Air Plan Approval; New Hampshire; Infrastructure State Implementation Plan Requirements for the 2012 PM2.5, 15343-15353 [2018-07230]
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Federal Register / Vol. 83, No. 69 / Tuesday, April 10, 2018 / Proposed Rules
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: April 2, 2018.
Alexandra Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018–07231 Filed 4–9–18; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2017–0344; FRL–9976–01–
Region 1]
Air Plan Approval; New Hampshire;
Infrastructure State Implementation
Plan Requirements for the 2012 PM2.5
NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
jstallworth on DSKBBY8HB2PROD with PROPOSALS
Table of Contents
The Environmental Protection
Agency (EPA) is proposing to approve
elements of two State Implementation
Plan (SIP) submissions from New
Hampshire which address the
infrastructure and interstate transport
requirements of the Clean Air Act (CAA
or Act) for the 2012 fine particle (PM2.5)
National Ambient Air Quality Standards
(NAAQS). The infrastructure
requirements are designed to ensure that
the structural components of each
state’s air quality management program
are adequate to meet the state’s
responsibilities under the CAA. This
action is being taken under the Clean
Air Act.
SUMMARY:
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Written comments must be
received on or before May 10, 2018.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2017–0344 at
www.regulations.gov, or via email to
simcox.alison@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
www.epa.gov/dockets/commenting-epadockets.
FOR FURTHER INFORMATION CONTACT:
Alison C. Simcox, Air Quality Unit, U.S.
Environmental Protection Agency, EPA
New England Regional Office, 5 Post
Office Square—Suite 100, (Mail code
OEP05–2), Boston, MA 02109–3912, tel.
(617) 918–1684; simcox.alison@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
DATES:
I. Background and Purpose
A. What New Hampshire SIP submissions
does this rulemaking address?
B. What is the scope of this rulemaking?
II. What guidance is EPA using to evaluate
these SIP submissions?
III. EPA’s Review
A. Section 110(a)(2)(A)—Emission Limits
and Other Control Measures
B. Section 110(a)(2)(B)—Ambient Air
Quality Monitoring/Data System
C. Section 110(a)(2)(C)—Program for
Enforcement of Control Measures and for
Construction or Modification of
Stationary Sources
D. Section 110(a)(2)(D)—Interstate
Transport
E. Section 110(a)(2)(E)—Adequate
Resources
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F. Section 110(a)(2)(F)—Stationary Source
Monitoring System
G. Section 110(a)(2)(G)—Emergency
Powers
H. Section 110(a)(2)(H)—Future SIP
Revisions
I. Section 110(a)(2)(I)—Nonattainment Area
Plan or Plan Revisions Under Part D
J. Section 110(a)(2)(J)—Consultation With
Government officials; Public
Notifications; Prevention of Significant
Deterioration; Visibility Protection
K. Section 110(a)(2)(K)—Air Quality
Modeling/Data
L. Section 110(a)(2)(L)—Permitting Fees
M. Section 110(a)(2)(M)—Consultation/
Participation by Affected Local Entities
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background and Purpose
A. What New Hampshire SIP
submissions does this rulemaking
address?
This rulemaking addresses two
submissions from the New Hampshire
Department of Environmental Services
(NHDES). The state submitted its
infrastructure SIP for the 2012 fine
particle PM2.5 1 National Ambient Air
Quality Standard (NAAQS) on
December 22, 2015. Subsequently, on
June 8, 2016, the state submitted a SIP
addressing the ‘‘Good Neighbor’’ (or
‘‘transport’’) provisions for the 2012
PM2.5 NAAQS (Section 110(a)(2)(D)(i)(I)
of the CAA). Under sections 110(a)(1)
and (2) of the CAA, states are required
to submit infrastructure SIPs to ensure
that SIPs provide for implementation,
maintenance, and enforcement of the
NAAQS, including the 2012 PM2.5
NAAQS.
B. What is the scope of this rulemaking?
EPA is acting on two related SIP
submissions from New Hampshire that
address the infrastructure requirements
of CAA sections 110(a)(1) and 110(a)(2)
for the 2012 PM2.5 NAAQS.
The requirement for states to make a
SIP submission of this type arises out of
CAA sections 110(a)(1) and 110(a)(2).
Pursuant to these sections, each state
must submit a SIP that provides for the
implementation, maintenance, and
enforcement of each primary or
secondary NAAQS. States must make
such SIP submission ‘‘within 3 years (or
such shorter period as the Administrator
may prescribe) after the promulgation of
a new or revised NAAQS.’’ This
requirement is triggered by the
promulgation of a new or revised
NAAQS and is not conditioned upon
EPA’s taking any other action. Section
1 PM
2.5 refers to particulate matter of 2.5 microns
or less in diameter, often referred to as ‘‘fine’’
particles.
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110(a)(2) includes the specific elements
that ‘‘each such plan’’ must address.
EPA commonly refers to such SIP
submissions made for the purpose of
satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA.
This rulemaking will not cover three
substantive areas that are not integral to
acting on a state’s infrastructure SIP
submission: (i) Existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction at sources (‘‘SSM’’
emissions) that may be contrary to the
CAA and EPA’s policies addressing
such excess emissions; (ii) existing
provisions related to ‘‘director’s
variance’’ or ‘‘director’s discretion’’ that
purport to permit revisions to SIPapproved emissions limits with limited
public process or without requiring
further approval by EPA, that may be
contrary to the CAA (‘‘director’s
discretion’’); and, (iii) existing
provisions for Prevention of Significant
Deterioration (PSD) programs that may
be inconsistent with current
requirements of EPA’s ‘‘Final New
Source Review (NSR) Improvement
Rule,’’ 67 FR 80186 (December 31,
2002), as amended by 72 FR 32526 (June
13, 2007) (‘‘NSR Reform’’). Instead, EPA
has the authority to address each one of
these substantive areas separately. A
detailed history, interpretation, and
rationale for EPA’s approach to
infrastructure SIP requirements can be
found in EPA’s May 13, 2014, proposed
rule entitled, ‘‘Infrastructure SIP
Requirements for the 2008 Lead
NAAQS’’ in the section, ‘‘What is the
scope of this rulemaking?’’ See 79 FR
27241 at 27242–45.
II. What guidance is EPA using to
evaluate these SIP submissions?
EPA highlighted the statutory
requirement to submit infrastructure
SIPs within 3 years of promulgation of
a new NAAQS in an October 2, 2007,
guidance document entitled ‘‘Guidance
on SIP Elements Required Under
Sections 110(a)(1) and (2) for the 1997
8-hour Ozone and PM2.5 National
Ambient Air Quality Standards’’ (2007
guidance). EPA has issued additional
guidance documents and memoranda,
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including a September 13, 2013,
guidance document entitled ‘‘Guidance
on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act
Sections 110(a)(1) and 110(a)(2)’’ (2013
guidance).2
With respect to the Good Neighbor
provision, the most recent relevant
document was a memorandum
published on March 17, 2016, entitled
‘‘Information on the Interstate Transport
‘‘Good Neighbor’’ Provision for the 2012
Fine Particulate Matter National
Ambient Air Quality Standards under
Clean Air Act Section 110(a)(2)(D)(i)(I)’’
(2016 memorandum). The 2016
memorandum describes EPA’s past
approach to addressing interstate
transport, and provides EPA’s general
review of relevant modeling data and air
quality projections as they relate to the
2012 annual PM2.5 NAAQS. The 2016
memorandum provides information
relevant to EPA Regional office review
of the CAA section 110(a)(2)(D)(i)(I)
‘‘Good Neighbor’’ provision
requirements in infrastructure SIPs with
respect to the 2012 annual PM2.5
NAAQS. This rulemaking considers
information provided in that
memorandum.
III. EPA’s Review
In this notice of proposed rulemaking,
EPA is proposing action on two related
SIP submissions from the state of New
Hampshire. In New Hampshire’s
submissions, a detailed list of New
Hampshire Laws and previously SIPapproved Air Quality Regulations show
precisely how the various components
of its EPA-approved SIP meet each of
the requirements of section 110(a)(2) of
the CAA for the 2012 PM2.5 NAAQS.
The following review evaluates the
state’s submissions in light of section
110(a)(2) requirements and relevant EPA
guidance.
For New Hampshire’s December 22,
2015 submission addressing the 2012
PM2.5 NAAQS, we reviewed all Section
110(a)(2) elements, including the
transport provisions, but excluding the
three areas discussed above under the
scope of this rulemaking. For the state’s
June 8, 2016, submission, which further
addresses the transport provisions with
respect to the 2012 PM2.5 NAAQS, we
reviewed infrastructure elements in
Section 110(a)(2)(D)(i)(I).
SIPs to include enforceable emission
limits and other control measures,
means or techniques, schedules for
compliance, and other related matters.
However, EPA has long interpreted
emission limits and control measures
for attaining the standards as being due
when nonattainment planning
requirements are due.3 In the context of
an infrastructure SIP, EPA is not
evaluating the existing SIP provisions
for this purpose. Instead, EPA is only
evaluating whether the state’s SIP has
basic structural provisions for the
implementation of the NAAQS.
New Hampshire’s Revised Statutes
Annotated (RSA) at Chapter 21–O
established the New Hampshire
Department of Environmental Services
(NHDES) and RSA Chapter 125–C
provides the Commissioner of NHDES
with the authority to develop rules and
regulations necessary to meet state and
Federal ambient air quality standards.
New Hampshire also has SIP-approved
emission limits and other measures for
specific pollutants. For example,
Chapter Env-A 400 ‘‘Sulfur content
limits in fuels’’ (57 FR 36603, August
14, 1992); Chapter Env-A 1200 ‘‘Volatile
Organic Compounds (VOCs) Reasonably
Available Control Technology (RACT)’’
(77 FR 66921, November 8, 2012; 81 FR
53926, August 15, 2016); Chapter EnvA 1300 ‘‘Nitrogen Oxides (NOX) RACT’’
(79 FR 49458, August, 21, 2014);
Chapter Env-A 2100 ‘‘Particulate Matter
and Visible Emissions Standards’’ (81
FR 78052, November 7, 2016); Chapter
Env-A 2700 ‘‘Particulate Matter
emission standards for hot mix asphalt
plants’’ (81 FR 78052, November 7,
2016); and Chapter Env-A 2800
‘‘Emission standards for sand and gravel
sources, non-metallic mineral
processing plants, cement and concrete
sources’’ (81 FR 78052, November 7,
2016).
EPA proposes that New Hampshire
meets the infrastructure SIP
requirements of section 110(a)(2)(A)
with respect to the 2012 PM2.5 NAAQS.
As previously noted, EPA is not
proposing to approve or disapprove any
existing state provisions or rules related
to SSM or director’s discretion in the
context of section 110(a)(2)(A).
This section (also referred to in this
action as an element) of the Act requires
B. Section 110(a)(2)(B)—Ambient Air
Quality Monitoring/Data System
This section requires SIPs to include
provisions to provide for establishing
and operating ambient air quality
monitors, collecting and analyzing
ambient air quality data, and making
2 This memorandum and other referenced
guidance documents and memoranda are included
in the docket for this action.
3 See, e.g., EPA’s final rule on ‘‘National Ambient
Air Quality Standards for Lead.’’ 73 FR 66964,
67034 (November 12, 2008).
A. Section 110(a)(2)(A)—Emission
Limits and Other Control Measures
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these data available to EPA upon
request. Each year, states submit annual
air monitoring network plans to EPA for
review and approval. EPA’s review of
these annual monitoring plans includes
our evaluation of whether the state: (i)
Monitors air quality at appropriate
locations throughout the state using
EPA-approved Federal Reference
Methods or Federal Equivalent Method
monitors; (ii) submits data to EPA’s Air
Quality System (AQS) in a timely
manner; and (iii) provides EPA Regional
Offices with prior notification of any
planned changes to monitoring sites or
the network plan.
