Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Infrastructure State Implementation Plan Requirements, 10168-10181 [2016-04405]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 81, Number 39 (Monday, February 29, 2016)]
[Proposed Rules]
[Pages 10168-10181]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04405]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2015-0402; FRL-9943-07-Region 1]


Approval and Promulgation of Air Quality Implementation Plans; 
Rhode Island; Infrastructure State Implementation Plan Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) submissions from 
Rhode Island regarding the infrastructure requirements of the Clean Air 
Act (CAA or Act) for the 1997 fine particle matter (PM2.5), 
2006 PM2.5, 2008 lead (Pb), 2008 ozone, 2010 nitrogen 
dioxide (NO2), and 2010 sulfur dioxide (SO2) 
National Ambient Air Quality Standards (NAAQS). Additionally, EPA is 
proposing to disapprove the submissions with respect to CAA section 
110(a)(2)(H); a federal implementation plan has been in place for this 
requirement since 1973. EPA is also proposing to correct an earlier 
approval of this element for the 1997 8-hour ozone NAAQS. Finally, EPA 
is proposing to approve several statutes submitted by Rhode Island in 
support of their demonstration that the infrastructure requirements of 
the CAA have been met. 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 March 30, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2015-0402 at https://www.regulations.gov, or via email to 
Arnold.Anne@EPA.gov. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the ``For Further Information Contact'' section. For the 
full EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www2.epa.gov/dockets/commenting-epa-dockets.
    Publicly available docket materials are available either 
electronically in www.regulations.gov or 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. The interested 
persons wanting to examine these documents should make an appointment 
with the office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, 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) 918-1664; 
Burkhart.Richard@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean 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 SIP submissions?
    A. What Rhode Island SIP submissions does this rulemaking 
address?
    B. Why did the state make these SIP submissions?
    C. What is the scope of this rulemaking?

[[Page 10169]]

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
    D. Section 110(a)(2)(D)--Interstate Transport
    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; Prevention Of Significant Deterioration; 
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
    N. Rhode Island Statutes Submitted for Incorporation Into the 
SIP
V. What action is EPA taking?
VI. Incorporation by Reference
VII. Stationary 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 SIP submissions?

A. What Rhode Island SIP submissions does this rulemaking address?

    This rulemaking addresses submissions from the Rhode Island 
Department of Environmental Management (RI DEM or DEM). The state 
submitted its infrastructure SIP for each NAAQS on the following dates: 
1997 PM2.5\1\--September 10, 2008; 2006 PM2.5--
November 6, 2009; 2008 Pb--October 26, 2011; 2008 ozone--January 2, 
2013; 2010 NO2--January 2, 2013; and 2010 SO2--
June 27, 2014.
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    \1\ PM2.5 refers to particulate matter of 2.5 microns 
or less in diameter, oftentimes referred to as ``fine'' particles.
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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 PM2.5, 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 
1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS. 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 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 Rhode Island that 
address the infrastructure requirements of CAA sections 110(a)(1) and 
110(a)(2) for the 1997 PM2.5, 2006 PM2.5, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
    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 
nonattainment 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

[[Page 10170]]

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 27242-45.

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?

    EPA is soliciting comment on our evaluation of Rhode Island's 
infrastructure SIP submissions in this notice of proposed rulemaking. 
In each of Rhode Island's submissions, a detailed list of Rhode Island 
Laws and, previously SIP-approved Air Quality Regulations, show 
precisely how the various components of its EPA approved SIP meet each 
of the requirements of section 110(a)(2) of the CAA for the 1997 
PM2.5, 2006 PM2.5, 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.

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

    This section (also referred to in this action as an element) of the 
Act 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.
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    \2\ See, e.g., EPA's final rule on ``National Ambient Air 
Quality Standards for Lead.'' 73 FR 66964, 67034 (Nov. 12, 2008).
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    Rhode Island's infrastructure submittals for this element cite 
Rhode Island General Law (RIGL) and several RI Air Pollution Control 
Regulations (APCR) as follows:
    Rhode Island General Law Sec.  23-23-5(12), ``Powers and duties of 
the director,'' authorizes the RI DEM Director ``[t]o make, issue, and 
amend rules and regulations . . . for the prevention, control, 
abatement, and limitation of air pollution. . . .'' In addition, this 
section authorizes the Director to ``prohibit emissions, discharges 
and/or releases and . . . require specific control technology.'' The 
state has submitted RIGL Sec.  23-23-5 for inclusion in its SIP.
    The Rhode Island submittals cite more than a dozen specific rules 
that the state has adopted to control the emissions of Pb, 
SO2, PM2.5, volatile organic compounds (VOCs), 
and NOX. A few, with their EPA approval citation are listed 
here: No. 9--Air Pollution Control Permits (except for Section 9.13, 
9.14 9.15 and Appendix A which were not submitted) (64 FR 67495; 
December 2, 1999); No. 11--Petroleum Liquids Marketing and Storage (80 
FR 32469; June 9, 2015); No. 12--Incinerators (47 FR 17816; April 26, 
1982); No. 27--Control of Nitrogen Oxide Emissions (62 FR 46202; 
September 2, 1997); No. 37--Rhode Island's Low Emissions Vehicle 
Program (80 FR 50203; August 19, 2015); and No. 45--Rhode Island Diesel 
Engine Anti-Idling Program (73 FR 16203; March 27, 2008).
    The RI regulations listed above were previously approved into the 
RI SIP by EPA. See 40 CFR 52.2070. In addition, EPA proposes to approve 
RIGL Sec.  23-23-5 for inclusion in the SIP. Based upon EPA's review of 
the submittals, EPA further proposes to find that RI DEM's submittal 
meets the requirements of CAA Section 110(a)(2)(A). Therefore, EPA 
proposes that Rhode Island meets the infrastructure SIP requirements of 
section 110(a)(2)(A) with respect to the 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.
    In addition EPA is proposing to remove 40 CFR 52.2079, which was 
promulgated on January 24, 1995 (60 FR 4738). This section states that 
Rhode Island must comply with the requirements of 40 CFR 51.120, which 
are to implement the Ozone Transport Commission (OTC) Low Emission 
Vehicle (LEV) Program (a program which requires that only cleaner 
``LEV'' cars can be sold in Rhode Island), or equivalent measures. 
Subsequently, Rhode Island adopted a Low Emission Vehicle Program based 
on California's LEV program (APCR No. 37), which has been approved into 
the SIP (65 FR 12476, March 9, 2000). In addition, Rhode Island 
recently adopted California's LEV II program (in revisions to APCR No. 
37) which is even more stringent than LEV I, and that has also been 
approved into the SIP (80 FR 50203; August 19, 2015). Thus, Rhode 
Island has satisfied 40 CFR 52.2079, and therefore, EPA proposes to 
remove 40 CFR 52.2079 from the CFR.
    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.
    RI DEM operates an air quality monitoring network, and EPA approved 
the state's 2015 Annual Air Monitoring

[[Page 10171]]

