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[Federal Register Volume 77, Number 220 (Wednesday, November 14, 2012)]
[Rules and Regulations]
[Pages 67767-67771]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-27564]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2010-1078; FRL-9751-3]

Revision to the South Coast Portion of the California State 
Implementation Plan, CPV Sentinel Energy Project AB 1318 Tracking 
System

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve a source-specific State Implementation Plan (SIP) 
revision for the South Coast Air Quality Management District 
(``SCAQMD'' or ``District'') portion of the California SIP. This 
source-specific SIP revision is known as the CPV Sentinel Energy 
Project AB 1318 Tracking System (``AB 1318 Tracking System''). The SIP 
revision consists of enabling language and the AB 1318 Tracking System 
to revise the District's SIP approved new source review (NSR) program. 
The SIP revision allows the District to transfer offsetting emission 
reductions for particulate matter less than 10 microns in diameter 
(PM10) and one of its precursors, sulfur oxides 
(SOX), to the CPV Sentinel Energy Project (``Sentinel''), 
which will be a natural gas fired power plant.

DATES: This final rule is effective on November 14, 2012.

ADDRESSES: The index to the docket for this final action is available 
electronically at www.regulations.gov and in hard copy at EPA Region 
IX, 75 Hawthorne Street, San Francisco, California. While generally all 
categories of documents in the docket are listed in the index, some 
information may be publicly available only at the hard copy location 
(e.g., voluminous documents, 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 in the FOR FURTHER INFORMATION CONTACT 
section.

FOR FURTHER INFORMATION CONTACT: Laura Yannayon, EPA Region IX, (415) 
972-3524, yannayon.laura@epa.gov.

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

Table of Contents

I. Background
    A. The Facility and Prior Actions
    B. Description of Final Rule
II. Evaluation of Source-Specific SIP Revision
    A. What action is EPA finalizing?
    B. Public Comment and Final Action
III. EPA Action
IV. Statutory and Executive Order Reviews

I. Background

A. The Facility and Prior Actions

    The Sentinel Energy Project is designed to be a nominally rated 850 
megawatt, natural gas-fired electrical generating facility covering 
approximately 37 acres within Riverside County, adjacent to Desert Hot 
Springs in the Palm Springs, California area. EPA's Federal Register 
notices for the January 13, 2011 proposal (76 FR 2294), April 20, 2011 
final action (76 FR 22038), and August 23, 2012 supplemental proposal 
for this action (77 FR 50973) contain a detailed description of the 
project and the Clean Air Act's (CAA) requirements for offsets during 
new source review permitting.
    In response to our January 13, 2011 proposed rule, we received four 
comments. We responded to those comments on April 20, 2011 (76 FR 
22038). One commenter, jointly California Communities Against Toxics 
and Communities for a Better Environment (jointly ``CCAT'') filed a 
Petition for judicial review in the United States Court of Appeals for 
the Ninth Circuit (``9th Circuit'') shortly thereafter and an Opening 
Brief on July 26, 2011. On September 14, 2011, EPA requested the 9th 
Circuit to remand the

[[Page 67768]]

final rule to us to correct minor errors and revise our reasoning on 
one issue. Motion for a Voluntary Remand of the Record, to Vacate the 
Briefing Schedule, and to Stay the Proceedings During Remand, Case No. 
11-71127 (Sept. 14, 2011). CCAT opposed EPA's motion for voluntary 
remand. The 9th Circuit Appellate Commissioner denied EPA's motion for 
voluntary remand on November 7, 2011, and ordered briefing. After 
briefing and oral argument, the 9th Circuit remanded the final rule 
(without vacatur) to EPA on July 26, 2012. California Communities 
Against Toxics v. EPA, 688 F.3d 989 (9th Cir. 2012). EPA published a 
supplemental proposal on August 23, 2012, (77 FR 50973) and took 
comment on the supplemental proposal through September 24, 2012. Copies 
of the comments on the supplemental proposal have been added to the 
docket and are accessible at www.regulations.gov. Comment letters from 
the South Coast Air Quality Management District (``SCAQMD'' or 
``District'') and CPV Sentinel LLC (``Sentinel'') support EPA's 
approval of the AB 1318 Tracking System as a source-specific SIP 
revision. A comment letter from CCAT opposes our proposal and 
supplemental proposal to approve of the source-specific SIP revision.