NHDES continues to operate a
monitoring network, and EPA approved
the state’s 2017/2018 Annual Network
Review and Plan on August 23, 2017.4
Furthermore, NHDES populates EPA’s
Air Quality System (AQS) with air
quality monitoring data in a timely
manner, and provides EPA with prior
notification when considering a change
to its monitoring network or plan.
Under element B of its December 22,
2015 infrastructure SIP submittal for the
2012 PM2.5 NAAQS, NHDES referenced
EPA’s prior approvals of New
Hampshire’s annual network monitoring
plans, as well as RSA Chapter 125–C:6
III, IV and XVI, which provide the
Commissioner with ‘‘the power and
duty to conduct studies related to air
quality, to disseminate the results, and
to assure the reliability and accuracy of
monitoring equipment to meet federal
EPA standards.’’ EPA proposes that
NHDES has met the infrastructure SIP
requirements of section 110(a)(2)(B)
with respect to the 2012 PM2.5 NAAQS.
jstallworth on DSKBBY8HB2PROD with PROPOSALS
C. Section 110(a)(2)(C)—Program for
Enforcement of Control Measures and
for Construction or Modification of
Stationary Sources
States are required to include a
program providing for enforcement of
all SIP measures and the regulation of
construction of new or modified
stationary sources to meet NSR
requirements under PSD and
nonattainment new source review
(NNSR) programs. Part C of the CAA
(sections 160–169B) addresses PSD,
while part D of the CAA (sections 171–
193) addresses NNSR requirements.
The evaluation of each state’s
submission addressing the
infrastructure SIP requirements of
section 110(a)(2)(C) covers the
following: (i) Enforcement of SIP
measures; (ii) PSD program for major
sources and major modifications; and
4 EPA’s approval letter is included in the docket
for this action.
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(iii) a permit program for minor sources
and minor modifications.
Sub-Element 1: Enforcement of SIP
Measures
NHDES staffs and implements an
enforcement program pursuant to RSA
Chapter 125–C, Air Pollution Control, of
the New Hampshire Statutes.
Specifically, RSA Chapter 125–C:15,
Enforcement, authorizes the
Commissioner of the NHDES or the
authorized representative of the
Commissioner, upon finding a violation
of Chapter 125–C has occurred, to issue
a notice of violation or an order of
abatement, and to include within it a
schedule for compliance. Additionally,
RSA 125–C:15 I–b, II, III, and IV provide
for penalties for violations of Chapter
125–C. EPA proposes that New
Hampshire has met the enforcement of
SIP measures requirements of section
110(a)(2)(C) with respect to the 2012
PM2.5 NAAQS.
Sub-Element 2: PSD Program for Major
Sources and Major Modifications
PSD applies to new major sources or
modifications made to major sources for
pollutants where the area in which the
source is located is in attainment of, or
unclassifiable with regard to, the
relevant NAAQS. The EPA interprets
the CAA to require each state to make
an infrastructure SIP submission for a
new or revised NAAQS demonstrating
that the air agency has a complete PSD
permitting program in place satisfying
the current requirements for all
regulated NSR pollutants. NHDES’s
EPA-approved PSD rules, contained at
Part Env-A 619, contain provisions that
address applicable requirements for all
regulated NSR pollutants, including
greenhouse gases (GHGs).
With respect to current requirements
for PM2.5, we evaluate New Hampshire’s
PSD program for consistency with two
EPA rules. The first is a final rule issued
May 16, 2008, entitled ‘‘Implementation
of the New Source Review (NSR)
Program for Particulate Matter Less than
2.5 Micrometers (PM2.5)’’ (2008 NSR
Rule). See 73 FR 28321. The 2008 NSR
Rule finalized several new requirements
for SIPs to address sources that emit
direct PM2.5 and other pollutants that
contribute to secondary PM2.5
formation, including requirements for
NSR permits to address pollutants
responsible for the secondary formation
of PM2.5, otherwise known as
precursors. As part of identifying
precursors to PM2.5, the 2008 NSR Rule
also required states to revise the
definition of ‘‘significant’’ as it relates to
a net emissions increase or the potential
of a source to emit pollutants. Finally,
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the 2008 NSR Rule requires states to
account for PM2.5 and PM10
condensables for applicability
determinations and in establishing
emissions limitations for PM2.5 and
PM10 in PSD permits beginning on or
after January 1, 2011.5 These
requirements are codified in 40 CFR
51.166(b) and 52.21(b). States were
required to revise their SIPs consistent
with these changes to the federal
regulations.
The second is a final rule issued
October 20, 2010, entitled ‘‘Prevention
of Significant Deterioration (PSD) for
Particulate Matter Less Than 2.5
Micrometers (PM2.5)—Increments,
Significant Impact Levels (SILs) and
Significant Monitoring Concentration
(SMC)’’ (2010 NSR Rule). See 75 FR
64864. This rule established several
components for making PSD permitting
determinations for PM2.5, including
adding the required elements for PM2.5
into a state’s existing system of
‘‘increment analysis,’’ which is the
mechanism used in the PSD permitting
program to estimate significant
deterioration of ambient air quality for
a pollutant in relation to new source
construction or modification. The 2010
NSR Rule revised the existing system for
determining increment consumption by
establishing a new ‘‘major source
baseline date’’ for PM2.5 and by
establishing a trigger date for PM2.5 in
relation to the definition of ‘‘minor
source baseline date.’’ Lastly, the 2010
NSR Rule revised the definition of
‘‘baseline area’’ to include a level of
significance of 0.3 micrograms per cubic
meter, annual average, for PM2.5. These
requirements are codified in 40 CFR
51.166(b) and (c) and in 40 CFR 52.21(b)
and (c). States were required to revise
their SIPs consistent with these changes
to the federal regulations.
New Hampshire implements the PSD
program by, for the most part,
incorporating by reference the federal
PSD program at 40 CFR 52.21, as it
existed on a specific date. The State
periodically updates the PSD program
by revising the date of incorporation by
reference and submitting the change as
a SIP revision. As a result, the SIP
revisions generally reflect changes to
PSD requirements that the EPA has
5 On January 4, 2013, the U.S. Court of Appeals
for the DC Circuit held that EPA should have issued
the 2008 NSR Rule in accordance with the CAA’s
requirements for PM10 nonattainment areas (Title I,
Part D, subpart 4), and not the general requirements
for nonattainment areas under subpart 1. Nat. Res.
Def. Council v. EPA, 706 F.3d 428. The EPA’s
approval of New Hampshire’s infrastructure SIP as
to elements C, D(i)(II), or J with respect to the PSD
requirements promulgated by the 2008 NSR Rule
does not conflict with the court’s opinion. For more
information, see 80 FR 42446, July 17, 2015).
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promulgated prior to the revised date of
incorporation by reference. To address
the 2008 NSR Rule and the 2010 NSR
Rule, New Hampshire submitted
revisions to its PSD regulations on
November 15, 2012, that incorporated
by reference the federal PSD program
codified in the July 1, 2011, edition of
40 CFR 52.21. On September 25, 2015,
EPA approved these revisions into the
SIP as incorporating the necessary
changes obligated by the 2008 NSR Rule
and the 2010 NSR Rule. See 80 FR
57722.
Similarly, New Hampshire’s revisions
submitted on November 15, 2012, also
satisfy the requirements of EPA’s ‘‘Final
Rule to Implement the 8-Hour Ozone
National Ambient Air Quality
Standard—Phase 2; Final Rule to
Implement Certain Aspects of the 1990
Amendments Relating to New Source
Review and Prevention of Significant
Deterioration as They Apply in Carbon
Monoxide, Particulate Matter, and
Ozone NAAQS; Final Rule for
Reformulated Gasoline’’ (Phase 2 Rule)
published on November 29, 2005. See
70 FR 71612. Among other
requirements, the Phase 2 Rule
obligated states to revise their PSD
programs to explicitly identify NOX as
a precursor to ozone. See id. at 71699–
700. The required revisions to the
federal PSD program are codified in 40
CFR 51.166(b) and (i) and in 40 CFR
52.21(b) and (i). By incorporating the
Federal provisions at 40 CFR 52.21(b)
and (i) as of July 1, 2011, the New
Hampshire’s November 15, 2012,
submittal also included the revisions
made to the PSD program by the Phase
2 Rule in 2005 regarding NOX as a
precursor to ozone. See Env-A 619.03(a).
Thus, EPA proposes that New
Hampshire’s PSD program is consistent
with the requirements of the Phase 2
Rule.
On June 23, 2014, the United States
Supreme Court issued a decision
addressing the application of PSD
permitting requirements to GHG
emissions. Utility Air Regulatory Group
v. Envtl. Prot. Agency, 134 S.Ct. 2427.
The Supreme Court said that EPA may
not treat GHGs as an air pollutant for
purposes of determining whether a
source is a major source required to
obtain a PSD permit. The Court also said
that EPA could continue to require that
PSD permits, otherwise required based
on emissions of pollutants other than
GHGs, contain limitations on GHG
emissions based on the application of
Best Available Control Technology
(BACT).
In accordance with the Supreme
Court decision, on April 10, 2015, the
U.S. Court of Appeals for the District of
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Columbia Circuit (the D.C. Circuit)
issued an amended judgment vacating
the regulations that implemented Step 2
of the EPA’s PSD and Title V
Greenhouse Gas Tailoring Rule, but not
the regulations that implement Step 1 of
that rule. Step 1 of the Tailoring Rule
covers sources that are required to
obtain a PSD permit based on emissions
of pollutants other than GHGs. Step 2
applied to sources that emitted only
GHGs above the thresholds triggering
the requirement to obtain a PSD permit.
The amended judgment preserves,
without the need for additional
rulemaking by EPA, the application of
the BACT requirement to GHG
emissions from Step 1 or ‘‘anyway’’
sources. With respect to Step 2 sources,
the D.C. Circuit’s amended judgment
vacated the regulations at issue in the
litigation, including 40 CFR
51.166(b)(48)(v), ‘‘to the extent they
require a stationary source to obtain a
PSD permit if greenhouse gases are the
only pollutant (i) that the source emits
or has the potential to emit above the
applicable major source thresholds, or
(ii) for which there is a significant
emission increase from a modification.’’
In the Federal Register at 80 FR
50199, August 19, 2015, EPA amended
its PSD and Title V regulations to
remove from the Code of Federal
Regulations portions of those
regulations that the D.C. Circuit
specifically identified as vacated. EPA
intends to further revise the PSD and
Title V regulations to fully implement
the Supreme Court and D.C. Circuit
rulings in a separate rulemaking. This
future rulemaking will include revisions
to additional definitions in the PSD
regulations.
Some states have begun to revise their
existing SIP-approved PSD programs in
light of these court decisions, and some
states may prefer not to initiate this
process until they have more
information about the additional
planned revisions to EPA’s PSD
regulations. EPA is not expecting states
to have revised their PSD programs in
anticipation of EPA’s additional actions
to revise its PSD program rules in
response to the court decisions for
purposes of infrastructure SIP
submissions. At present, EPA has
determined that New Hampshire’s SIP is
sufficient to satisfy element C with
respect to GHGs because the PSD
permitting program previously
approved by EPA into the SIP continues
to require that PSD permits (otherwise
required based on emissions of
pollutants other than GHGs) contain
limitations on GHG emissions based on
the application of BACT. Although the
approved New Hampshire PSD
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permitting program may currently
contain provisions that are no longer
necessary in light of the Supreme Court
decision, this does not render the
infrastructure SIP submission
inadequate to satisfy element C. The SIP
contains the necessary PSD
requirements at this time, and the
application of those requirements is not
impeded by the presence of other
previously-approved provisions
regarding the permitting of sources of
GHGs that EPA does not consider
necessary at this time in light of the
Supreme Court decision. Accordingly,
the Supreme Court decision does not
affect EPA’s proposed approval of New
Hampshire’s infrastructure SIP as to the
requirements of element C.