Network Plan for PM2.5, Pb, ozone, NO2, and 
SO2 on September 8, 2015. Furthermore, RI DEM 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 RI DEM has met the infrastructure 
SIP requirements of section 110(a)(2)(B) with respect to the 1997 
PM2.5, 2006 PM2.5, 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) a permit program for minor 
sources and minor modifications. A discussion of greenhouse gas (GHG) 
emissions permitting and the ``Tailoring Rule'' \3\ is included within 
our evaluation of the PSD provisions of Rhode Island's submittals.
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    \3\ In EPA's April 28, 2011 proposed rulemaking for 
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 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.
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Sub-Element 1: Enforcement of SIP Measures
    The Rhode Island General Laws provide the Director of RI DEM with 
the legal authority to enforce air pollution control requirements. Such 
enforcement authority is provided by RIGL Sec.  23-23-5, which grants 
the Director of RI DEM general enforcement power, inspection and 
investigative authority, and the power to issue administrative orders, 
among other things. In addition, RI APCR No. 9, ``Air Pollution Control 
Permits,'' sets forth requirements for new and modified major and minor 
stationary sources. Section 9.3 of the regulation contains specific 
requirements for new and modified minor sources. Section 9.4 of the 
regulation contains specific new source review requirements applicable 
to major stationary source or major modifications located in 
nonattainment areas. Section 9.5 contains specific new source review 
requirements applicable to major stationary sources or major 
modifications located in attainment or unclassifiable areas (PSD).
    EPA proposes that Rhode Island has met the enforcement of SIP 
measures requirements of section 110(a)(2)(C) with respect to the 1997 
PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.
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. RI DEM's EPA-
approved PSD rules, contained at APCR No. 9, contain provisions that 
address the majority of the applicable infrastructure SIP requirements 
related to the 1997 PM2.5, 2006 p.m.2.5, 2008 Pb, 
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
    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 (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 
(see 70 FR 71612 at 71679, 71699-700 (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 provisions that would treat NOx as a precursor to ozone 
provisions. These SIP revisions were to have been submitted to EPA by 
states by June 15, 2007. See 70 FR 71612 at 71683.
    Rhode Island has incorporated several of the changes required by 
the Phase 2 Rule, but has not made the necessary changes to the 
definition of ``major stationary source'' identifying NOX as 
a precursor to ozone. Therefore, we are proposing that Rhode Island has 
met all but one of the requirements of section 110(a)(2)(C) for the 
1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS obligated by the Phase 2 
Rule. By letter dated February 18, 2016, Rhode Island committed to 
submit the required provisions for EPA approval by a date no later than 
one year from conditional approval of Rhode Island's infrastructure 
submissions. Consequently, we are proposing to conditionally approve 
with respect to this requirement of the Phase 2 Rule.
    On May 16, 2008 (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 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 
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 40 CFR 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 40 CFR 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

[[Page 10172]]

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).\4\
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    \4\ EPA notes that on January 4, 2013, the U.S. Court of Appeals 
for the DC 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, 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, EPA's 
approval of Rhode Island'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.
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    On January 18, 2011, Rhode Island submitted revisions to its PSD 
program incorporating the necessary changes obligated by the 2008 NSR 
Rule, with respect to provisions that explicitly identify precursors to 
PM2.5. EPA approved Rhode Island's 2011 SIP revision on 
April 21, 2015 (80 FR 22106).
    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. See 73 FR 28321 at 28334. This requirement is 
codified in 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 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).
    Rhode Island's SIP-approved PSD program does not contain the exact 
language in 40 CFR 51.166(b)(49)(i)(a). However, EPA has previously 
determined that Rhode Island's SIP-approved regulations define 
PM2.5 and PM10 such that the state's PSD program 
adequately accounts for the condensable fraction of PM2.5 
and PM10. See 78 FR 63383 at 63386 (October 24, 2013).
    Therefore, we are proposing that Rhode Island has met this set of 
requirements of section 110(a)(2)(C) for the 1997 PM2.5, 
2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 
2010 SO2 NAAQS regarding the requirements obligated by the 
2008 NSR Rule.
    On October 20, 2010 (75 FR 64864), 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). 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 of October 20, 2011 in the definition of ``minor 
source baseline date.'' These revisions are codified in 40 CFR 
51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 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 (SIL) 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 40 CFR 
52.21(b)(15)(i). Rhode Island has not yet made a SIP submittal to EPA 
that addresses EPA's 2010 NSR rule. However, by letter dated February 
18, 2016, Rhode Island committed to submitting the necessary updates to 
its NSR regulation within one year of EPA's conditional approval. 
Therefore, we are proposing to conditionally approve this part of sub-
element 2 of section 110(a)(2)(C) relating to requirements for state 
NSR regulations outlined within our 2010 NSR regulation.
    With respect to Elements (C) and (J), 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. The requirements of Element D(i)(II) may 
also be satisfied by demonstrating the air agency has a complete PSD 
permitting program correctly addressing all regulated NSR pollutants. 
Rhode Island has shown that it currently has a PSD program in place 
that covers all regulated NSR pollutants, including GHGs, with the 
exception of the deficiencies described elsewhere in this notice.
    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 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 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 accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the 
D.C. Circuit) issued an amended judgment vacating the regulations that 
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas 
Tailoring Rule, but not the regulations that implement Step 1 of that 
rule. Step 1 of the Tailoring Rule covers sources that are required to 
obtain a PSD permit based on emissions of pollutants other than GHGs. 
Step 2 applied to sources that emitted only GHGs above the thresholds 
triggering the requirement to obtain a PSD permit. The amended judgment 
preserves, without the need for additional rulemaking by EPA, the 
application of the Best Available Control Technology (BACT) requirement 
to GHG emissions from Step 1 or ``anyway'' sources. With respect to 
Step 2 sources, the D.C. Circuit's amended judgment vacated the 
regulations at issue in the litigation, including 40 CFR 
51.166(b)(48)(v), ``to the extent they require a stationary source to 
obtain a PSD permit if greenhouse gases are the only pollutant (i) that 
the source emits or has the potential to emit above the applicable 
major source thresholds, or (ii) for which there is a significant 
emission increase from a modification.''
    On August 19, 2015, EPA amended its PSD and title V regulations to 
remove from the Code of Federal Regulations portions of those 
regulations that the D.C. Circuit specifically identified as vacated. 
EPA intends to further revise the PSD and title V regulations to fully

[[Page 10173]]

implement the Supreme Court and D.C. Circuit rulings in a separate 
rulemaking. This future rulemaking will include revisions to additional 
definitions in the PSD regulations.
    Some states have begun to revise their existing SIP-approved PSD 
programs in light of these court decisions, and some states may prefer 
not to initiate this process until they have more information about the 
additional planned revisions to EPA's PSD regulations. EPA is not 
expecting states to have revised their PSD programs in anticipation of 
EPA's additional actions to revise its PSD program rules in response to 
the court decisions for purposes of infrastructure SIP submissions. 
Instead, EPA is only evaluating such submissions to assure that the 
state's program addresses GHGs consistent with both the court decision, 
and the revisions to PSD regulations that EPA has completed at this 
time.
    At present, EPA has determined that Rhode Island's SIP is 
sufficient to satisfy Elements (C), (D)(i)(II), and (J) with respect to 
GHGs. This is because the PSD permitting program previously approved by 
EPA into the SIP continues to require that PSD permits issued to 
``anyway sources'' contain limitations on GHG emissions based on the 
application of BACT. The approved Rhode Island PSD permitting program 
still contains some provisions regarding Step 2 sources that are no 
longer necessary in light of the Supreme Court decision and D.C. 
Circuit amended judgment. Nevertheless, the presence of these 
provisions in the previously-approved plan does not render the 
infrastructure SIP submission inadequate to satisfy Elements (C), 
(D)(i)(II), and (J). The SIP contains the PSD requirements for applying 
the BACT requirement to GHG emissions from ``anyway sources'' that are 
necessary at this time. The application of those requirements is not 
impeded by the presence of other previously-approved provisions 
regarding the permitting of Step 2 sources. Accordingly, the Supreme 
Court decision and subsequent D.C. Circuit judgment do not prevent 
EPA's approval of Rhode Island's infrastructure SIP as to the 
requirements of Elements (C), (as well as sub-elements (D)(i)(II), and 
(J)(iii)).
    For the purposes of the 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS infrastructure SIPs, EPA reiterates that NSR 
Reform is not in the scope of these actions.
    In summary, we are proposing to approve the majority of Rhode 
Island's submittals for this sub-element with respect to the 1997 
PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS, but to conditionally 
approve these submittals regarding the identification of NOX 
as a precursor to ozone in the definition of major stationary source 
and regarding the revisions required by the 2010 NSR Rule.
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 last approved 
Rhode Island's minor NSR program, on May 7, 1981 (46 FR 25446) as well 
as updates to that program. Since this date, Rhode Island 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 1997 
PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.
    We are proposing to find that Rhode Island has met the requirement 
to have a SIP-approved minor new source review permit program as 
required under Section 110(a)(2)(C) for the 1997 PM2.5, 2006 
PM2.5, 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 
comply with. 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 of the Act relating to 
interstate and international pollution abatement.
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 Pb 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.
    Rhode Island's infrastructure SIP submission for the 2008 Pb NAAQS 
notes that there are no large sources of Pb emissions located in close 
proximity to any of the state's borders with neighboring states. 
Additionally, Rhode Island'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 
the Pb emissions data from Rhode Island sources, which Rhode Island has 
entered into the EPA National Emissions Inventory (NEI) database, 
confirms this, and therefore, EPA agrees with Rhode Island and proposes 
that Rhode Island has met this set of requirements related to section 
110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.
    Rhode Island's submittals did not address section 
110(a)(2)(D)(i)(I) for the 1997 PM2.5, 2006 
PM2.5, 2008 ozone, 2010 NO2, or 2010 
SO2 NAAQS. Rhode Island did, however, make subsequent 
submittals for this sub-element on June 23, 2015 (ozone) and October 
15, 2015 (NO2 and SO2), which EPA will act on in 
a subsequent notice. Therefore, EPA

[[Page 10174]]

is not taking any action with respect to this requirement for purposes 
of the 1997 PM2.5, 2006 PM2.5, 2008 ozone, 2010 
NO2, or 2010 SO2 NAAQS at this time.
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. As has 
already been discussed in the paragraphs addressing the PSD sub-element 
of Element C, Rhode Island has satisfied many, though not all, of the 
applicable PSD implementation rule requirements.
    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 Rhode Island's latest NNSR regulations on April 21, 2015 (80 
FR 22106). 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 51.
    As noted above and in Element C, Rhode Island's PSD program does 
not fully satisfy the requirements of EPA's PSD implementation rules, 
although Rhode Island has committed to submit the required provisions 
for EPA approval by a date no later than one year from conditional 
approval of Rhode Island's infrastructure submissions. Consequently, we 
are proposing to conditionally approve this sub-element for the 1997 
PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS related to section 
110(a)(2)(D)(i)(II) for the reasons discussed under Element C.
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. A 
fully approved regional haze SIP meeting the requirements of 40 CFR 
51.308 will ensure that emissions from sources under an air agency's 
jurisdiction are not interfering with measures required to be included 
in other air agencies' plans to protect visibility.
    Rhode Island's Regional Haze SIP was approved by EPA on May 22, 
2012 (77 FR 30214). Accordingly, EPA proposes that Rhode Island has met 
the visibility protection requirements of 110(a)(2)(D)(i)(II) for the 
1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.
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 by new or modified sources. A 
lack of such a requirement in state rules would be grounds for 
disapproval of this element. EPA approved Rhode Island's PSD program, 
as well as updates to that program, with the most recent approval 
occurring on April 21, 2015 (80 FR 22106), which includes a provision 
requiring notice to neighboring states of RI DEM's intention to either 
issue a draft PSD permit or deny a permit application. See APCR No. 9, 
section 9.12.3(e). Therefore, we propose to approve Rhode Island's 
compliance with the infrastructure SIP requirements of section 126(a) 
with respect to the 1997 PM2.5, 2006 PM2.5, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. 
Rhode Island has no obligations under any other provision of section 
126.
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. Rhode Island does not have any pending obligations under 
section 115 for the 1997 PM2.5, 2006 PM2.5, 2008 
Pb, 2008 ozone, 2010 NO2, or 2010 SO2 NAAQS. 
Therefore, EPA is proposing that Rhode Island 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 1997 
PM2.5, 2006 PM2.5, 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 Rhode Island 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
    Rhode Island, through its infrastructure SIP submittals, has 
documented that its air agency has the requisite authority and 
resources to carry out its SIP obligations. Rhode Island cites to RIGL 
Sec.  23-23-5, which provides the Director of DEM with the legal 
authority to enforce air pollution control requirements. Additionally, 
this statute provides the Director with the authority to assess 
preconstruction permit fees and annual operating permit fees from air 
emissions sources and establishes a general revenue reserve account 
within the general fund to finance the state clean air programs. RI DEM 
further cites to RI APCR No. 28, ``Operating Permit Fees,'' which 
requires that major sources pay annual operating permit fees. Finally, 
Section III of the 1972 RI SIP specifies RI DEM's legal authority to 
implement SIP measures, and Section VII of the 1972 SIP describes the 
resources and manpower estimates for RI DEM. EPA proposes that Rhode 
Island has met the infrastructure SIP requirements of this portion of 
section 110(a)(2)(E) with respect to the 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.

