Air Plan Approval; Ohio; Infrastructure SIP Requirements for the 2012 PM2.5, 40827-40834 [2016-14894]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 81, Number 121 (Thursday, June 23, 2016)]
[Proposed Rules]
[Pages 40827-40834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14894]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2015-0824; FRL-9948-22-Region 5]


Air Plan Approval; Ohio; Infrastructure SIP Requirements for the 
2012 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of the state implementation plan (SIP) submission from 
Ohio regarding the infrastructure requirements of section 110 of the 
Clean Air Act (CAA) for the 2012 fine particulate matter 
(PM2.5) National Ambient Air Quality Standards (NAAQS). 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 July 25, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2015-0824 at https://www.regulations.gov or via email to 
aburano.douglas@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, 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. 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.

FOR FURTHER INFORMATION CONTACT: Joseph Ko, Environmental Engineer, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard,

[[Page 40828]]

Chicago, Illinois 60604, (312) 886-7947, ko.joseph@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 is the background of this SIP submission?
II. What guidance is EPA using to evaluate this SIP submission?
III. What is the result of EPA's review of this SIP submission?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What is the background of this SIP submission?

A. What state SIP submission does this rulemaking address?

    This rulemaking addresses a submission from the Ohio Environmental 
Protection Agency (OEPA), describing its infrastructure SIP for the 
2012 PM2.5 NAAQS, dated December 4, 2015.

B. Why did the state make this SIP submission?

    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 2012 PM2.5 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) 
and has issued additional guidance documents, the most recent on 
September 13, 2013, ``Guidance on Infrastructure State Implementation 
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)'' 
(2013 Memo). The SIP submission referenced in this rulemaking pertains 
to the applicable requirements of section 110(a)(1) and (2), and 
addresses the 2012 PM2.5 NAAQS. To the extent that the 
prevention of significant deterioration (PSD) program is non-NAAQS 
specific, a narrow evaluation of other NAAQS will be included in the 
appropriate sections.

C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submission from OEPA that addresses the 
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for 
the 2012 PM2.5 NAAQS. The requirement for states to make a 
SIP submission of this type arises out of CAA section 110(a)(1). 
Pursuant to section 110(a)(1), states must make SIP submissions 
``within 3 years (or such shorter period as the Administrator may 
prescribe) after the promulgation of a national primary ambient air 
quality standard (or any revision thereof),'' and these SIP submissions 
are to provide for the ``implementation, maintenance, and enforcement'' 
of such NAAQS. The statute directly imposes on states the duty to make 
these SIP submissions, and the requirement to make the submissions is 
not conditioned upon EPA's taking any action other than promulgating a 
new or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these 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, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    This rulemaking will not cover four 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, that may be contrary to 
the CAA and EPA's policies addressing such excess emissions (``SSM''); 
(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''); (iii) existing provisions for PSD programs 
that may be inconsistent with current requirements of EPA's ``Final New 
Source Review (NSR) Improvement Rule,'' 67 FR 80186 (December 31, 
2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''); and 
(iv) transport provisions under section 110(a)(2)(D). Instead, EPA has 
the authority to, and plans to, address each one of these substantive 
areas in separate rulemakings. A detailed history and interpretation of 
infrastructure SIP requirements can be found in EPA's May 13, 2014, 
proposed rule entitled, ``Infrastructure SIP Requirements for the 2008 
Lead NAAQS'' in the section, ``What is the scope of this rulemaking?'' 
(see 79 FR 27241 at 27242-27245).

II. What guidance is EPA using to evaluate this SIP submission?

    EPA's guidance for this infrastructure SIP submission is embodied 
in the 2007 Memo. 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. EPA issued additional guidance 
documents, the most recent being the 2013 Memo, which further clarifies 
aspects of infrastructure SIPs that are not NAAQS specific.

III. What is the result of EPA's review of this SIP submission?

    As noted in the 2013 Memo, pursuant to section 110(a), states must 
provide reasonable notice and opportunity for public hearing for all 
infrastructure SIP submissions. OEPA provided the opportunity for 
public comment for its 2012 PM2.5 NAAQS infrastructure SIP 
submission during a public hearing held on November 23, 2015. The state 
did not receive any comments during the comment period. EPA is 
soliciting comment on our evaluation of the state's infrastructure SIP 
submission in this notice of proposed rulemaking. OEPA provided 
detailed synopses of how its SIP submission meets each of the 
requirements in section 110(a)(2) for the 2012 PM2.5 NAAQS, 
as applicable. The following review evaluates the state's submission.

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

    This section requires SIPs to include enforceable emission limits 
and other control measures, means or techniques, schedules for 
compliance, and other related matters. EPA has long interpreted 
emission limits and control measures for attaining the standards as 
being due when nonattainment planning requirements are due.\1\ In the 
context of an infrastructure SIP, EPA is

[[Page 40829]]

not evaluating whether the existing SIP provisions satisfy 
nonattainment planning requirements. Instead, EPA is only evaluating 
whether the state's SIP has basic structural provisions for the 
implementation of the NAAQS.
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    \1\ See, e.g., EPA's final rule on ``National Ambient Air 
Quality Standards for Lead.'' 73 FR 66964 at 67034.
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    Ohio Revised Code (ORC) 3704.03 provides the Director of Ohio EPA 
with the authority to develop rules and regulations necessary to meet 
state and Federal ambient air quality standards. Ohio regulates 
directly emitted particulate matter through the rules in SIP-approved 
Ohio Administrative Code (OAC) Chapter 3745-17. Ohio also has SIP-
approved rules regulating emissions of specific precursors to 
PM2.5. For example, OAC 3745-14 provides for the direct 
regulation of nitrogen oxides (NOX) emissions, and OAC 3745-
18 provides for the direct regulation of sulfur dioxide 
(SO2) emissions. EPA proposes that Ohio has met the 
infrastructure SIP requirements of section 110(a)(2)(A) with respect to 
the 2012 PM2.5 NAAQS.
    As previously noted, EPA is not, in this action, 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. EPA determines that Ohio: (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.
    OEPA continues to operate an air monitoring network. EPA approved 
Ohio's 2015-2016 Annual Air Monitoring Network Plan, including the plan 
for PM2.5. OEPA enters air monitoring data into AQS, and the 
state provides EPA with prior notification when changes to its 
monitoring sites or network plan are being considered. EPA proposes to 
find that Ohio has met the infrastructure SIP requirements of section 
110(a)(2)(B) with respect to the 2012 PM2.5 NAAQS.

C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures; 
PSD

    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 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: (i) 
Enforcement of SIP measures; (ii) PSD provisions that explicitly 
identify NOX as a precursor to ozone in the PSD program; 
(iii) identification of precursors to PM2.5 and accounting 
for condensables in the PSD program; (iv) PM2.5 increments 
in the PSD program; and, (v) greenhouse gas (GHG) permitting and the 
``Tailoring Rule.'' \2\
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    \2\ 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 NOX as a precursor to ozone, PM2.5 
precursors, condensable particulate matter, 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 2010 NO2 NAAQS.
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Sub-Element (i): Enforcement of SIP Measures
    Ohio EPA maintains an enforcement program to ensure compliance with 
SIP requirements. ORC 3704.03(R) provides the Director with the 
authority to enforce rules ``consistent with the purpose of the air 
pollution control laws.'' SIP-approved ORC 3704.03 provides the 
Director with the authority to continue to implement Ohio's minor NSR 
and major source PSD program. EPA proposes that Ohio has met the SIP 
enforcement requirements of section 110(a)(2)(C) with respect to the 
2012 PM2.5 NAAQS.
Sub-Element (ii): PSD Provisions That Explicitly Identify 
NOX as a Precursor to Ozone in the PSD Program
    EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects 
of the 1990 Amendments Relating to New Source Review and Prevention of 
Significant Deterioration as They Apply in Carbon Monoxide, Particulate 
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase 
2 Rule) was published on November 29, 2005 (see 70 FR 71612). Among 
other requirements, the Phase 2 Rule obligated states to revise their 
PSD programs to explicitly identify NOX as a precursor to 
ozone (70 FR 71612 at 71679, 71699-71700).
    The Phase 2 Rule required that states submit SIP revisions 
incorporating the requirements of the rule, including the specification 
of NOX as a precursor to ozone provisions, by June 15, 2007 
(70 FR 71612 at 71683).
    EPA approved revisions to Ohio's PSD SIP reflecting these 
requirements on October 28, 2014 (79 FR 64119), and therefore, Ohio has 
met this set of infrastructure SIP requirements of section 110(a)(2)(C) 
with respect to the 2012 PM2.5 NAAQS.
Sub-Element (iii): Identification of Precursors to PM2.5 and 
Accounting for Condensables in the PSD Program
    On May 16, 2008 (see 73 FR 28321), EPA issued the Final Rule on the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule). 
The 2008 NSR Rule finalized several new requirements for SIPs to 
address sources that emit direct PM2.5 and other pollutants 
that contribute to secondary PM2.5 formation. One of these 
requirements is for NSR permits to address pollutants responsible for 
the secondary formation of PM2.5, otherwise known as 
precursors. In the 2008 NSR 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

