Partial Approval and Disapproval of Air Quality State Implementation Plans; Nevada; Infrastructure Requirements for Lead (Pb)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

EPA is proposing to partially approve and partially disapprove State Implementation Plan (SIP) revisions submitted by the State of Nevada on October 12, 2011, July 23, 2012, and August 30, 2012, pursuant to the requirements of the Clean Air Act (CAA or the Act) for the implementation, maintenance, and enforcement of the 2008 Lead (Pb) national ambient air quality standards (NAAQS). We refer to such SIP revisions as “infrastructure” SIPs because they are intended to address basic structural SIP requirements for new or revised NAAQS including, but not limited to, legal authority, regulatory structure, resources, permit programs, monitoring, and modeling necessary to assure attainment and maintenance of the standards. We are taking comments on this proposal and plan to follow with a final action.

DATES:

Written comments must be received on or before November 29, 2013.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R09-OAR-2013-0663, by one of the following methods:

1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

2. Email: mays.rory@epa.gov.

3. Fax: 415-947-3579.

4. Mail or deliver: Rory Mays (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. Deliveries are only accepted during the Regional Office's normal hours of operation.

Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through http://www.regulations.gov or email. http://www.regulations.gov is an anonymous access system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Docket: Generally, documents in the docket for this action are available electronically at 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 at www.regulations.gov,, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), 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:

Rory Mays, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 972-3227, mays.rory@epa.gov.

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. Background

A. Statutory Framework and Scope of Infrastructure SIPs

B. Regulatory Background

II. The State's Submittals

III. EPA's Evaluation and Proposed Action

A. Proposed Approvals

B. Proposed Disapprovals

C. Consequences of Proposed Disapprovals

IV. Statutory and Executive Order Reviews

I. Background

A. Statutory Framework and Scope of Infrastructure SIPs

Section 110(a)(1) of the CAA requires each state to submit to EPA, within three years after the promulgation of a primary or secondary NAAQS or any revision thereof, a SIP that provides for the “implementation, maintenance, and enforcement” of such NAAQS. Many of the section 110(a)(2) SIP elements relate to the general information and authorities that constitute the “infrastructure” of a state's air quality management program and SIP submittals that address these requirements are referred to as “infrastructure SIPs.” These infrastructure SIP elements are as follows:

• Section 110(a)(2)(A): Emission limits and other control measures.
• Section 110(a)(2)(B): Ambient air quality monitoring/data system.
• Section 110(a)(2)(C): Program for enforcement of control measures and regulation of new and modified stationary sources.
• Section 110(a)(2)(D)(i): Interstate pollution transport.
• Section 110(a)(2)(D)(ii): Interstate and international pollution abatement.
• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies.
• Section 110(a)(2)(F): Stationary source monitoring and reporting.
• Section 110(a)(2)(G): Emergency episodes.
• Section 110(a)(2)(H): SIP revisions.
• Section 110(a)(2)(J): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection.
• Section 110(a)(2)(K): Air quality modeling and submission of modeling data.
• Section 110(a)(2)(L): Permitting fees.
• Section 110(a)(2)(M): Consultation/participation by affected local entities.

Two elements identified in section 110(a)(2) are not governed by the three-year submission deadline of section 110(a)(1) and are therefore not addressed in this action. These elements relate to part D of title I of the CAA, and submissions to satisfy them are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the same time nonattainment area plan requirements are due under section 172. The two elements are: (i) section 110(a)(2)(C) to the extent it refers to permit programs required under part D [nonattainment new source review (NSR)], and (ii) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure elements related to the nonattainment NSR portion of section 110(a)(2)(C) or related to 110(a)(2)(I).

In addition, this rulemaking does not address three substantive issues that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction (SSM) at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule.”

Instead, EPA has indicated that it has other authority to address any such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why these issues are not part of the scope of infrastructure SIP rulemakings can be found in EPA's August 3, 2012 proposed rule entitled “Partial Approval and Disapproval of Air Quality Implementation Plans; Nevada; Infrastructure Requirements for Ozone and Fine Particulate Matter” in section I.C. (“Scope of the Infrastructure SIP Evaluation”).

