Approval and Promulgation of Implementation Plans; Oregon: Interstate Transport of Fine Particulate Matter

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving a portion of the State Implementation Plan submission from the State of Oregon to address Clean Air Act interstate transport requirements for the 2006 24-hour fine particulate matter (PM_2.5) National Ambient Air Quality Standards. The Clean Air Act requires that each State Implementation Plan contain adequate provisions prohibiting air emissions that will have certain adverse air quality effects in other states. The EPA is determining that Oregon's existing State Implementation Plan contains adequate provisions to ensure that air emissions in Oregon will not significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM_2.5 National Ambient Air Quality Standards in any other state.

DATES:

This final rule is effective on February 17, 2015.

ADDRESSES:

The EPA has established a docket for this action under Docket Identification No. EPA-R10-OAR-2011-0446. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information the disclosure of which 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 through http://www.regulations.gov or in hard copy at EPA Region 10, Office of Air, Waste, and Toxics, AWT-150, 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Dr. Karl Pepple at: (206) 553-1778, pepple.karl@epa.gov, or the above EPA, Region 10 address.

SUPPLEMENTARY INFORMATION:

Throughout this document wherever “we,” “us” or “our” is used, it is intended to refer to the EPA. Information is organized as follows:

Table of Contents

I. Background

II. Response To Comment

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background

On September 21, 2006, the EPA promulgated a final rule revising the 1997 24-hour primary and secondary National Ambient Air Quality Standards (NAAQS) for PM_2.5 from 65 micrograms per cubic meter (μg/m³) to 35 μg/m³ (October 17, 2006, 71 FR 61144).

The interstate transport provisions in Clean Air Act (CAA) section 110(a)(2)(D)(i) (also called “good neighbor” provisions) require each state to submit a State Implementation Plan (SIP) that prohibits emissions that will have certain adverse air quality effects in other states. CAA section 110(a)(2)(D)(i) identifies four distinct elements related to the impacts of air pollutants transported across state lines. In this action, the EPA is addressing the first two elements of this section, specified at CAA section 110(a)(2)(D)(i)(I), for the 2006 24-hour PM_2.5 NAAQS.

The first element of CAA section 110(a)(2)(D)(i)(I) requires that each SIP for a new or revised NAAQS contain adequate measures to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will “contribute significantly to nonattainment” of the applicable NAAQS in another state. The second element of CAA section 110(a)(2)(D)(i)(I) requires that each SIP prohibit any source or other type of emissions activity in the state from emitting pollutants that will “interfere with maintenance” of the applicable NAAQS in any other state.

On May 14, 2014, we proposed approval of the portion of Oregon's June 28, 2010, submission that addresses the CAA section 110(a)(2)(D)(i)(I) requirements for the 2006 24-hour PM_2.5 NAAQS (79 FR 27528). An explanation of the CAA requirements and implementing regulations that are met by this SIP submission, a detailed explanation of the submission, and the EPA's reasons for the proposed action were provided in the notice of proposed rulemaking on May 14, 2014, and will not be restated here (79 FR 27528). The public comment period for our proposed action ended on June 13, 2014.

II. Response To Comment

The EPA received one anonymous adverse comment on the May 14, 2014, proposed approval (79 FR 27528). The EPA has evaluated the comment, as discussed below, and has determined that Oregon's 2010 Interstate Transport SIP submission addressing the 2006 24-hour PM_2.5 NAAQS is consistent with the CAA. Therefore the EPA is approving the Oregon 2010 Interstate Transport SIP as meeting the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM_2.5 NAAQS. Following is the comment and the EPA's response.

