Air Plan Approval; Alabama and North Carolina; Interstate Transport-2010 NO2, 50409-50415 [2016-18151]
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Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Proposed Rules
C. What should I consider as I prepare
my comments for the EPA?
Submitting CBI: Do not submit this
information to the EPA through
www.regulations.gov or email. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information on a disk or CD–ROM that
you mail to the EPA, mark the outside
of the disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
II. Proposed Rule
This proposed action would revise the
EPA’s regulatory definition of VOC for
purposes of preparing SIPs to attain the
NAAQS for ozone under title I of the
CAA, by adding HFE–347pcf2 to the list
of compounds excluded from the
regulatory definition of VOC on the
basis that this compound makes a
negligible contribution to tropospheric
ozone formation. We have explained our
reasons for this action in the preamble
to the direct final rule. The regulatory
text for the proposal is identical to that
for the direct final rule published in the
‘‘Rules and Regulations’’ section of this
Federal Register. For further
supplementary information, the detailed
rationale for the proposal and the
regulatory revisions, see the direct final
rule published under ‘‘Rules and
Regulations’’ of the Federal Register.
III. Statutory and Executive Order
Reviews
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A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action and was therefore not
submitted to the Office of Management
and Budget (OMB) for review.
B. Paperwork Reduction Act (PRA)
This action does not impose an
information collection burden under the
PRA. It does not contain any
recordkeeping or reporting
requirements.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
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50409
under the RFA. This action will not
impose any requirements on small
entities. This action removes HFE–
347pcf2 from the regulatory definition
of VOC and thereby relieves
manufacturers, distributers and users of
the compound from requirements to
control emissions of the compound.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
D. Unfunded Mandates Reform Act
(UMRA)
I. National Technology Transfer and
Advancement Act (NTTAA)
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local or
tribal governments or the private sector.
This action does not involve technical
standards.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. This proposed rule would
remove HFE–347pcf2 from the
regulatory definition of VOC and
thereby relieves manufacturers,
distributers and users from
requirements to control emissions of the
compound. Thus, Executive Order
13175 does not apply to this action.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
This action is not subject to Executive
Order 13045 because it is not
economically significant as defined in
Executive Order 12866, and because the
EPA does not believe the environmental
health or safety risks addressed by this
action present a disproportionate risk to
children. Since HFE–347pcf2 is utilized
in specific industrial applications where
children are not present and dissipates
quickly, there is no exposure or
disproportionate risk to children. This
proposed rule would remove HFE–
347pcf2 from the regulatory definition
of VOC and thereby relieves
manufacturers, distributers and users
from requirements to control emissions
of the compound.
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This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this action does
not have disproportionately high and
adverse human health or environmental
effects on minority populations, lowincome populations and/or indigenous
peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
This action would remove HFE–347pcf2
from the regulatory definition of VOC
and thereby relieves manufacturers,
distributers and users of the compound
from requirements to control emissions
of the compound.
List of Subjects in 40 CFR Part 51
Environmental protection,
Administrative practice and procedure,
Air pollution control, Ozone, Reporting
and recordkeeping requirements,
Volatile organic compounds.
Dated: July 20, 2016.
Gina McCarthy,
Administrator.
[FR Doc. 2016–17790 Filed 7–29–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2016–0209; FRL–9950–00–
Region 4]
Air Plan Approval; Alabama and North
Carolina; Interstate Transport—2010
NO2 Standards
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
revision to the North Carolina SIP,
submitted by the North Carolina
Department of Environmental Quality
(NC DEQ) on March 24, 2016, and the
portions of a revision to the Alabama
State Implementation Plan (SIP),
SUMMARY:
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Federal Register / Vol. 81, No. 147 / Monday, August 1, 2016 / Proposed Rules
submitted by the Alabama Department
of Environmental Management (ADEM)
on December 9, 2015, addressing the
Clean Air Act (CAA or Act) interstate
transport (prongs 1 and 2) infrastructure
SIP requirements for the 2010 1-hour
Nitrogen Dioxide (NO2) National
Ambient Air Quality Standard
(NAAQS). The CAA requires that each
state adopt and submit a SIP for the
implementation, maintenance, and
enforcement of each NAAQS
promulgated by EPA, commonly
referred to as an ‘‘infrastructure SIP.’’
Specifically, EPA is proposing to
approve North Carolina’s March 24,
2016, SIP submission and the portions
of Alabama’s December 9, 2015, SIP
submission addressing interstate
transport requirements for the 2010 NO2
NAAQS.
Comments must be received on
or before August 31, 2016.
DATES:
Submit your comments,
identified by Docket ID No EPA–R04–
OAR–2016–0209 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
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, 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.
ADDRESSES:
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FOR FURTHER INFORMATION CONTACT:
Sean Lakeman of the Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW.,
Atlanta, Georgia 30303–8960. Mr.
Lakeman can be reached by telephone at
(404) 562–9043 or via electronic mail at
lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
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I. Background
By statute, SIPs meeting the
requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by
states within three years after
promulgation of a new or revised
NAAQS to provide for the
implementation, maintenance, and
enforcement of the new or revised
NAAQS. EPA has historically referred to
these SIP submissions made for the
purpose of satisfying the requirements
of sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Sections 110(a)(1) and (2) require states
to address basic SIP elements such as
requirements for monitoring, basic
program requirements, and legal
authority that are designed to assure
attainment and maintenance of the
newly established or revised NAAQS.
More specifically, section 110(a)(1)
provides the procedural and timing
requirements for infrastructure SIPs.
Section 110(a)(2) lists specific elements
that states must meet for the
infrastructure SIP requirements related
to a newly established or revised
NAAQS. The contents of an
infrastructure SIP submission may vary
depending upon the data and analytical
tools available to the state, as well as the
provisions already contained in the
state’s implementation plan at the time
in which the state develops and submits
the submission for a new or revised
NAAQS.
Section 110(a)(2)(D) has two
components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i)
includes four distinct components,
commonly referred to as ‘‘prongs,’’ that
must be addressed in infrastructure SIP
submissions. The first two prongs,
which are codified in section
110(a)(2)(D)(i)(I), are provisions that
prohibit any source or other type of
emissions activity in one state from
contributing significantly to
nonattainment of the NAAQS in another
state (prong 1) and from interfering with
maintenance of the NAAQS in another
state (prong 2). The third and fourth
prongs, which are codified in section
110(a)(2)(D)(i)(II), are provisions that
prohibit emissions activity in one state
from interfering with measures required
to prevent significant deterioration of air
quality in another state (prong 3) and
from interfering with measures to
protect visibility in another state (prong
4). Section 110(a)(2)(D)(ii) requires SIPs
to include provisions ensuring
compliance with sections 115 and 126
of the Act, relating to interstate and
international pollution abatement.
Through these proposed actions, EPA
is proposing to approve North Carolina’s
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March 24, 2016, SIP submission and the
portions of Alabama’s December 9,
2015, SIP submission addressing
interstate transport requirements for the
2010 NO2 NAAQS. All other applicable
infrastructure SIP requirements for
Alabama and North Carolina for the
2010 1-hour NO2 NAAQS will be
addressed in separate rulemakings. A
brief background regarding the 2010 1hour NO2 NAAQS is provided below.
On January 22, 2010, EPA established
a new 1-hour primary NAAQS for NO2
at a level of 100 parts per billion, based
on a 3-year average of the 98th
percentile of the yearly distribution of 1hour daily maximum concentrations.
