Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Infrastructure State Implementation Plan Requirements, 42446-42459 [2015-17475]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 80, Number 137 (Friday, July 17, 2015)]
[Proposed Rules]
[Pages 42446-42459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17475]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2012-0950; FRL-9930-53-Region 1]


Approval and Promulgation of Air Quality Implementation Plans; 
New Hampshire; Infrastructure State Implementation Plan Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) submissions from 
New Hampshire regarding the infrastructure requirements of the Clean 
Air Act (CAA or Act) for the 2008 lead (Pb), 2008 8-hr ozone, 2010 
nitrogen dioxide (NO2), and 2010 sulfur dioxide 
(SO2) National Ambient Air Quality Standards (NAAQS). EPA is 
also proposing to convert conditional approvals for several 
infrastructure requirements for the 1997 and 2006 fine particle 
(PM2.5) NAAQS to full approval under the CAA. Furthermore, 
we are proposing to update the classifications for several of New 
Hampshire's air quality control regions for ozone and sulfur dioxide 
based on recent air quality monitoring data collected by the state, and 
to grant the state's request for an exemption from the infrastructure 
SIP contingency plan obligation for ozone. Last, we are proposing to 
conditionally approve certain elements of New Hampshire's submittal 
relating to prevention of significant deterioration requirements.
    The infrastructure requirements are designed to ensure that the 
structural components of each state's air quality management program 
are adequate to meet the state's responsibilities under the CAA.

DATES: Comments must be received on or before August 17, 2015.

ADDRESSES: Submit your comments, identified by the appropriate Docket 
ID number as indicated in the instructions section below, by one of the 
following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: arnold.anne@epa.gov.
    3. Fax: (617) 918-0047.
    4. Mail: Anne Arnold, Manager, Air Quality Planning Unit, Air 
Programs Branch, Mail Code OEP05-2, U.S. Environmental Protection 
Agency, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-
3912.
    5. Hand Delivery: Anne Arnold, Manager, Air Quality Planning Unit, 
Air Programs Branch, Mail Code OEP05-2, U.S. Environmental Protection 
Agency, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-
3912. Such deliveries are only accepted during the Regional Office 
normal hours of operation, and special arrangements should be made for 
deliveries of boxed information. The Regional Office official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID. EPA-R01-OAR-2012-
0950. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. 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. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the U.S. Environmental 
Protection Agency, Region 1, Air Programs Branch, 5 Post Office Square, 
Boston, Massachusetts. This facility is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding Federal holidays.

FOR FURTHER INFORMATION CONTACT: Bob McConnell, Environmental Engineer, 
Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02), 
U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, 
Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1046; 
mcconnell.robert@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean

[[Page 42447]]

EPA. This supplementary information section is arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. What is the background of these State Implementation Plan (SIP) 
submissions?
    A. What New Hampshire SIP submissions does this rulemaking 
address?
    B. Why did the state make these SIP submissions?
    C. What is the scope of this rulemaking?
III. What guidance is EPA using to evaluate these SIP submissions?
IV. What is the result of EPA's review of these SIP submissions?
    A. Section 110(a)(2)(A)--Emission limits and other control 
measures
    B. Section 110(a)(2)(B)--Ambient air quality monitoring/data 
system
    C. Section 110(a)(2)(C)--Program for enforcement of control 
measures and for construction or modification of stationary sources
    i. Sub-element 1: Enforcement of SIP measures
    ii. Sub-element 2: Prevention of Significant Deterioration (PSD) 
program for major sources and major modifications
    iii. Sub-element 3: Preconstruction permitting for minor sources 
and minor modifications
    D. Section 110(a)(2)(D)--Interstate transport
    i. Sub-element 1: Section 110(a)(2)(D)(i)(I)--Contribute to 
nonattainment (prong 1) and interfere with maintenance of the NAAQS 
(prong 2)
    ii. Sub-element 2: Section 110(a)(2)(D)(i)(II)--PSD (prong 3)
    iii. Sub-element 3: Section 110(a)(2)(D)(i)(II)--Visibility 
protection (prong 4)
    iv. Sub-element 4: Section 110(a)(2)(D)(ii)--Interstate 
pollution abatement
    v. Sub-element 5: Section 110(a)(2)(D)(ii)--International 
pollution abatement
    E. Section 110(a)(2)(E)--Adequate resources
    F. Section 110(a)(2)(F)--Stationary source monitoring system
    G. Section 110(a)(2)(G)--Emergency powers
    H. Section 110(a)(2)(H)--Future SIP revisions
    I. Section 110(a)(2)(I)--Nonattainment area plan or plan 
revisions under part D
    J. Section 110(a)(2)(J)--Consultation with government officials; 
public notifications; PSD; visibility protection
    i. Sub-element 1: Consultation with government officials
    ii. Sub-element 2: Public notification
    iii. Sub-element 3: PSD
    iv. Visibility protection
    K. Section 110(a)(2)(K)--Air quality modeling/data
    L. Section 110(a)(2)(L)--Permitting fees
    M. Section 110(a)(2)(M)--Consultation/participation by affected 
local entities
V. What action is EPA taking?
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date, and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What is the background of these State Implementation Plan (SIP) 
submissions?

A. What New Hampshire SIP submissions does this rulemaking address?

    This rulemaking addresses submissions from the New Hampshire 
Department of Environmental Services (NH-DES). The state submitted its 
infrastructure SIP for each NAAQS on the following dates: 2008 Pb--
November 7, 2011; 2008 ozone--December 31, 2012; 2010 NO2--
January 28, 2013; and, 2010 SO2--September 13, 2013.
    This rulemaking also addresses certain infrastructure SIP elements 
for the 1997 and 2006 fine particle (PM2.5) \1\ NAAQS for 
which EPA previously issued a conditional approval. See 77 FR 63228, 
October 16, 2012. The state submitted these infrastructure SIPs on 
April 3, 2008, and September 18, 2009, respectively.
---------------------------------------------------------------------------

    \1\ PM2.5 refers to particulate matter of 2.5 microns 
or less in diameter, oftentimes referred to as ``fine'' particles.
---------------------------------------------------------------------------

B. Why did the state make these SIP submissions?

    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure that their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS, including 
the 1997 and 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS. These submissions must 
contain any revisions needed for meeting the applicable SIP 
requirements of section 110(a)(2), or certifications that their 
existing SIPs for the NAAQS already meet those requirements.
    EPA highlighted this statutory requirement in an October 2, 2007, 
guidance document entitled ``Guidance on SIP Elements Required Under 
Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' (2007 Memo). 
On September 25, 2009, EPA issued an additional guidance document 
pertaining to the 2006 p.m.2.5 NAAQS entitled ``Guidance on 
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality 
Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011, 
``Guidance on infrastructure SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality 
Standards (NAAQS)'' (2011 Memo). Most recently, EPA issued ``Guidance 
on Infrastructure State Implementation Plan (SIP) Elements under Clean 
Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 (2013 Memo). 
The SIP submissions referenced in this rulemaking pertain to the 
applicable requirements of section 110(a)(1) and (2) and address the 
2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 
NAAQS, and to elements of New Hampshire's submittals for the 1997 
PM2.5 and 2006 PM2.5 NAAQS which we previously 
conditionally approved. See 77 FR 63228, October 16, 2012. To the 
extent that the prevention of significant deterioration (PSD) program 
is comprehensive and non-NAAQS specific, a narrow evaluation of other 
NAAQS, such as the 1997 8-hour ozone NAAQS, will be included in the 
appropriate sections.

C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submissions from New Hampshire that 
address the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS. Additionally, we are proposing to convert 
conditional approvals for several infrastructure requirements for the 
1997 and 2006 PM2.5 NAAQS (See 77 FR 63228, October 16, 
2012) to full approval, proposing approval of the statutes submitted by 
New Hampshire that support the infrastructure SIP

[[Page 42448]]

submittals, and proposing to conditionally approve certain aspects of 
the infrastructure SIP which pertain to the State's PSD program.
    The requirement for states to make a SIP submission of this type 
arises out of CAA sections 110(a)(1) and 110(a)(2). Pursuant to these 
sections, each state must submit a SIP that provides for the 
implementation, maintenance, and enforcement of each primary or 
secondary NAAQS. States must make such SIP submission ``within 3 years 
(or such shorter period as the Administrator may prescribe) after the 
promulgation of'' a new or revised NAAQS. This requirement is triggered 
by the promulgation of a new or revised NAAQS and is not conditioned 
upon EPA's taking any other action. Section 110(a)(2) includes the 
specific elements that ``each such plan'' must address.
    EPA commonly refers to such SIP submissions made for the purpose of 
satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as 
``infrastructure SIP'' submissions. Although the term ``infrastructure 
SIP'' does not appear in the CAA, EPA uses the term to distinguish this 
particular type of SIP submission from submissions that are intended to 
satisfy other SIP requirements under the CAA, such as ``nonattainment 
SIP'' or ``attainment plan SIP'' submissions to address the planning 
requirements of part D of title I of the CAA.
    This rulemaking will not cover three substantive areas 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 at sources (``SSM'' emissions) 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 New Source Review (NSR) Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Instead, EPA has the authority to address each one of these 
substantive areas separately. A detailed history, interpretation, and 
rationale for EPA's approach to infrastructure SIP requirements can be 
found in EPA's May 13, 2014, proposed rule entitled, ``Infrastructure 
SIP Requirements for the 2008 Lead NAAQS'' in the section, ``What is 
the scope of this rulemaking?'' (See 79 FR 27241 at 27242-27245).

III. What guidance is EPA using to evaluate these SIP submissions?

    EPA reviews each infrastructure SIP submission for compliance with 
the applicable statutory provisions of section 110(a)(2), as 
appropriate. Historically, EPA has elected to use non-binding guidance 
documents to make recommendations for states' development and EPA 
review of infrastructure SIPs, in some cases conveying needed 
interpretations on newly arising issues and in some cases conveying 
interpretations that have already been developed and applied to 
individual SIP submissions for particular elements. EPA guidance 
applicable to these infrastructure SIP submissions is embodied in 
several documents. Specifically, attachment A of the 2007 Memo 
(Required Section 110 SIP Elements) identifies the statutory elements 
that states need to submit in order to satisfy the requirements for an 
infrastructure SIP submission. The 2009 Memo provides additional 
guidance for certain elements regarding the 2006 PM2.5 
NAAQS, and the 2011 Memo provides guidance specific to the 2008 Pb 
NAAQS. Lastly, the 2013 Memo identifies and further clarifies aspects 
of infrastructure SIPs that are not NAAQS specific.

IV. What is the result of EPA's review of these SIP submissions?

    Pursuant to section 110(a), and as noted in the 2011 Memo and the 
2013 Memo, states must provide reasonable notice and opportunity for 
public hearing for all infrastructure SIP submissions. NH-DES held 
public hearings for each infrastructure SIP on the following dates: 
2008 Pb--October 3, 2011; 2008 ozone--December 31, 2012; 2010 
NO2--January 16, 2013; and, 2010 SO2--May 24, 
2013. New Hampshire received comments from EPA on each of its proposed 
infrastructure SIPs, and also received comments from the Sierra Club on 
its proposed SO2 infrastructure SIP. EPA is also soliciting 
comment on our evaluation of the state's infrastructure SIP submissions 
in this notice of proposed rulemaking. New Hampshire provided detailed 
synopses of how various components of its SIP meet each of the 
requirements in section 110(a)(2) for the 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS, as applicable. The 
following review evaluates the state's submissions in light of section 
110(a)(2) requirements and relevant EPA guidance. The review also 
evaluates certain infrastructure requirements for the 1997 and 2006 
PM2.5 NAAQS for which EPA previously issued a conditional 
approval. (See 77 FR 63228, October 16, 2012).

A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures

    This section requires SIPs to include enforceable emission limits 
and other control measures, means or techniques, schedules for 
compliance, and other related matters. However, EPA has long 
interpreted emission limits and control measures for attaining the 
standards as being due when nonattainment planning requirements are 
due.\2\ In the context of an infrastructure SIP, EPA is not evaluating 
the existing SIP provisions for this purpose. Instead, EPA is only 
evaluating whether the state's SIP has basic structural provisions for 
the implementation of the NAAQS.
---------------------------------------------------------------------------

    \2\ See, e.g., EPA's final rule on ``National Ambient Air 
Quality Standards for Lead.'' 73 FR 66964, 67034 (Nov. 12, 2008).
---------------------------------------------------------------------------

    New Hampshire's Revised Statutes Annotated (RSA) at Chapter 21-O 
established the New Hampshire Department of Environmental Services (NH-
DES), and RSA Chapter 125-C provides the Commissioner of NH-DES with 
the authority to develop rules and regulations necessary to meet state 
and Federal ambient air quality standards. New Hampshire also has SIP-
approved provisions for specific pollutants. For example, NH-DES has 
adopted primary and secondary ambient air quality standards for each of 
these pollutants in its Chapter Env-A 300 Ambient Air Quality 
Standards, as follows: for PM2.5, Part Env-A 303; for 
SO2, Part Env-A 304; for NO2, Part Env-A 306; for 
ozone, Part Env-A 307; and, for lead, Part Env-A 308. As noted in EPA's 
approval of New Hampshire's Chapter Env-A 300, Ambient Air Quality 
Standards, on June 24, 2014 (79 FR 35695), New Hampshire's standards 
are consistent with the current federal NAAQS. Therefore, EPA proposes 
that New Hampshire has met the infrastructure SIP requirements of 
section 110(a)(2)(A) with respect to the 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS. In addition, we 
previously issued a conditional approval for New Hampshire's 
infrastructure SIP submittal made for the 1997 and 2006 
PM2.5 NAAQS because portions of Env-A 300 were outdated. 
(See 77 FR 63228, October 16, 2012). However, as noted in our June 24, 
2014 action mentioned above, New Hampshire has revised their standards 
and they are now consistent

[[Page 42449]]

with the federal NAAQS. In light of this, we propose to convert the 
conditional approval for this infrastructure requirement for the 1997 
and 2006 PM2.5 NAAQS (See 77 FR 63228, October 16, 2012) to 
full approval. As previously noted, EPA is not proposing to approve or 
disapprove any existing state provisions or rules related to SSM or 
director's discretion in the context of section 110(a)(2)(A).

B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System

    This section requires SIPs to include provisions to provide for 
establishing and operating ambient air quality monitors, collecting and 
analyzing ambient air quality data, and making these data available to 
EPA upon request. Each year, states submit annual air monitoring 
network plans to EPA for review and approval. EPA's review of these 
annual monitoring plans includes our evaluation of whether the state: 
(i) Monitors air quality at appropriate locations throughout the state 
using EPA-approved Federal Reference Methods or Federal Equivalent 
Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in 
a timely manner; and, (iii) provides EPA Regional Offices with prior 
notification of any planned changes to monitoring sites or the network 
plan.
    NH-DES continues to operate a monitoring network, and EPA approved 
the state's most recent Annual Air Monitoring Network Plan for Pb, 
ozone, NO2, and SO2 on October 10, 2014. 
Furthermore, NH-DES populates AQS with air quality monitoring data in a 
timely manner, and provides EPA with prior notification when 
considering a change to its monitoring network or plan. EPA proposes 
that NH-DES has met the infrastructure SIP requirements of section 
110(a)(2)(B) with respect to the 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.

C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures 
and for Construction or Modification of Stationary Sources

    States are required to include a program providing for enforcement 
of all SIP measures and the regulation of construction of new or 
modified stationary sources to meet NSR requirements under PSD and 
nonattainment new source review (NNSR) programs. Part C of the CAA 
(sections 160-169B) addresses PSD, while part D of the CAA (sections 
171-193) addresses NNSR requirements.
    The evaluation of each state's submission addressing the 
infrastructure SIP requirements of section 110(a)(2)(C) covers the 
following: (i) Enforcement of SIP measures; (ii) PSD program for major 
sources and major modifications; and, (iii) permitting program for 
minor sources and minor modifications. A discussion of GHG permitting 
and the ``Tailoring Rule'' \3\ is included within our evaluation of the 
PSD provisions of New Hampshire's submittals.
---------------------------------------------------------------------------

    \3\ In EPA's April 28, 2011 proposed rulemaking for several 
states' infrastructure SIPs for the 1997 ozone and PM2.5 
NAAQS, we stated that each state's PSD program must meet applicable 
requirements for evaluation of all regulated NSR pollutants in PSD 
permits (See 76 FR 23757 at 23760). This view was reiterated in 
EPA's August 2, 2012 proposed rulemaking for several infrastructure 
SIPs for the 2006 PM2.5 NAAQS (See 77 FR 45992 at 45998). 
In other words, if a state lacks provisions needed to adequately 
address Pb, NOX as a precursor to ozone, PM2.5 
precursors, PM2.5 and PM10 condensables, 
PM2.5 increments, or the Federal GHG permitting 
thresholds, the provisions of section 110(a)(2)(C) requiring a 
suitable PSD permitting program must be considered not to be met 
irrespective of the NAAQS that triggered the requirement to submit 
an infrastructure SIP, including the 2008 Pb NAAQS.
---------------------------------------------------------------------------

i. Sub-Element 1: Enforcement of SIP Measures
    NH-DES staffs and implements an enforcement program pursuant to RSA 
Chapter 125-C: Air Pollution Control, of the New Hampshire Statutes. 
Specifically, RSA Chapter 125-C:15, Enforcement, authorizes the 
Commissioner of the NH-DES or the authorized representative of the 
Commissioner, upon finding a violation of Chapter 125-C has occurred, 
to issue a notice of violation or an order of abatement, and to include 
within it a schedule for compliance. Additionally, RSA 125-C:15 I-b, 
II, III, and IV provide for penalties for violations of Chapter 125-C. 
EPA proposes that New Hampshire has met the enforcement of SIP measures 
requirements of section 110(a)(2)(C) with respect to the 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.
ii. Sub-Element 2: PSD Program for Major Sources and Major 
Modifications
    Prevention of significant deterioration (PSD) applies to new major 
sources or modifications made to major sources for pollutants where the 
area in which the source is located is in attainment of, or 
unclassifiable with regard to, the relevant NAAQS. NH-DES's EPA-
approved PSD rules, contained at Part Env-A 619, contain provisions 
that address the majority of the applicable infrastructure SIP 
requirements related to the 2008 Pb, 2008 ozone, 2010 NO2, 
and 2010 SO2 NAAQS. One aspect of New Hampshire's PSD rules 
relating to notification of neighboring states regarding the issuance 
of PSD permits, however, has not been fully addressed at this time. 
However, on April 24, 2015, EPA proposed to conditionally approve a 
recent update from New Hampshire to address this deficiency. (See 80 FR 
22957). Once we have published a final conditional approval for that 
action, we intend to conditionally approve this aspect of sub-element 2 
of the state's infrastructure SIPs as well. Accordingly, we propose to 
approve the majority of New Hampshire's submittals for this sub-element 
pertaining to section 110(a)(2)(C) with respect to the 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS, but to 
conditionally approve the aspect pertaining to provision of notice to 
neighboring states.
    EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects 
of the 1990 Amendments Relating to New Source Review and Prevention of 
Significant Deterioration as They Apply in Carbon Monoxide, Particulate 
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase 
2 Rule) was published on November 29, 2005 (See 70 FR 71612). Among 
other requirements, the Phase 2 Rule obligated states to revise their 
PSD programs to explicitly identify NOX as a precursor to 
ozone (70 FR 71612 at 71679, 71699-71700, November 29, 2005). This 
requirement was codified in 40 CFR 51.166, and requires that states 
submit SIP revisions incorporating the requirements of the rule, 
including these specific NOX as a precursor to ozone 
provisions, by June 15, 2007 (See 70 FR 71612 at 71683, November 29, 
2005).
    On November 15, 2012, New Hampshire submitted revisions to its PSD 
program incorporating the necessary changes regarding NOX as 
a precursor to ozone, consistent with the requirements of the Phase 2 
Rule. EPA proposed approval of New Hampshire's SIP revisions with 
respect to the NSR portion of the Phase 2 Rule on January 21, 2015, 
(See 80 FR 2860),\4\ and we will take final action on those revisions 
prior to, or in conjunction with, finalizing our action on these 
infrastructure SIP requirements. Therefore, we are proposing to find 
that New Hampshire has met this set of requirements of section 
110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS regarding the explicit

[[Page 42450]]

identification of NOX as a precursor to ozone, consistent 
with our Phase 2 Rule.
---------------------------------------------------------------------------

    \4\ Note that EPA subsequently proposed a conditional approval 
of New Hampshire's PSD program due to a lack of a provision 
requiring notification to neighboring states of the issuance of PSD 
permits. See 80 FR 22957; April 24, 2015.
---------------------------------------------------------------------------

    On May 16, 2008 (See 73 FR 28321), EPA issued the Final Rule on the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule). 
The 2008 NSR Rule finalized several new requirements for SIPs to 
address sources that emit direct PM2.5 and other pollutants 
that contribute to secondary PM2.5 formation. One of these 
requirements is for NSR permits to address pollutants responsible for 
the secondary formation of PM2.5, otherwise known as 
precursors. In the 2008 rule, EPA identified precursors to 
PM2.5 for the PSD program to be sulfur dioxide 
(SO2) and NOX, unless the state demonstrates to 
the Administrator's satisfaction or EPA demonstrates that 
NOX emissions in an area are not a significant contributor 
to that area's ambient PM2.5 concentrations. The 2008 NSR 
Rule also specifies that volatile organic compounds (VOCs) are not 
considered to be precursors to PM2.5 in the PSD program, 
unless the state demonstrates to the Administrator's satisfaction or 
EPA demonstrates that emissions of VOCs in an area are significant 
contributors to that area's ambient PM2.5 concentrations.
    The explicit references to SO2, NOX, and VOCs 
as they pertain to secondary PM2.5 formation are codified at 
40 CFR 51.166(b)(49)(i)(b) and 52.21(b)(50)(i)(b). As part of 
identifying pollutants that are precursors to PM2.5, the 
2008 NSR Rule also required states to revise the definition of 
``significant'' as it relates to a net emissions increase or the 
potential of a source to emit pollutants. Specifically, 40 CFR 
51.166(b)(23)(i) and 52.21(b)(23)(i) define ``significant'' for 
PM2.5 to mean the following emissions rates: 10 tons per 
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 
tpy of NOX (unless the state demonstrates to the 
Administrator's satisfaction or EPA demonstrates that NOX 
emissions in an area are not a significant contributor to that area's 
ambient PM2.5 concentrations). The deadline for states to 
submit SIP revisions to their PSD programs incorporating these changes 
was May 16, 2011 (See 73 FR 28321 at 28341, May 16, 2008).\5\
---------------------------------------------------------------------------

    \5\ EPA notes that on January 4, 2013, the U.S. Court of Appeals 
for the D.C. Circuit, in Natural Resources Defense Council v. EPA, 
706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 
NSR Rule in accordance with the CAA's requirements for 
PM10 nonattainment areas (Title I, Part D, subpart 4), 
and not the general requirements for nonattainment areas under 
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250). 
As the subpart 4 provisions apply only to nonattainment areas, the 
EPA does not consider the portions of the 2008 rule that address 
requirements for PM2.5 attainment and unclassifiable 
areas to be affected by the court's opinion. Moreover, EPA does not 
anticipate the need to revise any PSD requirements promulgated by 
the 2008 NSR rule in order to comply with the court's decision. 
Accordingly, the EPA's approval of New Hampshire's infrastructure 
SIP as to elements C, D(i)(II), or J with respect to the PSD 
requirements promulgated by the 2008 implementation rule does not 
conflict with the court's opinion. The Court's decision with respect 
to the nonattainment NSR requirements promulgated by the 2008 
implementation rule also does not affect EPA's action on the present 
infrastructure action. EPA interprets the CAA to exclude 
nonattainment area requirements, including requirements associated 
with a nonattainment NSR program, from infrastructure SIP 
submissions due three years after adoption or revision of a NAAQS. 
Instead, these elements are typically referred to as nonattainment 
SIP or attainment plan elements, which would be due by the dates 
statutorily prescribed under subpart 2 through 5 under part D, 
extending as far as 10 years following designations for some 
elements.
---------------------------------------------------------------------------

    The 2008 NSR Rule did not require states to immediately account for 
gases that could condense to form particulate matter, known as 
condensables, in PM2.5 and PM10 emission limits 
in NSR permits. Instead, EPA determined that states had to account for 
PM2.5 and PM10 condensables for applicability 
determinations and in establishing emissions limitations for 
PM2.5 and PM10 in PSD permits beginning on or 
after January 1, 2011. 73 FR 28321 at 28334. This requirement is 
codified in 40 CFR 51.166(b)(49)(i)(a) and 52.21(b)(50)(i)(a). 
Revisions to states' PSD programs incorporating the inclusion of 
condensables were required be submitted to EPA by May 16, 2011 (See 73 
FR 28321 at 28341).
    On November 15, 2012, New Hampshire submitted revisions to its PSD 
program incorporating the necessary changes obligated by the 2008 NSR 
Rule, including provisions that explicitly identify precursors to 
PM2.5 and account for PM2.5 and PM10 
condensables for applicability determinations and in establishing 
emissions limitations for PM2.5 and PM10 in PSD 
permits. EPA's proposed approval of New Hampshire's SIP revision with 
respect to the 2008 NSR Rule was published on January 21, 2015 (See 80 
FR 2860),\6\ and we will take final action on these revisions prior to, 
or in conjunction with, finalizing our action on these infrastructure 
SIP revisions from New Hampshire.
---------------------------------------------------------------------------

    \6\ Note that EPA subsequently proposed a conditional approval 
of New Hampshire's PSD program due to a lack of a provision 
requiring notification to neighboring states of the issuance of PSD 
permits. See 80 FR 22957; April 24, 2015.
---------------------------------------------------------------------------

    Therefore, we are proposing that New Hampshire has met this set of 
requirements of section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS regarding the 
requirements obligated by the 2008 NSR Rule. Additionally, we are also 
proposing to convert our prior conditional approval for this 
infrastructure requirement for the 1997 and 2006 PM2.5 NAAQS 
(see 77 FR 63228, October 16, 2012) to full approval.
    On October 20, 2010, EPA issued the final rule on the ``Prevention 
of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 
Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC)'' (2010 NSR 
Rule). 75 FR 64864. This rule established several components for making 
PSD permitting determinations for PM2.5, including a system 
of ``increments'' which is the mechanism used to estimate significant 
deterioration of ambient air quality for a pollutant. These increments 
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c).
    The 2010 NSR Rule also established a new ``major source baseline 
date'' for PM2.5 as October 20, 2010, and a new trigger date 
for PM2.5 as October 20, 2011. These revisions are codified 
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 
52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule 
revised the definition of ``baseline area'' to include a level of 
significance of 0.3 micrograms per cubic meter, annual average, for 
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) 
and 52.21(b)(15)(i).
    On November 15, 2012, New Hampshire submitted revisions to its PSD 
program incorporating the necessary changes obligated by the 2010 NSR 
Rule, including the increments established by the 2010 NSR Rule for 
incorporation into the SIP, as well as the revised major source 
baseline date, trigger date, and baseline area level of significance 
for PM2.5. EPA's proposed approval of New Hampshire's SIP 
revision with respect to the 2010 NSR Rule was published on January 21, 
2015, (See 80 FR 2860),\7\ and we will take final action on that 
submittal prior to, or in conjunction with, finalizing our action on 
these infrastructure SIP submittals from New Hampshire. Therefore, we 
are proposing that New Hampshire has met this set of requirements of 
section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010 NO2, 
and 2010 SO2 NAAQS regarding the requirements obligated by 
the 2010 NSR Rule. Additionally, we are also proposing to convert our 
prior

[[Page 42451]]

conditional approval for this infrastructure requirement for the 1997 
and 2006 PM2.5 NAAQS (See 77 FR 63228) to full approval.
---------------------------------------------------------------------------

    \7\ Note that EPA subsequently proposed a conditional approval 
of New Hampshire's PSD program due to a lack of a provision 
requiring notification to neighboring states of the issuance of PSD 
permits. See 80 FR 22957; April 24, 2015.
---------------------------------------------------------------------------

    With respect to greenhouse gas permitting, EPA's ``Tailoring 
Rule,'' and element C,\8\ EPA interprets the Clean Air Act to require 
each state to make an infrastructure SIP submission for a new or 
revised NAAQS that demonstrates that the air agency has a complete PSD 
permitting program meeting the current requirements for all regulated 
NSR pollutants. New Hampshire has shown that it currently has a PSD 
program in place that covers all regulated NSR pollutants, including 
greenhouse gases (GHGs).
---------------------------------------------------------------------------

    \8\ In this rulemaking, ``element C'' refers to section 
110(a)(2)(C) of the CAA. References to other ``elements'' have 
similar meanings, e.g., element D(i)(II) refers to section 
110(a)(2)(D)(i)(II) of the CAA.
---------------------------------------------------------------------------

    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source required to obtain a PSD permit. The Court 
also said that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT). In order to act consistently with 
its understanding of the Court's decision, the EPA is not continuing to 
apply EPA regulations that would require that SIPs include permitting 
requirements that the Supreme Court found impermissible. Specifically, 
EPA is not applying the requirement that a state's SIP-approved PSD 
program require that sources obtain PSD permits when GHGs are the only 
pollutant (i) that the source emits or has the potential to emit above 
the major source thresholds, or (ii) for which there is a significant 
emissions increase and a significant net emissions increase from a 
modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to 
revise federal PSD rules in light of the Supreme Court opinion. In 
addition, EPA anticipates that many states will revise their existing 
SIP-approved PSD programs in light of the Supreme Court's decision. At 
this juncture, EPA is not expecting states to have revised their PSD 
programs for purposes of infrastructure SIP submissions and is only 
evaluating such submissions to assure that the state's program 
correctly addresses GHGs consistent with the Supreme Court's decision.
    At present, EPA has determined that New Hampshire's SIP is 
sufficient to satisfy element C with respect to GHGs because the PSD 
permitting program previously approved by EPA into the SIP continues to 
require that PSD permits (otherwise required based on emissions of 
pollutants other than GHGs) contain limitations on GHG emissions based 
on the application of BACT. Although the approved New Hampshire PSD 
permitting program may currently contain provisions that are no longer 
necessary in light of the Supreme Court decision, this does not render 
the infrastructure SIP submission inadequate to satisfy element C. The 
SIP contains the necessary PSD requirements at this time, and the 
application of those requirements is not impeded by the presence of 
other previously-approved provisions regarding the permitting of 
sources of GHGs that EPA does not consider necessary at this time in 
light of the Supreme Court decision. Accordingly, the Supreme Court 
decision does not affect EPA's proposed approval of New Hampshire's 
infrastructure SIP as to the requirements of element C.
    For the purposes of the 2008 Pb, 2008 ozone, 2010 NO2, 
and 2010 SO2 NAAQS infrastructure SIPs, EPA reiterates that 
NSR Reform regulations are not in the scope of these actions. 
Therefore, we are not taking action on existing NSR Reform regulations 
for New Hampshire.
    In summary, we are proposing to approve the majority of New 
Hampshire's submittals for this sub-element pertaining to section 
110(a)(2)(C) with respect to the 2008 Pb, 2008 ozone, 2010 
NOX, and 2010 S02 NAAQS, but to conditionally 
approve the aspect pertaining to provision of notice to neighboring 
states. In addition, EPA previously issued a conditional approval to 
New Hampshire regarding the state's infrastructure submittals for the 
1997 and 2006 PM2.5 NAAQS because the state had not met the 
requirements of EPA's 2008 and 2010 NSR rules. See 77 FR 63228. Given 
that we have now proposed approval of New Hampshire's PSD program SIP 
revision with respect to the 2008 and 2010 NSR rules, we are also 
proposing to convert the prior conditional approval for this 
infrastructure requirement for the 1997 and 2006 PM2.5 NAAQS 
(see 77 FR 63228) from conditional approval to approval. Note, however, 
that our April 24, 2015 notice of proposed rulemaking on New 
Hampshire's November 15, 2012 submittal proposes a conditional approval 
of the aspect of the state's permitting program pertaining to providing 
notification to neighboring states regarding the issuance of PSD 
permits. Accordingly, we are proposing to conditionally approve the 
aspect of New Hampshire's 1997 and 2006 PM2.5 NAAQS 
infrastructure SIP submittals regarding provision of notification to 
neighboring states of the issuance of PSD permits.
iii. Sub-Element 3: Preconstruction Permitting for Minor Sources and 
Minor Modifications
    To address the pre-construction regulation of the modification and 
construction of minor stationary sources and minor modifications of 
major stationary sources, an infrastructure SIP submission should 
identify the existing EPA-approved SIP provisions and/or include new 
provisions that govern the minor source pre-construction program that 
regulates emissions of the relevant NAAQS pollutants. EPA approved New 
Hampshire's minor NSR program on September 22, 1980 (45 FR 62814), and 
approved updates to the program on August 14, 1992. (See 57 FR 36606). 
Since this date, New Hampshire and EPA have relied on the existing 
minor NSR program 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, 2008 ozone, 2010 NO2, and 
2010 SO2 NAAQS.
    We are proposing to find that New Hampshire has met this set of 
requirements of Section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.

D. Section 110(a)(2)(D)--Interstate Transport

    This section contains a comprehensive set of air quality management 
elements pertaining to the transport of air pollution that states must 
address. It covers the following 5 topics, categorized as sub-elements: 
Sub-element 1, Contribute to nonattainment, and interference with 
maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility 
protection; Sub-element 4, Interstate pollution abatement; and Sub-
element 5, International pollution abatement. Sub-elements 1 through 3 
above are found under section 110(a)(2)(D)(i) of the Act, and these 
items are further categorized into the 4 prongs discussed below, 2 of 
which are found within sub-element 1. Sub-elements 4 and 5 are found 
under section 110(a)(2)(D)(ii) of the Act and include provisions 
insuring compliance with sections 115 and 126

[[Page 42452]]

of the Act relating to interstate and international pollution 
abatement.
i. Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to 
Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS 
(Prong 2)
    With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the 
physical properties of Pb prevent it from experiencing the same travel 
or formation phenomena as PM2.5 or ozone. Specifically, 
there is a sharp decrease in Pb concentrations as the distance from a 
Pb source increases. Accordingly, although it may be possible for a 
source in a state to emit Pb at a location and in such quantities that 
contribute significantly to nonattainment in, or interference with 
maintenance by, any other state, EPA anticipates that this would be a 
rare situation (e.g., sources emitting large quantities of Pb in close 
proximity to state boundaries). The 2011 Memo suggests that the 
applicable interstate transport requirements of section 
110(a)(2)(D)(i)(I) with respect to lead can be met through a state's 
assessment as to whether or not emissions from Pb sources located in 
close proximity to its borders have emissions that impact a neighboring 
state such that they contribute significantly to nonattainment or 
interfere with maintenance in that state.
    New Hampshire's infrastructure SIP submission for the 2008 Pb NAAQS 
notes that there are no sources of Pb emissions located in close 
proximity to any of the state's borders with neighboring states. 
Additionally, New Hampshire's submittal and the emissions data the 
state collects from its sources indicate that there is no single source 
of Pb, or group of sources, anywhere within the state that emits enough 
Pb to cause ambient concentrations to approach the Pb NAAQS. Our review 
of data within our National Emissions Inventory (NEI) database confirms 
this, and therefore we propose that New Hampshire has met this set of 
requirements related to section 110(a)(2)(D)(i)(I) for the 2008 Pb 
NAAQS.
    In today's rulemaking, EPA is not proposing to approve or 
disapprove New Hampshire's compliance with section 110(a)(2)(D)(i)(I) 
with respect to the 2008 ozone, 2010 NO2 and 2010 
SO2 NAAQS, since New Hampshire's infrastructure SIPs for 
these NAAQS do not include a submittal with respect to transport for 
sub-element 1, prongs 1 and 2.
ii. Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
    One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include 
provisions prohibiting any source or other type of emissions activity 
in one state from interfering with measures required to prevent 
significant deterioration of air quality in another state.
    EPA notes that New Hampshire has satisfied the majority of the 
applicable infrastructure SIP PSD requirements for the 2008 Pb, 2008 
ozone, 2010 NO2, 2010 SO2 NAAQS, and the 1997 and 
2006 PM2.5 NAAQS, but as detailed in the section of this 
notice addressing section 110(a)(2)(C), we are conditionally approving 
one element of the state's PSD program. We note that the proposed 
actions in that section related to PSD are consistent with the proposed 
actions related to PSD for section 110(a)(2)(D)(i)(II), and they are 
reiterated below.
    New Hampshire has submitted revisions to its PSD regulations that 
are consistent with the EPA's requirements contained in the Phase 2 
Rule, the 2008 NSR Rule, and the 2010 NSR Rule. EPA proposed approval 
of a number of these SIP revisions on January 21, 2015, (see 80 FR 
2860),\9\ and we will take final action on these revisions prior to, or 
in conjunction with, finalizing our action on these infrastructure 
requirements. Additionally, we proposed to conditionally approve an 
aspect of this program relating to providing notification to 
neighboring states of the issuance of PSD permits within a notice of 
proposed rulemaking published on April 24, 2015. (See 80 FR 22957). 
Therefore, in this rulemaking, we are proposing to approve all but one 
of the applicable infrastructure SIP requirements for this sub-element 
for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS, including the applicable PSD requirements 
associated with the permitting of GHG emitting sources, and are 
proposing to conditionally approve the remaining aspect of the state's 
program relating to notification to neighboring states mentioned above. 
Furthermore, we are also proposing to convert our prior conditional 
approval for this infrastructure requirement for the 1997 and 2006 
PM2.5 NAAQS (See 77 FR 63228, October 16, 2012) to an 
approval, except for the aspect relating to notification to neighboring 
states for which we are proposing a conditional approval.
---------------------------------------------------------------------------

    \9\ Note that EPA subsequently proposed a conditional approval 
of New Hampshire's PSD program due to a lack of a provision 
requiring notification to neighboring states of the issuance of PSD 
permits. See 80 FR 22957; April 24, 2015.
---------------------------------------------------------------------------

    States also have an obligation to ensure that sources located in 
nonattainment areas do not interfere with a neighboring state's PSD 
program. One way that this requirement can be satisfied is through an 
NNSR program consistent with the CAA that addresses any pollutants for 
which there is a designated nonattainment area within the state.
    EPA approved New Hampshire's NNSR regulations on July 27, 2001 (66 
FR 39104). These regulations contain provisions for how the state must 
treat and control sources in nonattainment areas, consistent with 40 
CFR 51.165, or appendix S to 40 CFR part 51. EPA proposes that New 
Hampshire has met the requirements with respect to the prohibition of 
interference with a neighboring state's PSD program for the 2008 Pb, 
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS related 
to section 110(a)(2)(D)(i)(II).
iii. Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection 
(Prong 4)
    With regard to the applicable requirements for visibility 
protection of section 110(a)(2)(D)(i)(II), states are subject to 
visibility and regional haze program requirements under part C of the 
CAA (which includes sections 169A and 169B). The 2009 Memo, the 2011 
Memo, and 2013 Memo state that these requirements can be satisfied by 
an approved SIP addressing reasonably attributable visibility 
impairment, if required, or an approved SIP addressing regional haze.
    New Hampshire's Regional Haze SIP was approved by EPA on August 22, 
2012 (See 77 FR 50602). Accordingly, EPA proposes that New Hampshire 
has met the visibility protection requirements of 110(a)(2)(D)(i)(II) 
for the 2008 Pb NAAQS, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.
iv. Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution 
Abatement
    One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain 
adequate provisions requiring compliance with the applicable 
requirements of section 126 relating to interstate pollution abatement.
    Section 126(a) requires new or modified sources to notify 
neighboring states of potential impacts from the source. The statute 
does not specify the method by which the source should provide the 
notification. States with SIP-approved PSD programs must have a 
provision requiring such notification

