Federal Register / Vol. 78, No. 154 / Friday, August 9, 2013 / Rules and Regulations 48615 

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 October 8, 2013. 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. Parties with 

objections to this direct final rule are 

encouraged to file a comment in 

response to the parallel notice of 

proposed rulemaking for this action 

published in the proposed rules section 

of today’s Federal Register, rather than 

file an immediate petition for judicial 

review of this direct final rule, so that 

the EPA can withdraw this direct final 

rule and address the comment in the 

proposed rulemaking. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2)). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Reporting 

and recordkeeping requirements. 

Dated: July 23, 2013. 

Michelle L. Pirzadeh, 

Acting Regional Administrator, Region 10. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations 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 C—Alaska 

■ 2. Section 52.73 is amended by adding 

paragraph (a)(2)(ii) to read as follows: 

§ 52.73 Approval of plans. 

(a) * * * 

(2) * * * 

(ii) The EPA approves as a revision to 

the Alaska State Implementation Plan, 

the Fairbanks Carbon Monoxide Limited 

Maintenance Plan (Volume II, Section 

III.C.12 of the State Air Quality Control 

Plan, adopted February 22, 2013) 

submitted by the Alaska Department of 

Environmental Conservation on April 

22, 2013. In this action, the EPA is also 

approving the following revised sections 

of the Fairbanks Transportation Control 

Program (Volume II, Section III.C): Air 

Quality Emissions Data (Section III.C.3), 

Carbon Monoxide Network Monitoring 

Program (Section III.C.4), Modeling and 

Projections (Section III.C.6), and Air 

Quality Conformity Procedures (Section 

III.C.10); and the following revised 

sections of the Appendices to Volume II 

of the Fairbanks Transportation Control 

Program (Volume III): Section III.C.1 

and Section III.C.10, all of which were 

included in the April 22, 2013 SIP 

submittal. 

* * * * * 

[FR Doc. 2013–19203 Filed 8–8–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R08–OAR–2012–0350; FRL–9844–9] 

Disapproval of State Implementation 

Plans; State of Utah; Interstate 

Transport of Pollution for the 2006 

PM2.5 NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is taking final action to 

disapprove a portion of a State 

Implementation Plan (SIP) submission 

from the State of Utah that is intended 

to demonstrate that its SIP meets certain 

interstate transport requirements of the 

Clean Air Act (‘‘Act’’ or ‘‘CAA’’) for the 

2006 fine particulate matter (‘‘PM2.5’’) 

National Ambient Air Quality Standards 

(NAAQS). Specifically, EPA is 

disapproving the portion of the Utah SIP 

submission that addresses the CAA 

requirement prohibiting emissions from 

Utah sources from significantly 

contributing to nonattainment of the 

2006 PM2.5 NAAQS in any other state or 

interfering with maintenance of the 

2006 PM2.5 NAAQS by any other state. 

Under a recent court decision, this 

disapproval does not trigger an 

obligation for EPA to promulgate a 

Federal Implementation Plan (FIP) to 

address these interstate transport 

requirements. 

DATES: Effective Date: This final rule is 

effective September 9, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R08–OAR–2012–0350. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(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 through 

www.regulations.gov or in hard copy at 

the Air Program, Environmental 

Protection Agency (EPA), Region 8, 

1595 Wynkoop Street, Denver, Colorado 

80202–1129. EPA requests that if at all 

possible, you contact the individual 

listed in the FOR FURTHER INFORMATION

CONTACT section to view the hard copy 

of the docket. You may view the hard 

copy of the docket Monday through 

Friday, 8:00 a.m. to 4:00 p.m., excluding 

Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Adam Clark, Air Program, U.S. 

Environmental Protection Agency, 

Region 8, Mailcode 8P–AR, 1595 

Wynkoop, Denver, Colorado 80202– 

1129, (303) 312–7104, clark.adam@epa.

gov. 