See 75 FR 6474 (February 9, 2010). This
NAAQS is designed to protect against
exposure to the entire group of nitrogen
oxides (NOX). NO2 is the component of
greatest concern and is used as the
indicator for the larger group of NOX.
Emissions that lead to the formation of
NO2 generally also lead to the formation
of other NOX. Therefore, control
measures that reduce NO2 can generally
be expected to reduce population
exposures to all gaseous NOX which
may have the co-benefit of reducing the
formation of ozone and fine particles
both of which pose significant public
health threats.
States were required to submit
infrastructure SIP submissions for the
2010 1-hour NO2 NAAQS to EPA no
later than January 22, 2013. For
comprehensive information on 2010 1hour NO2 NAAQS, please refer to the
Federal Register notice cited above.
II. What is EPA’s approach to the
review of infrastructure SIP
submissions?
The requirement for states to make a
SIP submission of this type arises out of
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 ‘‘each such plan’’
submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of section
110(a)(1) and (2) as ‘‘infrastructure SIP’’
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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 section 169A of the
CAA, and nonattainment new source
review permit program submissions to
address the permit requirements of
CAA, Title I, part D.
Section 110(a)(1) addresses the timing
and general requirements for
infrastructure SIP submissions and
section 110(a)(2) provides more details
concerning the required contents of
these submissions. The list of required
elements provided in section 110(a)(2)
contains a wide variety of disparate
provisions, some of which pertain to
required legal authority, some of which
pertain to required substantive program
provisions, and some of which pertain
to requirements for both authority and
substantive program provisions.1 EPA
therefore believes that while the timing
requirement in section 110(a)(1) is
unambiguous, some of the other
statutory provisions are ambiguous. In
particular, EPA believes that the list of
required elements for infrastructure SIP
submissions provided in section
110(a)(2) contains ambiguities
concerning what is required for
inclusion in an infrastructure SIP
submission.
The following examples of
ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and
section 110(a)(2) requirements with
respect to infrastructure SIP
submissions for a given new or revised
NAAQS. One example of ambiguity is
that section 110(a)(2) requires that
‘‘each’’ SIP submission must meet the
list of requirements therein, while EPA
has long noted that this literal reading
of the statute is internally inconsistent
and would create a conflict with the
nonattainment provisions in part D of
Title I of the CAA, which specifically
address nonattainment SIP
1 For example: Section 110(a)(2)(E)(i) provides
that states must provide assurances that they have
adequate legal authority under state and local law
to carry out the SIP; Section 110(a)(2)(C) provides
that states must have a SIP-approved program to
address certain sources as required by part C of
Title I of the CAA; and section 110(a)(2)(G) provides
that states must have legal authority to address
emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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requirements.2 Section 110(a)(2)(I)
pertains to nonattainment SIP
requirements and part D addresses
when attainment plan SIP submissions
to address nonattainment area
requirements are due. For example,
section 172(b) requires EPA to establish
a schedule for submission of such plans
for certain pollutants when the
Administrator promulgates the
designation of an area as nonattainment,
and section 107(d)(1)(B) allows up to
two years or in some cases three years,
for such designations to be
promulgated.3 This ambiguity illustrates
that rather than apply all the stated
requirements of section 110(a)(2) in a
strict literal sense, EPA must determine
which provisions of section 110(a)(2)
are applicable for a particular
infrastructure SIP submission.
Another example of ambiguity within
section 110(a)(1) and (2) with respect to
infrastructure SIPs pertains to whether
states must meet all of the infrastructure
SIP requirements in a single SIP
submission, and whether EPA must act
upon such SIP submission in a single
action. Although section 110(a)(1)
directs states to submit ‘‘a plan’’ to meet
these requirements, EPA interprets the
CAA to allow states to make multiple
SIP submissions separately addressing
infrastructure SIP elements for the same
NAAQS. If states elect to make such
multiple SIP submissions to meet the
infrastructure SIP requirements, EPA
can elect to act on such submissions
either individually or in a larger
combined action.4 Similarly, EPA
interprets the CAA to allow it to take
2 See, e.g., ‘‘Rule To Reduce Interstate Transport
of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call; Final Rule,’’ 70 FR
25162, at 25163–65 (May 12, 2005) (explaining
relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
3 EPA notes that this ambiguity within section
110(a)(2) is heightened by the fact that various
subparts of part D set specific dates for submission
of certain types of SIP submissions in designated
nonattainment areas for various pollutants. Note,
e.g., that section 182(a)(1) provides specific dates
for submission of emissions inventories for the
ozone NAAQS. Some of these specific dates are
necessarily later than three years after promulgation
of the new or revised NAAQS.
4 See, e.g., ‘‘Approval and Promulgation of
Implementation Plans; New Mexico; Revisions to
the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of
Significant Deterioration (PSD) and Nonattainment
New Source Review (NNSR) Permitting,’’ 78 FR
4339 (January 22, 2013) (EPA’s final action
approving the structural PSD elements of the New
Mexico SIP submitted by the State separately to
meet the requirements of EPA’s 2008 PM2.5 NSR
rule), and ‘‘Approval and Promulgation of Air
Quality Implementation Plans; New Mexico;
Infrastructure and Interstate Transport
Requirements for the 2006 PM2.5 NAAQS,’’ 78 FR
4337 (January 22, 2013) (EPA’s final action on the
infrastructure SIP for the 2006 PM2.5 NAAQS).
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action on the individual parts of one
larger, comprehensive infrastructure SIP
submission for a given NAAQS without
concurrent action on the entire
submission. For example, EPA has
sometimes elected to act at different
times on various elements and subelements of the same infrastructure SIP
submission.5
Ambiguities within section 110(a)(1)
and (2) may also arise with respect to
infrastructure SIP submission
requirements for different NAAQS.
Thus, EPA notes that not every element
of section 110(a)(2) would be relevant,
or as relevant, or relevant in the same
way, for each new or revised NAAQS.
The states’ attendant infrastructure SIP
submissions for each NAAQS therefore
could be different. For example, the
monitoring requirements that a state
might need to meet in its infrastructure
SIP submission for purposes of section
110(a)(2)(B) could be very different for
different pollutants, because the content
and scope of a state’s infrastructure SIP
submission to meet this element might
be very different for an entirely new
NAAQS than for a minor revision to an
existing NAAQS.6
EPA notes that interpretation of
section 110(a)(2) is also necessary when
EPA reviews other types of SIP
submissions required under the CAA.
Therefore, as with infrastructure SIP
submissions, EPA also has to identify
and interpret the relevant elements of
section 110(a)(2) that logically apply to
these other types of SIP submissions.
For example, section 172(c)(7) requires
attainment plan SIP submissions
required by part D to meet the
‘‘applicable requirements’’ of section
110(a)(2); thus, attainment plan SIP
submissions must meet the
requirements of section 110(a)(2)(A)
regarding enforceable emission limits
and control measures and section
110(a)(2)(E)(i) regarding air agency
resources and authority. By contrast, it
is clear that attainment plan SIP
submissions required by part D would
not need to meet the portion of section
110(a)(2)(C) that pertains to the
5 On December 14, 2007, the State of Tennessee,
through the Tennessee Department of Environment
and Conservation, made a SIP revision to EPA
demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action
for infrastructure SIP elements (C) and (J) on
January 23, 2012 (77 FR 3213) and took final action
on March 14, 2012 (77 FR 14976). On April 16,
2012 (77 FR 22533) and July 23, 2012 (77 FR
42997), EPA took separate proposed and final
actions on all other section 110(a)(2) infrastructure
SIP elements of Tennessee’s December 14, 2007
submittal.