[[Page 40830]]

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 tpy of 
direct PM2.5; 40 tpy of SO2; and 40 tpy of 
NOX (unless the state demonstrates to the Administrator's 
satisfaction or EPA demonstrates that NOX emissions in an 
area are not a significant contributor to that area's ambient 
PM2.5 concentrations). The deadline for states to submit SIP 
revisions to their PSD programs incorporating these changes was May 16, 
2011 (see 73 FR 28321 at 28341).\3\
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    \3\ EPA notes that on January 4, 2013, the U.S. Court of Appeals 
for the D.C. Circuit, in Natural Resources Defense Council v. EPA, 
706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 
NSR Rule in accordance with the CAA's requirements for 
PM10 nonattainment areas (Title I, Part D, subpart 4), 
and not the general requirements for nonattainment areas under 
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250). 
As the subpart 4 provisions apply only to nonattainment areas, 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 Ohio'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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    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 
condensables in applicability determinations and in establishing 
emissions limitations for PM2.5 and PM10 in PSD 
permits beginning on or after January 1, 2011. 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 to be submitted to EPA by May 16, 2011 (see 
73 FR 28321 at 28341).
    EPA approved revisions to Ohio's PSD SIP reflecting these 
requirements on October 28, 2014 (79 FR 64119), and therefore Ohio has 
met this set of infrastructure SIP requirements of section 110(a)(2)(C) 
with respect to the 2012 PM2.5 NAAQS.
Sub-Element (iv): PM2.5 Increments in the PSD Program
    On October 20, 2010, EPA issued the final rule on the ``Prevention 
of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 
Micrometers (PM2.5)--Increments, Significant Impact Levels 
(SILs) and Significant Monitoring Concentration (SMC)'' (2010 NSR 
Rule). 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), and are included 
in Table 1 below.

Table 1--PM2.5 Increments Established by the 2010 NSR Rule in Micrograms
                             per Cubic Meter
------------------------------------------------------------------------
                                                   Annual
                                                 arithmetic  24-Hour max
                                                    mean
------------------------------------------------------------------------
Class I.......................................            1            2
Class II......................................            4            9
Class III.....................................            8           18
------------------------------------------------------------------------