B. Regulatory Background

On October 15, 2008, EPA issued a revised NAAQS for Pb. This action triggered a requirement for states to submit an infrastructure SIP to address the applicable requirements of section 110(a)(2) by October 15, 2011. EPA issued guidance in 2011 for such infrastructure SIPs entitled “Guidance on Section 110 Infrastructure SIPs for the 2008 Pb NAAQS” (“EPA's 2011 Pb Guidance”).

II. The State's Submittals

The Nevada Division of Environmental Protection (NDEP) submitted “Nevada's Clean Air Act § 110(a)(1) and (2) State Implementation Plan for the 2008 Pb NAAQS” on October 12, 2011, which included the NDEP and Washoe County Air Quality Management Division (AQMD) portions of the state's Pb infrastructure SIP submittal; and submitted the “Clark County Lead Infrastructure State Implementation Plan” on July 23, 2012, which is the Clark County Department of Air Quality (DAQ) portion of the state's Pb infrastructure SIP submittal. On August 30, 2012, NDEP submitted the “Revisions to Nevada's Clean Air Act § 110(a)(2) State Implementation Plan Submittals,” which amended several of the state's infrastructure SIP submittals, including the October 12, 2011 submittal for the 2008 Pb NAAQS.

These submittals included cover letters from the NDEP Administrator to the Region IX Regional Administrator and tables for each air quality management jurisdiction in Nevada (i.e., NDEP, Clark County, and Washoe County Health District) that list and discuss how state and local provisions address the elements of CAA section 110(a)(2). Each submittal also includes attachments that, among other things, compile the State and local rules and statutes that are currently approved into the Nevada SIP or that apply locally and are supportive of Nevada meeting the infrastructure SIP requirements, and provide evidence of public notice and an opportunity for public comment or hearing prior to adoption and submittal of the SIP revisions. We find that these submittals meet the procedural requirements for public participation under CAA section 110(a)(2) and 40 CFR 51.102.

We are proposing to act on all three submittals since they collectively address the infrastructure SIP requirements for the 2008 Pb NAAQS. We refer to them collectively herein as “Nevada's Pb Infrastructure Submittal.”

III. EPA's Evaluation and Proposed Action

EPA has evaluated Nevada's Pb Infrastructure Submittal and the existing provisions of the Nevada SIP for compliance with the CAA section 110(a) requirements for the 2008 Pb NAAQS. Our Pb Infrastructure SIP Technical Support Document (“Pb TSD”) contains more detailed evaluations and is available in the public docket for this rulemaking, which may be accessed online at http://www.regulations.gov , docket number EPA-R09-OAR-2013-0663. We also rely on our technical support document (TSD) for the conflict of interest requirements of CAA sections 110(a)(2)(E)(ii) and 128 (“Section 128 TSD”), which was prepared for our 2012 rulemaking on Nevada's infrastructure SIPs for the 1997 ozone, 1997 fine particulate (PM_2.5), and 2006 PM_2.5 NAAQS. That Section 128 TSD is also included in the public docket for today's rulemaking.

A. Proposed Approvals

Based upon our evaluation as presented in the TSDs, EPA proposes to approve Nevada's Pb Infrastructure Submittal with respect to the following infrastructure SIP requirements:

• Section 110(a)(2)(A): Emission limits and other control measures.
• Section 110(a)(2)(B): Ambient air quality monitoring/data system.
• Section 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new and modified stationary sources.
• Section 110(a)(2)(D)(i) (in part): Interstate pollution transport.
• Section 110(a)(2)(D)(ii) (in part): Interstate pollution abatement and international air pollution.
• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies.
• Section 110(a)(2)(F) (in part): Stationary source monitoring and reporting.
• Section 110(a)(2)(G): Emergency episodes.
• Section 110(a)(2)(H): SIP revisions.
• Section 110(a)(2)(J) (in part): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection.
• Section 110(a)(2)(K): Air quality modeling and submission of modeling data.
• Section 110(a)(2)(L): Permitting fees.
• Section 110(a)(2)(M): Consultation/participation by affected local entities.