6 For example, implementation of the 1997 PM
2.5
NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new
indicator species for the new NAAQS.
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Prevention of Significant Deterioration
(PSD) program required in part C of
Title I of the CAA, because PSD does
not apply to a pollutant for which an
area is designated nonattainment and
thus subject to part D planning
requirements. As this example
illustrates, each type of SIP submission
may implicate some elements of section
110(a)(2) but not others.
Given the potential for ambiguity in
some of the statutory language of section
110(a)(1) and section 110(a)(2), EPA
believes that it is appropriate to
interpret the ambiguous portions of
section 110(a)(1) and section 110(a)(2)
in the context of acting on a particular
SIP submission. In other words, EPA
assumes that Congress could not have
intended that each and every SIP
submission, regardless of the NAAQS in
question or the history of SIP
development for the relevant pollutant,
would meet each of the requirements, or
meet each of them in the same way.
Therefore, EPA has adopted an
approach under which it reviews
infrastructure SIP submissions against
the list of elements in section 110(a)(2),
but only to the extent each element
applies for that particular NAAQS.
Historically, EPA has elected to use
guidance documents to make
recommendations to states for
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.7 EPA most recently
issued guidance for infrastructure SIPs
on September 13, 2013 (2013
Guidance).8 EPA developed this
document to provide states with up-todate guidance for infrastructure SIPs for
any new or revised NAAQS. Within this
guidance, EPA describes the duty of
states to make infrastructure SIP
submissions to meet basic structural SIP
requirements within three years of
promulgation of a new or revised
NAAQS. EPA also made
recommendations about many specific
subsections of section 110(a)(2) that are
relevant in the context of infrastructure
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7 EPA
notes, however, that nothing in the CAA
requires EPA to provide guidance or to promulgate
regulations for infrastructure SIP submissions. The
CAA directly applies to states and requires the
submission of infrastructure SIP submissions,
regardless of whether or not EPA provides guidance
or regulations pertaining to such submissions. EPA
elects to issue such guidance in order to assist
states, as appropriate.
8 ‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2),’’
Memorandum from Stephen D. Page, September 13,
2013.
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SIP submissions.9 The guidance also
discusses the substantively important
issues that are germane to certain
subsections of section 110(a)(2). EPA
interprets section 110(a)(1) and (2) such
that infrastructure SIP submissions need
to address certain issues and need not
address others. Accordingly, EPA
reviews each infrastructure SIP
submission for compliance with the
applicable statutory provisions of
section 110(a)(2), as appropriate.
As an example, section 110(a)(2)(E)(ii)
is a required element of section
110(a)(2) for infrastructure SIP
submissions. Under this element, a state
must meet the substantive requirements
of section 128, which pertain to state
boards that approve permits or
enforcement orders and heads of
executive agencies with similar powers.
Thus, EPA reviews infrastructure SIP
submissions to ensure that the state’s
implementation plan appropriately
addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The
2013 Guidance explains EPA’s
interpretation that there may be a
variety of ways by which states can
appropriately address these substantive
statutory requirements, depending on
the structure of an individual state’s
permitting or enforcement program (e.g.,
whether permits and enforcement
orders are approved by a multi-member
board or by a head of an executive
agency). However they are addressed by
the state, the substantive requirements
of Section 128 are necessarily included
in EPA’s evaluation of infrastructure SIP
submissions because section
110(a)(2)(E)(ii) explicitly requires that
the state satisfy the provisions of section
128.
As another example, EPA’s review of
infrastructure SIP submissions with
respect to the PSD program
requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the
structural PSD program requirements
contained in part C and EPA’s PSD
regulations. Structural PSD program
requirements include provisions
necessary for the PSD program to
address all regulated sources and new
source review (NSR) pollutants,
9 EPA’s September 13, 2013, guidance did not
make recommendations with respect to
infrastructure SIP submissions to address section
110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the
D.C. Circuit decision in EME Homer City, 696 F.3d
7 (D.C. Cir. 2012) which had interpreted the
requirements of section 110(a)(2)(D)(i)(I). In light of
the uncertainty created by ongoing litigation, EPA
elected not to provide additional guidance on the
requirements of section 110(a)(2)(D)(i)(I) at that
time. As the guidance is neither binding nor
required by statute, whether EPA elects to provide
guidance on a particular section has no impact on
a state’s CAA obligations.
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including Greenhouse Gases. By
contrast, structural PSD program
requirements do not include provisions
that are not required under EPA’s
regulations at 40 CFR 51.166 but are
merely available as an option for the
state, such as the option to provide
grandfathering of complete permit
applications with respect to the PM2.5
NAAQS. Accordingly, the latter
optional provisions are types of
provisions EPA considers irrelevant in
the context of an infrastructure SIP
action.
For other section 110(a)(2) elements,
however, EPA’s review of a state’s
infrastructure SIP submission focuses
on assuring that the state’s SIP meets
basic structural requirements. For
example, section 110(a)(2)(C) includes,
inter alia, the requirement that states
have a program to regulate minor new
sources. Thus, EPA evaluates whether
the state has an EPA-approved minor
new source review program and
whether the program addresses the
pollutants relevant to that NAAQS. In
the context of acting on an
infrastructure SIP submission, however,
EPA does not think it is necessary to
conduct a review of each and every
provision of a state’s existing minor
source program (i.e., already in the
existing SIP) for compliance with the
requirements of the CAA and EPA’s
regulations that pertain to such
programs.
With respect to certain other issues,
EPA does not believe that an action on
a state’s infrastructure SIP submission is
necessarily the appropriate type of
action in which to address possible
deficiencies in a state’s existing SIP.
These issues include: (i) Existing
provisions related to excess emissions
from sources during periods of startup,
shutdown, or malfunction (SSM) that
may be contrary to the CAA and EPA’s
policies addressing such excess
emissions; 10 (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that may be
contrary to the CAA because they
purport to allow revisions to SIPapproved emissions limits while
limiting public process or not requiring
10 Subsequent to issuing the 2013 Guidance,
EPA’s interpretation of the CAA with respect to the
approvability of affirmative defense provisions in
SIPs has changed. See ‘‘State Implementation Plans:
Response to Petition for Rulemaking; Restatement
and Update of EPA’s SSM Policy Applicable to
SIPs; Findings of Substantial Inadequacy; and SIP
Calls To Amend Provisions Applying to Excess
Emissions During Periods of Startup, Shutdown and
Malfunction,’’ 80 FR 33839 (June 12, 2015). As a
result, EPA’s 2013 Guidance (p. 21 & n.30) no
longer represents the EPA’s view concerning the
validity of affirmative defense provisions, in light
of the requirements of section 113 and section 304.
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further approval by EPA; and (iii)
existing provisions for PSD programs
that may be inconsistent with current
requirements of EPA’s ‘‘Final NSR
Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (NSR Reform).
Thus, EPA believes that it may approve
an infrastructure SIP submission
without scrutinizing the totality of the
existing SIP for such potentially
deficient provisions and may approve
the submission even if it is aware of
such existing provisions.11 It is
important to note that EPA’s approval of
a state’s infrastructure SIP submission
should not be construed as explicit or
implicit re-approval of any existing
potentially deficient provisions that
relate to the three specific issues just
described.
