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; clarification.

SUMMARY:

The Environmental Protection Agency (EPA) is clarifying its final action on revisions to the Hawaii State Implementation Plan (SIP), published in the Federal Register on August 9, 2012.

DATES:

This final rule is effective on March 31, 2014.

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, richmond.dawn@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, the terms “we,” “us,” and “our” refer to EPA.

I. EPA's Action

On August 9, 2012 (77 FR 47530), EPA took final action 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 national ambient air quality standard (NAAQS) for ozone and the 1997 and 2006 NAAQS for fine particulate matter (PM_2.5) (“2011 Hawaii Infrastructure SIP”).

In this document, we are making certain corrections to the entries in the table in paragraph (3) of 40 CFR 52.620, clarifying the contents of the applicable plan as approved on August 9, 2012, and specifying the extent to which EPA disapproved the December 14, 2011 SIP submittal. Specifically, we are:

• Correcting the title of the approved plan and the submittal date (the submittal date was December 14, 2011, not December 14, 2012);
• Clarifying that the plan, as approved on August 9, 2012, does not include the public process documentation included in the December 14, 2011 SIP submittal;
• Clarifying the specific statutory provisions approved on August 9, 2012, and the extent to which the approved existing SIP statutory provisions were thereby superseded, by listing all approved statutory provisions (including a few previously approved and not superseded) separately as nonregulatory provisions in the Hawaii SIP; and
• Specifying the extent of our disapproval for the Hawaii Infrastructure SIP for the various elements under CAA section 110(a)(2).

EPA has determined that today's action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Public notice and comment for this action are unnecessary because today's clarification of EPA's August 9, 2012 final rule approving in part and disapproving in part the 2011 Hawaii Infrastructure SIP has no substantive impact on that approval and the clarification makes no substantive difference to EPA's analysis as set out in that rule. In addition, EPA can identify no particular reason why the public would be interested in being notified of this clarification since the opportunity to comment on the action to approve in part and disapprove in part the 2011 Hawaii Infrastructure SIP was previously provided and no comments were received.

EPA also finds that there is good cause under APA section 553(d)(3) for this clarification to become effective on the date of publication of this action. Section 553(d)(3) of the APA allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” (5 U.S.C. 553(d)(3)). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3), is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule simply clarifies the contents of the applicable plan as approved on August 9, 2012, and specifies the extent to which EPA disapproved the December 14, 2011 SIP submittal. For these reasons, EPA finds good cause under APA section 553(d)(3) for this clarification to become effective on the date of publication of this action.

II. Statutory and Executive Order Reviews

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely clarifies the contents of the applicable Hawaii SIP as approved on August 9, 2012, and specifies the extent to which EPA disapproved the 2011 Hawaii Infrastructure SIP in the August 9, 2012 final rule. This clarification has no substantive impact on EPA's August 9, 2012, approval and it imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this clarification does not impose any additional enforceable duty beyond that required by state law, it 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).

This clarification also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely clarifies the contents of a state plan implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This action also is not subject to Executive Order 13045, “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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).

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 May 30, 2014. 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

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

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

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

Subpart M—Hawaii

2. In § 52.620, the table in paragraph (e) is amended by:

a. Removing the entry for “Section III—Legal Authority”;

b. Revising the table section entitled “State of Hawaii Air Pollution Control Implementation Plan for Lead”;

c. Adding a table section entitled “Hawaii Revised Statutes, Division 1 (Government), Title 7 (Public officers and employees), Chapter 84 (Standards of Conduct)” at the end of the table;

d. Adding a table section entitled “Hawaii Revised Statutes, Chapter 342, Hawaii Statute on Environmental Quality”; and

e. Adding a table section entitled “Hawaii Revised Statutes, Division 1 (Government), Title 19 (Health), Chapter 342B (Air Pollution Control)”.

The revisions and additions read as follows:

3. Section 52.623 is revised to read as follows: