5 of Chapter 6 the 2015 PM2.5 Plan and
finds it is appropriate for transportation conformity purposes in the
San Joaquin Valley for the 1997 PM2.5 NAAQS. We note that
the 9:1 NOX for PM2.5 ratio the State is
proposing to use for transportation conformity purposes in the 2015
Plan is the same as previously approved by EPA in its action on the SJV
2008 PM2.5 Plan.\542\ We therefore propose to approve the
trading mechanism with a NOX for PM2.5 trading
ratio of 9:1 as enforceable components of the transportation conformity
program for the SJV for the 1997 PM2.5 NAAQS. For further
discussion of our evaluation of the 9:1 NOX for
PM2.5 trading ratio for purposes of the Plan's motor vehicle
emission budgets, please see section IV.B of the EPA's Interpollutant
Trading Ratios TSD.
---------------------------------------------------------------------------

    \542\ 76 FR 69896 (November 9, 2011).
---------------------------------------------------------------------------

VI. Summary of Proposed Actions and Request for Public Comment

    Under CAA sections 110(k)(3) and 110(k)(4), the EPA is proposing to
approve, conditionally approve, and disapprove SIP revisions submitted
by California to address the Act's Serious area planning requirements
for the 1997 PM2.5 NAAQS in the San Joaquin Valley
nonattainment area. Specifically, the EPA is proposing to approve the
following elements of the 2015 PM2.5 Plan:
    1. The 2012 base year emissions inventories as meeting the
requirements of CAA section 172(c)(3);
    2. the best available control measures/best available control
technology demonstration as meeting the requirements for RACM/RACT and
BACM/BACT in CAA sections 172(c)(1), 189(a)(1)(C), and 189(b)(1)(B);
    3. the attainment demonstration as meeting the requirements of CAA
sections 172(c)(1) and 189(b)(1)(A);
    4. the reasonable further progress demonstration as meeting the
requirements of CAA section 172(c)(2);
    5. the State's application for an extension of the Serious area
attainment date to December 31, 2018 for the 1997 24-hour
PM2.5 NAAQS and to December 31, 2020 for the 1997 annual
PM2.5 NAAQS, as meeting the requirements of CAA section
188(e);
    6. the District's commitment to amend and implement revisions to
Rule 4692 (``Commercial Charbroiling'') for under-fired charbroilers in
accordance with the schedule provided on page 7-6 of the 2015
PM2.5 Plan to achieve the emissions reductions identified
therein, as adopted in SJVUAPCD Governing Board Resolution 15-4-7A; and
    7. the 2014, 2017, 2018, and 2020 motor vehicle emissions budgets,
as shown in Table 13 of this proposed rule, because they are derived
from approvable attainment and RFP demonstrations and meet the
requirements of CAA section 176(c) and 40 CFR part 93, subpart A.
    EPA is also proposing to approve the interpollutant trading
mechanism provided in the 2015 PM2.5 Plan for use in
transportation conformity analyses, in accordance with 40 CFR 93.124,
with the condition that trades are limited to substituting excess
reductions in NOX emissions for direct PM2.5
emission reductions.
    Under CAA section 110(k)(4), the EPA is proposing to conditionally
approve the quantitative milestones identified in the 2015
PM2.5 Plan because they do not fully satisfy the requirement
for quantitative milestones in section 189(c) of the Act. Section
110(k)(4) authorizes the EPA to conditionally approve a plan revision
based on a commitment by the State to adopt specific enforceable
measures by a date certain but not later than one year after the date
of the plan approval. In this instance, the enforceable measures that
the State must submit are enforceable quantitative milestones that
enable the EPA to determine whether the area is meeting its reasonable
further progress goals as contemplated in the attainment plan and, if
the area is not doing so, that enable the EPA to require the State to