For the purposes of the 2012 PM2.5
NAAQS infrastructure SIP, EPA
reiterates that NSR Reform regulations
are not in the scope of these actions.
Therefore, we are not taking action on
existing NSR Reform regulations for
New Hampshire.
Therefore, the EPA is proposing to
approve New Hampshire’s
infrastructure SIP for the 2012 2012
PM2.5 NAAQS with respect to the
requirement in section 110(a)(2)(C) to
include a PSD permitting program in the
SIP that covers the requirements for all
regulated NSR pollutants as required by
part C of the Act.
Sub-Element 3: Preconstruction
Permitting for Minor Sources and Minor
Modifications
To address the pre-construction
regulation of the modification and
construction of minor stationary sources
and minor modifications of major
stationary sources, an infrastructure SIP
submission should identify the existing
EPA-approved SIP provisions and/or
include new provisions that govern the
minor source pre-construction program
that regulate emissions of the relevant
NAAQS pollutants. EPA approved New
Hampshire’s minor NSR program on
September 22, 1980 (45 FR 62814), and
approved updates to the program on
August 14, 1992 (57 FR 36606). Since
this date, New Hampshire and EPA have
relied on the existing minor NSR
program to ensure that new and
modified sources not captured by the
major NSR permitting programs do not
interfere with attainment and
maintenance of the 2012 PM2.5 NAAQS.
We are proposing to find that New
Hampshire has met the requirement to
have a SIP approved minor new source
review permit program as required
under Section 110(a)(2)(C) for the 2012
PM2.5 NAAQS.
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D. Section 110(a)(2)(D)—Interstate
Transport
This section contains a
comprehensive set of air quality
management elements pertaining to the
transport of air pollution with which
states must comply. It covers the
following five topics, categorized as subelements: Sub-element 1, Significant
contribution to nonattainment, and
interference with maintenance of a
NAAQS; 6 Sub-element 2, PSD; Subelement 3, Visibility protection; Subelement 4, Interstate pollution
abatement; and Sub-element 5,
International pollution abatement. Subelements 1 through 3 above are found
under section 110(a)(2)(D)(i) of the Act,
and these items are further categorized
into the four prongs discussed below,
two of which are found within subelement 1. Sub-elements 4 and 5 are
found under section 110(a)(2)(D)(ii) of
the Act and include provisions insuring
compliance with sections 115 and 126
of the Act relating to interstate and
international pollution abatement.
jstallworth on DSKBBY8HB2PROD with PROPOSALS
Sub-Element 1: Section
110(a)(2)(D)(i)(I)—Contribute to
Nonattainment (Prong 1) and Interfere
With Maintenance of the NAAQS (Prong
2)
Section 110(a)(2)(D)(i)(I) of the CAA
requires a SIP to prohibit any emissions
activity in the state that will contribute
significantly to nonattainment or
interfere with maintenance of the
NAAQS in any downwind state. EPA
commonly refers to these requirements
as prong 1 (significant contribution to
nonattainment) and prong 2
(interference with maintenance), or
jointly as the ‘‘Good Neighbor’’ or
‘‘transport’’ provisions of the CAA. This
rulemaking proposes action on the
portions of New Hampshire’s December
22, 2015 and June 8, 2016, SIP
submissions that address the prong 1
and 2 requirements with respect to the
2012 PM2.5 NAAQS.
EPA has developed a consistent
framework for addressing the prong 1
and 2 interstate-transport requirements
with respect to the PM2.5 NAAQS in
several previous federal rulemakings.
The four basic steps of that framework
include: (1) Identifying downwind
receptors that are expected to have
problems attaining or maintaining the
NAAQS; (2) identifying which upwind
states contribute to these identified
6 For this sub-element only, we are evaluating two
New Hampshire SIP submittals, the infrastructure
SIP for the 2012 PM2.5 NAAQS submitted on
December 22, 2015, and the supplemental
Transport SIP for the 2012 PM2.5 NAAQS submitted
on June 8, 2016.
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problems in amounts sufficient to
warrant further review and analysis; (3)
for states identified as contributing to
downwind air quality problems,
identifying upwind emissions
reductions necessary to prevent an
upwind state from significantly
contributing to nonattainment or
interfering with maintenance of the
NAAQS downwind; and (4) for states
that are found to have emissions that
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS downwind,
reducing the identified upwind
emissions through adoption of
permanent and enforceable measures.
This framework was most recently
applied with respect to PM2.5 in the
Cross-State Air Pollution Rule (CSAPR),
which addressed both the 1997 and
2006 PM2.5 standards, as well as the
1997 ozone standard. See 76 FR 48208
(August 8, 2011).
EPA’s analysis for CSAPR, conducted
consistent with the four-step framework,
included air-quality modeling that
evaluated the impacts of 38 eastern
states on identified receptors in the
eastern United States. EPA indicated
that, for step 2 of the framework, states
with impacts on downwind receptors
that are below the contribution
threshold of 1% of the relevant NAAQS
would not be considered to significantly
contribute to nonattainment or interfere
with maintenance of the relevant
NAAQS, and would, therefore, not be
included in CSAPR. See 76 FR 48220.
EPA further indicated that such states
could rely on EPA’s analysis for CSAPR
as technical support in order to
demonstrate that their existing or future
interstate transport SIP submittals are
adequate to address the transport
requirements of 110(a)(2)(D)(i)(I) with
regard to the relevant NAAQS. Id.
In addition, as noted above, on March
17, 2016, EPA released the 2016
memorandum to provide information to
states as they develop SIPs addressing
the Good Neighbor provision as it
pertains to the 2012 PM2.5 NAAQS.
Consistent with step 1 of the framework,
the 2016 memorandum provides
projected future-year annual PM2.5
design values for monitors throughout
the country based on quality-assured
and certified ambient-monitoring data
and recent air-quality modeling and
explains the methodology used to
develop these projected design values.
The memorandum also describes how
the projected values can be used to help
determine which monitors should be
further evaluated to potentially address
if emissions from other states
significantly contribute to
nonattainment or interfere with
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maintenance of the 2012 PM2.5 NAAQS
at these monitoring sites. The 2016
memorandum explained that the
pertinent year for evaluating air quality
for purposes of addressing interstate
transport for the 2012 PM2.5 NAAQS is
2021, the attainment deadline for 2012
PM2.5 NAAQS nonattainment areas
classified as Moderate. Accordingly,
because the available data included
2017 and 2025 projected average and
maximum PM2.5 design values
calculated through the CAMx
photochemical model, the
memorandum suggests approaches
states might use to interpolate PM2.5
values at sites in 2021.
For all but one monitor site in the
eastern United States, the modeling data
provided in the 2016 memorandum
showed that monitors were expected to
both attain and maintain the 2012 PM2.5
NAAQS in both 2017 and 2025. The
modeling results project that this one
monitor, the Liberty monitor, (ID
number 420030064), located in
Allegheny County, Pennsylvania, will
be above the 2012 annual PM2.5 NAAQS
in 2017, but only under the model’s
maximum projected conditions, which
are used in EPA’s interstate transport
framework to identify maintenance
receptors. The Liberty monitor (along
with all the other Allegheny County
monitors) is projected to both attain and
maintain the NAAQS in 2025. The 2016
memorandum suggests that under such
a condition (again, where EPA’s
photochemical modeling indicates an
area will maintain the 2012 annual
PM2.5 NAAQS in 2025, but not in 2017),
further analysis of the site should be
performed to determine if the site may
be a nonattainment or maintenance
receptor in 2021 (which, again, is the
attainment deadline for moderate PM2.5
areas). The memorandum also indicates
that for certain states with incomplete
ambient monitoring data, additional
information including the latest
available data, should be analyzed to
determine whether there are potential
downwind air quality problems that
may be impacted by transported
emissions. This rulemaking considers
these analyses for New Hampshire, as
well as additional analysis conducted
by EPA during review of New
Hampshire’s submittals.
To develop the projected values
presented in the memorandum, EPA
used the results of nationwide
photochemical air-quality modeling that
it recently performed to support several
rulemakings related to the ozone
NAAQS. Base-year modeling was
performed for 2011. Future-year
modeling was performed for 2017 to
support the proposed CSAPR Update for
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the 2008 Ozone NAAQS. See 80 FR
75705 (December 3, 2015). Future-year
modeling was also performed for 2025
to support the Regulatory Impact
Assessment of the final 2015 Ozone
NAAQS.7 The outputs from these model
runs included hourly concentrations of
PM2.5 that were used in conjunction
with measured data to project annual
average PM2.5 design values for 2017
and 2025. Areas that were designated as
moderate PM2.5 nonattainment areas for
the 2012 annual PM2.5 NAAQS in 2014
must attain the NAAQS by December
31, 2021, or as expeditiously as
practicable. Although neither the
available 2017 nor 2025 future-year
modeling data corresponds directly to
the future-year attainment deadline for
moderate PM2.5 nonattainment areas,
EPA believes that the modeling
information is still helpful for
identifying potential nonattainment and
maintenance receptors in the 2017–2021
period. Assessing downwind PM2.5 airquality problems based on estimates of
air-quality concentrations in a future
year aligned with the relevant
attainment deadline is consistent with
the instructions from the United States
Court of Appeals for the District of
Columbia Circuit in North Carolina v.
EPA, 531 F.3d 896, 911–12 (DC Cir.
2008), that upwind emission reductions
should be harmonized, to the extent
possible, with the attainment deadlines
for downwind areas.
New Hampshire’s Submissions for
Prongs 1 and 2
On December 22, 2015, NH DES
submitted an infrastructure SIP for the
2012 PM2.5 NAAQS, which included
transport provisions that addressed
prongs 1 and 2 with respect to the 2012
PM2.5 NAAQS. On June 8, 2016, New
Hampshire submitted a supplement to
the December 2015 SIP that provides a
technical demonstration. The state’s
supplemental SIP relied in part on
EPA’s analysis performed for the CSAPR
rulemaking to conclude that the state
will not significantly contribute to
nonattainment or interfere with
maintenance of the 2012 PM2.5 NAAQS
in any downwind area.
EPA analyzed the state’s December
2015 and June 2016 submittals to
determine whether they fully address
the prong 1 and 2 transport provisions
with respect to the 2012 PM2.5 NAAQS.
As discussed below, EPA concludes that
emissions of PM2.5 and PM2.5 precursors
(NOX and SO2) in New Hampshire will
not significantly contribute to
nonattainment or interfere with
7 See 2015 ozone NAAQS RIA at: https://
www3.epa.gov/ttnecas1/docs/20151001ria.pdf.
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maintenance of the 2012 PM2.5 NAAQS
in any other state.
Analysis of New Hampshire’s
Submission for the 2012 PM2.5 NAAQS
As noted above, the modeling
discussed in EPA’s 2016 memorandum
identified one potential maintenance
receptor for the 2012 PM2.5 NAAQS at
the Liberty monitor (ID number
420030064), located in Allegheny
County. The memorandum also
identified certain states with incomplete
ambient monitoring data as areas that
may require further analysis to
determine whether there are potential
downwind air quality problems that
may be impacted by transported
emissions.