B. Proposed Disapprovals

EPA proposes to disapprove Nevada's Pb Infrastructure Submittal with respect to the following infrastructure SIP requirements (details of the partial disapprovals are presented after this list):

• Section 110(a)(2)(C) (in part): Program for enforcement of control measures and regulation of new and modified stationary sources.
• Section 110(a)(2)(D)(i) (in part): Interstate pollution transport.
• Section 110(a)(2)(D)(ii) (in part): Interstate pollution abatement and international air pollution.
• Section 110(a)(2)(F) (in part): Stationary source monitoring and reporting.
• Section 110(a)(2)(J) (in part): Consultation with government officials, public notification, and prevention of significant deterioration (PSD) and visibility protection.

As explained more fully in our Pb TSD, we are proposing to disapprove the NDEP and Washoe County portions of Nevada's Pb Infrastructure Submittal with respect to the PSD-related requirements of sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J) because the Nevada SIP does not fully satisfy the statutory and regulatory requirements for PSD permit programs under part C, title I of the Act. Both NDEP and Washoe County AQMD currently implement the Federal PSD program in 40 CFR 52.21 for all regulated new source review (NSR) pollutants, pursuant to delegation agreements with EPA. See 40 CFR 52.1485. Accordingly, although the Nevada SIP remains deficient with respect to PSD requirements in both the NDEP and Washoe County portions of the SIP, these deficiencies are adequately addressed in both areas by the federal PSD program.

We are proposing to disapprove the Clark County portion of Nevada's Pb Infrastructure Submittal with respect to the PSD-related requirements of CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) because Clark County's SIP-approved PSD permit program does not contain provisions that satisfy the statutory and regulatory requirements concerning condensable particulate matter (PM) and PM_2.5 increments under part C, title I of the Act and in 40 CFR 51.166. We address these PSD requirements as part of this proposal on Nevada's Pb Infrastructure Submittal for the 2008 Pb NAAQS because section 110(a)(2) of the Act requires that each SIP contain a comprehensive PSD permitting program that addresses all regulated NSR pollutants, including greenhouse gases (GHG). As explained in more detail below and in our Pb TSD, our proposed disapproval of the Clark County portion of Nevada's Pb Infrastructure Submittal based on these PSD program deficiencies would, if finalized, trigger a FIP obligation with respect to the requirements concerning PM_2.5 increments in Clark County but would not trigger a FIP obligation with respect to the requirements concerning condensable PM, as a FIP clock to address this requirement has already been triggered by EPA's 2012 action on the NSR rules submitted for sources under Clark County's jurisdiction.

Our proposed disapprovals of the NDEP and Clark County portions of the Nevada Pb Infrastructure Submittal with respect to section 110(a)(2)(C) also stem from unique circumstances regarding NDEP and Clark County's permit programs for the regulation of new and modified minor sources and minor modifications of major sources, herein referred to as “minor NSR.” Within this infrastructure SIP proposal, we are not proposing to approve or disapprove existing minor NSR regulations. However, in 2012, EPA finalized rulemakings on Nevada's submittals addressing minor NSR for sources under NDEP and Clark County DAQ jurisdiction, which included limited disapprovals. Upon review of those actions, we found that the NDEP and Clark County minor NSR programs lack provisions to address the 2008 Pb NAAQS. Accordingly, we cannot rely on NDEP and Clark County's existing minor NSR programs to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the 2008 Pb NAAQS. Therefore, with respect to section 110(a)(2)(C), we propose to find that the Nevada SIP does not meet the minor NSR program requirements for sources under NDEP and Clark County jurisdiction for the 2008 Pb NAAQS.

As described in our Pb TSD, the resulting FIP obligations for these minor NSR program deficiencies have already been triggered by EPA's 2012 actions on the NSR rules submitted for sources under NDEP and Clark County jurisdiction. As such, our proposed disapproval of Nevada's Pb Infrastructure Submittal with respect to the minor NSR requirement in CAA section 110(a)(2)(C) for the NDEP and Clark County portions of the Nevada SIP would not trigger a new FIP obligation because a FIP obligation already exists for the same identified SIP deficiencies.