submit plan revisions to correct the deficiency. On December 15, 2015,
CARB submitted a letter committing to submit a SIP revision containing
specific quantitative milestones no later than December 31, 2016. If we
finalize this proposed conditional approval, CARB must adopt and submit
the SIP revisions it has committed to submit by December 31, 2016. If
CARB fails to comply with this commitment, this conditional approval
will convert to a disapproval and start an 18-month clock for sanctions
under CAA section 179(a)(2) and a two-year clock for a federal
implementation plan (FIP) under CAA section 110(c)(1).
    Finally, under CAA section 110(k)(3), the EPA is proposing to
disapprove the contingency measure portion of the 2015 PM2.5
Plan because it does not fully satisfy the requirement for contingency
measures in section 172(c)(9) of the Act. If we finalize the proposed
disapproval, the offset sanction in CAA section 179(b)(2) would apply
in the SJV PM2.5 nonattainment area 18 months after the
effective date of final disapproval and the highway funding sanctions
in CAA section 179(b)(1) would apply in the area 6 months after the
offset sanction is imposed. Neither sanction would apply if California
submits and the EPA approves, prior to the implementation of the
sanctions, SIP revisions that correct the deficiencies identified in
the EPA's final action. Additionally, the disapproval action would
trigger an obligation on the EPA to promulgate a federal implementation
plan unless California corrects the deficiencies, and the EPA approves
the related plan revisions, within two years of the final action.
    We will accept comments from the public on these proposals for the
next 30 days. The deadline and instructions for submission of comments
are provided in the ``Date'' and ``Addresses'' sections at the
beginning of this preamble.

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the PRA because this action does not impose additional requirements
beyond those imposed by state law.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities beyond those
imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. This action does not impose additional requirements
beyond those imposed by state law. Accordingly, no additional costs to
State, local, or tribal governments, or to the private sector, will
result from this action.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in
Executive Order 13175, because the SIP is not approved to apply on any
Indian reservation land or in any other area where the EPA or an Indian
tribe has demonstrated that a tribe has jurisdiction, and will not
impose substantial direct costs on tribal governments or preempt tribal
law. Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not impose additional
requirements beyond those imposed by state law.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. The EPA
believes that this action is not subject to the requirements of section
12(d) of the NTTAA because application of those requirements would be
inconsistent with the CAA.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental
justice in this rulemaking.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Ammonia,
Incorporation by reference, Intergovernmental relations, Nitrogen
dioxide, Particulate matter, Reporting and recordkeeping requirements,
Sulfur dioxide, Volatile organic compounds.

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

    Dated: January 28, 2016.
Jared Blumenfeld,
Regional Administrator, Region 9.
[FR Doc. 2016-02325 Filed 2-8-16; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 28 (Thursday, February 10, 2022)]
[Notices]
[Page 7844]
[FR Doc No: 2022-02799]

-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. FDA-2017-N-4853]

Receipt of Notice That a Patent Infringement Complaint Was Filed
Against a Biosimilar or Interchangeable Biosimilar Applicant

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Food and Drug Administration (FDA) is publishing notice
that an applicant for a biologics license application (BLA) for a
biosimilar or interchangeable biosimilar product submitted under the
Public Health Service Act (PHS Act) (a ``subsection (k) applicant'')
notified FDA that an action for patent infringement was filed in
connection with the applicant's BLA. Under the PHS Act, within 30 days
after the subsection (k) applicant is served with a complaint in an
action for patent infringement described under the PHS Act, the
subsection (k) applicant shall provide the Secretary of HHS with notice
and copy of such complaint. FDA is required to publish notice of the
complaint in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Sandra Benton, Center for Drug
Evaluation and Research, Food and Drug Administration, 10903 New
Hampshire Ave., Bldg. 22, Rm. 1132, Silver Spring, MD 20993-0002, 301-
796-1042, [email protected].