While developing the 2011 CSAPR
rulemaking, EPA modeled the impacts
of all 38 eastern states in its modeling
domain on fine particulate matter
concentrations at downwind receptors
in other states in the 2012 analysis year
in order to evaluate the contribution of
upwind states on downwind states with
respect to the 1997 and 2006 PM2.5.
Although the modeling was not
conducted for purposes of analyzing
upwind states’ impacts on downwind
receptors with respect to the 2012 PM2.5
NAAQS, the contribution analysis for
the 1997 and 2006 standards can be
informative for evaluating New
Hampshire’s compliance with the Good
Neighbor provision for the 2012
standard.
This CSAPR modeling showed that
New Hampshire had a very small
impact (0.002 mg/m3) on the Liberty
monitor in Allegheny County,
Pennsylvania, which is the only out-ofstate monitor that may be a
nonattainment or maintenance receptor
in 2021. Although EPA has not
proposed a particular threshold for
evaluating the 2012 PM2.5 NAAQS, EPA
notes that New Hampshire’s impact on
the Liberty monitor is far below the
threshold of 1% for the annual 2012
PM2.5 NAAQS (i.e., 0.12 mg/m3) that
EPA previously used to evaluate the
contribution of upwind states to
downwind air-quality monitors. (A
spreadsheet showing CSAPR
contributions for ozone and PM2.5 is
included in docket EPA–HQ–OAR–
2009–0491–4228.) Therefore, even if the
Liberty monitor were considered a
receptor for purposes of transport, the
EPA proposes to conclude that New
Hampshire will not significantly
contribute to nonattainment, or interfere
with maintenance, of the 2012 PM2.5
NAAQS at that monitor.
In addition, the Liberty monitor is
already close to attaining the 2012 PM2.5
NAAQS, and expected emissions
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reductions in the next four years will
lead to additional reductions in
measured PM2.5 concentrations. There
are both local and regional components
to measured PM2.5 levels. All monitors
in Allegheny County have a regional
component, with the Liberty monitor
most strongly influenced by local
sources. This is confirmed by the fact
that annual average measured
concentrations at the Liberty monitor
have consistently been 2–4 mg/m3 higher
than other monitors in Allegheny
County.
Specifically, previous CSAPR
modeling showed that regional
emissions from upwind states,
particularly SO2 and NOX emissions,
contribute to PM2.5 nonattainment at the
Liberty monitor. In recent years, large
SO2 and NOX reductions from power
plants have occurred in Pennsylvania
and states upwind from the Greater
Pittsburgh region. Pennsylvania’s energy
sector emissions of SO2 will have
decreased 166,000 tons between 2015–
2017 as a result of CSAPR
implementation. This is due to both the
installation of emissions controls and
retirements of electric generating units
(EGUs). Projected power plant closures
and additional emissions controls in
Pennsylvania and upwind states will
help further reduce both direct PM2.5
and PM2.5 precursors. Regional emission
reductions will continue to occur from
current on-the-books federal and state
regulations such as the federal on-road
and non-road vehicle programs, and
various rules for major stationary
emissions sources. See proposed
approval of the Ohio Infrastructure SIP
for the 2012 PM2.5 NAAQS (82 FR
57689; December 7, 2017).
In addition to regional emissions
reductions and plant closures,
additional local reductions to both
direct PM2.5 and SO2 emissions are
expected to occur and should contribute
to further declines in Allegheny
County’s PM2.5 monitor concentrations.
For example, significant SO2 reductions
have recently occurred at US Steel’s
integrated steel mill facilities in
southern Allegheny County as part of a
1-hr SO2 NAAQS SIP.8 Reductions are
largely due to declining sulfur content
in the Clairton Coke Work’s coke oven
gas (COG). Because this COG is burned
at US Steel’s Clairton Coke Works, Irvin
Mill, and Edgar Thompson Steel Mill,
these reductions in sulfur content
should contribute to much lower PM2.5
precursor emissions in the immediate
future. The Allegheny SO2 SIP also
projects lower SO2 emissions resulting
8 https://www.achd.net/air/pubs/SIPs/SO2_2010_
NAAQS_SIP_9-14-2017.pdf.
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from vehicle fuel standards, reductions
in general emissions due to declining
population in the Greater Pittsburgh
region, and several shutdowns of
significant sources of emissions in
Allegheny County.
EPA modeling projections, the recent
downward trend in local and upwind
emissions reductions, the expected
continued downward trend in emissions
between 2017 and 2021, and the
downward trend in monitored PM2.5
concentrations all indicate that the
Liberty monitor will attain and be able
to maintain the 2012 annual PM2.5
NAAQS by 2021. See proposed approval
of the Ohio Infrastructure SIP (82 FR
57689).
As noted in the 2016 memorandum,
several states have had recent dataquality issues identified as part of the
PM2.5 designations process. In
particular, some ambient PM2.5 data for
certain time periods between 2009 and
2013 in Florida, Illinois, Idaho,
Tennessee, and Kentucky did not meet
all data-quality requirements under 40
CFR part 50, appendix L. The lack of
data means that the relevant areas in
those states could potentially be in
nonattainment or be maintenance
receptors in 2021. However, as
mentioned above, EPA’s analysis for the
2011 CSAPR rulemaking with respect to
the 2006 PM2.5 NAAQS determined that
New Hampshire’s impact to all these
downwind receptors would be well
below the 1% contribution threshold for
this NAAQS. That conclusion informs
the analysis of New Hampshire’s
contributions for purposes of the 2012
PM2.5 NAAQS as well. Given this, and
the fact, discussed below, that the state’s
PM2.5 design values for all ambient
monitors have been well below the 2012
PM2.5 NAAQS since 2009–2013, EPA
concludes that it is highly unlikely that
New Hampshire significantly
contributes to nonattainment or
interferes with maintenance of the 2012
PM2.5 NAAQS in areas with data-quality
issues.9
Additional information in New
Hampshire’s 2016 supplemental SIP
submission corroborates EPA’s
proposed conclusion that New
Hampshire’s SIPs meets its Good
Neighbor obligations. The state’s
technical analysis in that submission
includes 2012–2014 24-hr and annual
average PM2.5 monitoring data for New
Hampshire and the contiguous states of
Massachusetts, Maine, and Vermont;
9 New
Hampshire’s PM2.5 design values for all
ambient monitors from 2004–2006 through 2013–
2015 are available on Table 6 of the 2015 Design
Value Report at https://
19january2017snapshot.epa.gov/air-trends/airquality-design-values_.html.
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projected maximum 2017 and 2025
design values for New Hampshire and
contiguous states; as well as
meteorology and New Hampshire PM2.5
control programs. The annual and
design values from all monitors in New
Hampshire and neighboring states show
compliance with the 2012 PM2.5
NAAQS. This technical analysis is
supported by additional indications
that, in most areas of the state, air
quality is improving and emissions are
falling. Specifically, certified annual
PM2.5 monitor values recorded since
2014 show that the highest value in
2015 was 8.7 mg/m3 at a monitor in
Keene, and the highest value in 2016
was 6.7 mg/m3 at the same monitor in
Keene, with many monitors continuing
to show declines as indicated by 2017
preliminary results.10
Second, New Hampshire’s sources are
well-controlled. New Hampshire’s 2016
submission indicates that the state has
many SIP-approved rules and programs
that limit emissions of PM2.5 and the
interstate transport of pollution,
including Chapter Env-A 300 (Ambient
air quality standards), Part Env-A 619
(PSD), Part Env-A 618 (NNSR), Chapter
Env-A 2300 (Mitigation of Regional
Haze), Chapter Env-A 800 (Testing and
monitoring procedures), and Chapter
Env-A 900 (Recordkeeping and
reporting obligations), as well as
delegation for a Title V permitting
program.
It should also be noted that New
Hampshire is not in the CSAPR program
because EPA analyses show that the
state does not emit ozone-season NOX at
a level that contributes significantly to
non-attainment or interferes with
maintenance of the 1997 and 2006 PM2.5
NAAQS in any other state.
For the reasons explained herein, EPA
agrees with New Hampshire’s
conclusions and proposes to determine
that New Hampshire will not
significantly contribute to
nonattainment or interfere with
maintenance of the 2012 PM2.5 NAAQS
in any other state. Therefore, EPA is
proposing to approve the December
2015 and June 2016 infrastructure SIP
submissions from New Hampshire
addressing prongs 1 and 2 of CAA
section 110(a)(2)(D)(i)(I) for the 2012
PM2.5 NAAQS.
Sub-Element 2: Section
110(a)(2)(D)(i)(II)—PSD (Prong 3)
To prevent significant deterioration of
air quality, this sub-element requires
10 24-hour and annual PM
2.5 monitor values for
individual monitoring sites throughout New
Hampshire are available at https://www.epa.gov/
outdoor-air-quality-data/monitor-values-report.
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SIPs to include provisions that prohibit
any source or other type of emissions
activity in one state from interfering
with measures that are required in any
other state’s SIP under Part C of the
CAA. As explained in the 2013
Guidance, a state may meet this
requirement with respect to in-state
sources and pollutants that are subject
to PSD permitting through a
comprehensive PSD permitting program
that applies to all regulated NSR
pollutants and that satisfies the
requirements of EPA’s PSD
implementation rules. As discussed
above under element C, New Hampshire
has such a PSD permitting program.
For in-state sources not subject to PSD
for any one or more of the pollutants
subject to regulation under the CAA,
prong 3 may be satisfied through an
approved NNSR program with respect to
any previous NAAQS. EPA approved
New Hampshire’s NNSR regulations on
July 27, 2001 (66 FR 39104). These
regulations contain provisions for how
the state must treat and control sources
in nonattainment areas, consistent with
40 CFR 51.165, or appendix S to 40 CFR
part 51. EPA proposes that New
Hampshire has met the requirements
with respect to the prohibition of
interference with a neighboring state’s
PSD program for the 2012 PM2.5 NAAQS
related to section 110(a)(2)(D)(i)(II).
Sub-Element 3: Section
110(a)(2)(D)(i)(II)—Visibility Protection
(Prong 4)
With regard to applicable
requirements for visibility protection of
section 110(a)(2)(D)(i)(II), states are
subject to visibility and regional-haze
program requirements under part C of
the CAA (which includes sections 169A
and 169B). The 2009 Guidance, 2011
Guidance, and 2013 Guidance
recommend that these requirements can
be satisfied by an approved SIP
addressing reasonably attributable
visibility impairment, if required, or an
approved SIP addressing regional haze.
A fully approved regional haze SIP
meeting the requirements of 40 CFR
51.308 will ensure that emissions from
sources under an air agency’s
jurisdiction are not interfering with
measures required to be included in
other air agencies’ plans to protect
visibility. New Hampshire’s Regional
Haze SIP was approved by EPA on
August 22, 2012 (77 FR 50602).
Accordingly, EPA proposes that New
Hampshire has met the visibility
protection requirements of
110(a)(2)(D)(i)(II) for the 2012 PM2.5
NAAQS.
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Sub-Element 4: Section
110(a)(2)(D)(ii)—Interstate Pollution
Abatement
This sub-element requires each SIP to
contain provisions requiring compliance
with requirements of section 126
relating to interstate pollution
abatement. Section 126(a) requires new
or modified sources to notify
neighboring states of potential impacts
from the source. The statute does not
specify the method by which the source
should provide the notification. States
with SIP-approved PSD programs must
have a provision requiring such
notification by new or modified sources.