SUPPLEMENTARY INFORMATION: 

Definitions 

For the purpose of this document, we 

are giving meaning to certain words or 

initials as follows: 

(i) The words or initials Act or CAA 

mean or refer to the Clean Air Act, 

unless the context indicates otherwise. 

(ii) The words EPA, we, us or our 

mean or refer to the United States 

Environmental Protection Agency. 

(iii) The initials NAAQS mean or refer 

to National Ambient Air Quality 

Standards. 

(iv) The initials SIP mean or refer to 

State Implementation Plan. 

(v) The initials UDEQ mean or refer to 

the Utah Department of Environmental 

Quality. 

(vi) The words Utah and State mean 

the State of Utah. 

Table of Contents 

I. Background 

II. Response to Comments 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Background 

On October 17, 2006 EPA 

promulgated a new NAAQS for PM2.5, 

revising the level of the 24-hour PM2.5

standard to 35 mg/m3 and retaining the 

level of the annual PM2.5 standard at 15 

mg/m3. (71 FR 61144). By statute, SIPs 


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48616 Federal Register / Vol. 78, No. 154 / Friday, August 9, 2013 / Rules and Regulations 

1This action does not address the two elements 

of the transport SIP provision (in CAA section 

110(a)(2)(D)(i)(II)) regarding interference with 

measures required to prevent significant 

deterioration of air quality or to protect visibility in 

another state. We will act on these elements in a 

separate rulemaking. 

2UDEQ’s submission is included in the docket for 

this action. 

3 In this respect, the D.C. Circuit’s EME Homer 

City decision is distinguishable from decisions of 

other Courts of Appeal involving petitions for 

review of EPA actions under the CAA that are 

‘‘regionally or locally applicable’’ within the 

meaning of section 307(b)(1). E.g., Summit 

Petroleum Corp. v. U.S. EPA, 690 F.3d 733 (6th Cir. 

2012). 

meeting the ‘‘infrastructure’’ 

requirements of CAA sections 110(a)(1) 

and (2) are to be submitted by states 

within three years after promulgation of 

a new or revised standard. Among the 

infrastructure requirements of section 

110(a)(2) are the ‘‘interstate transport’’ 

requirements of section 110(a)(2)(D). 

CAA section 110(a)(2)(D)(i) identifies 

four distinct elements related to the 

evaluation of impacts of interstate 

transport of air pollutants. In this action 

for the state of Utah, EPA is addressing 

the first two elements of section 

110(a)(2)(D)(i) with respect to the 2006 

PM2.5 NAAQS.1 The first element of 

section 110(a)(2)(D)(i) requires that each 

SIP for a new or revised NAAQS contain 

adequate provisions 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 

NAAQS in another state. The second 

element of CAA section 110(a)(2)(D)(i) 

requires that each SIP for a new or 

revised NAAQS contain adequate 

provisions to 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 September 21, 2010, the Utah 

Department of Environmental Quality 

(UDEQ) provided a submission to EPA 

certifying that Utah’s SIP is adequate to 

implement the 2006 PM2.5 NAAQS for 

all the ‘‘infrastructure’’ requirements of 

CAA section 110(a)(2)(D), including the 

requirements of CAA section 

110(a)(2)(D)(i)(I).2

On May 20, 2013 (78 FR 29314), EPA 

proposed to disapprove Utah’s 

September 2010 submission with regard 

to the interstate transport requirements 

of CAA section 110(a)(2)(D)(i)(I). As 

explained in that notice, id. at 29317, 

we proposed to disapprove this element 

of Utah’s submission because there is no 

basis for EPA to conclude that the 

existing SIP is adequate to satisfy the 

significant contribution to 

nonattainment and interference with 

maintenance elements of section 

110(a)(2)(D)(i)(I). 

II. Response to Comments 

EPA received one letter on June 14, 

2013 containing comments from the 

Sierra Club. The letter supported our 

proposed disapproval of Utah’s 

submission, but disagreed with other 

aspects of our proposal. The significant 

comments in the letter and EPA’s 

responses are given below. 