EPA’s approach to review of
infrastructure SIP submissions is to
identify the CAA requirements that are
logically applicable to that submission.
EPA believes that this approach to the
review of a particular infrastructure SIP
submission is appropriate, because it
would not be reasonable to read the
general requirements of section
110(a)(1) and the list of elements in
section 110(a)(2) as requiring review of
each and every provision of a state’s
existing SIP against all requirements in
the CAA and EPA regulations merely for
purposes of assuring that the state in
question has the basic structural
elements for a functioning SIP for a new
or revised NAAQS. Because SIPs have
grown by accretion over the decades as
statutory and regulatory requirements
under the CAA have evolved, they may
include some outmoded provisions and
historical artifacts. These provisions,
while not fully up to date, nevertheless
may not pose a significant problem for
the purposes of ‘‘implementation,
maintenance, and enforcement’’ of a
new or revised NAAQS when EPA
evaluates adequacy of the infrastructure
SIP submission. EPA believes that a
better approach is for states and EPA to
focus attention on those elements of
section 110(a)(2) of the CAA most likely
to warrant a specific SIP revision due to
the promulgation of a new or revised
NAAQS or other factors.
For example, EPA’s 2013 Guidance
gives simpler recommendations with
respect to carbon monoxide than other
11 By contrast, EPA notes that if a state were to
include a new provision in an infrastructure SIP
submission that contained a legal deficiency, such
as a new exemption or affirmative defense for
excess emissions during SSM events, then EPA
would need to evaluate that provision for
compliance against the rubric of applicable CAA
requirements in the context of the action on the
infrastructure SIP.
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NAAQS pollutants to meet the visibility
requirements of section
110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As
a result, an infrastructure SIP
submission for any future new or
revised NAAQS for carbon monoxide
need only state this fact in order to
address the visibility prong of section
110(a)(2)(D)(i)(II).
Finally, EPA believes that its
approach with respect to infrastructure
SIP requirements is based on a
reasonable reading of section 110(a)(1)
and (2) because the CAA provides other
avenues and mechanisms to address
specific substantive deficiencies in
existing SIPs. These other statutory tools
allow EPA to take appropriately tailored
action, depending upon the nature and
severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to
issue a ‘‘SIP call’’ whenever the Agency
determines that a state’s SIP is
substantially inadequate to attain or
maintain the NAAQS, to mitigate
interstate transport, or to otherwise
comply with the CAA.12 Section
110(k)(6) authorizes EPA to correct
errors in past actions, such as past
approvals of SIP submissions.13
Significantly, EPA’s determination that
an action on a state’s infrastructure SIP
submission is not the appropriate time
and place to address all potential
existing SIP deficiencies does not
preclude EPA’s subsequent reliance on
provisions in section 110(a)(2) as part of
the basis for action to correct those
deficiencies at a later time. For example,
although it may not be appropriate to
require a state to eliminate all existing
inappropriate director’s discretion
provisions in the course of acting on an
infrastructure SIP submission, EPA
believes that section 110(a)(2)(A) may be
among the statutory bases that EPA
relies upon in the course of addressing
12 For example, EPA issued a SIP call to Utah to
address specific existing SIP deficiencies related to
the treatment of excess emissions during SSM
events. See ‘‘Finding of Substantial Inadequacy of
Implementation Plan; Call for Utah State
Implementation Plan Revisions,’’ 74 FR 21639
(April 18, 2011).
13 EPA has used this authority to correct errors in
past actions on SIP submissions related to PSD
programs. See ‘‘Limitation of Approval of
Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in
State Implementation Plans; Final Rule,’’ 75 FR
82536 (December 30, 2010). EPA has previously
used its authority under section 110(k)(6) of the
CAA to remove numerous other SIP provisions that
the Agency determined it had approved in error.
See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American
Samoa, Arizona, California, Hawaii, and Nevada
SIPs); 69 FR 67062, November 16, 2004 (corrections
to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
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50413
such deficiency in a subsequent
action.14
III. What are the prongs 1 and 2
requirements?
For each new NAAQS, section
110(a)(2)(D)(i)(I) of the CAA requires
each state to submit a SIP revision that
contains adequate provisions
prohibiting emissions activity in the
state from contributing significantly to
nonattainment, or interfering with
maintenance, of the NAAQS in any
downwind state. EPA sometimes refers
to these requirements as prong 1
(significant contribution to
nonattainment) and prong 2
(interference with maintenance), or
conjointly as the ‘‘good neighbor’’
provision of the CAA. Section
110(a)(2)(D)(i)(I) requires the
elimination of upwind state emissions
that significantly contribute to
nonattainment or interference with
maintenance of the NAAQS in another
state.
IV. What is EPA’s analysis of how
Alabama and North Carolina addressed
prongs 1 and 2?
A. Prong 1 (Significant Contribution to
Nonattainment) for Alabama
Alabama has concluded that it does
not contribute significantly to
nonattainment of the 2010 1-hour NO2
NAAQS in any other state for the
following reasons: (1) There are no areas
in Alabama or in the surrounding states
that are designated as nonattainment for
the 2010 NO2 NAAQS; (2) monitored
ambient NO2 concentrations in the State
and surrounding states are well below
the 1-hour 2010 NO2 NAAQS; (3) there
are federal and SIP-approved state
regulations in place to control NOX
emissions in the State. EPA agrees with
the State’s conclusion based on the
rationale discussed below.
First, there are no designated
nonattainment areas for the 1-hr NO2
NAAQS. On February 17, 2012, EPA
designated the entire country as
‘‘unclassifiable/attainment’’ for the 2010
1-hour NO2 NAAQS, stating that
‘‘available information does not indicate
that the air quality in these areas
exceeds the 2010 1-hour NO2 NAAQS’’
(77 FR 9532).
Second, as part of its December 9,
2015 submittal, Alabama examined NO2
monitoring data from 2012–2014 in the
14 See, e.g., EPA’s disapproval of a SIP submission
from Colorado on the grounds that it would have
included a director’s discretion provision
inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344
(July 21, 2010) (proposed disapproval of director’s
discretion provisions); 76 FR 4540 (January 26,
2011) (final disapproval of such provisions).
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State and surrounding states. According
to this data, the design values during
this period are well below the 100 ppb
standard with Georgia and Tennessee
having the highest design values (49
ppb).
Third, in its submittal, Alabama
identifies SIP-approved regulations at
Alabama Administrative Code 335–3–8
that require controls and emission limits
for certain NOX emitting sources in the
State. These regulations include the SIPapproved portion of the NOX SIP call
that requires certain NOX emitting
sources to comply with a capped NOX
emission budget.15 Alabama also notes
that it has implemented several federal
programs that, while not relied upon to
address its ‘‘good neighbor’’ obligations
for the NO2 NAAQS, have reduced NOX
emissions within the State.16 Alabama
also controls NOX emissions at certain
sources through source-specific
measures pursuant to its SIP-approved
permitting regulations at Alabama
Administrative Code 335–3–14. These
permitting requirements help ensure
that no new or modified NOX sources in
the State subject to these permitting
regulations will significantly contribute
to nonattainment or interfere with
maintenance of the 2010 NO2 NAAQS.