[[Page 10175]]

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.
    In Rhode Island, no board or body approves permits or enforcement 
orders; these are approved by the Director of RI DEM. Thus, with 
respect to this sub-element, Rhode Island is subject only to the 
requirements of paragraph (a)(2) of section 128 of the CAA (regarding 
conflicts of interest). Accordingly, Rhode Island indicated in its 
January 2, 2013 infrastructure SIP submittals for the 2008 ozone and 
2010 NO2 NAAQS that it was submitting the Rhode Island Code 
of Ethics, RIGL chapter 36-14, for incorporation into the SIP.\5\ The 
Rhode Island Code of Ethics, applies to state employees and public 
officials (see RIGL Sec.  36-14-4), requires disclosure of potential 
conflicts of interest (see RIGL Sec.  36-14-6), and provides that ``No 
person subject to this Code of Ethics shall have any interest, 
financial or otherwise, direct or indirect, or engage in any business, 
employment, transaction, or professional activity, or incur any 
obligation of any nature, which is in substantial conflict with the 
proper discharge of his or her duties or employment in the public 
interest and of his or her responsibilities'' (see RIGL Sec.  36-14-
5(a)). EPA is proposing to approve RIGL Sec. Sec.  36-14-1 through -7 
into the Rhode Island SIP.
---------------------------------------------------------------------------

    \5\ Rhode Island also referenced incorporation of the Rhode 
Island Code of Ethics into the SIP in its June 27, 2014 
infrastructure SIP submittal for the 2010 SO2 NAAQS.
---------------------------------------------------------------------------

    EPA proposes that, with the inclusion of RIGL Sec. Sec.  36-14-1 
through -7 into the Rhode Island SIP as proposed, Rhode Island has met 
the applicable infrastructure SIP requirements for this sub-element for 
the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 
2010 NO2, and 2010 SO2 NAAQS.

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 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.
    Rhode Island's infrastructure submittals reference existing state 
regulations previously approved by EPA that require sources to monitor 
emissions and submit reports. For example, Rhode Island's submittals 
reference APCR No. 9, ``Air Pollution Control Permits,'' which requires 
emissions testing of permitted processes within 180 days of full 
operation and specifies that preconstruction permits issued contain an 
emissions testing section. Another example Rhode Island cites is APCR 
No. 14, ``Record Keeping and Reporting,'' which requires emission 
sources to annually report emissions and other data to RI DEM, and 
provides that information in certain reports obtained pursuant to APCR 
No. 14 ``will be correlated with applicable emission and other 
limitations and will be available for public inspection.'' Another 
example referenced in Rhode Island's submittals is APCR No. 27, 
``Control of Nitrogen Oxide Emissions,'' listed in Element A, which 
requires annual emissions testing of subject sources and includes 
specifications for continuous emissions monitors.
    EPA proposes to find that deficiencies with Rhode Island's 
recordkeeping authority outlined at 40 CFR 52.2074(a) have been 
remedied. In particular, in May 1972, EPA found that Rhode Island had 
not met the requirements of 40 CFR 51.230(e) (formerly 40 CFR 
51.11(a)(5)), which provides that ``Each plan must show that the State 
has legal authority to carry out the plan, including authority to . . . 
[o]btain information necessary to determine whether air pollution 
sources are in compliance with applicable laws, regulations, and 
standards, including authority to require recordkeeping and to make 
inspections and conduct tests of air pollution sources.'' In 
particular, EPA found that Rhode Island's ``[a] uthority to require 
recordkeeping is deficient to the extent that [RIGL] section 23-25-13 
requires only those sources with an air pollution control program to 
keep records.'' 40 CFR 52.2074(a). Since this time, Rhode Island has 
revised (and renumbered) its statutes such that the applicable 
provision now applies not only to ``any person owning or operating any 
air pollution control system,'' but also to ``any person owning or 
operating a source of air pollution which has the potential to emit any 
air contaminant, or any person owning or operating a source of air 
pollution which the director has reason to believe is emitting any 
extremely toxic air contaminant, that meets the definition in Sec.  23-
23-3 but may not have been adopted by the director.'' RIGL Sec.  23-23-
13. In addition, RIGL Sec.  23-23-5(16) provides RI DEM with the 
authority to ``require any person who owns or operates any machine, 
equipment, device, article, or facility which has the potential to emit 
any air contaminant . . . to submit periodic reports on the nature and 
amounts of air contaminant emission from the machine, equipment, 
device, article, or facility.'' In today's notice, EPA proposes to 
approve RIGL Sec.  23-23-5. Furthermore, APCR No. 14, the latest 
revision of which was approved into the SIP on December 2, 1999, see 64 
FR 67495, similarly requires certain recordkeeping by the ``owner or 
operator of any facility that emits air contaminants.'' Section 14.2. 
Finally, and as noted above, APCR No. 14 requires emission sources to 
report emissions and other data to RI DEM at least annually. Taken 
together, these post-1972 provisions significantly enhance Rhode 
Island's recordkeeping authority and remedy the deficiency identified 
in 40 CFR 52.2074(a) and, consequently, we are proposing to remove this 
provision from the Code of Federal Regulations.
    EPA also proposes to approve Rhode Island's SIP submittal with 
respect to the deficiencies outlined at 40 CFR 52.2073 and 52.2074(b) 
regarding the public availability of emission data. In May 1972, EPA 
found that Rhode Island had not met the requirements of 40 CFR 
51.116(c) (formerly 40 CFR 51.10(e)), which provides that a state's SIP 
``must provide for public availability of emission data reported by 
source owners or operators or otherwise obtained by a State or local 
agency.'' EPA concluded that Rhode Island's SIP was deficient ``since 
the plan does not provide for public availability of emission data.'' 
40 CFR 52.2073(a). At the same time, EPA found that Rhode

[[Page 10176]]

Island had not met the requirements of 40 CFR 51.230(f) (formerly 40 
CFR 51.11(a)(6)), which provides, among other things, that ``Each plan 
must show that the State has legal authority to carry out the plan, 
including authority to . . . [r]equire owners or operators of 
stationary sources to make periodic reports to the State on the nature 
and amounts of emissions from such stationary sources'' and authority 
``to make such data available to the public as reported and as 
correlated with any applicable emission standards or limitations.'' 
With respect to that requirement, EPA found that (1) Rhode Island's 
``[a]uthority to release emission data to the public is deficient in 
that section 23-25-6 requires that only records concerning 
investigations be available to the public'' and that (2) ``section 23-
25-5(g) and section 23-25-13 may limit the State's authority to release 
emission data.'' 40 CFR 52.2074(b). As a result, EPA promulgated 
regulations at 40 CFR 52.2073(b) regarding public availability of 
emission data.
    While the present-day version of RIGL Sec.  23-25-6 (now codified 
at RIGL Sec.  23-23-6) still appears to apply only to records 
concerning investigations, the SIP-approved state regulation APCR No. 
14 is not by its terms so limited. This regulation establishes certain 
recordkeeping requirements and provides that ``[i]nformation obtained 
from owners or operators of facilities pursuant to Section 14.2.1 . . . 
will be available for public inspection.'' Section 14.2.1 is not 
limited to records concerning investigations and specifically 
encompasses, among other things, ``data on . . . emissions of air 
contaminants . . . or other data that may be necessary to determine if 
the facility is in compliance with air pollution control regulations.'' 
\6\ The current version of RIGL Sec.  23-25-13 (now codified at Sec.  
23-23-13) requires sources to ``keep accurate records of operation'' 
and provides that such records ``may be submitted to the department as 
trade secret or proprietary information to the extent that protection 
is available under the [Rhode Island] public records act.'' By letter 
dated February 18, 2016, RI DEM informed EPA that, in practice, it 
makes emission data available to the public pursuant to APCR No. 14 and 
that it interprets RIGL Sec.  23-23-13 and the state public records act 
at RIGL title 38 as not providing ``trade secret or proprietary 
information'' protection to emission data reported to the state. 
Furthermore, former RIGL Sec.  23-25-5(g) has been amended since the 
disapproval, no longer containing the apparent limitation on the 
State's authority to release emission data.\7\ Consequently, EPA 
proposes to approve Rhode Island's SIP as providing for public 
availability of emission data and that Rhode Island's authority to 
release emission data to the public is no longer deficient as described 
in 40 CFR 52.2073(a) and 52.2074(b). Thus, EPA proposes to approve 
Rhode Island's SIP as providing for correlation by RI DEM of emissions 
reports by sources with applicable emission limitations or standards, 
and as providing for the public availability of those emission reports. 
Therefore, we are proposing to remove from the Code of Federal 
Regulations 40 CFR 52.2073 in its entirety and the provisions in 40 CFR 
52.2074(b) regarding public availability of emissions data.
---------------------------------------------------------------------------