B. Description of Final Rule

    We are finalizing our proposal and supplemental proposal to approve 
the AB 1318 Tracking System into the SIP as a source-specific SIP 
revision. Even with the slight revision to Attachment A discussed 
below, the District transferred more offsets into the AB 1318 Tracking 
System than the amount that is needed to allow Sentinel to operate. We 
are finalizing our approval because the offsets listed in the Revised 
Attachment A meet the federal offset integrity criteria, including 
proper quantification and surplus adjustment. We are finalizing the 
reasoning in our supplemental proposal for finding that the offsets 
meet the requirement in 40 CFR part 51, appendix S and 40 CFR 
51.165(a)(3)(ii)(C)(1)(ii) for offsets resulting from facilities or 
sources shutting down to have occurred after the base-year for SIP 
planning purposes. We are interpreting this provision to refer to the 
2003 AQMP for PM10 for the South Coast and the Coachella 
Valley Air Basins.
    In response to CCAT's comments on September 24, 2012, EPA is making 
a slight revision to Attachment A to the Technical Support Document for 
our supplemental proposal. Attachment A contains tables showing our 
evaluation of a subset of all of the facilities from which the District 
transferred offsets into its AB 1318 Tracking System. In this final 
rule, we are attaching a slightly revised version of Attachment A to 
our Response to Comments document. The only change in the Revised 
Attachment A is that we have applied a more conservative assumption of 
zero emissions for the data missing for the facilities listed in 
Attachment A, Section II.B. The facilities listed in Section II.B were 
missing Year 2 data. Our supplemental proposal assumed that the Year 2 
data would be the same as the reported Year 1 data for these offsets. 
Based on comments we received from CCAT, we changed the assumption for 
this group of facilities. In our Revised Attachment A, we are assuming 
that Year 2 data for these facilities is zero. This change means that 
we are using the most conservative approach (zero emissions) to 
quantify the offsets. This revision lowers the quantity of offsets 
listed in Attachment A by 306 pounds for PM10 and 2 pounds 
for SOX. Even with this adjustment the quantity of offsets 
listed in Revised Attachment A exceeds the quantity that Sentinel needs 
for operation. Because the District is committed to retiring all of the 
remaining offsets in the AB 1318 Tracking System, including those not 
listed in Attachment A, the net effect will be a greater reduction in 
emissions than is required by the CAA.
    For additional background information, please see the January 13, 
2011 notice of proposed rule for this action (76 FR 2294), the notice 
of final rule (which was remanded without vacatur on July 26, 2012) (76 
FR 22038 Apr. 20, 2011) and the August 23, 2012 supplemental proposal 
(77 FR 50974).

II. Evaluation of Source-Specific SIP Revision

A. What action is EPA is finalizing?

    EPA is finalizing our approval of a SIP revision for the South 
Coast portion of the California SIP. The SIP revision is codified in 40 
CFR 52.220(c)(384) and incorporates by reference the CPV Sentinel 
Energy Project AB 1318 Tracking System, as adopted by the District.
    The SIP revision provides a federally approved and enforceable 
mechanism for the District to transfer PM10 and 
SOX offsets from the District's internal bank to the AB 1318 
Tracking System for use by the Sentinel Energy Project.