For all the reasons discussed above,
EPA has preliminarily determined that
Alabama does not contribute
significantly to nonattainment of the
2010 1-hour NO2 NAAQS in any other
state and that Alabama’s SIP includes
adequate provisions to prevent
emissions sources within the State from
significantly contributing to
nonattainment of this standard in any
other state.
sradovich on DSK3GMQ082PROD with PROPOSALS
B. Prong 2 (Interference With
Maintenance) for Alabama
Alabama has concluded that it does
not interfere with maintenance of the
2010 1-hour NO2 NAAQS in any other
state. As noted above, NO2 design
values in the State and in surrounding
states are well below the standard,
Alabama’s SIP contains provisions to
control NOX emissions, and Alabama
has implemented a number of federal
programs that have reduced NOX
emissions within the State. For these
15 On October 27, 1998 (63 FR 57356), EPA issued
the NOX SIP Call requiring the District of Columbia
and 22 states to reduce emissions of NOX and
providing a mechanism (the NOX Budget Trading
Program) that states could use to achieve those
reductions. Affected states were required to comply
with Phase I of the SIP Call beginning in 2004 and
Phase II beginning in 2007.
16 The federal programs identified by the State
include New Source Performance Standards (40
CFR part 60), National Emission Standards for
Hazardous Air Pollutants (40 CFR parts 61 and 63),
and the Cross-State Air Pollution Rule (CSAPR).
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reasons, EPA has preliminarily
determined that Alabama is not
interfering with maintenance of the
2010 1-hour NO2 NAAQS in any other
state and that Alabama’s SIP includes
adequate provisions to prevent
emissions sources within the state from
interfering with maintenance of this
standard in any other state.
C. Prong 1 (Significant Contribution to
Nonattainment) for North Carolina
North Carolina has concluded that it
does not contribute significantly to
nonattainment of the 2010 1-hour NO2
NAAQS in any other state for several
reasons, including the following: (1)
There are no areas in the country
designated as nonattainment for the
2010 NO2 NAAQS; (2) monitored
ambient NO2 concentrations in the State
and in the surrounding states are well
below the 1-hour 2010 NO2 NAAQS; (3)
NOX emissions have declined
significantly and are expected to
continue to decline through 2017 and
beyond; and 4) there are federal and
SIP-approved state regulations in place
to control NOX emissions. EPA agrees
with the State’s conclusion based on the
rationale discussed below.
First, as noted above, there are no
designated nonattainment areas for the
1-hr NO2 NAAQS.
Second, North Carolina examined
1-hour NO2 design values based on
monitoring data collected between
2012–2014 from NO2 monitors within
North Carolina and surrounding
states.17 The design values during this
period are well below the 100 ppb
standard with Georgia and Tennessee
having the highest design values (49
ppb).
Third, North Carolina reviewed 1996–
2011 annual NOX emissions data for the
State from EPA’s National Emissions
Inventory and determined that the
State’s NOX emissions have declined by
approximately 50 percent during this
time. North Carolina projects that NOX
emissions from 2011–2017 in the State
will decline by an additional 39 percent.
The State also notes that NOX emissions
from EGUs in North Carolina have
declined between 2002–2011 primarily
due to the State’s 2002 Clean
17 North Carolina notes that two new near-road
NO2 monitors deployed in the State in 2014 show
measured concentrations well below the 1-hour
standard. The State believes that this data indicates
that NOX emissions from mobile sources in North
Carolina are unlikely to contribute to nonattainment
or interfere with maintenance of the NO2 NAAQS
in a downwind state. These monitors were required
as part of a modified NO2 monitoring network to
site monitors in locations where maximum NO2
concentrations are expected to occur, including
within 50 meters of major roadways.
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Smokestack Act (CSA).18 The CSA
establishes entity-wide caps on total
annual NOX emissions from investorowned coal-fired electric generating
units (EGUs) in the State.19
Fourth, in addition to the CSA, North
Carolina cites to a number of State
regulations that address additional
control measures, means, and
techniques to reduce NOX emissions in
North Carolina. Several of these
regulations are SIP-approved, such as
15A NCAC 2D .0519 (controlling NO2
and NOX emissions from sulfuric acid
manufacturing plants) and 15A NCAC
2D .1409 (addressing NOX emissions
from certain stationary internal
combustion engines).20 North Carolina
also identifies a number of federal
programs such as CSAPR that, while not
relied upon to address its ‘‘good
neighbor’’ obligations for the NO2
NAAQS, reduce NOX emissions.21
For all of the reasons discussed above,
EPA has preliminarily determined that
North Carolina does not contribute
significantly to nonattainment of the
2010 1-hour NO2 NAAQS in any other
state and that North Carolina’s SIP
includes adequate provisions to prevent
emissions sources within the State from
significantly contributing to
nonattainment of this standard in any
other state.
D. Prong 2 (Interference With
Maintenance) for North Carolina
North Carolina has concluded that it
does not interfere with maintenance of
the 2010 1-hour NO2 NAAQS in any
other state. As stated above, NO2 design
values in the State and in surrounding
states are well below the standard; NOX
emissions have decreased in the State
and are projected to decrease further
through 2017 and beyond; and NOX
emissions are controlled through federal
and SIP-approved state regulations. For
these reasons, EPA has preliminarily
determined that North Carolina is not
interfering with maintenance of the
18 EPA approved the CSA emissions caps into
North Carolina’s SIP on September 26, 2011. See 76
FR 59250.
19 The CSA limits NO emissions from Duke
X
Energy Progress, LLC EGUs and Duke Energy
Carolinas, LLC EGUs to 35,000 tons and 25,000
tons, respectively, beginning on January 1, 2007,
and tightens the emissions cap on Duke Energy
Carolinas, LLC EGUs to 31,000 tons as of January
1, 2009.
20 North Carolina identifies a number of SIPapproved state regulations that control NOX
emissions within the state as well as some state
regulations that are not part of the federallyapproved SIP.
21 CSAPR currently caps EGUs in the State at
specific NOX and SO2 emission budgets through a
federal implementation plan (FIP). According to
North Carolina, the State is on track to comply with
the Phase I emission budgets established under the
CSAPR FIP.
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2010 1-hour NO2 NAAQS in any other
state and that North Carolina’s SIP
includes adequate provisions to prevent
emissions sources within the state from
interfering with maintenance of this
standard in any other state.
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V. Proposed Actions
As described above, EPA is proposing
to approve North Carolina’s March 24,
2016, SIP revision and the portions of
Alabama’s December 9, 2015, SIP
revision addressing prongs 1 and 2 of
CAA section 110(a)(2)(D)(i) for the 2010
1-hour NO2 NAAQS.
VI. 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.
See 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, these proposed
actions merely propose to approve state
law as meeting federal requirements and
do not impose additional requirements
beyond those imposed by state law. For
that reason, these proposed actions:
• Are not ‘‘significant regulatory
actions’’ 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);
• Do not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Are 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.);
• Do not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Public Law 104–4);
• Do not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Are not economically significant
regulatory actions based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Are not significant regulatory
actions subject to Executive Order
13211 (66 FR 28355, May 22, 2001);
• Are 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
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• Do 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).
The SIPs are 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 rules do not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will they impose substantial
direct costs on tribal governments or
preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 20, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016–18151 Filed 7–29–16; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2014–0617; A–1–FRL–
9950–02–Region 1]
Air Plan Approval; VT; Prevention of
Significant Deterioration,
Nonattainment and Minor New Source
Review
Environmental Protection
Agency.