    \6\ While EPA may have had reservations in 1976 as to whether 
the Rhode Island Department of Health--which at that time 
implemented the state's air pollution control program--lacked the 
statutory authority to promulgate APCR No. 14, see 41 FR 2231, 2231 
(Jan. 15, 1976), revisions to state law that have occurred since 
that time convince us that RI DEM has sufficient authority. In 
addition to changes to RIGL Sec.  23-23-5(16) discussed in the main 
text above, Rhode Island added a provision to RIGL Sec.  23-23-2 
that authorizes the RI DEM Director ``to exercise all powers, direct 
or incidental, necessary to carry out the purposes of this chapter 
to assure that the state of Rhode Island complies with the federal 
Clean Air Act.'' Additionally, RIGL Sec.  23-23-5(24) provides that, 
``[i]n addition to the powers and duties enumerated in this section, 
the director shall have all appropriate power to adopt rules, 
regulations, procedures, programs, and standards as mandated by the 
authorization of the federal Clean Air Act.''
    \7\ In 1972, RIGL Sec.  23-25-5(g) contained the following 
sentence, which has since been removed from the state Clean Air Act: 
``Any information relating to secret processes or methods of 
manufacture or production obtained in the course of such inspection 
shall be kept secret.'' Compare RIGL Sec.  23-23-5(7).
---------------------------------------------------------------------------

    EPA also proposes to find that additional deficiencies outlined at 
40 CFR 52.2074(b) and 52.2075(a) regarding source surveillance have 
also been remedied. Section 52.2074(b) provides in relevant part that 
Rhode Island's SIP lacks adequate ``[a]uthority to require sources to 
install and maintain monitoring equipment'' and ``[a]uthority to 
require sources to periodically report. . . .'' Section 52.2075(a) 
provides that ``[t]he requirements of Sec.  51.211 of this chapter are 
not met since the plan lacks adequate legal authority to require owners 
or operators of stationary sources to maintain records of, and 
periodically report information as may be necessary to enable the state 
to determine whether such sources are in compliance with applicable 
portions of the control strategy.'' As a result, section 52.2075(b) 
sets forth EPA regulations regarding source surveillance. As has 
already been discussed above, RIGL Sec.  23-23-5(16) now provides the 
RI DEM Director with the authority to ``require any person who owns or 
operates [a source that has] the potential to emit any air contaminant, 
or which is emitting any extremely toxic air contaminant, to install, 
maintain, and use air pollution emission monitoring devices and to 
submit periodic reports on that nature and amounts of air contaminant 
emission from the machine, equipment, device, article, or facility.'' 
As has also been discussed previously, APCR No. 14 implements this 
authority by requiring facility owners or operators to keep certain 
records (including ``data that may be necessary to determine if the 
facility is in compliance with air pollution control regulations'') and 
report those records to RI DEM at least annually. Moreover, APCR No. 9, 
``Air Pollution Control Permits,'' requires emissions testing of 
permitted processes within 180 days of full operation and specifies 
that any preconstruction permits issued contain an emissions testing 
section. In addition, APCR No. 27, ``Control of Nitrogen Oxide 
Emissions,'' requires annual emissions testing of subject sources and 
includes specifications for continuous emissions monitors. 
Consequently, EPA proposes to approve the Rhode Island SIP as providing 
adequate authority regarding source surveillance, and therefore 
proposes to remove 40 CFR 52.2074(b) and 52.2075(a) and (b) from the 
Code of Federal Regulations. For the foregoing reasons, EPA proposes 
that Rhode Island has met the infrastructure SIP requirements of 
section 110(a)(2)(F) with respect to the 1997 PM2.5, 2006 
PM2.5, 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.''

[[Page 10177]]

    We propose to find that Rhode Island's submittals and certain state 
statutes and regulations provide for authority comparable to that in 
section 303. Rhode Island's submittals cite Section V of the 1972 RI 
SIP, which specifies RI DEM's Emergency Episode Authority and 
Procedures and RIGL chapter 23-23.1 and Sec.  23-23-16, which set forth 
certain emergency powers of the RI DEM Director. In particular, RIGL 
Sec.  23-23-16 allows the Director to order a source to cease 
operations if it is determined that the source is violating any 
provision of RIGL Chapter 23-23, or any regulation or order issued 
thereunder, and that the violation poses ``an immediate danger to 
public health or safety.'' Section 23-23.1-5 of the RIGL provides that, 
if the RI DEM Director finds that air pollution anywhere in the state 
``constitutes an unreasonable and emergency risk to the health of those 
present within that area,'' the Director shall communicate that finding 
to the governor, who ``may by proclamation declare . . . that an air 
pollution episode exists'' and may issue orders to, among other things, 
``prohibit, restrict, or condition the operation of retail, commercial, 
manufacturing, industrial, or similar activity . . . [the] operation of 
incinerators . . . the burning or other consumption of any type of fuel 
[and/or] any and all other activity in the area which contributes or 
may contribute to the air pollution emergency.'' State law further 
provides that such gubernatorial orders ``shall not require any 
judicial or other order or confirmation of any type in order to become 
immediately effective as the legal obligation of all persons, firms, 
corporations, and other entities within the state.'' See RIGL Sec.  23-
23.1-7. In addition, such orders ``shall be enforced by [RI DEM], the 
state council of defense, state and local police, and air pollution 
enforcement personnel forces. Those enforcing any governor's order 
shall require no further authority or warrant in executing it than the 
issuance of the order itself.'' See RIGL Sec.  23-23.1-8(a). Rhode 
Island has submitted RIGL Sec. Sec.  23-23-16 and 23-23.1-5 for 
inclusion in the SIP.
    In a letter dated February 18, 2016, Rhode Island also specified 
that RIGL Sec.  42-17.1-2 and APCR No. 7, taken together with the 
authorities in the submittals, satisfy the requirement that the SIP 
provide for authority comparable to section 303. More specifically, 
APCR No. 7, which was previously approved into Rhode Island's SIP in 
1981 (see 46 FR 25446), provides that ``[n]o person shall emit any 
contaminant which either alone or in connection with other emissions, 
by reason of their concentration and duration, may be injurious to 
human, plant or animal life, or cause damage to property or which 
unreasonably interferes with the enjoyment of life and property.'' \8\ 
Rhode Island notes that the emission standard set in APCR No. 7 is 
extremely broad, and intentionally so. Section 42-17.1-2(21) of the 
RIGL provides that, ``[w]henever the director determines that there 
exists a violation of any law, rule, or regulation within his or her 
jurisdiction which requires immediate action to protect the 
environment, he or she may . . . issue an immediate compliance order 
stating the existence of the violation and the action he or she deems 
necessary.'' Such orders may, at the Director's discretion, be 
effective immediately upon service. Id. With regard to the authority to 
bring suit, section 42-17.1-2(21) further empowers the Director to 
``institute injunction proceedings in the superior court of the state 
for enforcement of the compliance order and for appropriate temporary 
relief. . . .'' \9\
---------------------------------------------------------------------------