    The 2010 NSR Rule also established a new ``major source baseline 
date'' for PM2.5 as October 20, 2010, and a new trigger date 
for PM2.5 as October 20, 2011. These revisions are codified 
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 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 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).
    On October 28, 2014 (79 FR 64119), EPA finalized approval of the 
applicable PSD revisions for Ohio, therefore Ohio has met this set of 
infrastructure SIP requirements of section 110(a)(2)(C) with respect to 
the 2012 PM2.5 NAAQS.
Sub-Element (v): GHG Permitting and the ``Tailoring Rule''
    With respect to Elements C and J, EPA interprets the CAA 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. Ohio has 
shown that it currently has a PSD program in place that covers all 
regulated NSR pollutants, including GHGs.
    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 found 
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 order to act consistently with its understanding of the Court's 
decision pending further judicial action to effectuate the decision, 
EPA is no longer applying EPA regulations that would require that SIPs 
include permitting requirements that the Supreme Court found 
impermissible. Specifically, EPA is not applying the requirement that a 
state's SIP-approved PSD program require that sources obtain PSD 
permits when GHGs are the only pollutant: (I) That the source emits or 
has the potential to emit above the major source thresholds, or (ii) 
for which there is a significant emissions increase from a modification 
(see 40 CFR 51.166(b)(48)(v)).
    EPA will review the Federal PSD rules in light of the Supreme Court 
opinion. In addition, EPA anticipates that many states will revise 
their existing SIP-approved PSD programs in light of the Supreme 
Court's decision. The timing and content of subsequent EPA actions with 
respect to EPA regulations and state PSD program approvals are expected 
to be informed by additional legal process before the United States 
Court of Appeals for the District of Columbia Circuit. At this 
juncture, EPA is not expecting states to have revised their PSD 
programs for purposes of infrastructure SIP submissions and is only 
evaluating such submissions to assure that the state's program 
correctly addresses GHGs consistent with the Supreme Court's decision.
    At present, Ohio's SIP is sufficient to satisfy elements C, 
D(i)(II), and J with respect to GHGs because the PSD permitting program 
previously approved by EPA into the SIP continues to require that PSD 
permits (otherwise required based on emissions of pollutants other than 
GHGs) contain

[[Page 40831]]

limitations on GHG emissions based on the application of BACT. Although 
the approved Ohio PSD permitting program may currently contain 
provisions that are no longer necessary in light of the Supreme Court 
decision, this does not render the infrastructure SIP submission 
inadequate to satisfy elements C, (D)(i)(II), and J. The SIP contains 
the necessary PSD requirements at this time, and the application of 
those requirements is not impeded by the presence of other previously-
approved provisions regarding the permitting of sources of GHGs that 
EPA does not consider necessary at this time in light of the Supreme 
Court decision.
    For the purposes of the 2012 PM2.5 NAAQS infrastructure 
SIPs, EPA reiterates that NSR reform regulations are not within the 
scope of these actions. Therefore, we are not taking action on existing 
NSR reform regulations for Ohio. EPA approved Ohio's minor NSR program 
on January 22, 2003 (68 FR 2909), and since that date, OEPA 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 2012 
PM2.5 NAAQS.
    Certain sub-elements in this section overlap with elements of 
section 110(a)(2)(D)(i) and section 110(a)(2)(J). These links will be 
discussed in the appropriate areas below.

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

    Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions 
prohibiting any source or other type of emissions activity in one state 
from contributing significantly to nonattainment, or interfering with 
maintenance, of the NAAQS in another state. EPA is not taking action on 
this infrastructure element in regards to the 2012 PM2.5 
NAAQS and will do so in a future rulemaking.
    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 or to protect visibility in another state.
    EPA notes that Ohio's satisfaction of the applicable PSD 
requirements for the 2012 PM2.5 NAAQS has been detailed in 
the section addressing section 110(a)(2)(C). EPA notes that the actions 
in that section related to PSD are consistent with the actions related 
to PSD for section 110(a)(2)(D)(i)(II), and they are reiterated below.
    EPA has previously approved revisions to Ohio's SIP that meet 
certain requirements obligated by the Phase 2 Rule and the 2008 NSR 
Rule. These revisions included provisions that: (1) Explicitly identify 
NOX as a precursor to ozone, (2) explicitly identify 
SO2 and NOX as precursors to PM2.5, 
and (3) regulate condensable particulate matter in applicability 
determinations and in establishing emissions limits. EPA has also 
previously approved revisions to Ohio's SIP that incorporate the 
PM2.5 increments and the associated implementation 
regulations including the major source baseline date, trigger date, and 
PM2.5 significance level per the 2010 NSR Rule. Ohio's SIP 
contains provisions that adequately address the 2012 PM2.5 
NAAQS.
    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 2013 Memo states that 
these requirements can be satisfied by an approved SIP addressing 
reasonably attributable visibility impairment, if required, or an 
approved SIP addressing regional haze. In this rulemaking, EPA is not 
proposing to approve or disapprove Ohio's satisfaction of the 
visibility protection requirements of section 110(a)(2)(D)(i)(II) for 
the 2010 NO2 or SO2 NAAQs. Instead, EPA will 
evaluate Ohio's compliance with these requirements in a separate 
rulemaking.\4\
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    \4\ Ohio does have an approved regional haze plan for non-EGUs. 
Ohio's plan for EGUs relied on the Clean Air Interstate Rule that 
has been recently superseded by the Cross State Air Pollution Rule 
to which Ohio EGU sources are also subject.
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    Section 110(a)(2)(D)(ii) requires each SIP to contain adequate 
provisions requiring compliance with the applicable requirements of 
section 126 and section 115 (relating to interstate and international 
pollution abatement, respectively).
    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.
    Ohio has provisions in its SIP-approved OAC Chapter 3745-31, which 
is consistent with 40 CFR 51.166(q)(2)(iv), requiring new or modified 
sources to notify neighboring states of potential negative air quality 
impacts, and has referenced this program as having adequate provisions 
to meet the requirements of section 126(a). EPA is proposing that Ohio 
has met the infrastructure SIP requirements of section 126(a) with 
respect to the 2012 PM2.5 NAAQS. Ohio does not have any 
obligations under any other subsection of section 126, nor does it have 
any pending obligations under section 115. EPA, therefore, is proposing 
that Ohio has met all applicable infrastructure SIP requirements of 
section 110(a)(2)(D)(ii).