Comment 1: The commenter disagrees 

with EPA’s statement that disapproval 

of Utah’s infrastructure SIP, as it relates 

to section 110(a)(2)(D)(i)(I) 

requirements, would not trigger a 

mandatory duty for EPA to promulgate 

a FIP to address these requirements. 

Specifically, the commenter contends 

that the plain language of the CAA 

requires EPA to issue a FIP within two 

years of a disapproval action. In 

addition, the commenter contends that 

the decision in EME Homer City 

Generation v. EPA, 696 F.3d 7 (D.C. Cir. 

2012), cert. granted, 2013 U.S. LEXIS 

4801 (U.S. June 24, 2013) (No. 12–1182) 

(EME Homer City), is not binding or 

persuasive because it was incorrectly 

decided. The commenter also contends 

that the decision is inconsistent with 

previous decisions by the District of 

Columbia (D.C.) Circuit Court of 

Appeals. The commenter further 

suggests that EPA should not 

voluntarily follow the incorrectly 

decided EME Homer City opinion, 

particularly in the context of an 

infrastructure action that only impacts 

sources in Utah, a state within the 

jurisdiction of the Tenth Circuit Court of 

Appeals rather than the D.C. Circuit 

Court of Appeals. 

Response 1: EPA has historically 

adopted the commenter’s interpretation: 

disapproval of section 110(a)(2)(D)(i)(I) 

would trigger an obligation for the 

Agency to promulgate a FIP within two 

years unless the state submitted and 

EPA approved a SIP to correct the 

deficiency within that time. EPA 

continues to agree that the plain 

language of the statute establishes these 

obligations, and for those reasons, we 

asked the U.S. Supreme Court to review 

the D.C. Circuit’s decision in EME 

Homer City. On June 24, 2013 the 

Supreme Court agreed to do so. 

In the meantime and because the 

mandate from the D.C. Circuit was 

issued to EPA in February 2012, EPA 

intends to act in accordance with the 

EME Homer City opinion. In particular, 

the D.C. Circuit court concluded that 

EPA does not have authority to 

promulgate a FIP to address the 

requirements of section 

110(a)(a)(2)(D)(i)(I) until EPA has 

identified emissions in a state that 

significantly contribute to 

nonattainment or interfere with 

maintenance of the NAAQS in another 

state and given the state an opportunity 

to submit a SIP to address those 

emissions. EME Homer City, 696 F.3d at 

28. Because EPA has not identified or 

quantified any potential contribution 

and or interference from Utah to other 

states, or given the State an opportunity 

to submit a SIP to address any potential 

downwind contribution following 

action by EPA to quantify that 

contribution, our disapproval action 

today does not obligate Utah to take any 

action or make a new SIP submission, 

nor does it trigger an obligation for EPA 

to promulgate a FIP. 

EPA also disagrees with the 

commenter’s suggestion that the Agency 

need not follow the D.C. Circuit’s 

decision in EME Homer City in the 

context of an infrastructure action for 

Utah. The EPA rule reviewed by the 

court in EME Homer City—‘‘Federal 

Implementation Plans: Interstate 

Transport of Fine Particulate Matter and 

Ozone and Correction of SIP 

Approvals,’’ 76 FR 48207 (August 8, 

2011), also known as the Cross State Air 

Pollution Rule (CSAPR)—was 

designated by EPA as a ‘‘nationally 

applicable’’ rule within the meaning of 

section 307(b)(1) of the CAA. See id. at 

48352. Accordingly, all petitions for 

review of the CSAPR had to be filed in 

the U.S. Court of Appeals for the D.C. 

Circuit and could not be filed in any 

other federal court. 42 U.S.C. 7607(b)(1). 

Accordingly, EPA believes the D.C. 

Circuit’s decision in EME Homer City 

vacating this rule is also nationally 

applicable.3 As such, EPA does not 

intend to take any actions, even if they 

are only reviewable in another federal 

Circuit Court of Appeals, that are 

inconsistent with the decision of the 

D.C. Circuit. EPA acknowledges, 

however, that if the EME Homer City 

decision is reversed or otherwise 

modified by the Supreme Court, at that 

time EPA may need to revisit its 

conclusion that this action does not 

trigger an obligation for EPA to 

promulgate a FIP. 