[[Page 42453]]

by new or modified sources. A lack of such a requirement in state rules 
would be grounds for disapproval of this element.
    As mentioned elsewhere in this notice, in a separate action we are 
proposing to conditionally approve one element of New Hampshire's PSD 
program pertaining to notification to neighboring states of the 
issuance of PSD permits. Therefore, we propose to also conditionally 
approve New Hampshire's compliance with the infrastructure SIP 
requirements of section 126(a) with respect to the 2008 Pb, 2008 ozone, 
2010 NO2, and 2010 SO2 NAAQS. New Hampshire has 
no obligations under any other provision of section 126.\10\
---------------------------------------------------------------------------

    \10\ By letter dated August 22, 2013, EPA received a petition 
from the town of Eliot, Maine, requesting that, pursuant to Section 
126 of the CAA, a coal fired electric utility in New Hampshire be 
required to lower its SO2 emissions. As of this time, EPA 
is currently evaluating the merits of this petition.
---------------------------------------------------------------------------

v. Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution 
Abatement
    One portion of section 110(a)(2)(D)(ii) requires each SIP to 
contain adequate provisions requiring compliance with the applicable 
requirements of section 115 relating to international pollution 
abatement. New Hampshire does not have any pending obligations under 
section 115 for the 2008 Pb, 2008 ozone, 2010 NO2, or 2010 
SO2 NAAQS. Therefore, EPA is proposing that New Hampshire 
has met the applicable infrastructure SIP requirements of section 
110(a)(2)(D)(ii) related to section 115 of the CAA (international 
pollution abatement) for the 2008 Pb, 2008 ozone, 2010 NO2, 
and 2010 SO2 NAAQS.

E. Section 110(a)(2)(E)--Adequate Resources

    This section requires each state to provide for adequate personnel, 
funding, and legal authority under state law to carry out its SIP, and 
related issues. Additionally, Section 110(a)(2)(E)(ii) requires each 
state to comply with the requirements with respect to state boards 
under section 128. Finally, section 110(a)(2)(E)(iii) requires that, 
where a state relies upon local or regional governments or agencies for 
the implementation of its SIP provisions, the state retain 
responsibility for ensuring adequate implementation of SIP obligations 
with respect to relevant NAAQS. This sub-element, however, is 
inapplicable to this action, because New Hampshire does not rely upon 
local or regional governments or agencies for the implementation of its 
SIP provisions.
Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under 
State Law To Carry Out Its SIP, and Related issues
    New Hampshire, through its infrastructure SIP submittals, has 
documented that its air agency has the requisite authority and 
resources to carry out its SIP obligations. New Hampshire RSA 125-C:6, 
Powers and Duties of the Commissioner, authorizes the Commissioner of 
the NH-DES to enforce the state's air laws, establish a permit program, 
accept and administer grants, and exercise incidental powers necessary 
to carry out the law. Additionally, RSA-125-C:12, Administrative 
Requirements, authorizes the Commissioner to collect fees to recover 
the costs of reviewing and acting upon permit applications and 
enforcing the terms of permits issued. The New Hampshire SIP, as 
originally submitted on January 27, 1972, and subsequently amended, 
provides additional descriptions of the organizations, staffing, 
funding and physical resources necessary to carry out the plan. EPA 
proposes that New Hampshire has met the infrastructure SIP requirements 
of this portion of section 110(a)(2)(E) with respect to the 2008 Pb, 
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
    New Hampshire has made several amendments to its Statutory 
Authority since its statutes were submitted to EPA for approval in 
1972. In its December 31, 2012 infrastructure SIP submittal for ozone, 
New Hampshire submitted an updated amendment to the statutory authority 
within Title I: The State and its Government: Chapter 21-O:11 
Department of Environmental Services, Air Resources Council. 
Additionally, within its September 13, 2013 infrastructure SIP 
submittal for the 2010 SO2 NAAQS, New Hampshire included 
updated amendments to its statutory authority within Title X: Public 
Health, Chapter 125: Air Pollution Control, for incorporation into the 
SIP, although it later withdrew section 125-C:15, Enforcement, within a 
May 21, 2015 letter to EPA. The amendments we are proposing to approve 
are included in the following table:

Table 1--New Hampshire Statutes Submitted for Incorporation Into the SIP
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                  Title I--The State and its Government
 Chapter 21-O: Department of Environmental Services Section 21-O:11 Air
             Resources Council Effective September 19, 2010
------------------------------------------------------------------------
                         Title X: Public Health
                  Chapter 125-C: Air Pollution Control
------------------------------------------------------------------------
Section 125-C:1...............  Declaration of Policy   Effective July
                                 and Purpose.            1, 1979.
Section 125-C:2...............  Definitions...........  Effective July
                                                         21, 2010.
Section 125-C:4...............  Rulemaking Authority;   Effective June
                                 Subpoena Power.         21, 2010.
Section 125-C:6...............  Powers and Duties of    Effective June
                                 the Commissioner.       21, 2010.
Section 125-C:8...............  Administration of       Effective July
                                 Chapter; Delegation     1, 1996.
                                 of Duties.
Section 125-C:9...............  Authority of the        Effective July
                                 Commissioner in Cases   1, 1996.
                                 of Emergency.
Section 125-C:10..............  Devices Contributing    Effective August
                                 to Air Pollution.       9, 1996.
Section 125-C:10-a............  Municipal Waste         Effective
                                 Combustion Units.       January 1,
                                                         2006.
Section 125-C:11..............  Permit Required.......  Effective June
                                                         21, 2010.
Section 125-C:12..............  Administrative          Effective June
                                 Requirements..          18, 2012.
Section 125-C:13..............  Criteria for Denial;    Effective June
                                 Suspension or           21, 2010.
                                 Revocation;
                                 Modification.
Section 125-C:14..............  Rehearings and Appeals  Effective July
                                                         1, 1996.
Section 125-C:18..............  Existing Remedies       Effective July
                                 Unimpaired.             1, 1979.
Section 125-C:19..............  Protection of Powers..  Effective July
                                                         1, 1996.
Section 125-C:21..............  Severability..........  Effective August
                                                         16, 1981.
------------------------------------------------------------------------

[[Page 42454]]

 
                         Title X: Public Health
           Chapter 125-O: Multiple Pollutant Reduction Program
------------------------------------------------------------------------
Section 125-O:1...............  Findings and Purpose..  Effective July
                                                         1, 2002.
Section 125-O:3...............  Integrated Power Plant  Effective
                                 Strategy.               January 1,
                                                         2013.
------------------------------------------------------------------------

    EPA proposes to approve these statutes into the SIP, and also 
proposes that upon final approval of these statutes into the SIP, New 
Hampshire will have demonstrated that it has met the infrastructure SIP 
requirements for this section of 110(a)(2)(E) for the 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
    Section 110(a)(2)(E) also requires each SIP to contain provisions 
that comply with the state board requirements of section 128 of the 
CAA. That provision contains two explicit requirements: (i) That any 
board or body which approves permits or enforcement orders under this 
chapter shall have at least a majority of members who represent the 
public interest and do not derive any significant portion of their 
income from persons subject to permits and enforcement orders under 
this chapter, and (ii) that any potential conflicts of interest by 
members of such board or body or the head of an executive agency with 
similar powers be adequately disclosed.
    Of relevance within New Hampshire, RSA 21-O:11, Air Resources 
Council, establishes the New Hampshire Air Resources Council, a state 
board that has the authority to hear enforcement and permit appeals. 
The Council consists of 11 members, 6 of whom must represent the public 
interest. Those representing the public interest ``may not derive any 
significant portion of their income from persons subject to permits or 
enforcement orders, and may not serve as attorney for, act as 
consultant for, serve as officer or director of, or hold any other 
official or contractual relationship with any person subject to permits 
or enforcement orders.'' New Hampshire RSA 21-0:11 further provides 
that ``[a]ll potential conflicts of interest shall be adequately 
disclosed.''
    EPA's review of New Hampshire's infrastructure SIP submissions has 
raised one issue that warrants further evaluation. Section 128(a)(2) 
requires that a state's SIP provide for adequate disclosure of 
conflicts of interest by ``members of such board or body or the head of 
an executive agency with similar powers.'' The use of the disjunctive 
``or'' between ``board or body'' and ``head of an executive agency'' 
results in ambiguity concerning whether merely one or both of these 
parties must disclose conflicts of interest, and if it is only one of 
these entities, which one? This ambiguity is relevant in the case of 
the submission from New Hampshire because under state law included 
within such submission, only the members of the Air Resources Council 
are required to disclose conflicts of interest, not the head of the 
executive agency. In order to determine whether this is sufficient for 
purposes of meeting the requirements of section 128(a)(2), we have 
evaluated the statutory language more closely.
    First, the term ``or'' can be interpreted as ``one or the other, 
but not necessarily both,'' or it can be interpreted as ``and.'' 
Although the word ``or'' could be read to mean ``and'' in some 
circumstances, we believe that, in this instance, it is appropriate to 
give the word ``or'' its most straightforward meaning. In isolation, it 
could seem unreasonable to give ``or'' the first meaning, as that would 
allow a state to require adequate disclosure of conflict of interest by 
either the members of the state board or the head of an agency, without 
regard to whether that disclosure requirement applies to the entity 
that makes the final permit or enforcement order decision. To read 
section 128(a)(2) to require disclosure by the entity that is not the 
actual final decisionmaker appears logically inconsistent and contrary 
to the overall purposes of section 128. EPA believes that the purpose 
of section 128(a)(2) is to assure that conflicts of interest are 
disclosed by the entity making the permit or enforcement order 
decision, and requiring this of the ultimate decisionmaker rather than 
other parties that may be involved in the process.
    As discussed above, under New Hampshire law pertaining to the Air 
Resources Council, ``[a]ll potential conflicts of interest shall be 
adequately disclosed.'' Under the structure of the State's program, the 
Commissioner makes certain decisions such as the issuance of air 
permits and enforcement orders. However, under state law these permits 
and enforcement orders issued by the Commissioner can be appealed to 
the Air Resources Council in an adjudicative proceeding. RSA 21-O:11, 
IV; RSA 21-O:14, I. Given this division of authority in the State, we 
believe that the Air Resources Council is functionally the final 
decisionmaker with respect to permits and enforcement orders in New 
Hampshire, and thus the disclosure of conflicts of interest by members 
of the Council is necessary to meet the requirements of section 
128(a)(2). Naturally, a state may elect to require disclosure of 
conflicts of interest by other state officials and employees as well, 
and this would be fully consistent with the explicit reservation of 
authority for states to impose more stringent requirements than those 
imposed by section 128.
    For the foregoing reasons, the EPA believes that New Hampshire's 
infrastructure SIP submittals contain provisions that meet the 
requirements of section 128(a)(1) and section 128(a). Accordingly, we 
are proposing approval of the infrastructure SIP submissions as meeting 
the requirements of section 128.
    New Hampshire submitted RSA 21-O:11, Air Resources Council, for 
incorporation into the SIP on December 31, 2012, and we are proposing 
to approve it into the New Hampshire SIP. Upon approval of RSA 21-O:11 
into the SIP, EPA proposes that New Hampshire has met the applicable 
infrastructure SIP requirements for this section of 110(a)(2)(E) for 
the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 
NAAQS. In addition, EPA previously issued a conditional approval to New 
Hampshire for this infrastructure requirement for the 1997 and 2006 
PM2.5 NAAQS. See 77 FR 63228. This conditional approval 
occurred prior to New Hampshire's SIP submittal of RSA 21-0:11 to EPA, 
which occurred on December 31, 2012. Given that New Hampshire has now 
addressed this issue, we are also proposing to convert the prior 
conditional approval for this infrastructure requirement for the 1997 
and 2006 PM2.5 NAAQS (see 77 FR 63228) to full approval.

F. Section 110(a)(2)(F)--Stationary Source Monitoring System

    States must establish a system to monitor emissions from stationary 
sources and submit periodic emissions reports. Each plan shall also 
require the

[[Page 42455]]

installation, maintenance, and replacement of equipment, and the 
implementation of other necessary steps, by owners or operators of 
stationary sources to monitor emissions from such sources. The state 
plan shall also require periodic reports on the nature and amounts of 
emissions and emissions-related data from such sources, and correlation 
of such reports by each state agency with any emission limitations or 
standards established pursuant to this chapter. Lastly, the reports 
shall be available at reasonable times for public inspection.
    New Hampshire RSA 125-C:6, Powers and Duties of the Commissioner, 
authorizes the Commissioner of NH-DES to require the installation, 
maintenance, and use of emissions monitoring devices and to require 
periodic reporting to the Commissioner of the nature and extent of the 
emissions. This authority also enables the Commissioner to correlate 
this information to any applicable emissions standard and to make such 
information available to the public. NH-DES implements Chapter Env-A 
800, Testing and Monitoring Procedures, and Chapter Env-A 900, Owner or 
Operator Recordkeeping and Reporting Obligations, as the primary means 
of fulfilling these obligations. New Hampshire's Chapters Env-A 800 and 
900 have been approved into the SIP (See 77 FR 66388; November 5, 
2012). Additionally, under RSA 125-C:6, VII, and Env-A 103.04, 
emissions data are not considered confidential information. EPA 
recognizes that New Hampshire routinely collects information on air 
emissions from its industrial sources and makes this information 
available to the public. EPA, therefore, proposes that New Hampshire 
has met the infrastructure SIP requirements of section 110(a)(2)(F) 
with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.

G. Section 110(a)(2)(G)--Emergency Powers

    This section requires that a plan provide for authority that is 
analogous to what is provided in section 303 of the CAA, and adequate 
contingency plans to implement such authority. Section 303 of the CAA 
provides authority to the EPA Administrator to seek a court order to 
restrain any source from causing or contributing to emissions that 
present an ``imminent and substantial endangerment to public health or 
welfare, or the environment.'' Section 303 further authorizes the 
Administrator to issue ``such orders as may be necessary to protect 
public health or welfare or the environment'' in the event that ``it is 
not practicable to assure prompt protection . . . by commencement of 
such civil action.''
    We propose to find that New Hampshire's submittals and certain 
state statutes provide for authority comparable to that in section 303. 
New Hampshire's submittals specify that RSA 125-C:9, Authority of the 
Commissioner in Cases of Emergency, authorizes the Commissioner of NH-
DES, with the consent of the Governor and Air Resources Council, to 
issue an order requiring actions to be taken as the Commissioner deems 
necessary to address an air pollution emergency. Such orders are 
effective immediately upon issuance. We note also that RSA 125-C:15, I, 
provides that, ``[u]pon a finding by the commissioner that there is an 
imminent and substantial endangerment to the public health or welfare 
or the environment, the commissioner shall issue an order of abatement 
requiring immediate compliance and said order shall be final and 
enforceable upon issuance, but may be appealed to the council within 30 
days of its issuance, and the council may, after hearing, uphold, 
modify, or abrogate said order.'' With regard to the authority to bring 
suit, RSA 125-C:15, II, further provides that violation of such an 
order ``shall be subject to enforcement by injunction, including 
mandatory injunction, issued by the superior court upon application of 
the attorney general.''
    Furthermore, New Hampshire has broad statutory authority (see RSA 
125-C:9, Authority of the Commissioner in Cases of Emergency) to 
address activities causing imminent and substantial endangerment to 
public health; however, New Hampshire does not have regulations that 
specifically address all the 40 CFR part 51 subpart H requirements. New 
Hampshire does, however, as a matter of practice, post on the internet 
daily forecasted ozone levels through the EPA AIRNOW and EPA 
ENVIROFLASH systems. Information regarding these two systems is 
available on EPA's Web site at www.airnow.gov. Notices are sent out to 
ENVIROFLASH participants when levels are forecast to exceed the current 
8-hour ozone standard. In addition, when levels are expected to exceed 
the ozone standard in New Hampshire, the media are alerted via a press 
release, and the National Weather Service (NWS) is alerted to issue an 
Air Quality Advisory through the normal NWS weather alert system. These 
actions are similar to the notification and communication requirements 
of 40 CFR 51.152.
    Section 110(a)(2)(G) also requires that, for any NAAQS, except 
lead, New Hampshire have an approved contingency plan for any Air 
Quality Control Region (AQCR) within the state that is classified as 
Priority I, IA, or II. A contingency plan is not required if the entire 
state is classified as Priority III for a particular pollutant. See 40 
CFR part 51 subpart H. Classifications for all pollutants for AQCRs in 
New Hampshire can be found at 40 CFR 52.1521. The entire state of New 
Hampshire is classified as Priority III for ozone, nitrogen dioxide, 
and carbon monoxide.
    With regard to ozone, however, we note that New Hampshire's 
December 31, 2012 infrastructure SIP submittal for the 2008 ozone NAAQS 
contends that it is a Priority I region for ozone, although as 
mentioned above each AQCR in the state is listed as Priority III for 
ozone within 40 CFR 52.1521. New Hampshire's submittal cites air 
quality monitoring data to substantiate its view.
    EPA's last update to the priority classifications for New Hampshire 
occurred in 1972. See 37 FR 10879, May 31, 1972. As noted above, New 
Hampshire's submittal, and a supplement to that submittal made on May 
21, 2015, cite more recent ozone air quality data. This information 
indicates that the proper ozone classification for the New Hampshire 
portion of the Merrimack Valley--Southern New Hampshire Interstate AQCR 
would be Priority I. Therefore, we are proposing to revise New 
Hampshire's priority classification for the Merrimack Valley--Southern 
New Hampshire Interstate AQCR from Priority III to Priority I for 
ozone. This reclassification triggers the contingency plan obligation 
requirement of 40 CFR 51.151, but New Hampshire's submittal requests, 
pursuant to 40 CFR 51.152(d)(1), an exemption from the contingency plan 
obligation because the state is designated as unclassifiable/attainment 
for the 2008 ozone standard. In accordance with 40 CFR 51.152(d), we 
are proposing to grant New Hampshire's request for an exemption from 
the contingency obligation in light of the state being designated as 
unclassifiable/attainment for the 2008 ozone NAAQS. See 40 CFR 81.330. 
Additionally, as documented within the state's submittal, we note that 
recent air monitoring data have not come close to the significant harm 
level for ozone of 0.6 parts per million (ppm) on a 2-hour average, and 
the state has only exceeded 0.1 ppm on three occasions in the 2012-2014 
timeframe. See 40 CFR 51.151.
    Regarding SO2, the Androscoggin Valley Interstate AQCR 
is classified as

[[Page 42456]]