SUPPLEMENTARY INFORMATION: The Biologics Price Competition and
Innovation Act of 2009 (BPCI Act) was enacted as part of the Patient
Protection and Affordable Care Act (Pub. L. 111-148) on March 23, 2010.
The BPCI Act amended the PHS Act and created an abbreviated licensure
pathway for biological products shown to be biosimilar to, or
interchangeable with, an FDA-licensed biological reference product.
Section 351(k) of the PHS Act (42 U.S.C. 262(k)) sets forth the
requirements for an application for a proposed biosimilar product and
an application or a supplement for a proposed interchangeable product.
    Section 351(l) of the PHS Act (42 U.S.C. 262(l)) describes certain
procedures for exchanging patent information and resolving patent
disputes between a subsection (k) applicant and the holder of the BLA
reference product. If a subsection (k) applicant is served with a
complaint in an action for a patent infringement described in section
351(l)(6) of the PHS Act, the subsection (k) applicant is required to
provide the Secretary with notice and a copy of the complaint within 30
days of service. FDA is required to publish notice of a complaint
received under section 351(l)(6)(C) of the PHS Act in the Federal
Register.
    FDA received notice of the following complaint under section
351(l)(6)(C) of the PHS Act: AbbVie Inc. and AbbVie Biotechnology Ltd.
v. Alvotech HF, 1:21-cv-02258 (N.D. Ill., filed April 27, 2021).
    FDA has only a ministerial role in publishing notice of a complaint
received under section 351(l)(6)(C) of the PHS Act and does not perform
a substantive review of the complaint.

    Dated: February 4, 2022.
Lauren K. Roth,
Associate Commissioner for Policy.
[FR Doc. 2022-02799 Filed 2-9-22; 8:45 am]
BILLING CODE 4164-01-P


[Federal Register Volume 78, Number 169 (Friday, August 30, 2013)]
[Proposed Rules]
[Pages 53709-53711]
[FR Doc No: 2013-21270]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0408; FRL-9900-57-Region 3]

Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Infrastructure Requirements for the 2008 Ozone National
Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: EPA is proposing to approve a State Implementation Plan (SIP)
submittal from the State of Delaware pursuant to the Clean Air Act
(CAA). Whenever new or revised national ambient air quality standards
(NAAQS) are promulgated, the CAA requires states to submit a plan for
the implementation, maintenance, and enforcement of such NAAQS. The
plan is required to address basic program elements, including, but not
limited to, regulatory structure, monitoring, modeling, legal
authority, and adequate resources necessary to assure attainment and
maintenance of the standards. These elements are referred to as
infrastructure requirements. Delaware has made a submittal addressing
the infrastructure requirements for the 2008 8-hour ozone NAAQS. This
action proposes to approve portions of this submittal.

DATES: Written comments must be received on or before September 30,
2013.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0408 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
    B. Email<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2013-0408, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Mailcode 3AP30, U.S.
Environmental Protection Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2013-0408. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at 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 information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. 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.
    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 during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Delaware Department of Natural Resources and
Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware
19903.

FOR FURTHER INFORMATION CONTACT: Rose Quinto,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: On March 27, 2013, the Delaware Department
of Natural Resources and Environmental Control (DNREC) submitted a
revision to its SIP to satisfy the requirements of section 110(a)(2) of
the CAA for the 2008 8-hour ozone NAAQS.

I. Background

    On March 27, 2008 (73 FR 16436), EPA promulgated a revised NAAQS
for ozone based on 8-hour average concentrations. EPA revised the level
of the 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075
ppm. Pursuant to section 110(a)(1) of the CAA, states are required to
submit SIPs meeting the applicable requirements of section 110(a)(2)
within three years after promulgation of a new or revised NAAQS or
within such shorter period as EPA may prescribe. Section 110(a)(2)
requires states to address basic SIP elements such as requirements for
monitoring, basic program requirements and legal authority that are
designed to assure attainment and maintenance of the NAAQS. 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 content of such SIP submission 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 basic SIP elements such as requirements for
monitoring, basic program requirements and legal authority that are
designed to assure attainment and maintenance of the NAAQS.