For the requirement of section 110(a)(2)(D)(i)(II) (regarding interference with other states' required measures to prevent significant deterioration of air quality), we propose to disapprove Nevada's Pb Infrastructure SIP for the reasons discussed above and in our Pb TSD in connection with the PSD-related requirements of CAA section 110(a)(2)(C).

With respect to the requirement in CAA section 110(a)(2)(D)(ii) concerning compliance with section 126 requirements regarding interstate pollution abatement, EPA proposes to disapprove the NDEP and Washoe County portions of Nevada's Pb Infrastructure Submittal, for the reasons discussed above and in our Pb TSD in connection with the PSD-related requirements of CAA section 110(a)(2)(C).

For Section 110(a)(2)(F), we propose to disapprove the Clark County portion of Nevada's Pb Infrastructure Submittal with respect to subsection 110(a)(2)(F)(iii) because Clark County has repealed its regulation, Section 24, which formerly addressed the correlation requirement of this subsection, without submitting a SIP revision to replace it.

As discussed in our Pb TSD, the resulting FIP obligation for this stationary source correlation requirement for the Clark County portion of the Nevada SIP has already been triggered by EPA's 2012 action on Nevada's infrastructure SIP submittals for the 1997 ozone, 1997 PM_2.5, and 2006 PM_2.5 NAAQS. As such, we propose that this disapproval for section 110(a)(2)(F)(iii) for the Clark County portion of the Nevada SIP for the 2008 Pb NAAQS does not trigger a new FIP obligation because a FIP obligation already exists for the same identified SIP deficiency.

For the PSD related requirements of Section 110(a)(2)(J) we propose to disapprove Nevada's Pb Infrastructure Submittal for the reasons discussed above and in our Pb TSD in connection with the PSD-related requirements of section 110(a)(2)(C).

EPA takes very seriously a proposal to disapprove a state plan, as we believe that it is preferable, and preferred in the provisions of the Clean Air Act, that these requirements be implemented through state plans. A state plan need not contain exactly the same provisions that EPA might require, but EPA must be able to find that the state plan is consistent with the requirements of the Act. Further, EPA's oversight role requires that it assure consistent implementation of Clean Air Act requirements by states across the country, even while acknowledging that individual decisions from source to source or state to state may not have identical outcomes. EPA believes these proposed disapprovals are the only path that is consistent with the Act at this time.

C. Consequences of Proposed Disapprovals

Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of part D, title I of the CAA (CAA sections 171-193) or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP Call) starts a sanctions clock. Nevada's Pb Infrastructure Submittal was not submitted to meet either of these requirements. Therefore, any action we take to finalize the described partial disapprovals will not trigger mandatory sanctions under CAA section 179.

In addition, CAA section 110(c)(1) provides that EPA must promulgate a FIP within two years after finding that a State has failed to make a required submission or disapproving a State implementation plan submission in whole or in part, unless EPA approves a SIP revision correcting the deficiencies within that two-year period. As discussed in section III.B of this proposed rule and in our Pb TSD, we are proposing several partial disapprovals. With one exception, however, these disapprovals would not result in new FIP obligations, either because EPA has already promulgated a FIP to address the identified deficiency or because a FIP clock has been triggered by EPA's disapproval of a prior SIP submission based on the same identified deficiency. The provisions for which our proposed disapproval, if finalized, would not result in a new FIP obligation include:

• PSD-related requirements in sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J): For NDEP and Washoe County, EPA has already promulgated the federal PSD program (see 40 CFR 52.1485);
• PSD-related requirements in sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J): For Clark County, EPA's October 18, 2012 final action on Clark County's PSD regulations triggered a November 19, 2014 deadline for EPA to promulgate a FIP addressing this requirement (77 FR 64039);
• Minor NSR requirement in section 110(a)(2)(C): EPA's September 27, 2012 final action on NDEP's minor NSR regulations (77 FR 59321) and October 18, 2012 final action on Clark County's minor NSR regulations (77 FR 64039) triggered deadlines of October 29, 2014 and November 19, 2014, respectively, for EPA to promulgate FIPs addressing the identified deficiencies;
• Section 110(a)(2)(F)(iii): For Clark County, EPA's October 23, 2012 final action on Nevada's Infrastructure SIP submittals for the 1997 ozone, 1997 PM_2.5, and 2006 PM_2.5 NAAQS (77 FR 64737) triggered a November 23, 2014 deadline for EPA to promulgate a FIP addressing the requirement for correlation of stationary source emissions with emission limits.