Priority IA, the Merrimack Valley-Southern New Hampshire Interstate 
AQCR is classified as Priority I, and the Central New Hampshire 
Interstate AQCR is classified as Priority III. However, these 
classifications were made in 1972 when SO2 emissions in New 
Hampshire were significantly higher than they are today. As emission 
levels change, states are encouraged to periodically evaluate the 
priority classifications and propose changes to the classifications 
based on the three most recent years of air quality data. See 40 CFR 
51.153.
    In its September 13, 2013 infrastructure SIP submittal for the 2010 
SO2 NAAQS, New Hampshire provided air quality data for 
SO2 from 2005-2012. New Hampshire supplemented this with 
more recent data in a letter dated May 21, 2015. In this letter, New 
Hampshire requested the entire state be re-classified as Priority III 
for SO2 based on the air quality data from 2012-2014. New 
Hampshire's SO2 monitoring program is focused on the more 
populous and more industrial southern portion of the state represented 
by the Merrimack Valley--Southern New Hampshire area, and there are 
currently no SO2 monitors in the more northerly Central New 
Hampshire Intrastate and Androscoggin Valley Interstate AQCRs. EPA has 
reviewed the SO2 monitoring data, which the state has 
certified, and agrees that the SO2 levels are significantly 
below the threshold of a Priority I, IA, or II level.
    The Public Service Company of New Hampshire's (PSNH's) Merrimack 
Station, a large coal-fired electric utility located in Bow, has 
historically been the largest SO2 emitter in the Merrimack 
Valley--Southern New Hampshire AQCR, and also in the state, by a wide 
margin. By 2012, however, the facility had installed and begun 
operating an air pollution control device for this pollutant. In 2011, 
the last year that Merrimack Station's SO2 emissions were 
essentially uncontrolled, the facility emitted 22,393 tons of 
SO2. For context, the next largest SO2 emitter 
that year in the entire state was PSNH's Schiller Station, which 
emitted 1,708 tons of SO2. The requirement for operation of 
SO2 controls at Merrimack Station are contained within 
Permit TP-0008. This permit was submitted to EPA and we have approved 
it into the SIP. See 77 FR 50602, August 22, 2012. Since installation 
of the control equipment, Merrimack Station's SO2 emissions 
have fallen considerably, registering 1,004 tons in 2012, and 1,400 
tons in 2013, and 1,044 tons in 2014. The ambient SO2 air 
monitoring data submitted by NH-DES within their May 21, 2015 
correspondence for the years 2012-2014 have also declined considerably 
when compared to data recorded for prior time periods.
    As mentioned above, New Hampshire's SO2 monitoring 
network is focused on the more populous and more industrial southern 
part of the state represented by the Merrimack Valley--Southern New 
Hampshire AQCR. Based on our review of the monitoring data for this 
area, we propose to reclassify the New Hampshire portion of the 
Merrimack Valley--Southern New Hampshire Interstate AQCR to Priority 
III for SO2. The more northerly AQCRs are much less likely 
to experience high SO2 levels due to their lower population 
and lesser industrial base, and based on the low amounts of 
SO2 emitted by sources in these areas. For example, the most 
recent 3 year cycle emissions inventory data contained within EPA's 
National Emissions Inventory database is for 2011, and for New 
Hampshire the data indicate that approximately 95% of the state's 
SO2 emissions occur in the counties within the Merrimack 
Valley--Southern New Hampshire AQCR. Given that the monitoring data in 
the New Hampshire portion of the Merrimack Valley--Southern New 
Hampshire AQCR indicate that the appropriate classification for this 
region is Priority III, and given that the preponderance of 
SO2 emissions occur in this region, we also propose to grant 
New Hampshire's request that the state's portion of the Androscoggin 
Valley Interstate AQCR also be reclassified to Priority III for 
SO2. Accordingly, a contingency plan for SO2 is 
not required. See 40 CFR 51.152(c).
    EPA proposes that New Hampshire has met the applicable 
infrastructure SIP requirements for this portion of section 
110(a)(2)(G) with respect to the 2008 Pb NAAQS, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.

H. Section 110(a)(2)(H)--Future SIP Revisions

    This section requires states to have the authority to revise their 
SIPs in response to changes in the NAAQS, availability of improved 
methods for attaining the NAAQS, or an EPA finding that the SIP is 
substantially inadequate.
    New Hampshire RSA 125-C:6, Powers and Duties of the Commissioner, 
provides that the Commissioner of NH-DES may develop a comprehensive 
program and provide services for the study, prevention, and abatement 
of air pollution. Additionally, Chapter Env-A 200, Procedural Rules, 
which was approved into the New Hampshire SIP on October 28, 2002 (see 
67 FR 65710) provides for public hearings for SIP revision requests 
prior to their submittal to EPA. EPA proposes that New Hampshire has 
met the infrastructure SIP requirements of CAA section 110(a)(2)(H) 
with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.

I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions 
Under Part D

    The CAA requires that each plan or plan revision for an area 
designated as a nonattainment area meet the applicable requirements of 
part D of the CAA. Part D relates to nonattainment areas. EPA has 
determined that section 110(a)(2)(I) is not applicable to the 
infrastructure SIP process. Instead, EPA takes action on part D 
attainment plans through separate processes.

J. Section 110(a)(2)(J)--Consultation with Government Officials; Public 
Notifications; PSD; Visibility Protection

    The evaluation of the submissions from New Hampshire with respect 
to the requirements of CAA section 110(a)(2)(J) are described below.
i. Sub-Element 1: Consultation With Government Officials
    States must provide a process for consultation with local 
governments and Federal Land Managers (FLMs) carrying out NAAQS 
implementation requirements.
    New Hampshire RSA 125-C:6 Powers and Duties of the Commissioner, 
authorizes the Commissioner of NH-DES to advise, consult, and cooperate 
with the cities, towns, and other agencies of the state and federal 
government, interstate agencies, and other groups or agencies in 
matters relating to air quality. Additionally, RSA 125-C:6 enables the 
Commissioner to coordinate and regulate the air pollution control 
programs of political subdivisions to plan and implement programs for 
the control and abatement of air pollution. Furthermore, New Hampshire 
regulations at Part Env-A 621 direct NH DES to notify town officials, 
regional planning agencies, and FLMs, among others, of the receipt of 
certain permit applications and the NH DES' preliminary determination 
to issue, amend, or deny such permits. Therefore, EPA proposes that New 
Hampshire has met the infrastructure SIP requirements of this portion 
of section 110(a)(2)(J) with respect to the 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.
ii. Sub-Element 2: Public Notification
    Section 110(a)(2)(J) also requires states to notify the public if 
NAAQS are

[[Page 42457]]

exceeded in an area and must enhance public awareness of measures that 
can be taken to prevent exceedances.
    As part of the fulfillment of RSA 125-C:6, Powers and Duties of the 
Commissioner, New Hampshire issues press releases and posts warnings on 
its Web site advising people what they can do to help prevent NAAQS 
exceedances and avoid adverse health effects on poor air quality days. 
New Hampshire is also an active partner in EPA's AIRNOW and Enviroflash 
air quality alert programs. EPA proposes that New Hampshire has met the 
infrastructure SIP requirements of this portion of section 110(a)(2)(J) 
with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.
iii. Sub-Element 3: PSD
    States must meet applicable requirements of section 110(a)(2)(C) 
related to PSD. New Hampshire's PSD program in the context of 
infrastructure SIPs has already been discussed in the paragraphs 
addressing section 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes 
that the proposed actions for those sections are consistent with the 
proposed actions for this portion of section 110(a)(2)(J). Our proposed 
actions are reiterated below.
    New Hampshire's PSD regulations are consistent with the EPA's 
requirements regarding this sub-element with the exception of the 
notification to neighboring states provision. Therefore, we are 
proposing that New Hampshire has met the applicable infrastructure SIP 
requirements for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS as they relate to the requirements obligated by 
EPA's PSD regulations, with the exception of the notification to 
neighboring states provision, for which we are proposing a conditional 
approval. In addition, EPA previously issued a conditional approval to 
New Hampshire for this infrastructure requirement for the 1997 and 2006 
PM2.5 NAAQS. See 77 FR 63228, October 16, 2012. This 
conditional approval occurred prior to New Hampshire's submittal of its 
November 15, 2012 PSD program SIP revision. Given that we have now 
proposed approval of New Hampshire's SIP revision with respect to the 
2008 and 2010 NSR rules, we are also proposing to convert the prior 
conditional approval for this infrastructure requirement for the 1997 
and 2006 PM2.5 NAAQS to approval. However, in this action we 
are also proposing to conditionally approve this sub-element for the 
1997 and 2006 PM2.5 NAAQS with respect to the notification 
to neighboring states issue previously mentioned.
iv. Sub-Element 4: Visibility Protection
    With regard to the applicable requirements for visibility 
protection, states are subject to visibility and regional haze program 
requirements under part C of the CAA (which includes sections 169A and 
169B). In the event of the establishment of a new NAAQS, however, the 
visibility and regional haze program requirements under part C do not 
change. Thus, we find that there is no new visibility obligation 
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes 
effective. In other words, the visibility protection requirements of 
section 110(a)(2)(J) are not germane to infrastructure SIPs for the 
2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 
NAAQS.

K. Section 110(a)(2)(K)--Air Quality Modeling/Data

    To satisfy element K, the state air agency must demonstrate that it 
has the authority to perform air quality modeling to predict effects on 
air quality of emissions of any NAAQS pollutant and submission of such 
data to EPA upon request.
    Pursuant to the authority granted to the Commissioner of NH-DES in 
RSA 125-C:6, New Hampshire reviews the potential impact of major 
sources consistent with 40 CFR part 51, appendix W, ``Guidelines on Air 
Quality Models.'' The modeling data are sent to EPA along with the 
draft major permit. For non-major sources, Part Env-A 606, Air 
Pollution Dispersion Modeling Impact Analysis Requirements, specifies 
the air pollution dispersion modeling impact analysis requirements that 
apply to owners and operators of certain sources and devices in order 
to demonstrate compliance with the New Hampshire State Implementation 
Plan, RSA 125-C, RSA 125-I, and any rules adopted thereunder. The state 
also collaborates with the Ozone Transport Commission (OTC), the Mid-
Atlantic Regional Air Management Association, and EPA in order to 
perform large scale urban airshed modeling. EPA proposes that New 
Hampshire has met the infrastructure SIP requirements of section 
110(a)(2)(K) with respect to the 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.