    \8\ Rhode Island's current version of APCR No. 7, though not 
incorporated into the SIP, has been expanded and contains a nearly 
identical provision, except that the ``and'' between 
``concentration'' and ``duration'' has been replaced with an ``or.'' 
See APCR No. 7.2.
    \9\ This section further provides that the remedy provided 
therein ``shall be in addition to remedies relating to the removal 
or abatement of nuisances or any other remedies provided by law.'' 
With regard to the abatement of nuisances, Rhode Island law provides 
that, ``[w]henever a nuisance is alleged to exist, the attorney 
general or any citizen of the state may bring an action in the name 
of the state . . . to abate the nuisance and to perpetually enjoin 
the person or persons maintaining the nuisance and any or all 
persons owning any legal or equitable interest in the place from 
further maintaining or permitting the nuisance either directly or 
indirectly.'' RIGL Sec.  10-1-1.
---------------------------------------------------------------------------

    Finally, the Rhode Island Environmental Rights Act (``RIERA'') 
provides that ``each person is entitled by right to the protection, 
preservation, and enhancement of air, water, land, and other natural 
resources located within the state [and that] it is in the public 
interest to provide an adequate civil remedy to protect air, water, 
land and other natural resources located within the state from 
pollution, impairment, or destruction.'' Id. Sec.  10-20-1. 
Consequently, under RIERA, ``[a]ny city or town'' may bring suit 
against ``any person to enforce, or to restrain the violation of, any 
environmental quality standard which is designed to prevent or minimize 
pollution, impairment, or destruction of the environment,'' id. Sec.  
10-20-3(a), or bring an action ``for declaratory and equitable relief 
against any other person for the protection of the environment, or the 
interest of the public therein, from pollution, impairment, or 
destruction,'' id. Sec.  10-20-3(b). An ``environmental quality 
standard'' is defined quite broadly as ``any statute, ordinance, 
limitation, regulation, rule, order, license, stipulation, agreement, 
or permit of the state or any instrumentality, agency, or political 
subdivision thereof.'' Id. Sec.  10-20-2(2). RIERA also establishes an 
``environmental advocate'' within the office of the Attorney General 
who is authorized to ``[m]aintain and/or intervene in civil actions 
authorized by'' RIERA and to ``take all possible actions, including but 
not limited to . . . formal legal action, to secure and insure 
compliance with the provisions of [RIERA] and any promulgated 
environmental quality standards.'' Id. Sec.  10-20-3(d).
    While no single Rhode Island statute or regulation mirrors the 
authorities of CAA section 303, we propose to find that the combination 
of state statutes and regulations discussed herein provide for 
comparable authority to immediately bring suit to restrain, and issue 
orders against, any person causing or contributing to air pollution 
that presents an imminent and substantial endangerment to public health 
or welfare, or the environment.
    Section 110(a)(2)(G) also requires that, for any NAAQS, Rhode 
Island have an approved contingency plan for any Air Quality Control 
Region (AQCR) within the state that is classified as Priority I, IA, or 
II. See 40 CFR 51.152(c). A contingency plan is not required if the 
entire state is classified as Priority III for a particular pollutant. 
Id. There is only one AQCR in Rhode Island--the Metropolitan Providence 
Interstate AQCR--and Rhode Island's portion thereof is classified as a 
Priority I area for PM, SOX, carbon monoxide, and ozone and 
as a Priority III area for NO2. See 40 CFR 52.2071. 
Consequently, as relevant to this proposed rulemaking action, Rhode 
Island's SIP must contain an emergency contingency plan meeting the 
specific requirements of 40 CFR 51.151 and 51.152 with respect to 
SO2 and ozone.\10\
---------------------------------------------------------------------------

    \10\ Those regulations do not specifically address 
PM2.5 and lead. See also 40 CFR 51.150.
---------------------------------------------------------------------------

    Rhode Island's submittals cite to APCR No. 10, ``Air Pollution 
Episodes,'' which specifies episode criteria for, and measures to be 
implemented during, air pollution alerts, warnings and emergencies to 
prevent ambient pollution concentrations from reaching significant harm 
levels and is very closely modeled on EPA's example regulations for 
contingency plans at 40 CFR part 51, Appendix L. As stated in

[[Page 10178]]

Rhode Island's infrastructure SIP submittals under the discussion of 
public notification (Element J), Rhode Island also posts near real-time 
air quality data, air quality predictions and a record of historical 
data on the RI DEM Web site. DEM's predictions are also displayed daily 
in the Providence Journal. Alerts are sent by email to a large number 
of affected parties, including emissions sources, concerned 
individuals, schools, health and environmental agencies and the media. 
Alerts include information about the health implications of elevated 
pollutant levels and list actions that reduce emissions.
    In addition, daily forecasted ozone and fine particle levels are 
also made available on the internet through the EPA AirNow and 
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 or 24-hour PM2.5 standard.
    Finally, we note that lead and PM2.5 are not explicitly 
included in the contingency plan requirements of 40 CFR subpart H. In 
addition, Rhode Island notes in its submittals that, with respect to 
lead, there are no sources in the state that exceed EPA's reporting 
threshold of 0.5 tons per year and that the largest source has lead 
emissions of 0.076 tons per year. With respect to the 2006 
PM2.5 NAAQS, the EPA 2009 Guidance recommends that states 
develop emergency episode plans for any area that has monitored and 
recorded 24-hour PM2.5 levels greater than 140 [mu]g/m\3\ 
since 2006. In its November 6, 2009 submittal, Rhode Island certified 
that the highest 24-hour PM2.5 concentration recorded in the 
state since 2006 was 44.7 [mu]g/m\3\. Furthermore, EPA's review of 
Rhode Island's certified air quality data in AQS indicates that the 
highest 24-hour PM2.5 concentration since that time (i.e., 
data through 2014) is 56.2 [mu]g/m\3\, which occurred in 2010. Although 
not expected, if lead or PM2.5 conditions were to change, 
Rhode Island does have general authority, as noted previously (e.g., 
RIGL Sec. Sec.  23-23-16, 23-23.1-5, 42-17.1-2(21) and APCR No. 7), to 
order a source to cease operations if it is determined that emissions 
from the source pose an immediate danger, or unreasonable and emergency 
risk, to public health or safety or to the environment.
    These Rhode Island statutes, rules and regulations are consistent 
with the requirements of 40 CFR part 51, subpart H, section 51.150 
through 51.153.
    EPA proposes that Rhode Island has met the applicable 
infrastructure SIP requirements for section 110(a)(2)(G) with respect 
to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.
    Finally, EPA proposes to remove an outdated section from the Code 
of Federal Regulations related to abatement orders. In 1973, certain 
provisions enacted at RIGL Sec. Sec.  23-25-5(h) and 23-25-8(a) (now 
renumbered as RIGL Sec. Sec.  23-23-5(8) and 23-23-8(a), respectively) 
concerning state-issued abatement orders were found to be inconsistent 
with the Clean Air Act and, accordingly, disapproved. See 40 CFR 
52.2078(a). EPA then promulgated regulations placing limitations on the 
extent to which state orders could defer compliance with the SIP. See 
40 CFR 52.2078(b). Because Rhode Island has since remedied the 
inconsistency by striking the inappropriate language \11\ from RIGL 
Sec.  23-23-5(8) and adding limiting language \12\ to RIGL Sec.  23-23-
8(a), EPA proposes to remove 40 CFR 52.2078 as no longer necessary.
---------------------------------------------------------------------------