The one disapproval that would trigger a new FIP clock concerns the requirement under sections 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 110(a)(2)(J) regarding PSD increments for PM_2.5 in Clark County. EPA has not previously promulgated a FIP or triggered a FIP clock through disapproval of a prior SIP submission based on this deficiency. Thus, under CAA section 110(c)(1), our partial disapproval of the Clark County portion of Nevada's Pb Infrastructure Submittal based on this deficiency would, if finalized, require EPA to promulgate a FIP establishing PM_2.5 increments for Clark County within two years after the effective date of our final rule, unless the State submits and EPA approves a SIP revision that corrects this deficiency prior to the expiration of this two-year period.

We anticipate that NDEP will submit SIP revisions that adequately address the deficiencies identified in EPA's 2012 actions on NDEP's minor NSR program, Clark County's permit program (i.e., both PSD and minor NSR), Nevada's infrastructure SIPs for the 1997 ozone, 1997 PM_2.5, and 2006 PM_2.5 NAAQS, and today's proposed action on Nevada's Pb Infrastructure Submittal prior to expiration of the 2-year FIP deadline triggered by each of these actions. We further anticipate that EPA approval of such revisions would also serve to adequately address the partial disapprovals of the Nevada Pb Infrastructure SIP where no FIP is currently in place (i.e., the disapprovals proposed herein, except for those tied to the federal PSD programs for sources under NDEP and Washoe County Health District's jurisdiction). We stand ready to work with the State of Nevada to develop such SIP revisions.

IV. Statutory and Executive Order Reviews

Executive Order 12866, Regulatory Planning and Review

This action is not a “significant regulatory action” under the terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO.

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, because this proposed partial approval and partial disapproval of SIP revisions under CAA section 110 will not in-and-of itself create any new information collection burdens but simply proposes to approve certain State requirements, and to disapprove certain other State requirements, for inclusion into the SIP. Burden is defined at 5 CFR 1320.3(b).

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. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule, we certify that this proposed action will not have a significant impact on a substantial number of small entities. This proposed rule does not impose any requirements or create impacts on small entities. This proposed partial SIP approval and partial SIP disapproval under CAA section 110 will not in-and-of itself create any new requirements but simply proposes to approve certain State requirements, and to disapprove certain other State requirements, for inclusion into the SIP. Accordingly, it affords no opportunity for EPA to fashion for small entities less burdensome compliance or reporting requirements or timetables or exemptions from all or part of the rule. Therefore, this action will not have a significant economic impact on a substantial number of small entities.

We continue to be interested in the potential impacts of this proposed rule on small entities and welcome comments on issues related to such impacts.

Unfunded Mandates Reform Act

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. EPA has determined that the proposed partial approval and partial disapproval 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 action proposes to approve certain pre-existing requirements, and to disapprove certain other 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 proposed action.

Executive Order 13132, Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), 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.”

This action does not have federalism implications. It 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 proposes to approve certain State requirements, and to disapprove certain other State requirements, for inclusion into the SIP and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, Executive Order 13132 does not apply to this action.

Executive Order 13175, Coordination With Indian Tribal Governments

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP on which EPA is proposing action would not 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. Thus, Executive Order 13175 does not apply to this proposed action.

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 proposed action is not subject to Executive Order 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997). This proposed partial approval and partial disapproval under CAA section 110 will not in-and-of itself create any new regulations but simply proposes to approve certain State requirements, and to disapprove certain other State requirements, for inclusion into the SIP.

Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use

This proposed rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

The EPA believes that this proposed action is not subject to requirements of Section 12(d) of NTTAA because application of those requirements would be inconsistent with the Clean Air Act.

Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

Executive Order 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 proposed rulemaking.

List of Subjects in 40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Lead
• Particulate matter
• Pb
• Reporting and recordkeeping requirements

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