On May 25, 2017, EPA approved into
the New Hampshire SIP revisions to the
state’s PSD program that require the
NHDES to provide notice of a draft PSD
permit to, among other entities, any
state whose lands may be affected by
emissions from the source. See Env-A
621.03, .04(e)(3); 82 FR 24057 at 24060;
see also Env-A 619.07(d). These public
notice requirements are consistent with
the Federal SIP-approved PSD
program’s public notice requirements
for affected states under 40 CFR
51.166(q). Therefore, we propose to
approve New Hampshire’s compliance
with the infrastructure SIP requirements
of section 126(a) with respect to the
2012 PM2.5 NAAQS. New Hampshire
has no obligations under any other
provision of section 126 and no source
or sources within the state are the
subject of an active finding under
section 126 of the CAA with respect to
the 2012 PM2.5 NAAQS.
Sub-Element 5: Section
110(a)(2)(D)(ii)—International Pollution
Abatement
jstallworth on DSKBBY8HB2PROD with PROPOSALS
This sub-element requires each SIP to
contain provisions requiring compliance
with the applicable requirements of
section 115 relating to international
pollution abatement. There are no final
findings under section 115 of the CAA
against New Hampshire with respect to
the 2012 PM2.5 NAAQS. Therefore, EPA
is proposing that New Hampshire has
met the applicable infrastructure SIP
requirements of section 110(a)(2)(D)(ii)
related to section 115 of the CAA
(international pollution abatement) for
the 2012 PM2.5 NAAQS.
E. Section 110(a)(2)(E)—Adequate
Resources
Section 110(a)(2)(E)(i) requires each
SIP to provide necessary assurances that
the state will have adequate personnel,
funding, and legal authority under state
law to carry out its SIP. In addition,
section 110(a)(2)(E)(ii) requires each
state to comply with the requirements
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with respect to state boards under CAA
section 128. Finally, section
110(a)(2)(E)(iii) requires that, where a
state relies upon local or regional
governments or agencies for the
implementation of its SIP provisions,
the state retain responsibility for
ensuring implementation of SIP
obligations with respect to relevant
NAAQS. Section 110(a)(2)(E)(iii),
however, does not apply to this action
because New Hampshire does not rely
upon local or regional governments or
agencies for the implementation of its
SIP provisions.
Sub-Element 1: Adequate Personnel,
Funding, and Legal Authority Under
State Law To Carry Out Its SIP, and
Related Issues
New Hampshire, through its
infrastructure SIP submittal, has
documented that its air agency has
authority and resources to carry out its
SIP obligations. New Hampshire RSA
125–C:6, ‘‘Powers and Duties of the
Commissioner,’’ authorizes the
Commissioner of the NHDES to enforce
the state’s air laws, establish a permit
program, accept and administer grants,
and exercise incidental powers
necessary to carry out the law.
Additionally, RSA–125–C:12,
‘‘Administrative Requirements,’’
authorizes the Commissioner to collect
fees to recover the costs of reviewing
and acting upon permit applications
and enforcing the terms of permits
issued. The New Hampshire SIP, as
originally submitted on January 27,
1972, and subsequently amended,
provides additional descriptions of the
organizations, staffing, funding and
physical resources necessary to carry
out the plan. EPA proposes that New
Hampshire has met the infrastructure
SIP requirements of this portion of
section 110(a)(2)(E) with respect to the
2012 PM2.5 NAAQS.
Sub-Element 2: State Board
Requirements Under Section 128 of the
CAA
Section 110(a)(2)(E)(ii) requires each
SIP to contain provisions that comply
with the state board requirements of
section 128 of the CAA. That provision
contains two explicit requirements: (1)
That any board or body which approves
permits or enforcement orders under
this chapter shall have at least a
majority of members who represent the
public interest and do not derive any
significant portion of their income from
persons subject to permits and
enforcement orders under this chapter,
and (2) that any potential conflicts of
interest by members of such board or
body or the head of an executive agency
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with similar powers be adequately
disclosed.
New Hampshire RSA 21–O:11, ‘‘Air
Resources Council,’’ established the
New Hampshire Air Resources Council,
a state board that hears all
administrative appeals from department
enforcement and permitting decisions.
The Council consists of 11 members, 6
of whom ‘‘shall represent the public
interest.’’ RSA 21–O:11, I. Those
representing the public interest ‘‘may
not derive any significant portion of
their income from persons subject to
permits or enforcement orders, and may
not serve as attorney for, act as
consultant for, serve as officer or
director of, or hold any other official or
contractual relationship with any
person subject to permits or
enforcement orders.’’ Id. The statute
further provides that ‘‘[a]ll potential
conflicts of interest shall be adequately
disclosed.’’ Id. On December 16, 2015,
EPA approved RSA 21–O:11 for
incorporation into the New Hampshire
SIP as satisfying the requirements of
section 128. See 80 FR 78135.
Additional details are provided in our
July 17, 2015 proposal notification. See
80 FR 42446. New Hampshire’s SIP
continues to meet the requirements of
section 110(a)(2)(E)(ii), and, we propose
to approve the infrastructure SIP for the
2012 PM2.5 NAAQS for this element.
F. Section 110(a)(2)(F)—Stationary
Source Monitoring System
States must establish a system to
monitor emissions from stationary
sources and submit periodic emissions
reports. Each plan shall also require the
installation, maintenance, and
replacement of equipment, and the
implementation of other necessary
steps, by owners or operators of
stationary sources to monitor emissions
from such sources. The state plan shall
also require periodic reports on the
nature and amounts of emissions and
emissions-related data from such
sources, and correlation of such reports
by each state agency with any emission
limitations or standards established
pursuant to this chapter. Lastly, the
reports shall be available at reasonable
times for public inspection.
New Hampshire RSA 125–C:6,
‘‘Powers and Duties of the
Commissioner,’’ authorizes the
Commissioner of NHDES to require the
installation, maintenance, and use of
emissions monitoring devices and to
require periodic reporting to the
Commissioner of the nature and extent
of the emissions. This authority also
enables the Commissioner to correlate
this information to any applicable
emissions standard and to make such
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information available to the public.
NHDES implements Chapter Env-A 800,
‘‘Testing and Monitoring Procedures,’’
and Chapter Env-A 900, ‘‘Owner or
Operator Recordkeeping and Reporting
Obligations,’’ as the primary means of
fulfilling these obligations. New
Hampshire’s Chapters Env-A 800 and
900 have been approved into the SIP
(See 77 FR 66388; November 5, 2012).
Additionally, under RSA 125–C:6, VII,
and Env-A 103.04, emissions data are
not considered confidential information.
EPA recognizes that New Hampshire
routinely collects information on air
emissions from its industrial sources
and makes this information available to
the public.
Therefore, EPA proposes that New
Hampshire has met the infrastructure
SIP requirements of section 110(a)(2)(F)
with respect to the 2012 PM2.5 NAAQS.
G. Section 110(a)(2)(G)—Emergency
Powers
This section requires that a plan
provide for state authority analogous to
that provided to the EPA Administrator
in section 303 of the CAA, and adequate
contingency plans to implement such
authority. Section 303 of the CAA
provides authority to the EPA
Administrator to seek a court order to
restrain any source from causing or
contributing to emissions that present
an ‘‘imminent and substantial
endangerment to public health or
welfare, or the environment.’’ Section
303 further authorizes the Administrator
to issue ‘‘such orders as may be
necessary to protect public health or
welfare or the environment’’ in the
event that ‘‘it is not practicable to assure
prompt protection . . . by
commencement of such civil action.’’
We propose to find that New
Hampshire’s submittals and certain state
statutes provide for authority
comparable to that in section 303. New
Hampshire’s submittals specify that
RSA 125–C:9, ‘‘Authority of the
Commissioner in Cases of Emergency,’’
authorizes the Commissioner of NHDES,
with the consent of the Governor and
Air Resources Council, to issue an order
requiring actions to be taken as the
Commissioner deems necessary to
address an air pollution emergency.
Such orders are effective immediately
upon issuance. Id. We note also that
RSA 125–C:15, I, provides that, ‘‘[u]pon
a finding by the commissioner that there
is an imminent and substantial
endangerment to the public health or
welfare or the environment, the
commissioner shall issue an order of
abatement requiring immediate
compliance and said order shall be final
and enforceable upon issuance, but may
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be appealed to the council within 30
days of its issuance, and the council
may, after hearing, uphold, modify, or
abrogate said order.’’ With regard to the
authority to bring suit, RSA 125–C:15,
II, further provides that violation of
such an order ‘‘shall be subject to
enforcement by injunction, including
mandatory injunction, issued by the
superior court upon application of the
attorney general.’’
Section 110(a)(2)(G) also requires a
state to submit for EPA approval a
contingency plan (also known as an
emergency episode plan) to implement
the air agency’s emergency episode
authority for any Air Quality Control
Region (AQCR) within the state that is
classified as Priority I, IA, or II for
certain pollutants. See 40 CFR 51.150.
AQCRs classified as Priority III do not
require contingency plans. 40 CFR
51.152(c). In general, contingency plans
for Priority I, IA, and II areas must meet
the applicable requirements of 40 CFR
part 51, subpart H (40 CFR 51.150
through 51.153) (‘‘Prevention of Air
Pollution Emergency Episodes’’) for the
relevant NAAQS, if the NAAQS is
covered by those regulations. In the case
of PM2.5, EPA has not promulgated
regulations that provide the ambient
levels to classify different priority levels
for the 2012 standard (or any PM2.5
NAAQS). For the 2006 PM2.5 NAAQS,
EPA’s 2009 Guidance recommends that
states develop emergency episode plans
for any area that has monitored and
recorded 24-hour PM2.5 levels greater
than 140 mg/m3 since 2006. EPA’s
review of New Hampshire’s certified air
quality data in AQS indicates that the
highest 24-hour PM2.5 level recorded
since 2006 was 61.5 mg/m3, which
occurred in 2015 in the city of Keene in
Cheshire County. Therefore, EPA
proposes that a specific contingency
plan from New Hampshire for PM2.5 is
not required. Furthermore, although not
expected, if PM2.5 conditions in New
Hampshire were to change, NHDES has
general authority to order a source to
reduce or discontinue air pollution as
required to protect the public health or
safety or the environment, as discussed
earlier. In addition, as a matter of
practice, New Hampshire posts on the
internet daily forecasted fine particulate
levels through the EPA AIRNOW and
EPA ENVIROFLASH systems.
Information regarding these two systems
is available on EPA’s website at
www.airnow.gov. When levels are
forecast to exceed the 24-hour fine
particulate standard in New Hampshire,
notices are sent out to ENVIROFLASH
participants, the media are alerted via a
press release, and the National Weather
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15351
Service (NWS) is alerted to issue an Air
Quality Advisory through the normal
NWS weather alert system. These
actions are similar to the notification
and communication requirements of 40
CFR 51.152.
Therefore, EPA proposes that New
Hampshire, through the combination of
statutes and regulations discussed above
and participation in EPA’s AirNow
program, has met the applicable
infrastructure SIP requirements of
section 110(a)(2)(G) with respect to the
2012 PM2.5 NAAQS.
H. Section 110(a)(2)(H)—Future SIP
Revisions
This section requires that a state’s SIP
provide for revision from time to time
as may be necessary to take account of
changes in the NAAQS or availability of
improved methods for attaining the
NAAQS and whenever the EPA finds
that the SIP is substantially inadequate.
New Hampshire RSA 125–C:6, ‘‘Powers
and Duties of the Commissioner,’’
provides that the Commissioner of
NHDES may develop a comprehensive
program and provide services for the
study, prevention, and abatement of air
pollution. Additionally, Chapter Env-A
200, ‘‘Procedural Rules,’’ which was
approved into the New Hampshire SIP
on October 28, 2002 (67 FR 65710)
provides for public hearings for SIP
revision requests prior to their submittal
to EPA. EPA proposes that New
Hampshire has met the infrastructure
SIP requirements of CAA section
110(a)(2)(H) with respect to the 2012
PM2.5 NAAQS.