L. Section 110(a)(2)(L)--Permitting Fees

    This section requires SIPs to mandate that each major stationary 
source pay permitting fees to cover the cost of reviewing, approving, 
implementing, and enforcing a permit.
    New Hampshire implements and operates the Title V permit program, 
which EPA approved on September 24, 2001. See 66 FR 48806. Chapter Env-
A 700, Permit Fee System, establishes a fee system requiring the 
payment of fees to cover the costs of: Reviewing and acting upon 
applications for the issuance of, amendment to, modification to, or 
renewal of a temporary permit, state permit to operate, or Title V 
operating permit; implementing and enforcing the terms and conditions 
of these permits; and developing, implementing, and administering the 
Title V operating permit program. In addition, Part Env-A 705 
establishes the emission-based fee program for Title V and non-Title V 
sources. EPA proposes that New Hampshire has met the infrastructure SIP 
requirements of section 110(a)(2)(L) for the 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.

M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local 
Entities

    Pursuant to element M, states must consult with, and allow 
participation from, local political subdivisions affected by the SIP.
    As previously mentioned, Chapter Env-A 200, Part Env-A 204 provides 
a public participation process for all stakeholders that includes a 
minimum of a 30-day comment period and an opportunity for public 
hearing for all SIP-related actions. Additionally, RSA 125-C:6, Powers 
and Duties of the Commissioner, provides that the Commissioner shall 
consult with the cities, towns, other agencies of the state and federal 
government, interstate agencies, and other affected agencies or groups 
in matters relating to air quality. EPA proposes that New Hampshire has 
met the infrastructure SIP requirements of section 110(a)(2)(M) with 
respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.

V. What action is EPA taking?

    EPA is proposing to approve SIP submissions from New Hampshire 
certifying that its current SIP is sufficient to meet the required 
infrastructure elements under sections 110(a)(1) and (2) for the 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, 
with the exception of certain aspects relating to PSD which we are 
proposing to conditionally approve. EPA's proposed actions regarding 
these infrastructure SIP requirements are contained in Table 2 below.

[[Page 42458]]



Table 2--Proposed Action on NH Infrastructure SIP Submittals for Various
                                  NAAQS
------------------------------------------------------------------------
                                              2008
            Element               2008 Pb     Ozone   2010 NO2  2010 SO2
------------------------------------------------------------------------
(A): Emission limits and other   A          A         A         A
 control measures.
(B): Ambient air quality         A          A         A         A
 monitoring and data system.
(C)(i): Enforcement of SIP       A          A         A         A
 measures.
(C)(ii): PSD program for major   A*         A*        A*        A*
 sources and major
 modifications.
(C)(iii): Permitting program     A          A         A         A
 for minor sources and minor
 modifications.
(D)(i)(I): Contribute to         A          NS        NS        NS
 nonattainment/interfere with
 maintenance of NAAQS (prongs 1
 and 2).
(D)(i)(II): PSD (prong 3)......  A*         A*        A*        A*
(D)(i)(II): Visibility           A          A         A         A
 Protection (prong 4).
(D)(ii): Interstate Pollution    A*         A*        A*        A*
 Abatement.
(D)(ii): International           A          A         A         A
 Pollution Abatement.
(E)(i): Adequate resources.....  A          A         A         A
(E)(ii): State boards..........  A          A         A         A
(E)(iii): Necessary assurances   NA         NA        NA        NA
 with respect to local agencies.
(F): Stationary source           A          A         A         A
 monitoring system.
(G): Emergency power...........  A          A         A         A
(H): Future SIP revisions......  A          A         A         A
(I): Nonattainment area plan or  +          +         +         +
 plan revisions under part D.
(J)(i): Consultation with        A          A         A         A
 government officials.
(J)(ii): Public notification...  A          A         A         A
(J)(iii): PSD..................  A*         A*        A*        A*
(J)(iv): Visibility protection.  +          +         +         +
(K): Air quality modeling and    A          A         A         A
 data.
(L): Permitting fees...........  A          A         A         A
(M): Consultation and            A          A         A         A
 participation by affected
 local entities.
------------------------------------------------------------------------

    In the above table, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A......................................  Approve
A*.....................................  Approve, but conditionally
                                          approve aspect of PSD program
                                          relating to notification to
                                          neighboring states
+......................................  Not germane to infrastructure
                                          SIPs
NS.....................................  No Submittal
NA.....................................  Not applicable
------------------------------------------------------------------------

    Also, with respect to the 1997 and 2006 PM2.5 NAAQS, EPA 
is proposing to approve that New Hampshire has met the infrastructure 
SIP requirements pertaining to elements (A) and (E)(ii), and the PSD 
elements (C)(ii), (D)(i)(II)(prong 3), and (J)(iii) for which a 
conditional approval was previously issued. See 77 FR 63228. As 
discussed in detail above, New Hampshire has since met the conditions 
outlined in that action. Furthermore, in keeping with our recently 
proposed conditional approval of the New Hampshire PSD program with 
respect to the requirement that neighboring states be notified of the 
issuance of a PSD permit by New Hampshire DES (80 FR 22957), we are 
also proposing a conditional approval for elements (C)(ii), 
(D)(i)(II)(prong 3) and (J)(iii) for the 1997 and 2006 PM2.5 
NAAQS, with respect to the requirement to notify neighboring states.
    In addition, we are proposing to incorporate into the New Hampshire 
SIP the following New Hampshire statutes which were included for 
approval in New Hampshire's infrastructure SIP submittals:
    Title I, The State and Its Government, Chapter 21-O: Department of 
Environmental Services, Section 21-O:11, Air Resources Council.
    Title X Public Health, Chapter 125-C Air Pollution Control, Section 
125-C:1--Declaration of Policy and Purpose; Section 125-C:2--
Definitions; Section 125-C:4--Rulemaking Authority; Subpoena Power; 
Section 125-C:6--Powers and Duties of the Commissioner; Section 125-
C:8--Administration of Chapter; Delegation of Duties; Section 125-C:9--
Authority of the Commissioner in Cases of Emergency; Section 125-C:10--
Devices Contributing to Air Pollution; Section 125-C:10a--Municipal 
Waste Combustion Units; Section 125-C:11--Permit Required; Section 125-
C:12--Administrative Requirements; Section 125-C:13--Criteria for 
Denial; Suspension or Revocation; Modification; Section 125-C:14--
Rehearings and Appeals; Section 125-C:18--Existing Remedies Unimpaired; 
Section 125-C:19--Protection of Powers; and Section 125-C:21--
Severability.
    Title X Public Health, Chapter 125-O: Multiple Pollutant Reduction 
Program, Section 125-O:1--Findings and Purpose; and Section 125-O:3--
Integrated Power Plant Strategy.
    Additionally, we are proposing to update the 40 CFR 52.1521 
classifications for several of New Hampshire's air quality control 
regions for ozone and sulfur dioxide based on recent air quality 
monitoring data collected by the state, and to grant the state's 
request for an exemption from the infrastructure SIP contingency plan 
obligation for ozone.
    As noted in Table 2, we are proposing to conditionally approve one 
portion of New Hampshire's infrastructure SIP submittals pertaining to 
the state's PSD program. The outstanding issues with the PSD program 
concern the lack of a requirement that neighboring states be notified 
of the issuance of a PSD permit by the New Hampshire Department of 
Environmental Services. For this reason, EPA is proposing to 
conditionally approve this portion of New Hampshire's infrastructure 
SIP revisions for the 2008 lead, 2008 ozone, 2010 NO2, 2010 
SO2, and the 1997 and 2006 PM2.5 NAAQS, 
consistent with our proposed conditional approval of New Hampshire's 
PSD program published in the Federal Register on April 24, 2015. See 80 
FR 22957.
    Under section 110(k)(4) of the Act, EPA may conditionally approve a 
plan based on a commitment from the State to adopt specific enforceable 
measures by a date certain, but not later than 1 year from the date of 
approval. If EPA conditionally approves the commitment in a final 
rulemaking action, the State must meet its commitment to submit an 
update to its PSD program that fully remedies the lack of notification 
requirement mentioned above. If the State fails to do so, this action 
will become a disapproval one year from the

[[Page 42459]]

date of final approval. EPA will notify the State by letter that this 
action has occurred. At that time, this commitment will no longer be a 
part of the approved New Hampshire SIP. EPA subsequently will publish a 
document in the Federal Register notifying the public that the 
conditional approval automatically converted to a disapproval. If the 
State meets its commitment, within the applicable time frame, the 
conditionally approved submission will remain a part of the SIP until 
EPA takes final action approving or disapproving the new submittal. If 
EPA disapproves the new submittal, the conditionally approved 
infrastructure SIP elements will also be disapproved at that time. In 
addition, a final disapproval would trigger the Federal Implementation 
Plan (FIP) requirement under section 110(c). If EPA approves the new 
submittal, the PSD program and relevant infrastructure SIP elements 
will be fully approved and replace the conditionally approved program 
in the SIP.
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA New England Regional Office listed in the ADDRESSES 
section of this Federal Register, or by submitting comments 
electronically, by mail, or through hand delivery/courier following the 
directions in the ADDRESSES section of this Federal Register.

VI. Incorporation by Reference

    In this rulemaking, the EPA is proposing to include in a final EPA 
rule regulatory text that includes incorporation by reference. In 
accordance with requirements of 1 CFR 51.5, the EPA is proposing to 
incorporate by reference into the New Hampshire SIP the statutes 
identified within Table 1 of this proposal. The EPA has made, and will 
continue to make, these documents generally available electronically 
through www.regulations.gov and/or in hard copy at the appropriate EPA 
office (see the ADDRESSES section of this preamble for more 
information).

VII. 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 Clean Air Act. Accordingly, 
this proposed 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 proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, 
Particulate matter, Sulfur Oxides, Reporting and recordkeeping 
requirements.

    Dated: July 1, 2015.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2015-17475 Filed 7-16-15; 8:45 am]
 BILLING CODE 6560-50-P