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
three State Implementation Plan (SIP)
revisions submitted by the State of
Vermont. These revisions primarily
amend several aspects of Vermont’s new
source review permitting regulations.
The permitting revisions are part of
Vermont’s major and minor stationary
source preconstruction permitting
programs, and are intended to align
Vermont’s regulations with the federal
new source review regulations. The
revisions also contain amendments to
other Clean Air Act (CAA)
requirements, including updating the
State’s ambient air quality standards
and certain emissions limits for sources
of nitrogen oxides and sulfur dioxide.
SUMMARY:
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50415
This action is being taken in accordance
with the Clean Air Act.
DATES: Written comments must be
received on or before August 31, 2016.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2014–0617 at https://
www.regulations.gov, or via email to
mcdonnell.ida@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.
FOR FURTHER INFORMATION CONTACT: Ida
E. McDonnell, Manager, Air Permits,
Toxics, and Indoor Programs Unit,
Office of Ecosystem Protection, U.S.
Environmental Protection Agency, EPA
New England Regional Office, 5 Post
Office Square, Suite 100, (OEP05–2),
Boston, MA 02109–3912, phone number
(617) 918–1653, fax number (617) 918–
0653, email McDonnell.Ida@epa.gov.
SUPPLEMENTARY INFORMATION: In the
Final Rules Section of this Federal
Register, EPA is approving the State’s
SIP submittal as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no adverse comments are
received in response to this action rule,
no further activity is contemplated. If
EPA receives adverse comments, the
direct final rule will be withdrawn and
all public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period.
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]]>Agencies
[Federal Register Volume 81, Number 147 (Monday, August 1, 2016)]
[Proposed Rules]
[Pages 50409-50415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18151]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R04-OAR-2016-0209; FRL-9950-00-Region 4]
Air Plan Approval; Alabama and North Carolina; Interstate
Transport--2010 NO2 Standards
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a revision to the North Carolina SIP, submitted by the North
Carolina Department of Environmental Quality (NC DEQ) on March 24,
2016, and the portions of a revision to the Alabama State
Implementation Plan (SIP),
[[Page 50410]]
submitted by the Alabama Department of Environmental Management (ADEM)
on December 9, 2015, addressing the Clean Air Act (CAA or Act)
interstate transport (prongs 1 and 2) infrastructure SIP requirements
for the 2010 1-hour Nitrogen Dioxide (NO2) National Ambient
Air Quality Standard (NAAQS). The CAA requires that each state adopt
and submit a SIP for the implementation, maintenance, and enforcement
of each NAAQS promulgated by EPA, commonly referred to as an
``infrastructure SIP.'' Specifically, EPA is proposing to approve North
Carolina's March 24, 2016, SIP submission and the portions of Alabama's
December 9, 2015, SIP submission addressing interstate transport
requirements for the 2010 NO2 NAAQS.
DATES: Comments must be received on or before August 31, 2016.
ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2016-0209 at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. 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, 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: Sean Lakeman of the Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043
or via electronic mail at lakeman.sean@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
By statute, SIPs meeting the requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by states within three years after
promulgation of a new or revised NAAQS to provide for the
implementation, maintenance, and enforcement of the new or revised
NAAQS. EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Sections 110(a)(1) and
(2) require states to address basic SIP elements such as requirements
for monitoring, basic program requirements, and legal authority that
are designed to assure attainment and maintenance of the newly
established or revised NAAQS. More specifically, section 110(a)(1)
provides the procedural and timing requirements for infrastructure
SIPs. Section 110(a)(2) lists specific elements that states must meet
for the infrastructure SIP requirements related to a newly established
or revised NAAQS. The contents of an infrastructure SIP submission may
vary depending upon the data and analytical tools available to the
state, as well as the provisions already contained in the state's
implementation plan at the time in which the state develops and submits
the submission for a new or revised NAAQS.
Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct
components, commonly referred to as ``prongs,'' that must be addressed
in infrastructure SIP submissions. The first two prongs, which are
codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit
any source or other type of emissions activity in one state from
contributing significantly to nonattainment of the NAAQS in another
state (prong 1) and from interfering with maintenance of the NAAQS in
another state (prong 2). The third and fourth prongs, which are
codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit
emissions activity in one state from interfering with measures required
to prevent significant deterioration of air quality in another state
(prong 3) and from interfering with measures to protect visibility in
another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement.
Through these proposed actions, EPA is proposing to approve North
Carolina's March 24, 2016, SIP submission and the portions of Alabama's
December 9, 2015, SIP submission addressing interstate transport
requirements for the 2010 NO2 NAAQS. All other applicable
infrastructure SIP requirements for Alabama and North Carolina for the
2010 1-hour NO2 NAAQS will be addressed in separate
rulemakings. A brief background regarding the 2010 1-hour
NO2 NAAQS is provided below.
On January 22, 2010, EPA established a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion, based on a 3-year
average of the 98th percentile of the yearly distribution of 1-hour
daily maximum concentrations. See 75 FR 6474 (February 9, 2010). This
NAAQS is designed to protect against exposure to the entire group of
nitrogen oxides (NOX). NO2 is the component of
greatest concern and is used as the indicator for the larger group of
NOX. Emissions that lead to the formation of NO2
generally also lead to the formation of other NOX.
Therefore, control measures that reduce NO2 can generally be
expected to reduce population exposures to all gaseous NOX
which may have the co-benefit of reducing the formation of ozone and
fine particles both of which pose significant public health threats.
States were required to submit infrastructure SIP submissions for
the 2010 1-hour NO2 NAAQS to EPA no later than January 22,
2013. For comprehensive information on 2010 1-hour NO2
NAAQS, please refer to the Federal Register notice cited above.
II. What is EPA's approach to the review of infrastructure SIP
submissions?
The requirement for states to make a SIP submission of this type
arises out of 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 ``each such
plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of section 110(a)(1) and (2) as
``infrastructure SIP''
[[Page 50411]]
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 section 169A of the CAA, and nonattainment
new source review permit program submissions to address the permit
requirements of CAA, Title I, part D.
Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\1\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section 110(a)(2) contains ambiguities
concerning what is required for inclusion in an infrastructure SIP
submission.
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\1\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; Section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of Title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
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The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of Title I of the
CAA, which specifically address nonattainment SIP requirements.\2\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years or in some cases three years, for such designations to be
promulgated.\3\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
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\2\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
\3\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
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Another example of ambiguity within section 110(a)(1) and (2) with
respect to infrastructure SIPs pertains to whether states must meet all
of the infrastructure SIP requirements in a single SIP submission, and
whether EPA must act upon such SIP submission in a single action.