    \11\ ``. . . and the economic and social necessity of the source 
of air pollution.'' Former RIGL Sec.  23-25-5(h).
    \12\ ``No order or modification of the order may be entered by 
the director deferring compliance with a requirement of this chapter 
or the rules and regulations promulgated under this chapter, unless 
the deferral is consistent with provisions and procedures of the 
federal Clean Air Act.'' RIGL Sec.  23-23-8(a).
---------------------------------------------------------------------------

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

    This section requires that a state's SIP provide for revision 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. In 1973, it was determined that Rhode Island's original SIP 
did not fully satisfy section 110(a)(2)(H) and EPA promulgated federal 
regulations to address the gap in the SIP. See 40 CFR 52.2080. Since 
Rhode Island's September 10, 2008, November 6, 2009, October 26, 2011, 
January 2, 2013, and June 27, 2014 submittals likewise do not address 
the gap in the SIP that led to a disapproval in 1973, EPA proposes to 
find that Rhode Island has not met applicable infrastructure SIP 
requirements for element H with respect to the 1997 PM2.5, 
2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 
2010 SO2 NAAQS. Accordingly, EPA proposes to disapprove this 
portion of the state's submittals. Further, EPA notes that our 2011 
approval of the element H portion of Rhode Island's infrastructure 
submittal for the 1997 8-hour ozone NAAQS, see 76 FR 40248, was in 
error, because the state's submittal in that case likewise did not 
address the gap. EPA proposes to correct this oversight pursuant to 
section 110(k)(6) and to disapprove the 1997 8-hour ozone 
infrastructure submittal for element H. No further action by EPA or the 
state is required, however, because remedying federal regulations are 
already in place. Moreover, mandatory sanctions under CAA section 179 
are inapplicable, because the submittal is not required under CAA title 
I part D nor in response to a SIP call under CAA section 110(k)(5).

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; Prevention of Significant Deterioration; Visibility 
Protection

    The evaluation of the submissions from Rhode Island with respect to 
the requirements of CAA section 110(a)(2)(J) are described below.
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.
    Rhode Island General Law Sec.  23-23-5, authorizes the RI DEM 
Director ``[t]o advise, consult, and cooperate with the cities and 
towns and other agencies of the state, federal government, and other 
states and interstate agencies, and with effective groups in industries 
in furthering the purposes of this chapter.'' Rhode Island has 
submitted this statute for inclusion into the SIP. In addition, APCR 
No. 9, which has been approved into Rhode Island's SIP (see 78 FR 
63383, October 24, 2013), directs RI DEM to notify relevant municipal 
officials and FLMs, among others, of tentative determinations by RI DEM 
with respect to permit applications for major stationary sources and 
major modifications.
    EPA proposes to approve RIGL Sec.  23-23-5 into the SIP and 
proposes that Rhode Island has met the infrastructure

[[Page 10179]]

SIP requirements of this portion of section 110(a)(2)(J) with respect 
to the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 2: Public Notification
    Section 110(a)(2)(J) also requires states to notify the public if 
NAAQS are exceeded in an area and must enhance public awareness of 
measures that can be taken to prevent exceedances. Rhode Island's APCR 
No. 10, ``Air Pollution Episodes,'' specifies criteria for, and 
measures to be implemented during, air pollution alerts, warnings and 
episodes. In addition, the RI DEM Web site includes near real-time air 
quality data, air quality predictions and a record of historical data. 
DEM's predictions are also displayed daily in the Providence Journal, a 
newspaper with statewide circulation. Alerts are sent by email to a 
large number of affected parties, including emissions sources, 
concerned individuals, schools, health and environmental agencies and 
the media. Alerts include information about the health implications of 
elevated pollutant levels and list actions that reduce emissions. In 
addition, Air Quality Data Summaries of the year's air quality 
monitoring results are issued annually. The summaries are sent to a 
mailing list of interested parties and posted on the RI DEM Web site. 
Rhode Island is also an active partner in EPA's AirNow and EnviroFlash 
air quality alert programs. EPA proposes that Rhode Island has met the 
infrastructure SIP requirements of this portion of section 110(a)(2)(J) 
with respect to the 1997 PM2.5, 2006 PM2.5, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 3: PSD
    States must meet applicable requirements of section 110(a)(2)(C) 
related to PSD. Rhode Island's PSD program in the context of 
infrastructure SIPs has already been discussed in the paragraphs 
addressing sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II) and, as we 
have noted, does not fully satisfy the requirements of EPA's PSD 
implementation rules, although Rhode Island has committed to submit the 
required provisions for EPA approval by a date no later than one year 
from conditional approval of Rhode Island's infrastructure submissions. 
Consequently, we are proposing to conditionally approve the PSD sub-
element of section 110(a)(2)(J) for the, 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS, consistent with the actions we are proposing for 
sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II).
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, as noted in EPA's 2013 Memo, 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 1997 PM2.5, 2006 PM2.5, 2008 Pb, 
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. 
Accordingly, Rhode Island did not make a submittal for this sub-
element, for the 1997 PM2.5, 2006 PM2.5, 2008 Pb, 
2008 ozone, 2010 NO2, or 2010 SO2 NAAQS 
infrastructure SIP submittals.