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. Section 110(a)(2)(E)(ii) also requires each state to 
comply with the requirements respecting state boards under section 128.
Sub-Element (i) and (iii): Adequate Personnel, Funding, and Legal 
Authority Under State Law To Carry Out Its SIP, and Related Issues
    At the time of its submission, OEPA included its most recent 
biennial budget with its submittal, which details the funding sources 
and program priorities addressing the required SIP programs. OEPA has 
routinely demonstrated that it retains adequate personnel to administer 
its air quality management program, and Ohio's environmental 
performance partnership agreement with EPA documents certain funding 
and personnel levels at OEPA. As discussed in previous sections, ORC 
3704.03 provides the legal authority under state law to carry out the 
SIP. EPA proposes that Ohio has met the infrastructure SIP requirements 
of these portions of section 110(a)(2)(E) with respect to the 2012 
PM2.5 NAAQS.
Sub-Element (ii): 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: (1) 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 (2) that any potential conflicts of interest by 
members of such board or body or the head of an executive agency

[[Page 40832]]

with similar powers be adequately disclosed.
    OEPA does not have a board that has the authority to approve 
enforcement orders or permitting actions as outlined in section 
128(a)(1) of the CAA; instead, this authority rests with the Director 
of OEPA. Therefore, section 128(a)(1) of the CAA is not applicable in 
Ohio.
    Under section 128(a)(2), the head of the executive agency with the 
power to approve enforcement orders or permits must adequately disclose 
any potential conflicts of interest. In its June 7, 2013, submission, 
OEPA notes that EPA has previously approved provisions into Ohio's SIP 
addressing these requirements (see 46 FR 57490). Notably, ORC 102: 
Public Officers--Ethics contains provisions that require the Director 
of OEPA (and his/her delegate) to file an annual statement with the 
ethics committee including potential conflicts of interest; 
furthermore, this annual filing is subject to public inspection. 
Therefore, EPA proposes that Ohio has met the applicable infrastructure 
SIP requirements for this section of 110(a)(2)(E) for the 2012 
PM2.5 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.
    OEPA district offices and local air agencies are currently required 
to witness 50% of all source testing and review 100% of all tests. EPA-
approved rules in OAC 3745-15 contain provisions for the submission of 
emissions reports, and OAC 3745-77 and OAC 3745-31 provide requirements 
for recordkeeping by sources. EPA recognizes that Ohio has routinely 
submitted quality assured analyses and data for publication, and 
therefore proposes that Ohio has met the infrastructure SIP 
requirements of section 110(a)(2)(F) with respect to the 2012 
PM2.5 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. The 2013 Memo states 
that infrastructure SIP submissions should specify authority, vested in 
an appropriate official, to restrain any source from causing or 
contributing to emissions which present an imminent and substantial 
endangerment to public health or welfare, or the environment.
    The regulations at OAC 3745-25 contain provisions which allow the 
Director of OEPA to determine the conditions that comprise air 
pollution alerts, warnings, and emergencies. Moreover, the rules 
contained in OAC 3745-25 provide the requirement to implement emergency 
action plans in the event of an air quality alert or higher. EPA 
proposes that Ohio has met the applicable infrastructure SIP 
requirements for this portion of section 110(a)(2)(G) with respect to 
the 2012 PM2.5 NAAQS.