II. Summary of State Submittal

    On March 27, 2013, Delaware provided a submittal to satisfy section
110(a)(2) of the CAA requirements, that is the subject of this proposed
rulemaking, for the 2008 8-hour ozone NAAQS. This submittal addressed
the following infrastructure elements: Section 110(a)(2)(A), (B), (C),
(D), (E), (F), (G), (H), (J), (K), (L), and (M).
    EPA has analyzed the above identified submission and is proposing
to make a determination that such submittal meets the requirements of
section 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G),
(H), (J), (K), (L), and (M) of the CAA, with the exception of the Part
D, Title I nonattainment planning requirements of section 110(a)(2)(I),
and the portion of the submittal relating to section 110(a)(2)(D)(i)(I)
on which EPA will take separate actions. A detailed summary of EPA's
review and rationale for approving Delaware's submittal may be found in
the Technical Support Document (TSD) for this action which is available
on line at www.regulations.gov, Docket number EPA-R03-OAR-2013-0408.
    This proposed rulemaking action does not include section
110(a)(2)(I) of the CAA which pertains to the nonattainment
requirements of part D, Title I of the CAA, because this element is not
required to be submitted by the 3-year submission deadline of section
110(a)(1) of the CAA, and will be addressed in a separate process. This
proposed rulemaking action also does not address section
110(a)(2)(D)(i)(I) of the CAA. In accordance with the decision of the
U.S. Court of Appeals for the District of Columbia (D.C. Circuit
Court), EPA at this time is not treating the 110(a)(2)(D)(i)(I) SIP
submission from Delaware as a required SIP submission. See EME Homer
City Generation, L.P. v. EPA, 696 F .3d 7 (D.C. Cir. 2012), cert.
granted, 2013 U.S. Lexis 4801 (2013). On June 24, 2013, the Supreme
Court granted the petitions of the United States and others and agreed
to review this D.C. Circuit Court decision. However, at this time the
D.C. Circuit Court decision remains in place and unless it is reversed
or otherwise modified by the Supreme Court, states are not required to
submit 110(a)(2)(D)(i)(I) SIPs until EPA has quantified their
obligations under that section. EPA will address the portion of
Delaware's March 27, 2013 SIP submittal addressing section
110(a)(2)(D)(i)(I) in a separate action.

III. Proposed Action

    EPA is proposing to approve Delaware's submittal that provides the
basic program elements specified in section 110(a)(2)(A), (B), (C),
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M),
necessary to implement, maintain, and enforce the 2008 8-hour ozone
NAAQS, with the exception of the Part D, Title I nonattainment planning
requirements of section 110(a)(2)(I), and the portion of the submittal
relating to section 110(a)(2)(D)(i)(I) on which EPA will take separate
actions. EPA is soliciting public comments on the issues discussed in
this document. These comments will be considered before taking final
action.

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 CAA 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 proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive 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 rulemaking action pertaining to
Delaware's section 110(a)(2) infrastructure requirements for the 2008
8-hour ozone NAAQS, 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.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Ozone, Reporting and recordkeeping requirements.

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

    Dated: August 20, 2013.
W.C. Early,
Acting Regional Administrator, Region III.
[FR Doc. 2013-21270 Filed 8-29-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: February 17, 2009 (Volume 74, Number 30)]
[Notices]
[Page 7464-7465]
[DOCID:fr17fe09-123]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-3301-EM; Docket ID FEMA-2008-0018]

Arkansas; Amendment No. 1 to Notice of an Emergency Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: This notice amends the notice of an emergency declaration for
the State of Arkansas (FEMA-3301-EM), dated January 28, 2009, and
related determinations.

DATES: Effective Date: January 30, 2009.

FOR FURTHER INFORMATION CONTACT: Peggy Miller, Disaster Assistance

Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Notice is hereby given that the incident
period for this emergency is closed effective January 30, 2009.

(The following Catalog of Federal Domestic Assistance Numbers (CFDA)
are to be used for reporting and drawing funds: 97.030, Community
Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034, Disaster Unemployment
Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048,
Disaster Housing Assistance to Individuals and Households In
Presidentially Declared Disaster Areas; 97.049, Presidentially
Declared Disaster Assistance--Disaster Housing Operations for
Individuals and Households; 97.050, Presidentially Declared Disaster
Assistance to Individuals and Households--Other Needs; 97.036,
Disaster Grants--Public Assistance (Presidentially Declared
Disasters); 97.039, Hazard Mitigation Grant).

Nancy Ward,
Acting Administrator, Federal Emergency Management Agency.
 [FR Doc. E9-3321 Filed 2-13-09; 8:45 am]

BILLING CODE 9111-23-P