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. Rhode Island reviews the potential impact of 
major sources consistent with 40 CFR part 51, appendix W, ``Guidelines 
on Air Quality Models.'' Rhode Island APCR No. 9, ``Air Pollution 
Control Permits,'' requires permit applicants to submit air quality 
modeling to demonstrate impacts of new and modified major sources. The 
modeling data are sent to EPA along with the draft major permit.
    The state also collaborates with the Ozone Transport Commission 
(OTC), and the Mid-Atlantic Regional Air Management Association and EPA 
in order to perform large scale urban air shed modeling for ozone and 
PM if necessary. EPA proposes that Rhode Island has met the 
infrastructure SIP requirements of section 110(a)(2)(K) with respect to 
the 1997 PM2.5, 2006 PM2.5, 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. Section 23-23-5 of the RIGL 
provides for the assessment of operating permit fees and 
preconstruction permit fees for air emissions sources. In addition, RI 
DEM's ``Rules and Regulations Governing the Establishment of Various 
Fees'' sets forth permit fee requirements for air emissions sources and 
the legal authority to collect those fees. These rules and regulations 
are promulgated pursuant to RIGL Chapter 23-23 Air Pollution, and 
Chapter 42-35, Administrative Procedures. Rhode Island's infrastructure 
SIP submittals also refer to its regulations implementing its operating 
permit program pursuant to 40 CFR part 70. Rhode Island's Title V 
permitting program, APCR No. 28, ``Operating Permit Fees,'' requires 
major sources to pay annual operating permit fees. EPA's full approval 
of Rhode Island's title V program (APCR No. 28) became effective on 
November 30, 2001. See 66 FR 49839 (Oct. 1, 2001). To gain this 
approval, Rhode Island demonstrated the ability to collect sufficient 
fees to run the program. The fees collected from title V sources are 
above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). 
EPA proposes that Rhode Island has met the infrastructure SIP 
requirements of section 110(a)(2)(L) for the 1997 PM2.5, 
2006 PM2.5, 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. 
Rhode Island's infrastructure submittals reference RIGL Sec.  23-23-5, 
which provides for consultation with affected local political 
subdivisions and authorizes the RI DEM Director ``to advise, consult, 
and cooperate with the cities and towns and other agencies of the state 
. . . and other states and interstate agencies . . . in furthering he 
purposes of'' the state Clean Air Act (i.e., RIGL chapter 23-23). EPA 
proposes that Rhode Island has met the infrastructure SIP requirements 
of section 110(a)(2)(M) with respect to the 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.

N. Rhode Island Statutes for Inclusion Into the Rhode Island SIP

    As noted above in the discussion of several elements, Rhode Island 
submitted, and EPA is proposing to approve, Sections 23-23-5, 23-23-16, 
23-23.1-5, and 36-14-1 through -7 of the Rhode Island General Laws 
(RIGL) into the SIP.

[[Page 10180]]

V. What action is EPA taking?

    EPA is proposing to approve the infrastructure SIPs submitted by 
Rhode Island for the 1997 PM2.5, 2006 PM2.5, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS, 
with the exception of certain aspects relating to the state's PSD 
program, which we are proposing to conditionally approve, and section 
110(a)(2)(H), which we are proposing to disapprove. EPA is also 
proposing to correct an earlier approval pursuant to section 110(k)(6) 
with respect to section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS. 
No further action by EPA or the state is required, however, since 
federal regulations are already in place that address the gap in the 
state's submittals with respect to element H.
    The state submitted these SIPs on the following dates: 1997 
PM2.5--September 10, 2008; 2006 PM2.5--November 
6. 2009; 2008 Pb--October 13, 2011; 2008 ozone--January 2, 2013; 2010 
NO2--January 2, 2013; and 2010 SO2--May 30, 2013. 
Specifically, EPA's proposed actions regarding each infrastructure SIP 
requirement, are contained in Table 1 below.

                                        Table 1--Proposed Action on Rhode Island's Infrastructure SIP Submittals
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                          1997 and 2006
                              Element                                    2008 Pb         2008 Ozone        2010 NO2         2010 SO2          PM2.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
(A): Emission limits and other control measures....................               A                A                A                A                A
(B): Ambient air quality monitoring and data system................               A                A                A                A                A
(C)1: Enforcement of SIP measures..................................               A                A                A                A                A
(C)2: PSD program for major sources and major modifications........              A*               A*               A*               A*               A*
(C)3: PSD program for minor sources and minor modifications........               A                A                A                A                A
(D)1: Contribute to nonattainment/interfere with maintenance of                   A               NI               NI               NI               NS
 NAAQS.............................................................
(D)2: PSD..........................................................              A*               A*               A*               A*               A*
(D)3: Visibility Protection........................................               A                A                A                A                A
(D)4: Interstate Pollution Abatement...............................               A                A                A                A                A
(D)5: International Pollution Abatement............................               A                A                A                A                A
(E): Adequate resources............................................               A                A                A                A                A
(E): State boards..................................................               A                A                A                A                A
(E): Necessary assurances with respect to local agencies...........              NA               NA               NA               NA               NA
(F): Stationary source monitoring system...........................               A                A                A                A                A
(G): Emergency power...............................................               A                A                A                A                A
(H): Future SIP revisions..........................................               D                D                D                D                D
(I): Nonattainment area plan or plan revisions under part D........               +                +                +                +                +
(J)1: Consultation with government officials.......................               A                A                A                A                A
(J)2: Public notification..........................................               A                A                A                A                A
(J)3: PSD..........................................................              A*               A*               A*               A*               A*
(J)4: Visibility protection........................................               +                +                +                +                +
(K): Air quality modeling and data.................................               A                A                A                A                A
(L): Permitting fees...............................................               A                A                A                A                A
(M): Consultation and participation by affected local entities.....               A                A                A                A                A
--------------------------------------------------------------------------------------------------------------------------------------------------------
In the above table, the key is as follows:
A Approve.
A* Approve but conditionally approve aspect of PSD program relating to the identification of NOX as a precursor of ozone and the revisions required by
  the 2010 NSR rule.
D Disapprove, but no further action required because federal regulations already in place.
+ Not germane to infrastructure SIPs.
NI Not included in the January 2, 2013 (ozone and NO2) and May 20, 2013 (SO2) submittals which are the subject of today's action. Rhode Island later
  submitted SIPs to address this element on June 23, 2015 (ozone) and October 15, 2015 (NO2 and SO2). EPA will act at a later time on those submittals.
NS No Submittal.
NA Not applicable.

    In addition, EPA is proposing to approve, and incorporate into the 
Rhode Island SIP, the following Rhode Island statutes which were 
included for approval in Rhode Island's infrastructure SIP submittals: 
Sections 23-23-5, 23-23-16, 23-23.1-5, and 36-14-1 through -7. Finally, 
for the reasons stated above EPA is proposing to remove 40 CFR 
52.2073(a) and (b); 52.2074(a) and (b); 52.2075(a) and (b); 52.2078(a) 
and (b); and 52.2079 from the CFR.
    As noted in Table 1, we are proposing to conditionally approve 
portions of Rhode Island's infrastructure SIP submittals pertaining to 
the state's PSD program for the 1997 PM2.5, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS. 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 deficiencies mentioned above under element C. If the State fails to 
do so, this action will become a disapproval one year from the 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 Rhode Island 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

[[Page 10181]]

submittal. If EPA disapproves the new submittal, the conditionally 
approved infrastructure SIP elements for all affected pollutants will 
be disapproved. In addition, a final disapproval triggers the Federal 
Implementation Plan 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 rule, 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, EPA is proposing to incorporate by 
reference several Rhode Island statutes referenced in Section V above. 
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, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: February 19, 2016.
Deborah A. Szaro,
Acting Regional Administrator, EPA New England.
[FR Doc. 2016-04405 Filed 2-26-16; 8:45 am]
 BILLING CODE 6560-50-P