Although section 110(a)(1) directs states to submit ``a plan'' to meet
these requirements, EPA interprets the CAA to allow states to make
multiple SIP submissions separately addressing infrastructure SIP
elements for the same NAAQS. If states elect to make such multiple SIP
submissions to meet the infrastructure SIP requirements, EPA can elect
to act on such submissions either individually or in a larger combined
action.\4\ Similarly, EPA interprets the CAA to allow it to take action
on the individual parts of one larger, comprehensive infrastructure SIP
submission for a given NAAQS without concurrent action on the entire
submission. For example, EPA has sometimes elected to act at different
times on various elements and sub-elements of the same infrastructure
SIP submission.\5\
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\4\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
\5\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
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Ambiguities within section 110(a)(1) and (2) may also arise with
respect to infrastructure SIP submission requirements for different
NAAQS. Thus, EPA notes that not every element of section 110(a)(2)
would be relevant, or as relevant, or relevant in the same way, for
each new or revised NAAQS. The states' attendant infrastructure SIP
submissions for each NAAQS therefore could be different. For example,
the monitoring requirements that a state might need to meet in its
infrastructure SIP submission for purposes of section 110(a)(2)(B)
could be very different for different pollutants, because the content
and scope of a state's infrastructure SIP submission to meet this
element might be very different for an entirely new NAAQS than for a
minor revision to an existing NAAQS.\6\
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\6\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires attainment plan SIP submissions
required by part D to meet the ``applicable requirements'' of section
110(a)(2); thus, attainment plan SIP submissions must meet the
requirements of section 110(a)(2)(A) regarding enforceable emission
limits and control measures and section 110(a)(2)(E)(i) regarding air
agency resources and authority. By contrast, it is clear that
attainment plan SIP submissions required by part D would not need to
meet the portion of section 110(a)(2)(C) that pertains to the
[[Page 50412]]
Prevention of Significant Deterioration (PSD) program required in part
C of Title I of the CAA, because PSD does not apply to a pollutant for
which an area is designated nonattainment and thus subject to part D
planning requirements. As this example illustrates, each type of SIP
submission may implicate some elements of section 110(a)(2) but not
others.
Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
Historically, EPA has elected to use guidance documents to make
recommendations to states for 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.\7\ EPA
most recently issued guidance for infrastructure SIPs on September 13,
2013 (2013 Guidance).\8\ EPA developed this document to provide states
with up-to-date guidance for infrastructure SIPs for any new or revised
NAAQS. Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\9\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). EPA interprets section 110(a)(1) and (2) such that
infrastructure SIP submissions need to address certain issues and need
not address others. Accordingly, EPA reviews each infrastructure SIP
submission for compliance with the applicable statutory provisions of
section 110(a)(2), as appropriate.
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\7\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
\8\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013.
\9\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
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As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of Section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and new source review (NSR)
pollutants, including Greenhouse Gases. By contrast, structural PSD
program requirements do not include provisions that are not required
under EPA's regulations at 40 CFR 51.166 but are merely available as an
option for the state, such as the option to provide grandfathering of
complete permit applications with respect to the PM2.5
NAAQS. Accordingly, the latter optional provisions are types of
provisions EPA considers irrelevant in the context of an infrastructure
SIP action.
For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's SIP meets basic structural requirements. For example, section
110(a)(2)(C) includes, inter alia, the requirement that states have a
program to regulate minor new sources. Thus, EPA evaluates whether the
state has an EPA-approved minor new source review program and whether
the program addresses the pollutants relevant to that NAAQS. In the
context of acting on an infrastructure SIP submission, however, EPA
does not think it is necessary to conduct a review of each and every
provision of a state's existing minor source program (i.e., already in
the existing SIP) for compliance with the requirements of the CAA and
EPA's regulations that pertain to such programs.
With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and
EPA's policies addressing such excess emissions; \10\ (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring
[[Page 50413]]
further approval by EPA; and (iii) existing provisions for PSD programs
that may be inconsistent with current requirements of EPA's ``Final NSR
Improvement Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes that it may
approve an infrastructure SIP submission without scrutinizing the
totality of the existing SIP for such potentially deficient provisions
and may approve the submission even if it is aware of such existing
provisions.\11\ It is important to note that EPA's approval of a
state's infrastructure SIP submission should not be construed as
explicit or implicit re-approval of any existing potentially deficient
provisions that relate to the three specific issues just described.
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\10\ Subsequent to issuing the 2013 Guidance, EPA's
interpretation of the CAA with respect to the approvability of
affirmative defense provisions in SIPs has changed. See ``State
Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls To Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' 80 FR 33839 (June 12, 2015). As a
result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the
EPA's view concerning the validity of affirmative defense
provisions, in light of the requirements of section 113 and section
304.
\11\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption or affirmative defense for
excess emissions during SSM events, then EPA would need to evaluate
that provision for compliance against the rubric of applicable CAA
requirements in the context of the action on the infrastructure SIP.
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EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in section 110(a)(2) as requiring
review of each and every provision of a state's existing SIP against
all requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may include some outmoded
provisions and historical artifacts. These provisions, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP
submission. EPA believes that a better approach is for states and EPA
to focus attention on those elements of section 110(a)(2) of the CAA
most likely to warrant a specific SIP revision due to the promulgation
of a new or revised NAAQS or other factors.
For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
section 110(a)(1) and (2) because the CAA provides other avenues and
mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\12\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\13\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\14\
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\12\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\13\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under section 110(k)(6) of the CAA to
remove numerous other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004
(corrections to California SIP); and 74 FR 57051 (November 3, 2009)
(corrections to Arizona and Nevada SIPs).
\14\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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III. What are the prongs 1 and 2 requirements?
For each new NAAQS, section 110(a)(2)(D)(i)(I) of the CAA requires
each state to submit a SIP revision that contains adequate provisions
prohibiting emissions activity in the state from contributing
significantly to nonattainment, or interfering with maintenance, of the
NAAQS in any downwind state. EPA sometimes refers to these requirements
as prong 1 (significant contribution to nonattainment) and prong 2
(interference with maintenance), or conjointly as the ``good neighbor''
provision of the CAA. Section 110(a)(2)(D)(i)(I) requires the
elimination of upwind state emissions that significantly contribute to
nonattainment or interference with maintenance of the NAAQS in another
state.
IV. What is EPA's analysis of how Alabama and North Carolina addressed
prongs 1 and 2?
A. Prong 1 (Significant Contribution to Nonattainment) for Alabama
Alabama has concluded that it does not contribute significantly to
nonattainment of the 2010 1-hour NO2 NAAQS in any other
state for the following reasons: (1) There are no areas in Alabama or
in the surrounding states that are designated as nonattainment for the
2010 NO2 NAAQS; (2) monitored ambient NO2
concentrations in the State and surrounding states are well below the
1-hour 2010 NO2 NAAQS; (3) there are federal and SIP-
approved state regulations in place to control NOX emissions
in the State. EPA agrees with the State's conclusion based on the
rationale discussed below.
First, there are no designated nonattainment areas for the 1-hr
NO2 NAAQS. On February 17, 2012, EPA designated the entire
country as ``unclassifiable/attainment'' for the 2010 1-hour
NO2 NAAQS, stating that ``available information does not
indicate that the air quality in these areas exceeds the 2010 1-hour
NO2 NAAQS'' (77 FR 9532).
Second, as part of its December 9, 2015 submittal, Alabama examined
NO2 monitoring data from 2012-2014 in the
[[Page 50414]]
State and surrounding states. According to this data, the design values
during this period are well below the 100 ppb standard with Georgia and
Tennessee having the highest design values (49 ppb).
Third, in its submittal, Alabama identifies SIP-approved
regulations at Alabama Administrative Code 335-3-8 that require
controls and emission limits for certain NOX emitting
sources in the State. These regulations include the SIP-approved
portion of the NOX SIP call that requires certain
NOX emitting sources to comply with a capped NOX
emission budget.\15\ Alabama also notes that it has implemented several
federal programs that, while not relied upon to address its ``good
neighbor'' obligations for the NO2 NAAQS, have reduced
NOX emissions within the State.\16\ Alabama also controls
NOX emissions at certain sources through source-specific
measures pursuant to its SIP-approved permitting regulations at Alabama
Administrative Code 335-3-14. These permitting requirements help ensure
that no new or modified NOX sources in the State subject to
these permitting regulations will significantly contribute to
nonattainment or interfere with maintenance of the 2010 NO2
NAAQS.
