On July 12, 2012, EPA proposed to approve Alabama's PM2.5attainment plan, which includes an attainment demonstration; RACT and RACM; RFP; contingency measures; and, for transportation conformity purposes, an insignificance determination for direct PM2.5and NOXfor the mobile source contribution to ambient PM2.5levels for the State's portion of the Chattanooga Area. As mentioned above, more detail on EPA's rationale for this approval can be found in EPA's July 12, 2012, proposed rulemaking for this action.See77 FR 41132.
The recent D.C. Circuit decision on the Cross-State Air Pollution Rule (Transport Rule),EME Homer Generation LPv.EPA,No. 11-1302 (D.C. Cir., August 21, 2012)4
does not disturb EPA's determination that it is appropriate to move forward with this final action. As EPA explained in the proposed rule, the air quality analysis conducted for the Transport Rule demonstrates that the Chattanooga Area would be able to attain the 1997 Annual PM2.5NAAQS even in the absence of either the Clean Air Interstate Rule (CAIR) or the Transport Rule. Nothing in the D.C. Circuit's August 2012 decision disturbs or calls into question that conclusion or the validity of the air quality analysis on which it is based. More importantly, and as EPA also explained in the proposal,see77 FR 41136, the Transport Rule is not relevant to this action. The Transport Rule only addressed emissions in 2012 and beyond. As such, it is not relevant to the question addressed in today's action—whether the attainment plan submitted by Alabama is sufficient for bringing the Area into attainment by the April 2010 attainment date, a date before the Transport Rule was even promulgated.
4The court's judgment is not final at this time as the mandate has not yet issued.
For this same reason, the status of CAIR after the April 2010 attainment date is also not relevant to this action. While the monitoring data that shows the Area attained the 1997 Annual PM2.5NAAQS by the April 2010 attainment deadline was impacted by CAIR, CAIR was in place and enforceable through the 2010 attainment date that is relevant to action on this attainment plan. CAIR was an enforceable control measure during the relevant period applicable to affected sources in the Area, as well as sources throughout the eastern U.S. As such, the status of CAIR after that date is irrelevant and does not impact our conclusion that the attainment plan should be approved. Moreover, in its August 2012 decision, the Court also ordered EPA to continue implementing CAIR.See Homer,slip op. at 60. In sum, neither the current status of CAIR nor the current status of the Transport Rule affects any of the criteria for proposed approval of this SIP revision.
The comment period for EPA's July 12, 2012, proposed rulemaking closed on August 13, 2012. EPA did not receive any comments, adverse or otherwise, on the proposed rulemaking to approve Alabama's submission for the 1997 PM2.5NAAQS, which includes an attainment demonstration; RACT and RACM; RFP; contingency measures; and, for transportation conformity purposes, an insignificance determination for direct PM2.5and NOXfor the mobile source contribution to ambient PM2.5levels for the State's portion of the Chattanooga Area.
III. Final Action
EPA is taking final action to approve a revision to Alabama's SIP submitted to EPA by ADEM on October 7, 2009, for the purpose of demonstrating how the Alabama portion of the Chattanooga Area would achieve attainment of the 1997 Annual PM2.5NAAQS by no later than April 5, 2010. Alabama's October 7, 2009, SIP revision includes an attainment demonstration; RACT and RACM analyses; an RFP plan; base-year emissions inventories; contingency measures; and, for transportation conformity purposes, an insignificance determination for direct PM2.5and NOXfor the mobile source contribution to ambient PM2.5levels for the State's portion of the Chattanooga Area. After review and consideration of the relevant information and data, EPA has determined that the Alabama October 7, 2009, SIP revision is consistent with the CAA and EPA's PM2.5Implementation Rule, and as such EPA is approving this SIP revision.
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 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 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. 3501et 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. 601et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this final 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. 801et 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 theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal 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 December 4, 2012. 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.Seesection 307(b)(2).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
Dated: September 25, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
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:
42 U.S.C. 7401et seq.
2. In § 52.50, table “EPA Approved Alabama Non-Regulatory Provisions” in paragraph (e) is amended by adding a new entry for “Attainment Plan for the Alabama Portion of the Chattanooga 1997 Annual PM2.5Nonattainment Area” to read as follows:
Identification of plan.
(e) * * *
EPA-Approved Alabama Non-Regulatory Provisions
Name of non-regulatory SIPprovision
Applicable geographic ornonattainment area
State submittal date/effective date
EPA approval date
Attainment Plan for the Alabama Portion of the Chattanooga 1997 Annual PM2.5Nonattainment Area
A portion of Jackson County, Alabama
10/05/2012 [Insert citation of publication]