B. Public Comment and Final Action

    Our detailed response to all significant comments is contained in 
the Response to Comments (``RTC'') document in the docket for this 
action. The RTC can be accessed through www.regulations.gov and a very 
brief summary of our responses to certain comments is provided below. 
Please refer to our RTC document for our complete response to all 
comments.
Comment Letter from South Coast Air Quality Management District
    Comment: The District supported EPA's proposal and supplemental 
proposal to approve the AB 1318 Tracking System based on the 
quantification and surplus adjustment of the offsets listed in 
Attachment A to the Technical Support Document for the supplemental 
proposal. The District commented that its 2003 PM10 Air 
Quality Management Plan (AQMP) was the appropriate plan and attainment 
demonstration to establish the base-year for SIP planning as set forth 
in 40 CFR 51.165(a)(3)(ii)(C)(1)(ii). The District also commented that 
growth was added to the 2007 AQMP for PM2.5.
    Response: EPA agrees with the District's comments, as discussed in 
the RTC document provided in the docket for this rule.
Comment Letter from Sentinel Energy LLP
    Comment: Sentinel also supported EPA's proposal and supplemental 
proposal to approve the SIP revision on generally the same basis as the 
District.
    Response: EPA agrees with Sentinel's comments, as discussed in the 
RTC document provided in the docket for this rule.
    Comment: On October 26, 2012, Sentinel submitted a late comment 
letter in which it requested EPA to use the good cause exception set 
forth in section 553(d)(3) of the Administrative Procedures Act, 5 
U.S.C. 553(d)(3) to make this final rule effective immediately upon 
publication in the Federal Register. Sentinel stated that the purpose 
of the usual 30-day delay for rule effectiveness is to allow the 
regulated entity an opportunity to make any changes necessary to be in 
compliance with the rule. Sentinel stated that it has been aware of 
what would be required of it as a result of this rule for 18 months. 
Sentinel anticipates beginning its commission period in November 2012. 
Sentinel added that if the power plant is on-line next summer, it will 
help the region avoid any potential electricity shortfalls.
    Response: EPA has discretion to accept late comments and will 
accept the comment submitted by Sentinel. EPA agrees with Sentinel that 
it has demonstrated good cause for EPA to issue this final rule with an 
immediate effective date. Sentinel has been constructing the power 
plant for the

[[Page 67769]]