Comment: “EPA's analysis of significant contribution to nonattainment and maintenance areas in down-wind states must be done for ALL NAAQS pollutants, not just the 2006 PM_2.5 NAAQS. This would ensure that Oregon's PM_2.5 emissions are not affecting the nonattainment or maintenance of ALL NAAQS in other States. The CAA specifically states that, `Each such plan shall . . . contain adequate provisions (i) prohibiting . . . any source or other type of emissions activity within the State from emitting ANY air pollutant in amounts which will (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to ANY such national primary or secondary ambient air quality standard,' (Emphasis on `any'). This was recently affirmed by the Supreme Court in EME Homer City v. EPA, `To tackle the problem, Congress included a Good Neighbor Provision in the Clean Air Act (Act or CAA). That provision, in its current phrasing, instructs States to prohibit in-state sources “from emitting any air pollutant in amounts which will . . . contribute significantly' to downwind States' “nonattainment . . ., or interfere with maintenance,” of ANY EPA promulgated national air quality standard.” (Again, emphasis on `any'). For this reason the EPA can't approve Oregon's Interstate Transport SIP because it, and EPA's analysis, doesn't include an analysis which determines that Oregon doesn't contribute to another State's nonattainment or maintenance for ALL NAAQS pollutants.”

Response: This comment addresses the requirements of CAA section 110(a)(2)(D)(i)(I). This provision, the “good neighbor” provision, requires each State Implementation Plan to prohibit “any source or other type of emissions activity within the State from emitting any air pollutants in amounts which will . . . contribute significantly to nonattainment in or interfere with maintenance by, any other state with respect to any . . . primary or secondary [NAAQS].” 42 U.S.C. 7410(a)(2)(D)(i). The recent Supreme Court decision in Environmental Protection Agency v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014), addressed the requirements of this provision and reversed the prior DC Circuit Court of Appeals decision vacating the EPA's Cross-State Air Pollution Rule. The commenter quotes from the section of the Supreme Court decision that discusses the historical development (from 1963 onward) of the EPA's interstate transport policy (the `good neighbor' provision). The quoted language essentially tracks the statutory text of CAA section 110(a)(2)(D)(i)(I), which describes specific elements that must be included in State Implementation Plans to address pollution that is transported across state lines. As the Supreme Court decision in EME Homer City confirmed, pursuant to CAA section 110(a)(1), state plans to address these requirements must be submitted to the Administrator within three years of the promulgation or revision of a NAAQS. EME Homer City, 134 S. Ct. at 1600.

The EPA interprets the comment as stating that the CAA section 110(a)(2)(D)(i)(I) provisions of Oregon's 2010 Interstate Transport SIP submission for the 2006 24-hour PM_2.5 NAAQS should address, in addition to emissions that significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM_2.5 NAAQS, any emissions that significantly contribute to nonattainment or interfere with maintenance of all other NAAQS. The EPA disagrees. Because it is the promulgation or revision of a NAAQS that triggers the requirement to submit a SIP addressing the requirements of CAA section 110(a)(2)(D)(i)(I), the EPA interprets the CAA as requiring each such SIP to address the CAA section 110(a)(2)(D)(i)(I) requirements only with respect to the specific NAAQS at issue. In other words, each CAA section 110(a)(2)(D)(i)(I) SIP submission need only address the specific NAAQS which had been promulgated or revised by the EPA thereby triggering the SIP submission requirement. Because Oregon submitted this SIP to address the applicable requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 2006 24-hour PM_2.5 NAAQS, it need only demonstrate that the SIP is adequate to prohibit emissions that significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM_2.5 NAAQS in other states. Any emissions that have such impacts with respect to other NAAQS must be addressed as appropriate in the CAA section 110(a)(2)(D)(i)(I) SIP submissions for those other NAAQS. In its May 14, 2014, action, the EPA proposed to conclude that Oregon's 2010 Interstate Transport SIP submission addressed the requirements of CAA section 110(a)(2)(D)(i)(I) with respect to the 2006 24-hour PM_2.5 NAAQS (79 FR 27528). The commenter has offered no data or evidence to suggest that the submission does not do so.

III. Final Action

The EPA is approving the portion of the June 28, 2010, SIP submission from Oregon that addresses the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM_2.5 NAAQS. The EPA is determining that Oregon's existing SIP contains adequate provisions to ensure that air emissions from Oregon will not significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM_2.5 NAAQS in any other state. This action is being taken under section 110 of the CAA.

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, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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 this action does not involve technical standards; and does not provide the 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).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 17, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides, and Volatile organic compounds

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

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart MM—Oregon

2. In § 52.1990 is amended by adding paragraph (b) to read as follows: