[Federal Register Volume 77, Number 154 (Thursday, August 9, 2012)]
[Rules and Regulations]
[Pages 47530-47533]
[FR Doc No: 2012-19301]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2012-0228; FRL-9711-1]

Approval and Promulgation of State Implementation Plans; Hawaii;
Infrastructure Requirements for the 1997 8-Hour Ozone and the 1997 and
2006 Fine Particulate Matter National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving in part and disapproving in part a State
Implementation Plan (SIP) revision submitted by the state of Hawaii
pursuant to the requirements of Section 110(a)(1) and (2) of the Clean
Air Act (CAA) for the 1997 8-hour ozone national ambient air quality
standards (NAAQS) and the 1997 and 2006 NAAQS for fine particulate
matter (PM2.5).

DATES: Effective Date: This final rule is effective on October 9, 2012.

ADDRESSES: EPA has established a docket for this action, identified by
Docket ID Number EPA-R09-OAR-2012-0228. The index to the docket for
this action is available electronically at http://www.regulations.gov
and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco,
California. While all documents in the docket are listed in the index,
some information may be publicly available only at the hard copy
location (e.g., copyrighted material), and some may not be publicly
available in either location (e.g., CBI). To inspect the hard copy
materials, please schedule an appointment during normal business hours
with the contact listed directly below.

FOR FURTHER INFORMATION CONTACT: Dawn Richmond, Air Planning Office
(AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-
3207<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, the terms ``we,''
``us,'' and ``our'' refer to EPA.

Table of Contents

I. Background
II. Final Action
III. Statutory and Executive Order Reviews

I. Background

    On April 12, 2012 (77 FR 21913), EPA proposed to approve in part
and disapprove in part a SIP revision submitted by Hawaii Department of
Health (HDOH) on December 14, 2011 to address the infrastructure
requirements of CAA section 110(a)(2) for the 1997 8-hour ozone NAAQS
and the 1997 and 2006 NAAQS for PM2.5 (``2011 Hawaii
Infrastructure SIP''). The rationale supporting EPA's action, including
the scope of infrastructure SIPs in general, is explained in that
Notice of Proposed Rulemaking (NPR) and the associated technical
support document (TSD) and will not be restated here. The TSD is
available online at http://www.regulations.gov, Docket ID number EPA-
R09-OAR-2012-0228. No public comments were received on the NPR.

II. Final Action

    EPA is approving in part and disapproving in part the 2011 Hawaii
Infrastructure SIP. EPA is approving the 2011 Hawaii
Infrastructure SIP with respect to the following requirements:
     Section 110(a)(2)(A): Emission limits and other control
measures.
     Section 110(a)(2)(B): Ambient air quality monitoring/data
system.
     Section 110(a)(2)(C) (in part): Program for enforcement of
control measures and regulation of new stationary sources (minor New
Source Review (NSR) program only).
     Section 110(a)(2)(D)(i)(I): Interstate transport
(significant contribution and interference with maintenance).
     Section 110(a)(2)(E): Adequate resources and authority,
conflict of

interest, and oversight of local governments and regional agencies.
     Section 110(a)(2)(F): Stationary source monitoring and
reporting.
     Section 110(a)(2)(G): Emergency episodes.
     Section 110(a)(2)(H): SIP revisions.
     Section 110(a)(2)(J) (in part): Public notification.
     Section 110(a)(2)(K): Air quality modeling and submission
of modeling data.
     Section 110(a)(2)(L): Permitting fees.
     Section 110(a)(2)(M): Consultation/participation by
affected local entities.
    In addition, we are approving into the SIP as non-regulatory
materials the statutory provisions that HDOH included as part of the
2011 Hawaii Infrastructure SIP.
    We are disapproving the 2011 Hawaii Infrastructure SIP with respect
to the following infrastructure SIP requirements:
     Section 110(a)(2)(C) (in part): Program for enforcement of
control measures and regulation of new stationary sources (permit
program as required in part C of title I of the Act).
     Section 110(a)(2)(D)(i)(II): Interstate transport--
prevention of significant deterioration and visibility protection.
     Section 110(a)(2)(D)(ii): Interstate pollution abatement
and international air pollution.
     Section 110(a)(2)(J) (in part): Consultation with
government officials and Prevention of Significant Deterioration (PSD).
    As explained in the NPR and TSD, our disapproval of these elements
and sub-elements is compelled by the absence of an approvable SIP
revision from Hawaii that meets the PSD requirements of sections 160
through 165 of the CAA.\1\ In addition, our disapproval of Section
110(a)(2)(D)(i)(II) is compelled by the lack of approvable SIP
revisions to address reasonably attributable visibility impairment
(RAVI) and regional haze affecting mandatory Class I areas.\2\ Under
section 179(a) of the CAA, final disapproval of a submittal that
addresses a requirement of part D, title I of the CAA (CAA sections
171-193) or is required in response to a finding of substantial
inadequacy as described in CAA section 110(k)(5) (SIP Call) starts a
sanctions clock. The 2011 Hawaii Infrastructure SIP was not submitted
to meet either of these requirements. Therefore, this action does not
trigger sanctions.
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    \1\ See 40 CFR 52.632.
    \2\ See 40 CFR 52.633 (reasonably attributable visibility
impairment) and 74 FR 2392 (January 15, 2009) (regional haze).
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    In addition, these deficiencies have previously been addressed
through promulgation of a PSD federal implementation plan (FIP) (43 FR
26410, June 19, 1978, as amended at 45 FR 52741, August 7, 1980; 68 FR
11322, March 10, 2003; 68 FR 74488, December 24, 2003) and a FIP
addressing RAVI (50 FR 28553, July 12, 1985, as amended at 52 FR 45137,
November 24, 1987). EPA has proposed a FIP to address regional haze in
Hawaii (77 FR 31692, May 29, 2012) and is required to take final action
on this FIP (or fully approve a Regional Haze SIP) by September 15,
2012.\3\ Therefore, this disapproval does not trigger any new FIP
obligations.
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    \3\ See Consent Decree entered March 30, 2012 in National Parks
Conservation Association v. Jackson, Case 1:11-cv-01548-ABJ
(D.D.C.). We have placed a copy of the consent decree in the docket
for this action.
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    As explained in the NPR, this action does not address section
110(a)(2)(C) to the extent it refers to permit programs required under
part D (nonattainment NSR), or section 110(a)(2)(I), which pertains to
the nonattainment planning requirements of part D of Title I of the
CAA.

III. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''

B. Paperwork Reduction Act

    This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Burden is defined at 5 CFR 1320.3(b).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
    This rule will not have a significant impact on a substantial
number of small entities because SIP approvals and partial approvals/
partial disapprovals under section 110 and subchapter I, part D of the
Clean Air Act do not create any new requirements but simply approve
requirements that the State is already imposing. Therefore, because
this partial approval/partial disapproval action does not create any
new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
    Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of State action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. U.S. EPA, 427 U.S. 246, 255-66 (1976);
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
    EPA has determined that the partial approval/partial disapproval
action promulgated does not include a Federal mandate that may result
in estimated costs of $100 million or more to either State, local, or
tribal governments in the aggregate, or to the private sector. This
Federal action approves pre-existing requirements under State or local
law, and imposes no new requirements. Accordingly, no additional costs
to State, local, or tribal governments, or to the private sector,
result from this action.

E. Executive Order 13132, Federalism

    Executive Order 13132, Federalism (64 FR 43255, August 10, 1999)
revokes and replaces Executive Orders 12612 (Federalism) and 12875
(Enhancing the Intergovernmental Partnership). Executive Order 13132
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies

that have federalism implications'' is defined in the Executive Order
to include regulations that 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.'' Under Executive Order 13132, EPA may
not issue a regulation that has federalism implications, that imposes
substantial direct compliance costs, and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or EPA consults with State and local officials early in
the process of developing the proposed regulation. EPA also may not
issue a regulation that has federalism implications and that preempts
State law unless the Agency consults with State and local officials
early in the process of developing the proposed regulation.
    This rule 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, as specified in Executive Order 13132, because it
merely approves a State rule implementing a Federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes. Thus, Executive Order 13175 does not
apply to this rule.

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

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
rule is not subject to Executive Order 13045, because it approves a
State rule implementing a Federal standard.

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

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.

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

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA lacks the discretionary authority to address environmental
justice in this rulemaking. In reviewing SIP submissions, EPA's role is
to approve or disapprove state choices, based on the criteria of the
Clean Air Act. Accordingly, this action merely approves certain State
requirements for inclusion into the SIP under CAA section 110 and
subchapter I, part D and disapproves others, and will not in-and-of
itself create any new requirements. Accordingly, it 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.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. section 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
rule 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.
section 804(2). This rule will be effective on October 9, 2012.

L. Petitions for Judicial Review

    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 October 9, 2012. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements (see section 307(b)(2)).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Oxides of nitrogen, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.

    Dated: July 26, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.

    Therefore, 40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for 40 CFR Part 52 continues to read as
follows:

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

Subpart M--Hawaii

0
2. Amend Sec.  52.620, the table in paragraph (e) by adding an entry at
the end of the table for Hawaii Infrastructure State Implementation
Plan Revision 1997 Ozone, and 1997 and 2006 Fine Particulate Matter
(PM2.5) National Ambient Air Quality Standards. The added
text reads as follows:

Sec.  52.620  Identification of plan.

* * * * *
    (e) EPA Approved Nonregulatory Provisions and Quasi-Regulatory
Measures.