past 12 to 18 months in anticipation of beginning its commissioning 
period in November 2012. Sentinel and the District provided information 
regarding the potential effects of delaying commissioning and 
operations beyond this date in the briefs submitted in the 9th Circuit 
ligation pertaining to this rulemaking. Sentinel has indicated that it 
will not be harmed by the immediate effective date. Therefore the final 
rule will become effective upon publication.
Comment Letter From California Communities Against Toxics (CCAT) and 
Communities for a Better Environment (CBE) (collectively CCAT)
    Comment: CCAT contends that it was arbitrary and capricious for EPA 
to publish a supplemental proposal to approve the source-specific SIP 
revision after the 9th Circuit remanded the rulemaking to EPA without 
vacatur.
    Response: CCAT is incorrect. EPA has discretion under Section 553 
of the Administrative Procedures Act to supplement its existing 
proposed approval of the source-specific SIP revision. We provided 
notice of the supplemental proposal and a 30-day period for comments. 
The 9th Circuit's Opinion in California Communities Against Toxics v. 
EPA, 688 F.3d at 989 did not indicate that EPA could not supplement its 
prior proposal.
    Comment: CCAT states: ``The Planning Year for the Failed 2003 AQMP 
Cannot be the Base Year for Valid Offsets: In the Absence of an 
Approved Attainment Demonstration for PM10, Only Replacement 
Capacity Can offset New Emissions.''
    Response: EPA disagrees. CCAT asserts that the 2003 AQMP is ``no 
longer valid'' because the South Coast and Coachella Air Basins failed 
to be re-designated to attainment for PM10 in 2006. Based on 
this presumption, CCAT argues that the SCAQMD is prohibited from 
relying on offsets resulting from sources that shut down, unless the 
new source of emissions is replacement capacity for the facility or 
source that is shutting down. CCAT's presumption is incorrect. Failure 
to attain a National Ambient Air Quality Standard (``NAAQS'') by the 
attainment date does not invalidate the plan and attainment 
demonstration--in this case the 2003 PM10 AQMP. The control 
measures and strategies remain in effect and enforceable along with the 
emissions inventories and attainment demonstration. Therefore, there is 
no prohibition on using offsets from facilities or sources that have 
shut down after the 1997 base-year from the 2003 PM10 AQMP 
to allow new source emissions growth in the South Coast and Coachella 
Air Basins.
    Comment: CCAT states: ``The 2007 AQMP Applies to PM10 as 
well as PM2.5 Attainment.''
    Response: EPA disagrees with CCAT. The District adopted the 2007 
AQMP to demonstrate attainment with the PM2.5 NAAQS. EPA 
approved the 2007 AQMP to demonstrate attainment with the 
PM2.5 NAAQS. The minor references to PM10 in the 
2007 AQMP for PM2.5 are included for a variety of reasons, 
including to comply with California state law and to ensure continued 
emissions control at one particular PM10 air quality 
monitor. Minor references to PM10 for limited purposes do 
not mean that the 2007 AQMP establishes a new base-year for 
PM10. EPA does not consider the incidental inclusion of 
PM10 control measures or updated emissions inventory for a 
future maintenance plan to be the same as adopting a new AQMP for 
PM10. EPA's approval of the 2007 AQMP does not mention 
PM10.
    Comment: CCAT states: ``The 2007 AQMP Was Final At All Relevant 
Times.''
    Response: Our supplemental proposal notes that the EPA had not 
approved the 2007 AQMP at the time the SCAQMD approved transferring the 
offsets into the AB 1318 Tracking System. EPA has not found any 
authority establishing the correct date for an approved air quality 
plan to apply. EPA reasonably determined that the date of transfer of 
the offsets (i.e. when the offsets become enforceable) is an 
appropriate date to establish what AQMP applies.
    Comment: CCAT states ``EPA Cannot Rely on the Failed, Superseded 
2003 AQMP for a Base Year.''
    Response: CCAT appears to have raised the same argument in an 
earlier portion of its comment letter. EPA considers this section to 
provide additional argumentation of the same point presented in the 
earlier paragraphs. EPA disagrees with CCAT's additional discussion. 
CCAT has mischaracterized the Court's holding in NRDC v. EPA, 571 F.3d 
1245, 1267 (D.C. Cir. 2009). The Court held that the base-year should 
be established by an ``approved'' AQMP and it did not use the term 
``valid.'' As discussed elsewhere, the CAA does not define air quality 
plans as ``valid'' and EPA does not consider the term to be dispositive 
or persuasive regarding the appropriate AQMP to establish the base-
year. CCAT also comments at length on the appropriate method for adding 
new source growth in the absence of an approved attainment 
demonstration. EPA considers this portion of CCAT's discussion to be 
irrelevant because the 2003 PM10 AQMP is the approved 
attainment demonstration for PM10 for the South Coast and 
Coachella Air Basins.
    Comment: CCAT states: ``The Offsets Transferred into the 1318 
Tracking System are Not Quantifiable.''
    Response: EPA disagrees with CCAT and is finalizing our proposal 
and supplemental proposal to approve the AB 1318 Tracking System 
because the District transferred more properly quantified and surplus 
adjusted PM10 and SOX offsets than Sentinel needs 
to offset its PM10 and SOX emissions. CCAT 
contends that EPA is required to use two years of emissions data to 
quantify offsets. CCAT also asserts that two years of emissions data 
cannot be satisfied with a conservative (i.e. fewer offsets) assumption 
being used for missing data. Nothing in the CAA or EPA's regulations 
requires EPA to use two years of emissions data to quantify offsets or 
prohibits the use of a conservative approach for filling in missing 
data. EPA is reasonably interpreting our regulations to allow the 
District to exercise discretion to use a conservative approach to 
quantify offsets where emissions data is missing. Here, we have 
concluded that the District's quantification of offsets using a 
conservative approach--specifically, by substituting zero emissions 
when data is missing--is reasonable and consistent with the CAA and 
applicable regulations.
    EPA is revising our final approval slightly from our supplemental 
proposal to ensure that the most conservative estimation of data is 
made regardless of whether the facility is missing Year 1 or Year 2 
data. This means that EPA is reducing the amount of offsets we are 
determining are properly quantified in Attachment A, Section II.B. to 
reduce it by 306 pounds of PM10 and 2 pounds of 
SOX. Therefore, whether a facility is missing Year 1 or Year 
2 data, EPA is assuming the emissions for the missing data are zero.
    Comment: CCAT states: ``The Offsets Are Not Surplus.''
    Response: EPA disagrees. The offsets listed in Attachment A to the 
TSD for the supplemental proposal are properly surplus adjusted to 
comply with the CAA.
    Comment: CCAT states: ``Rule 1315, Which EPA Did Not Apply, 
Dictates How the Surplus Adjustment after Deposit Occurs.''
    Response: EPA disagrees. The District removed the offsets in the AB 
1318 Tracking System from its internal accounts and evaluated each 
facility to determine if the offsets required surplus