I. Section 110(a)(2)(I)—Nonattainment
Area Plan or Plan Revisions Under Part
D
The CAA requires that each plan or
plan revision for an area designated as
a nonattainment area meet the
applicable requirements of part D of the
CAA. Part D relates to nonattainment
areas. EPA has determined that section
110(a)(2)(I) is not applicable to the
infrastructure SIP process. Instead, EPA
takes action on part D attainment plans
through separate processes.
J. Section 110(a)(2)(J)—Consultation
With Government Officials; Public
Notifications; Prevention of Significant
Deterioration; Visibility Protection
Section 110(a)(2)(J) of the CAA
requires that each SIP ‘‘meet the
applicable requirements of section 121
of this title (relating to consultation),
section 127 of this title (relating to
public notification), and part C of this
subchapter (relating to PSD of air
quality and visibility protection).’’ The
evaluation of the submission from New
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Hampshire with respect to these
requirements is described below.
jstallworth on DSKBBY8HB2PROD with PROPOSALS
Sub-Element 1: Consultation With
Government Officials
Pursuant to CAA section 121, a state
must provide a satisfactory process for
consultation with local governments
and Federal Land Managers (FLMs) in
carrying out its NAAQS implementation
requirements.
New Hampshire RSA 125–C:6,
‘‘Powers and Duties of the
Commissioner,’’ authorizes the
Commissioner of NHDES to advise,
consult, and cooperate with the cities,
towns, and other agencies of the state
and federal government, interstate
agencies, and other groups or agencies
in matters relating to air quality.
Additionally, RSA 125–C:6 enables the
Commissioner to coordinate and
regulate the air pollution control
programs of political subdivisions to
plan and implement programs for the
control and abatement of air pollution.
Furthermore, New Hampshire
regulations at Part Env-A 621 direct
NHDES to notify town officials, regional
planning agencies, and FLMs, among
others, of the receipt of certain permit
applications and the NH DES’
preliminary determination to issue,
amend, or deny such permits. EPA
proposes that New Hampshire has met
the infrastructure SIP requirements of
section 121 with respect to the 2012
PM2.5 NAAQS.
Sub-Element 2: Public Notification
Pursuant to CAA section 127, states
must notify the public if NAAQS are
exceeded in an area, advise the public
of health hazards associated with
exceedances, and enhance public
awareness of measures that can be taken
to prevent exceedances and of ways in
which the public can participate in
regulatory and other efforts to improve
air quality.
As part of the fulfillment of RSA 125–
C:6, New Hampshire issues press
releases and posts warnings on its
website advising people what they can
do to help prevent NAAQS exceedances
and avoid adverse health effects on poor
air quality days. New Hampshire is also
an active partner in EPA’s AIRNOW and
ENVIROFLASH air quality alert
programs. EPA proposes that New
Hampshire has met the infrastructure
SIP requirements of section 127 with
respect to the 2012 PM2.5 NAAQS.
Sub-Element 3: PSD
EPA has already discussed New
Hampshire’s PSD program in the
context of infrastructure SIPs in the
paragraphs addressing section
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110(a)(2)(C) and 110(a)(2)(D)(i)(II) and
determined that it satisfies the
requirements of EPA’s PSD
implementation rules. Therefore, the
SIP also satisfies the PSD sub-element of
section 110(a)(2)(J) for the 2012 PM2.5
NAAQS.
of section 110(a)(2)(K) with respect to
the 2012 PM2.5 NAAQS.
L. Section 110(a)(2)(L)—Permitting Fees
With regard to the applicable
requirements for visibility protection,
states are subject to visibility and
regional haze program requirements
under part C of the CAA (which
includes sections 169A and 169B). In
the event of the establishment of a new
NAAQS, however, the visibility and
regional haze program requirements
under part C do not change. Thus, as
noted in EPA’s 2013 guidance, we find
that there is no new visibility obligation
‘‘triggered’’ under section 110(a)(2)(J)
when a new NAAQS becomes effective.
In other words, the visibility protection
requirements of section 110(a)(2)(J) are
not germane to infrastructure SIPs for
the 2012 PM2.5 NAAQS.
Based on the above analysis, EPA
proposes that New Hampshire has met
the infrastructure SIP requirements of
section 110(a)(2)(J) with respect to the
2012 PM2.5 NAAQS.
This section requires SIPs to mandate
that each major stationary source pay
permitting fees to cover the costs of
reviewing, approving, implementing,
and enforcing a permit.
New Hampshire implements and
operates the Title V permit program,
which EPA approved on September 24,
2001. See 66 FR 48806. Chapter Env-A
700, Permit Fee System, establishes a
fee system requiring the payment of fees
to cover the costs of: Reviewing and
acting upon applications for the
issuance of, amendment to,
modification to, or renewal of a
temporary permit, state permit to
operate, or Title V operating permit;
implementing and enforcing the terms
and conditions of these permits; and
developing, implementing, and
administering the Title V operating
permit program. In addition, Part EnvA 705 establishes the emission-based fee
program for Title V and non-Title V
sources. EPA proposes that New
Hampshire has met the infrastructure
SIP requirements of section 110(a)(2)(L)
with respect to the 2012 PM2.5 NAAQS.
K. Section 110(a)(2)(K)—Air Quality
Modeling/Data
M. Section 110(a)(2)(M)—Consultation/
Participation by Affected Local Entities
To satisfy Element K, the state air
agency must demonstrate that it has the
authority to perform air quality
modeling to predict effects on air
quality of emissions of any NAAQS
pollutant and submission of such data
to EPA upon request.
Pursuant to the authority granted to
the Commissioner of NHDES in RSA
125–C:6, New Hampshire reviews the
potential impact of major sources
consistent with 40 CFR part 51,
Appendix W, ‘‘Guidelines on Air
Quality Models.’’ The modeling data are
sent to EPA along with the draft major
permit. For non-major sources, Part EnvA 606, Air Pollution Dispersion
Modeling Impact Analysis
Requirements, specifies the air pollution
dispersion modeling impact analysis
requirements that apply to owners and
operators of certain sources and devices
in order to demonstrate compliance
with the New Hampshire SIP, RSA 125–
C, RSA 125–I, and any rules adopted
thereunder. The state also collaborates
with the Ozone Transport Commission
(OTC), the Mid-Atlantic Regional Air
Management Association, and EPA in
order to perform large scale urban
airshed modeling. Based on the above,
EPA proposes that New Hampshire has
met the infrastructure SIP requirements
To satisfy Element M, states must
provide for consultation with, and
participation by, local political
subdivisions affected by the SIP. As
previously mentioned, Chapter Env-A
200, Part Env-A 204 provides a public
participation process for all
stakeholders that includes a minimum
of a 30-day comment period and an
opportunity for public hearing for
revisions to the SIP. Additionally, RSA
125–C:6, ‘‘Powers and Duties of the
Commissioner,’’ authorizes the
Commissioner to consult and cooperate
with the cities, towns, other agencies of
the state and federal government,
interstate agencies, and other affected
agencies or groups in matters relating to
air quality.
EPA proposes that New Hampshire
has met the infrastructure SIP
requirements of section 110(a)(2)(M)
with respect to the 2012 PM2.5 NAAQS.
Sub-Element 4: Visibility Protection
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IV. Proposed Action
EPA is proposing to approve the
elements of the infrastructure SIPs
submitted by New Hampshire on
December 22, 2015 and June 8, 2016, for
the 2012 PM2.5 NAAQS. Specifically,
EPA’s proposed action regarding each
infrastructure SIP requirement is
contained in Table 1 below.
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TABLE 1—PROPOSED ACTION ON NEW
HAMPSHIRE’S INFRASTRUCTURE SIP
SUBMITTAL FOR THE 2012 PM2.5
NAAQS
2012
PM2.5
Element
(A): Emission limits and other control
measures ........................................
(B): Ambient air quality monitoring
and data system .............................
(C)1: Enforcement of SIP measures ..
(C)2: PSD program for major sources
and major modifications ..................
(C)3: PSD program for minor sources
and minor modifications ..................
(D)1: Contribute to nonattainment/
interfere with maintenance of
NAAQS ............................................
(D)2: PSD ...........................................
(D)3: Visibility Protection ....................
(D)4: Interstate Pollution Abatement ..
(D)5: International Pollution Abatement ................................................
(E)1: Adequate resources ..................
(E)2: State boards ..............................
(E)3: Necessary assurances with respect to local agencies ...................
(F): Stationary source monitoring system ..................................................
(G): Emergency power .......................
(H): Future SIP revisions ....................
(I): Nonattainment area plan or plan
revisions under part D ....................
(J)1: Consultation with government
officials ............................................
(J)2: Public notification .......................
(J)3: PSD ............................................
(J)4: Visibility protection .....................
(K): Air quality modeling and data ......
(L): Permitting fees .............................
(M): Consultation and participation by
affected local entities ......................
A
A
A
A
A
A
A
A
A
A
A
A
NA
A
A
A
+
A
A
A
+
A
A
A
In the above table, the key is as
follows:
A ........
NA .....
+ ........
Approve.
Not applicable.
Not germane to infrastructure SIPs.
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EPA is soliciting public comments on
the issues discussed in this proposal or
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on other relevant matters. These
comments will be considered before
EPA takes final action. Interested parties
may participate in the Federal
rulemaking procedure by submitting
comments to this proposed rule by
following the instructions listed in the
ADDRESSES section of this Federal
Register.
V. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this proposed action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
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15353
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the Clean Air Act;
and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Carbon monoxide,
Incorporation by reference,
Intergovernmental relations, Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
Dated: April 2, 2018.
Alexandra Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018–07230 Filed 4–9–18; 8:45 am]
BILLING CODE 6560–50–P
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Agencies
[Federal Register Volume 83, Number 69 (Tuesday, April 10, 2018)]
[Proposed Rules]
[Pages 15343-15353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07230]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2017-0344; FRL-9976-01-Region 1]
Air Plan Approval; New Hampshire; Infrastructure State
Implementation Plan Requirements for the 2012 PM2.5 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of two State Implementation Plan (SIP) submissions
from New Hampshire which address the infrastructure and interstate
transport requirements of the Clean Air Act (CAA or Act) for the 2012
fine particle (PM2.5) National Ambient Air Quality Standards
(NAAQS). The infrastructure requirements are designed to ensure that
the structural components of each state's air quality management
program are adequate to meet the state's responsibilities under the
CAA. This action is being taken under the Clean Air Act.
DATES: Written comments must be received on or before May 10, 2018.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2017-0344 at www.regulations.gov, or via email to
[email protected]. 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 www.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Unit,
U.S. Environmental Protection Agency, EPA New England Regional Office,
5 Post Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 02109-
3912, tel. (617) 918-1684; [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background and Purpose
A. What New Hampshire SIP submissions does this rulemaking
address?