                    EPA-Approved Hawaii Nonregulatory Provisions and Quasi-Regulatory Measures
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                                  Applicable
                                 geographic or        State        EPA approval
     Name of SIP revision        nonattainment      submittal          date                 Explanation
                                     area             date
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                                                  * * * * * * *
Hawaii Infrastructure State    Statewide.......  12/14/12......  8/9/12, [Insert  Excluding all regulations
 Implementation Plan Revision                                     page number      included in the submission,
 1997 Ozone, and 1997 and                                         where the        as these were already
 2006 Fine Particulate Matter                                     document         addressed in separate actions
 (PM2.5) National Ambient Air                                     begins].         as listed in table (c) above.
 Quality Standards.                                                                This action addresses the
                                                                                following CAA elements or
                                                                                portions thereof:
                                                                                110(a)(2)(A), (B), (C),
                                                                                (D)(i)(I), (E), (F), (G),
                                                                                (H), (J), (K), (L), and (M).
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[FR Doc. 2012-19301 Filed 8-8-12; 8:45 am]
BILLING CODE 6560-50-P


U. S. ENVIRONMENTAL PROTECTION AGENCY REGION 10 TRIBAL CONSULTATION FRAMEWORK July 16, 2001 REGION 10 WORKING DEFINITION OF TRIBAL CONSULTATION " Consultation" means the process of seeking, discussing, and considering the views of federally recognized tribal governments at the earliest time in EPA Regions 10' s decision making. Consultation generally means more than simply providing information about what the agency is planning to do and allowing comment. Rather, consultation means respectful, meaningful, and effective two way communication that works toward a consensus reflecting the concerns of the affected federally recognized tribe( s) before EPA makes its decision or moves forward with its action.

REGION 10 GUIDING PRINCIPLES 1. The Region will consult with federally recognized tribal governments in a sensitive manner respectful of tribal sovereignty and culture.

2. The Region will maintain government to government communications with federally recognized tribal governments by interacting through officials of appropriate stature and authority, and as determined by the Regional Administrator and tribal government. For major consultation issues, the time frame and manner in which EPA will consult with a specific Tribe will be negotiated between EPA and the Tribe.

3. In situations where EPA has the ultimate decision making authority, federal policies direct EPA to consult with affected federally recognized tribal governments prior to decisionmaking The Region will work within the following guidelines when deciding how to consult with federally recognized tribes:

When the matter may directly affect the environment, resources, treaty rights or other legal rights of a specific or small number of federally recognized tribes, EPA will meet with, have conference calls, and send letters to tribal leaders of the affected individual tribe( s). EPA will provide feedback as specifically requested by the Tribe( s) and take any agreed upon follow up action on the matter in a timely manner;

When seeking perspectives from all interested federally recognized tribes in the Region on national or broad Regional issues, EPA will meet with, or have a conference call, or solicit written views in a letter from EPA;

When looking for broad guidance on tribal policy or implementation matters of national or Regional interest either at a preliminary stage or requiring fast turnaround EPA will rely on the Regional Tribal Operations Committee for assistance and input. This dialogue will not replace the government to government relationship and communication between EPA and the Tribe( s); Page 2 4. On specific matters, the Region should contact and provide any available materials necessary to the potentially affected federally recognized tribes as early as practicable, to provide time for consultation prior to making a decision.

5. Where feasible and appropriate, the Region will encourage regular participation of federally recognized elected tribal representatives or their designees on Regional planning and work groups.

6. The Region will directly notify federally recognized tribe( s) where specific tribal interest or trust resources may be involved, and offer the respective tribe( s) an opportunity to participate without resolving whether the tribe( s) has a legal right to consultation.

7. The Region will meet with individual federally recognized tribes upon request of the tribe's leaders.

8. The Region should endeavor to build an on going relationship with federally recognized tribal government( s) to increase communication, and to ensure that consultation on specific proposals will be more constructive and effective.

9. The Region will encourage meetings with federally recognized tribal governments on their homelands, to the extent resources allow, to strengthen the EPA federal tribal relationship and facilitate EPA understanding of respective tribal issues, concerns and perspectives.

10. Public participation which involves individual citizens of Indian Country, is not the same as consultation with affected federally recognized tribal governments. EPA has the responsibility to consult with federally recognized tribal governments separate from, and in addition to, the public participation process for interested stakeholders.

11. Consultation with tribal governments should occur independent of the public participation process. Tribal consultation does not replace requirements to promote public participation that may apply to a given proposed federal action.

ISSUE RESOLUTION Should disputes arise between one or more tribes and EPA Region 10, the parties will strive to address the matter informally, at the staff level. In the event that staff are unable to resolve a dispute, the issue will be presented to immediate supervisors, who will attempt to resolve the dispute. If the dispute is not resolved, the staffs will present the matter to progressively higher levels of management until consensus is reached. In the event consensus is not reached, the EPA Regional Administrator, after consulting with the elected leader( s) of the federally recognized Tribe( s), will make the final decision.


To: Docket Number EPA-R03-OAR-2017-0615

From: Megan Goold, EPA

Due to file size limitations, the R-software files and modeling files used to analyze the emissions at the four SIP sources are available upon request.  To obtain these files, please contact Megan Goold, Planning & Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region 3, 1650 Arch Street, Philadelphia, Pennsylvania 19103.  The telephone number is<PHONE_NUMBER>.  Ms. Goold can also be reached via electronic mail at<EMAIL_ADDRESS>