[[Page 67770]]

adjustment. Rule 1315 requires the District to make an annual aggregate 
adjustment to offsets in its Rule 1315 internal accounts. All of the 
offsets in Attachment A, as revised, to the TSD for EPA's supplemental 
proposal are properly quantified and surplus adjusted.
    Comment: CCAT states: ``If Rule 1315 Were Not Applicable, EPA's 
Analysis Is Entirely Incomplete.''
    Response: EPA disagrees. Rule 1315 does not apply to this source-
specific SIP revision for the offset package for a single power plant. 
All of the offsets in Revised Attachment A are properly surplus 
adjusted.

III. EPA Action

    This source-specific SIP revision complies with all relevant CAA 
requirements and is consistent with EPA's regulations and guidance. 
Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully 
approving this source-specific SIP revision into the California SIP. 
The changes in this final rule from EPA's proposal and supplemental 
proposal are described above in Section I.B. EPA's interpretation of 
the CAA and our regulations is provided more fully in our RTC.
    Our initial approval of this SIP revision and its related 
incorporation by reference into the Code of Federal Regulations was 
previously codified at 40 CFR 52.220(c)(384). Because the SIP submittal 
has not changed since the initial approval and related codification, 
and because the previous final rule was not withdrawn, we are not 
revising the codification of our approval at 40 CFR 52.220(c)(384) in 
this final action.
    This rule is effective immediately upon publication in the Federal 
Register. Section 553(d) of the Administrative Procedure Act (APA), 5 
U.S.C. 553(d), generally provides that rules may not take effect 
earlier than 30 days after they are published in the Federal Register. 
However, APA section 553(d)(3) provides an exception when the agency 
finds good cause exists for a rule to take effect in less than 30-days.
    The purpose of the APA's 30-day effective date provision is to give 
affected parties time to adjust their behavior before the final rule 
takes effect. The Sentinel Energy Project, to which this rulemaking 
applies, requested in a comment letter to EPA that the rule be made 
effective upon Federal Register publication.
    We find good cause exists here to make this rule effective upon 
publication because implementing a 30-day delayed effective date would 
interfere with CPV Sentinel's ability to begin commissioning in 
November 2012 as scheduled. Such interference would delay Sentinel from 
becoming fully operational by the summer of 2013, which is when the 
California Energy Commission is expecting the plant to come on line. 
This delay could result in significant impacts to electrical 
reliability and air quality.
    In addition, this rule is not a major rule under the Congressional 
Review Act (CRA). Thus, the 60-day delay in effective date required for 
major rules under the CRA does not apply.

IV. Statutory and Executive Order Reviews

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

    This action will approve the source-specific SIP revision known as 
the CPV Sentinel Energy Project AB 1318 Tracking System into the 
California SIP. This type of action is exempt from review under 
Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 
3821, January 21, 2011).

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 under section 110 and 
subchapter I, part D of the CAA do not create any new requirements but 
simply approve requirements that the State is already imposing. 
Therefore, because the Federal SIP approval 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 CAA, preparation of flexibility analysis would constitute Federal 
inquiry into the economic reasonableness of State action. The CAA 
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 sections 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 this final action 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 proposes to approve 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

    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

[[Page 67771]]

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 CAA. 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 (EO) 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.

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. Section 804, however, exempts from 
section 801 the following types of rules: rules of particular 
applicability; rules relating to agency management or personnel; and 
rules of agency organization, procedure, or practice that do not 
substantially affect the rights or obligations of non-agency parties. 5 
U.S.C. 804(3). Because this is a rule of particular applicability, EPA 
is not required to submit a rule report regarding this action under 
section 801.

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 January 14, 2013. 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, Particulate matter, Reporting 
and recordkeeping requirements.

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

    Dated: November 1, 2012.
Jared Blumenfeld,
Regional Administrator, Region IX.
[FR Doc. 2012-27564 Filed 11-13-12; 8:45 am]
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