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

    This section requires states to have the authority to revise their 
SIPs in response to changes in the NAAQS, availability of improved 
methods for attaining the NAAQS, or to an EPA finding that the SIP is 
substantially inadequate.
    As previously mentioned, ORC 3704.03 provides the Director of OEPA 
with the authority to develop rules and regulations necessary to meet 
ambient air quality standards in all areas in the state as 
expeditiously as practicable, but not later than any deadlines 
applicable under the CAA. ORC 3704.03 also provides the Director of 
OEPA with the authority to develop programs for the prevention, and 
abatement of air pollution. EPA proposes that Ohio has met the 
infrastructure SIP requirements of section 110(a)(2)(H) with respect to 
the 2012 PM2.5 NAAQS.

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

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

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

    The evaluation of the submission from Ohio with respect to the 
requirements of section 110(a)(2)(J) are described below.
Sub-Element (i): Consultation With Government Officials
    States must provide a process for consultation with local 
governments and Federal Land Managers (FLMs) carrying out NAAQS 
implementation requirements.
    OEPA actively participates in the regional planning efforts that 
include both the state rule developers as well as representatives from 
the FLMs and other affected stakeholders. The FLMs are also included in 
OEPA's interested party lists which provide announcements of draft and 
proposed rule packages. OAC 3745-31-06 is a SIP-approved rule which 
requires notification and the availability of public participation 
related to NSR actions; notification is provided to the general public, 
executives of the city or county where the source is located, other 
state or local air pollution control agencies, regional land use 
planning agencies, and FLMs. OAC 3704.03(K) is a SIP-approved rule that 
which requires giving reasonable public notice and conducting public 
hearings on any plans for the prevention, control, and abatement of air 
pollution that the Director of OEPA is required to submit to EPA. 
Additionally, Ohio is an active member of the Lake Michigan Air 
Director's Consortium (LADCO). Therefore, EPA proposes that Ohio has 
met the infrastructure SIP requirements of this portion of section 
110(a)(2)(J) with respect to the 2012 PM2.5 NAAQS.
Sub-Element (ii): 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.
    OEPA maintains portions of its Web site specifically for issues 
related to the 2012 PM2.5 NAAQS.\5\ The information 
contained in these pages includes background on the health effects of 
each of these pollutants, the areas of most concern, and the strategies 
that the state has been taking to address the elevated levels, if any, 
of the pollutants. OEPA also actively populates EPA's AIRNOW program, 
and prepares annual data reports from its complete monitoring network. 
EPA proposes that Ohio has met the infrastructure SIP requirements

[[Page 40833]]

of this portion of section 110(a)(2)(J) with respect to the 2012 
PM2.5 NAAQS.
---------------------------------------------------------------------------

    \5\ See https://www.epa.ohio.gov/dapc/sip/sip.aspx.
---------------------------------------------------------------------------

Sub-Element (iii): PSD
    States must meet applicable requirements of section 110(a)(2)(C) 
related to PSD. Ohio's PSD program in the context of infrastructure 
SIPs has already been discussed in the paragraphs addressing section 
110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the actions 
for those sections are consistent with the actions for this portion of 
section 110(a)(2)(J).
    Therefore, Ohio has met all of the infrastructure SIP requirements 
for PSD associated with section 110(a)(2)(J) for the 2012 
PM2.5 NAAQS.
Sub-Element (iv): Visibility Protection
    With regard to the applicable requirements for visibility 
protection, states are subject to visibility and regional haze program 
requirements under part C of the CAA (which includes sections 169A and 
169B). In the event of the establishment of a new NAAQS, however, the 
visibility and regional haze program requirements under part C do not 
change. Thus, we find that there is no new visibility obligation 
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes 
effective. In other words, the visibility protection requirements of 
section 110(a)(2)(J) are not germane to infrastructure SIP for the 2012 
PM2.5 NAAQS.