B. What is the scope of this rulemaking?
II. What guidance is EPA using to evaluate these SIP submissions?
III. EPA's Review
A. Section 110(a)(2)(A)--Emission Limits and Other Control
Measures
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data
System
C. Section 110(a)(2)(C)--Program for Enforcement of Control
Measures and for Construction or Modification of Stationary Sources
D. Section 110(a)(2)(D)--Interstate Transport
E. Section 110(a)(2)(E)--Adequate Resources
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
G. Section 110(a)(2)(G)--Emergency Powers
H. Section 110(a)(2)(H)--Future SIP Revisions
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan
Revisions Under Part D
J. Section 110(a)(2)(J)--Consultation With Government officials;
Public Notifications; Prevention of Significant Deterioration;
Visibility Protection
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
L. Section 110(a)(2)(L)--Permitting Fees
M. Section 110(a)(2)(M)--Consultation/Participation by Affected
Local Entities
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. Background and Purpose
A. What New Hampshire SIP submissions does this rulemaking address?
This rulemaking addresses two submissions from the New Hampshire
Department of Environmental Services (NHDES). The state submitted its
infrastructure SIP for the 2012 fine particle PM2.5 \1\
National Ambient Air Quality Standard (NAAQS) on December 22, 2015.
Subsequently, on June 8, 2016, the state submitted a SIP addressing the
``Good Neighbor'' (or ``transport'') provisions for the 2012
PM2.5 NAAQS (Section 110(a)(2)(D)(i)(I) of the CAA). Under
sections 110(a)(1) and (2) of the CAA, states are required to submit
infrastructure SIPs to ensure that SIPs provide for implementation,
maintenance, and enforcement of the NAAQS, including the 2012
PM2.5 NAAQS.
---------------------------------------------------------------------------
\1\ PM2.5 refers to particulate matter of 2.5 microns
or less in diameter, often referred to as ``fine'' particles.
---------------------------------------------------------------------------
B. What is the scope of this rulemaking?
EPA is acting on two related SIP submissions from New Hampshire
that address the infrastructure requirements of CAA sections 110(a)(1)
and 110(a)(2) for the 2012 PM2.5 NAAQS.
The requirement for states to make a SIP submission of this type
arises out of CAA sections 110(a)(1) and 110(a)(2). Pursuant to these
sections, each state must submit a SIP that provides for the
implementation, maintenance, and enforcement of each primary or
secondary NAAQS. States must make such SIP submission ``within 3 years
(or such shorter period as the Administrator may prescribe) after the
promulgation of a new or revised NAAQS.'' This requirement is triggered
by the promulgation of a new or revised NAAQS and is not conditioned
upon EPA's taking any other action. Section
[[Page 15344]]
110(a)(2) includes the specific elements that ``each such plan'' must
address.
EPA commonly refers to such SIP submissions made for the purpose of
satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as
``infrastructure SIP'' submissions. Although the term ``infrastructure
SIP'' does not appear in the CAA, EPA uses the term to distinguish this
particular type of SIP submission from submissions that are intended to
satisfy other SIP requirements under the CAA, such as ``nonattainment
SIP'' or ``attainment plan SIP'' submissions to address the
nonattainment planning requirements of part D of title I of the CAA.
This rulemaking will not cover three substantive areas that are not
integral to acting on a state's infrastructure SIP submission: (i)
Existing provisions related to excess emissions during periods of
start-up, shutdown, or malfunction at sources (``SSM'' emissions) that
may be contrary to the CAA and EPA's policies addressing such excess
emissions; (ii) existing provisions related to ``director's variance''
or ``director's discretion'' that purport to permit revisions to SIP-
approved emissions limits with limited public process or without
requiring further approval by EPA, that may be contrary to the CAA
(``director's discretion''); and, (iii) existing provisions for
Prevention of Significant Deterioration (PSD) programs that may be
inconsistent with current requirements of EPA's ``Final New Source
Review (NSR) Improvement Rule,'' 67 FR 80186 (December 31, 2002), as
amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, EPA
has the authority to address each one of these substantive areas
separately. A detailed history, interpretation, and rationale for EPA's
approach to infrastructure SIP requirements can be found in EPA's May
13, 2014, proposed rule entitled, ``Infrastructure SIP Requirements for
the 2008 Lead NAAQS'' in the section, ``What is the scope of this
rulemaking?'' See 79 FR 27241 at 27242-45.
II. What guidance is EPA using to evaluate these SIP submissions?
EPA highlighted the statutory requirement to submit infrastructure
SIPs within 3 years of promulgation of a new NAAQS in an October 2,
2007, guidance document entitled ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2007
guidance). EPA has issued additional guidance documents and memoranda,
including a September 13, 2013, guidance document entitled ``Guidance
on Infrastructure State Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and 110(a)(2)'' (2013 guidance).\2\
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\2\ This memorandum and other referenced guidance documents and
memoranda are included in the docket for this action.
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With respect to the Good Neighbor provision, the most recent
relevant document was a memorandum published on March 17, 2016,
entitled ``Information on the Interstate Transport ``Good Neighbor''
Provision for the 2012 Fine Particulate Matter National Ambient Air
Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)''
(2016 memorandum). The 2016 memorandum describes EPA's past approach to
addressing interstate transport, and provides EPA's general review of
relevant modeling data and air quality projections as they relate to
the 2012 annual PM2.5 NAAQS. The 2016 memorandum provides
information relevant to EPA Regional office review of the CAA section
110(a)(2)(D)(i)(I) ``Good Neighbor'' provision requirements in
infrastructure SIPs with respect to the 2012 annual PM2.5
NAAQS. This rulemaking considers information provided in that
memorandum.
III. EPA's Review
In this notice of proposed rulemaking, EPA is proposing action on
two related SIP submissions from the state of New Hampshire. In New
Hampshire's submissions, a detailed list of New Hampshire Laws and
previously SIP-approved Air Quality Regulations show precisely how the
various components of its EPA-approved SIP meet each of the
requirements of section 110(a)(2) of the CAA for the 2012
PM2.5 NAAQS. The following review evaluates the state's
submissions in light of section 110(a)(2) requirements and relevant EPA
guidance.
For New Hampshire's December 22, 2015 submission addressing the
2012 PM2.5 NAAQS, we reviewed all Section 110(a)(2)
elements, including the transport provisions, but excluding the three
areas discussed above under the scope of this rulemaking. For the
state's June 8, 2016, submission, which further addresses the transport
provisions with respect to the 2012 PM2.5 NAAQS, we reviewed
infrastructure elements in Section 110(a)(2)(D)(i)(I).
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section (also referred to in this action as an element) of the
Act requires SIPs to include enforceable emission limits and other
control measures, means or techniques, schedules for compliance, and
other related matters. However, EPA has long interpreted emission
limits and control measures for attaining the standards as being due
when nonattainment planning requirements are due.\3\ In the context of
an infrastructure SIP, EPA is not evaluating the existing SIP
provisions for this purpose. Instead, EPA is only evaluating whether
the state's SIP has basic structural provisions for the implementation
of the NAAQS.
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\3\ See, e.g., EPA's final rule on ``National Ambient Air
Quality Standards for Lead.'' 73 FR 66964, 67034 (November 12,
2008).
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New Hampshire's Revised Statutes Annotated (RSA) at Chapter 21-O
established the New Hampshire Department of Environmental Services
(NHDES) and RSA Chapter 125-C provides the Commissioner of NHDES with
the authority to develop rules and regulations necessary to meet state
and Federal ambient air quality standards. New Hampshire also has SIP-
approved emission limits and other measures for specific pollutants.
For example, Chapter Env-A 400 ``Sulfur content limits in fuels'' (57
FR 36603, August 14, 1992); Chapter Env-A 1200 ``Volatile Organic
Compounds (VOCs) Reasonably Available Control Technology (RACT)'' (77
FR 66921, November 8, 2012; 81 FR 53926, August 15, 2016); Chapter Env-
A 1300 ``Nitrogen Oxides (NOX) RACT'' (79 FR 49458, August,
21, 2014); Chapter Env-A 2100 ``Particulate Matter and Visible
Emissions Standards'' (81 FR 78052, November 7, 2016); Chapter Env-A
2700 ``Particulate Matter emission standards for hot mix asphalt
plants'' (81 FR 78052, November 7, 2016); and Chapter Env-A 2800
``Emission standards for sand and gravel sources, non-metallic mineral
processing plants, cement and concrete sources'' (81 FR 78052, November
7, 2016).
EPA proposes that New Hampshire meets the infrastructure SIP
requirements of section 110(a)(2)(A) with respect to the 2012
PM2.5 NAAQS. As previously noted, EPA is not proposing to
approve or disapprove any existing state provisions or rules related to
SSM or director's discretion in the context of section 110(a)(2)(A).
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to include provisions to provide for
establishing and operating ambient air quality monitors, collecting and
analyzing ambient air quality data, and making
[[Page 15345]]
these data available to EPA upon request. Each year, states submit
annual air monitoring network plans to EPA for review and approval.
EPA's review of these annual monitoring plans includes our evaluation
of whether the state: (i) Monitors air quality at appropriate locations
throughout the state using EPA-approved Federal Reference Methods or
Federal Equivalent Method monitors; (ii) submits data to EPA's Air
Quality System (AQS) in a timely manner; and (iii) provides EPA
Regional Offices with prior notification of any planned changes to
monitoring sites or the network plan.
NHDES continues to operate a monitoring network, and EPA approved
the state's 2017/2018 Annual Network Review and Plan on August 23,
2017.\4\ Furthermore, NHDES populates EPA's Air Quality System (AQS)
with air quality monitoring data in a timely manner, and provides EPA
with prior notification when considering a change to its monitoring
network or plan. Under element B of its December 22, 2015
infrastructure SIP submittal for the 2012 PM2.5 NAAQS, NHDES
referenced EPA's prior approvals of New Hampshire's annual network
monitoring plans, as well as RSA Chapter 125-C:6 III, IV and XVI, which
provide the Commissioner with ``the power and duty to conduct studies
related to air quality, to disseminate the results, and to assure the
reliability and accuracy of monitoring equipment to meet federal EPA
standards.'' EPA proposes that NHDES has met the infrastructure SIP
requirements of section 110(a)(2)(B) with respect to the 2012
PM2.5 NAAQS.
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\4\ EPA's approval letter is included in the docket for this
action.
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C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures
and for Construction or Modification of Stationary Sources
States are required to include a program providing for enforcement
of all SIP measures and the regulation of construction of new or
modified stationary sources to meet NSR requirements under PSD and
nonattainment new source review (NNSR) programs. Part C of the CAA
(sections 160-169B) addresses PSD, while part D of the CAA (sections
171-193) addresses NNSR requirements.
The evaluation of each state's submission addressing the
infrastructure SIP requirements of section 110(a)(2)(C) covers the
following: (i) Enforcement of SIP measures; (ii) PSD program for major
sources and major modifications; and (iii) a permit program for minor
sources and minor modifications.
Sub-Element 1: Enforcement of SIP Measures
NHDES staffs and implements an enforcement program pursuant to RSA
Chapter 125-C, Air Pollution Control, of the New Hampshire Statutes.
Specifically, RSA Chapter 125-C:15, Enforcement, authorizes the
Commissioner of the NHDES or the authorized representative of the
Commissioner, upon finding a violation of Chapter 125-C has occurred,
to issue a notice of violation or an order of abatement, and to include
within it a schedule for compliance. Additionally, RSA 125-C:15 I-b,
II, III, and IV provide for penalties for violations of Chapter 125-C.
EPA proposes that New Hampshire has met the enforcement of SIP measures
requirements of section 110(a)(2)(C) with respect to the 2012
PM2.5 NAAQS.
Sub-Element 2: PSD Program for Major Sources and Major Modifications
PSD applies to new major sources or modifications made to major
sources for pollutants where the area in which the source is located is
in attainment of, or unclassifiable with regard to, the relevant NAAQS.
The EPA interprets the CAA to require each state to make an
infrastructure SIP submission for a new or revised NAAQS demonstrating
that the air agency has a complete PSD permitting program in place
satisfying the current requirements for all regulated NSR pollutants.