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\15\ On October 27, 1998 (63 FR 57356), EPA issued the
NOX SIP Call requiring the District of Columbia and 22
states to reduce emissions of NOX and providing a
mechanism (the NOX Budget Trading Program) that states
could use to achieve those reductions. Affected states were required
to comply with Phase I of the SIP Call beginning in 2004 and Phase
II beginning in 2007.
\16\ The federal programs identified by the State include New
Source Performance Standards (40 CFR part 60), National Emission
Standards for Hazardous Air Pollutants (40 CFR parts 61 and 63), and
the Cross-State Air Pollution Rule (CSAPR).
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For all the reasons discussed above, EPA has preliminarily
determined that Alabama does not contribute significantly to
nonattainment of the 2010 1-hour NO2 NAAQS in any other
state and that Alabama's SIP includes adequate provisions to prevent
emissions sources within the State from significantly contributing to
nonattainment of this standard in any other state.
B. Prong 2 (Interference With Maintenance) for Alabama
Alabama has concluded that it does not interfere with maintenance
of the 2010 1-hour NO2 NAAQS in any other state. As noted
above, NO2 design values in the State and in surrounding
states are well below the standard, Alabama's SIP contains provisions
to control NOX emissions, and Alabama has implemented a
number of federal programs that have reduced NOX emissions
within the State. For these reasons, EPA has preliminarily determined
that Alabama is not interfering with maintenance of the 2010 1-hour
NO2 NAAQS in any other state and that Alabama's SIP includes
adequate provisions to prevent emissions sources within the state from
interfering with maintenance of this standard in any other state.
C. Prong 1 (Significant Contribution to Nonattainment) for North
Carolina
North Carolina has concluded that it does not contribute
significantly to nonattainment of the 2010 1-hour NO2 NAAQS
in any other state for several reasons, including the following: (1)
There are no areas in the country designated as nonattainment for the
2010 NO2 NAAQS; (2) monitored ambient NO2
concentrations in the State and in the surrounding states are well
below the 1-hour 2010 NO2 NAAQS; (3) NOX
emissions have declined significantly and are expected to continue to
decline through 2017 and beyond; and 4) there are federal and SIP-
approved state regulations in place to control NOX
emissions. EPA agrees with the State's conclusion based on the
rationale discussed below.
First, as noted above, there are no designated nonattainment areas
for the 1-hr NO2 NAAQS.
Second, North Carolina examined 1-hour NO2 design values
based on monitoring data collected between 2012-2014 from
NO2 monitors within North Carolina and surrounding
states.\17\ The design values during this period are well below the 100
ppb standard with Georgia and Tennessee having the highest design
values (49 ppb).
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\17\ North Carolina notes that two new near-road NO2
monitors deployed in the State in 2014 show measured concentrations
well below the 1-hour standard. The State believes that this data
indicates that NOX emissions from mobile sources in North
Carolina are unlikely to contribute to nonattainment or interfere
with maintenance of the NO2 NAAQS in a downwind state.
These monitors were required as part of a modified NO2
monitoring network to site monitors in locations where maximum
NO2 concentrations are expected to occur, including
within 50 meters of major roadways.
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Third, North Carolina reviewed 1996-2011 annual NOX
emissions data for the State from EPA's National Emissions Inventory
and determined that the State's NOX emissions have declined
by approximately 50 percent during this time. North Carolina projects
that NOX emissions from 2011-2017 in the State will decline
by an additional 39 percent. The State also notes that NOX
emissions from EGUs in North Carolina have declined between 2002-2011
primarily due to the State's 2002 Clean Smokestack Act (CSA).\18\ The
CSA establishes entity-wide caps on total annual NOX
emissions from investor-owned coal-fired electric generating units
(EGUs) in the State.\19\
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\18\ EPA approved the CSA emissions caps into North Carolina's
SIP on September 26, 2011. See 76 FR 59250.
\19\ The CSA limits NOX emissions from Duke Energy
Progress, LLC EGUs and Duke Energy Carolinas, LLC EGUs to 35,000
tons and 25,000 tons, respectively, beginning on January 1, 2007,
and tightens the emissions cap on Duke Energy Carolinas, LLC EGUs to
31,000 tons as of January 1, 2009.
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Fourth, in addition to the CSA, North Carolina cites to a number of
State regulations that address additional control measures, means, and
techniques to reduce NOX emissions in North Carolina.
Several of these regulations are SIP-approved, such as 15A NCAC 2D
.0519 (controlling NO2 and NOX emissions from
sulfuric acid manufacturing plants) and 15A NCAC 2D .1409 (addressing
NOX emissions from certain stationary internal combustion
engines).\20\ North Carolina also identifies a number of federal
programs such as CSAPR that, while not relied upon to address its
``good neighbor'' obligations for the NO2 NAAQS, reduce
NOX emissions.\21\
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\20\ North Carolina identifies a number of SIP-approved state
regulations that control NOX emissions within the state
as well as some state regulations that are not part of the
federally-approved SIP.
\21\ CSAPR currently caps EGUs in the State at specific
NOX and SO2 emission budgets through a federal
implementation plan (FIP). According to North Carolina, the State is
on track to comply with the Phase I emission budgets established
under the CSAPR FIP.
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For all of the reasons discussed above, EPA has preliminarily
determined that North Carolina does not contribute significantly to
nonattainment of the 2010 1-hour NO2 NAAQS in any other
state and that North Carolina's SIP includes adequate provisions to
prevent emissions sources within the State from significantly
contributing to nonattainment of this standard in any other state.
D. Prong 2 (Interference With Maintenance) for North Carolina
North Carolina has concluded that it does not interfere with
maintenance of the 2010 1-hour NO2 NAAQS in any other state.
As stated above, NO2 design values in the State and in
surrounding states are well below the standard; NOX
emissions have decreased in the State and are projected to decrease
further through 2017 and beyond; and NOX emissions are
controlled through federal and SIP-approved state regulations. For
these reasons, EPA has preliminarily determined that North Carolina is
not interfering with maintenance of the
[[Page 50415]]
2010 1-hour NO2 NAAQS in any other state and that North
Carolina's SIP includes adequate provisions to prevent emissions
sources within the state from interfering with maintenance of this
standard in any other state.
V. Proposed Actions
As described above, EPA is proposing to approve North Carolina's
March 24, 2016, SIP revision and the portions of Alabama's December 9,
2015, SIP revision addressing prongs 1 and 2 of CAA section
110(a)(2)(D)(i) for the 2010 1-hour NO2 NAAQS.
VI. 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. See 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, these
proposed actions merely propose to approve state law as meeting federal
requirements and do not impose additional requirements beyond those
imposed by state law. For that reason, these proposed actions:
Are not ``significant regulatory actions'' 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);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are 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.);
Do not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are 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
Do 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).
The SIPs are 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 rules
do not have tribal implications as specified by Executive Order 13175
(65 FR 67249, November 9, 2000), nor will they impose substantial
direct costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: July 20, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-18151 Filed 7-29-16; 8:45 am]
BILLING CODE 6560-50-P