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

    SIPs must provide for performing air quality modeling for 
predicting effects on air quality of emissions from any NAAQS pollutant 
and submission of such data to EPA upon request.
    OEPA reviews the potential impact of major and some minor new 
sources, consistent with appendix W of 40 CFR parts 51 and 52 
``Guidelines on Air Quality Models,'' as well as OEPA Engineering Guide 
69. These modeling data are available to EPA upon request. The 
regulatory requirements related to PSD modeling can be found in SIP-
approved rule OAC 3745-31-18. Ohio's authority to require modeling 
conducted by other entities, e.g., applicants, and the state's 
authority to perform modeling for attainment demonstrations can be 
found in SIP-approved ORC 3704.03(F). EPA proposes that Ohio has met 
the infrastructure SIP requirements of section 110(a)(2)(K) with 
respect to the 2012 PM2.5 NAAQS.

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

    This section requires SIPs to mandate each major stationary source 
to pay permitting fees to cover the cost of reviewing, approving, 
implementing, and enforcing a permit.
    OEPA implements and operates the title V permit program, which EPA 
approved on August 15, 1995 (60 FR 42045); revisions to the program 
were approved on November 20, 2003 (68 FR 65401). Additional rules that 
contain the provisions, requirements, and structures associated with 
the costs for reviewing, approving, implementing, and enforcing various 
types of permits can be found in ORC 3745.11. EPA proposes that Ohio 
has met the infrastructure SIP requirements of section 110(a)(2)(L) for 
the 2012 PM2.5 NAAQS.

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

    States must consult with and allow participation from local 
political subdivisions affected by the SIP. OEPA follows approved 
procedures for allowing public participation, consistent with OAC 3745-
47, which is part of the approved SIP. Consultation with local 
governments is authorized through ORC 3704.03(B). OEPA provides a 
public participation process for all stakeholders that includes a 
minimum of a 30-day comment period and a public hearing for all SIP 
related actions. EPA proposes that Ohio has met the infrastructure SIP 
requirements of section 110(a)(2)(M) with respect to the 2012 
PM2.5 NAAQS.

IV. What action is EPA taking?

    EPA is proposing to approve most elements of the submission from 
OEPA certifying that its current SIP is sufficient to meet the required 
infrastructure elements under sections 110(a)(1) and (2) for the 2012 
PM2.5 NAAQS. EPA's proposed actions for the state's 
satisfaction of infrastructure SIP requirements, by element of section 
110(a)(2) are contained in the table below.

------------------------------------------------------------------------
                                                                  2012
                            Element                               PM2.5
------------------------------------------------------------------------
(A): Emission limits and other control measures...............        A
(B): Ambient air quality monitoring and data system...........        A
(C): Program for enforcement of control measures..............        A
(D)1: Interstate Transport--Significant contribution..........       NA
(D)2: Interstate Transport-interfere with maintenance.........       NA
(D)3: PSD.....................................................        A
(D)4: Visibility..............................................       NA
(D)5: Interstate and International Pollution Abatement........        A
(E): Adequate resources.......................................        A
(E): State boards.............................................        A
(F): Stationary source monitoring system......................        A
(G): Emergency power..........................................        A
(H): Future SIP revisions.....................................        A
(I): Nonattainment area plan or plan revisions under part D...        +
(J)1: Consultation with government officials..................        A
(J)2: Public notification.....................................        A
(J)3: PSD.....................................................        A
(J)4: Visibility protection...................................        +
(K): Air quality modeling and data............................        A
(L): Permitting fees..........................................        A
(M): Consultation and participation by affected local entities        A
------------------------------------------------------------------------

    In the above table, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A...............................  Approve.
NA..............................  No Action/Separate Rulemaking.
+...............................  Not germane to infrastructure SIPs.
------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993) 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);

[[Page 40834]]

     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: June 14, 2016.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.
[FR Doc. 2016-14894 Filed 6-22-16; 8:45 am]
BILLING CODE 6560-50-P