Comment 2: The commenter contends 

that even if EPA chose to follow the 

EME Homer City Generation decision, 

EPA should acknowledge that the 

disapproval starts a FIP clock and then 

move expeditiously to provide Utah 

with the information the EME Homer 

City court said EPA must provide. 

Response 2: EPA disagrees. As 

discussed in the response to comment 1, 

unless the D.C. Circuit’s decision in 

EME Homer City is reversed or 


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Federal Register / Vol. 78, No. 154 / Friday, August 9, 2013 / Rules and Regulations 48617 

otherwise modified, disapproval of 

Utah’s 2006 PM2.5 infrastructure SIP as 

it relates to section 110(a)(2)(D)(i)(I) 

does not give EPA authority, much less 

obligate it, to promulgate a FIP for Utah. 

EPA intends to move forward 

expeditiously to address the interstate 

transport requirements of the CAA in 

accordance with all applicable court 

decisions. 

Comment 3: The commenter states 

that the D.C. Circuit lacked jurisdiction 

in the EME Homer City decision to 

address whether or not a 2 year FIP 

clock should have started to run, 

because that issue was not timely raised 

in a challenge to the June 9, 2010 (75 FR 

32673) finding of failure to submit. 

Citing footnote 34 of the EME Homer 

City opinion, the commenter argues that 

the opinion acknowledged that the court 

was not overturning the June 9, 2010 

finding of failure to submit in which 

EPA stated that a FIP clock was started 

by the finding. 

Response 3: The Supreme Court 

granted certiorari and agreed to consider 

all three questions presented in the 

United States’ petition, including 

whether the D.C. Circuit lacked 

jurisdiction to consider the challenges 

on which it granted relief. However, as 

explained above we do not intend to 

take any actions that are inconsistent 

with the D.C. Circuit’s EME Homer City 

decision unless that decision is reversed 

or otherwise modified. The D.C. Circuit 

clearly held that EPA lacked authority 

to promulgate the CSAPR FIPs even 

though it acknowledged that for each 

state subject to a CSAPR FIP EPA had 

previously disapproved that state’s 

110(a)(2)(D)(i)(I) SIP submission or had 

previously found that the state had 

failed to submit a 110(a)(2)(D)(i)(I) SIP. 

EME Homer City, 696 F.3d at 31–37. 

Also, in the very same footnote cited by 

the commenter, the court stated: ‘‘[A] 

State cannot be ‘required’ to implement 

its good neighbor obligation in a SIP 

‘submission’— nor be deemed to have 

submitted a deficient SIP for failure to 

implement the good neighbor 

obligation—until it knows the target set 

by EPA.’’ Id. at 37 n.34. In our 

disapproval of the Utah submission, we 

are acting consistently with the D.C. 

Circuit decision, even as expressed in 

the footnote cited by the commenter. 

III. Final Action 

EPA is disapproving the 

110(a)(2)(D)(i)(I) portion of Utah’s 

September 21, 2010 submission. We are 

disapproving this portion of the 

submission because it fails to 

demonstrate that the Utah SIP is 

adequate for the requirements of 

110(a)(2)(D)(i)(I). As explained in detail 

in our proposal and our response to 

comments, unless the decision of the 

D.C. Circuit in EME Homer City is 

reversed or modified, this disapproval 

will not trigger an obligation for EPA to 

promulgate a FIP to address these 

interstate transport requirements, nor 

does it require Utah to submit a revised 

interstate transport SIP to meet the 

requirements. 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

state choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

disapproves state law that does not meet 

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 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule 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. 

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 October 8, 2013. 

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, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: July 26, 2013. 

Shaun L. McGrath, 

Regional Administrator, Region 8. 

[FR Doc. 2013–19200 Filed 8–8–13; 8:45 am] 

BILLING CODE 6560–50–P 


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