NHDES's EPA-approved PSD rules, contained at Part Env-A 619, contain
provisions that address applicable requirements for all regulated NSR
pollutants, including greenhouse gases (GHGs).
With respect to current requirements for PM2.5, we
evaluate New Hampshire's PSD program for consistency with two EPA
rules. The first is a final rule issued May 16, 2008, entitled
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule).
See 73 FR 28321. The 2008 NSR Rule finalized several new requirements
for SIPs to address sources that emit direct PM2.5 and other
pollutants that contribute to secondary PM2.5 formation,
including requirements for NSR permits to address pollutants
responsible for the secondary formation of PM2.5, otherwise
known as precursors. As part of identifying precursors to
PM2.5, the 2008 NSR Rule also required states to revise the
definition of ``significant'' as it relates to a net emissions increase
or the potential of a source to emit pollutants. Finally, the 2008 NSR
Rule requires states to account for PM2.5 and
PM10 condensables for applicability determinations and in
establishing emissions limitations for PM2.5 and
PM10 in PSD permits beginning on or after January 1,
2011.\5\ These requirements are codified in 40 CFR 51.166(b) and
52.21(b). States were required to revise their SIPs consistent with
these changes to the federal regulations.
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\5\ On January 4, 2013, the U.S. Court of Appeals for the DC
Circuit held that EPA should have issued the 2008 NSR Rule in
accordance with the CAA's requirements for PM10
nonattainment areas (Title I, Part D, subpart 4), and not the
general requirements for nonattainment areas under subpart 1. Nat.
Res. Def. Council v. EPA, 706 F.3d 428. The EPA's approval of New
Hampshire's infrastructure SIP as to elements C, D(i)(II), or J with
respect to the PSD requirements promulgated by the 2008 NSR Rule
does not conflict with the court's opinion. For more information,
see 80 FR 42446, July 17, 2015).
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The second is a final rule issued October 20, 2010, entitled
``Prevention of Significant Deterioration (PSD) for Particulate Matter
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)''
(2010 NSR Rule). See 75 FR 64864. This rule established several
components for making PSD permitting determinations for
PM2.5, including adding the required elements for
PM2.5 into a state's existing system of ``increment
analysis,'' which is the mechanism used in the PSD permitting program
to estimate significant deterioration of ambient air quality for a
pollutant in relation to new source construction or modification. The
2010 NSR Rule revised the existing system for determining increment
consumption by establishing a new ``major source baseline date'' for
PM2.5 and by establishing a trigger date for
PM2.5 in relation to the definition of ``minor source
baseline date.'' Lastly, the 2010 NSR Rule revised the definition of
``baseline area'' to include a level of significance of 0.3 micrograms
per cubic meter, annual average, for PM2.5. These
requirements are codified in 40 CFR 51.166(b) and (c) and in 40 CFR
52.21(b) and (c). States were required to revise their SIPs consistent
with these changes to the federal regulations.
New Hampshire implements the PSD program by, for the most part,
incorporating by reference the federal PSD program at 40 CFR 52.21, as
it existed on a specific date. The State periodically updates the PSD
program by revising the date of incorporation by reference and
submitting the change as a SIP revision. As a result, the SIP revisions
generally reflect changes to PSD requirements that the EPA has
[[Page 15346]]
promulgated prior to the revised date of incorporation by reference. To
address the 2008 NSR Rule and the 2010 NSR Rule, New Hampshire
submitted revisions to its PSD regulations on November 15, 2012, that
incorporated by reference the federal PSD program codified in the July
1, 2011, edition of 40 CFR 52.21. On September 25, 2015, EPA approved
these revisions into the SIP as incorporating the necessary changes
obligated by the 2008 NSR Rule and the 2010 NSR Rule. See 80 FR 57722.
Similarly, New Hampshire's revisions submitted on November 15,
2012, also satisfy the requirements of EPA's ``Final Rule to Implement
the 8-Hour Ozone National Ambient Air Quality Standard--Phase 2; Final
Rule to Implement Certain Aspects of the 1990 Amendments Relating to
New Source Review and Prevention of Significant Deterioration as They
Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final
Rule for Reformulated Gasoline'' (Phase 2 Rule) published on November
29, 2005. See 70 FR 71612. Among other requirements, the Phase 2 Rule
obligated states to revise their PSD programs to explicitly identify
NOX as a precursor to ozone. See id. at 71699-700. The
required revisions to the federal PSD program are codified in 40 CFR
51.166(b) and (i) and in 40 CFR 52.21(b) and (i). By incorporating the
Federal provisions at 40 CFR 52.21(b) and (i) as of July 1, 2011, the
New Hampshire's November 15, 2012, submittal also included the
revisions made to the PSD program by the Phase 2 Rule in 2005 regarding
NOX as a precursor to ozone. See Env-A 619.03(a). Thus, EPA
proposes that New Hampshire's PSD program is consistent with the
requirements of the Phase 2 Rule.
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Envtl. Prot. Agency, 134
S.Ct. 2427. The Supreme Court said that EPA may not treat GHGs as an
air pollutant for purposes of determining whether a source is a major
source required to obtain a PSD permit. The Court also said that EPA
could continue to require that PSD permits, otherwise required based on
emissions of pollutants other than GHGs, contain limitations on GHG
emissions based on the application of Best Available Control Technology
(BACT).
In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas
Tailoring Rule, but not the regulations that implement Step 1 of that
rule. Step 1 of the Tailoring Rule covers sources that are required to
obtain a PSD permit based on emissions of pollutants other than GHGs.
Step 2 applied to sources that emitted only GHGs above the thresholds
triggering the requirement to obtain a PSD permit. The amended judgment
preserves, without the need for additional rulemaking by EPA, the
application of the BACT requirement to GHG emissions from Step 1 or
``anyway'' sources. With respect to Step 2 sources, the D.C. Circuit's
amended judgment vacated the regulations at issue in the litigation,
including 40 CFR 51.166(b)(48)(v), ``to the extent they require a
stationary source to obtain a PSD permit if greenhouse gases are the
only pollutant (i) that the source emits or has the potential to emit
above the applicable major source thresholds, or (ii) for which there
is a significant emission increase from a modification.''
In the Federal Register at 80 FR 50199, August 19, 2015, EPA
amended its PSD and Title V regulations to remove from the Code of
Federal Regulations portions of those regulations that the D.C. Circuit
specifically identified as vacated. EPA intends to further revise the
PSD and Title V regulations to fully implement the Supreme Court and
D.C. Circuit rulings in a separate rulemaking. This future rulemaking
will include revisions to additional definitions in the PSD
regulations.
Some states have begun to revise their existing SIP-approved PSD
programs in light of these court decisions, and some states may prefer
not to initiate this process until they have more information about the
additional planned revisions to EPA's PSD regulations. EPA is not
expecting states to have revised their PSD programs in anticipation of
EPA's additional actions to revise its PSD program rules in response to
the court decisions for purposes of infrastructure SIP submissions. At
present, EPA has determined that New Hampshire's SIP is sufficient to
satisfy element C with respect to GHGs because the PSD permitting
program previously approved by EPA into the SIP continues to require
that PSD permits (otherwise required based on emissions of pollutants
other than GHGs) contain limitations on GHG emissions based on the
application of BACT. Although the approved New Hampshire PSD permitting
program may currently contain provisions that are no longer necessary
in light of the Supreme Court decision, this does not render the
infrastructure SIP submission inadequate to satisfy element C. The SIP
contains the necessary PSD requirements at this time, and the
application of those requirements is not impeded by the presence of
other previously-approved provisions regarding the permitting of
sources of GHGs that EPA does not consider necessary at this time in
light of the Supreme Court decision. Accordingly, the Supreme Court
decision does not affect EPA's proposed approval of New Hampshire's
infrastructure SIP as to the requirements of element C.
For the purposes of the 2012 PM2.5 NAAQS infrastructure
SIP, EPA reiterates that NSR Reform regulations are not in the scope of
these actions. Therefore, we are not taking action on existing NSR
Reform regulations for New Hampshire.
Therefore, the EPA is proposing to approve New Hampshire's
infrastructure SIP for the 2012 2012 PM2.5 NAAQS with
respect to the requirement in section 110(a)(2)(C) to include a PSD
permitting program in the SIP that covers the requirements for all
regulated NSR pollutants as required by part C of the Act.
Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor
Modifications
To address the pre-construction regulation of the modification and
construction of minor stationary sources and minor modifications of
major stationary sources, an infrastructure SIP submission should
identify the existing EPA-approved SIP provisions and/or include new
provisions that govern the minor source pre-construction program that
regulate emissions of the relevant NAAQS pollutants. EPA approved New
Hampshire's minor NSR program on September 22, 1980 (45 FR 62814), and
approved updates to the program on August 14, 1992 (57 FR 36606). Since
this date, New Hampshire and EPA have relied on the existing minor NSR
program to ensure that new and modified sources not captured by the
major NSR permitting programs do not interfere with attainment and
maintenance of the 2012 PM2.5 NAAQS.
We are proposing to find that New Hampshire has met the requirement
to have a SIP approved minor new source review permit program as
required under Section 110(a)(2)(C) for the 2012 PM2.5
NAAQS.
[[Page 15347]]
D. Section 110(a)(2)(D)--Interstate Transport
This section contains a comprehensive set of air quality management
elements pertaining to the transport of air pollution with which states
must comply. It covers the following five topics, categorized as sub-
elements: Sub-element 1, Significant contribution to nonattainment, and
interference with maintenance of a NAAQS; \6\ Sub-element 2, PSD; Sub-
element 3, Visibility protection; Sub-element 4, Interstate pollution
abatement; and Sub-element 5, International pollution abatement. Sub-
elements 1 through 3 above are found under section 110(a)(2)(D)(i) of
the Act, and these items are further categorized into the four prongs
discussed below, two of which are found within sub-element 1. Sub-
elements 4 and 5 are found under section 110(a)(2)(D)(ii) of the Act
and include provisions insuring compliance with sections 115 and 126 of
the Act relating to interstate and international pollution abatement.
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\6\ For this sub-element only, we are evaluating two New
Hampshire SIP submittals, the infrastructure SIP for the 2012
PM2.5 NAAQS submitted on December 22, 2015, and the
supplemental Transport SIP for the 2012 PM2.5 NAAQS
submitted on June 8, 2016.
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Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to Nonattainment
(Prong 1) and Interfere With Maintenance of the NAAQS (Prong 2)
Section 110(a)(2)(D)(i)(I) of the CAA requires a SIP to prohibit
any emissions activity in the state that will contribute significantly
to nonattainment or interfere with maintenance of the NAAQS in any
downwind state. EPA commonly refers to these requirements as prong 1
(significant contribution to nonattainment) and prong 2 (interference
with maintenance), or jointly as the ``Good Neighbor'' or ``transport''
provisions of the CAA. This rulemaking proposes action on the portions
of New Hampshire's December 22, 2015 and June 8, 2016, SIP submissions
that address the prong 1 and 2 requirements with respect to the 2012
PM2.5 NAAQS.
EPA has developed a consistent framework for addressing the prong 1
and 2 interstate-transport requirements with respect to the
PM2.5 NAAQS in several previous federal rulemakings. The
four basic steps of that framework include: (1) Identifying downwind
receptors that are expected to have problems attaining or maintaining
the NAAQS; (2) identifying which upwind states contribute to these
identified problems in amounts sufficient to warrant further review and
analysis; (3) for states identified as contributing to downwind air
quality problems, identifying upwind emissions reductions necessary to
prevent an upwind state from significantly contributing to
nonattainment or interfering with maintenance of the NAAQS downwind;
and (4) for states that are found to have emissions that significantly
contribute to nonattainment or interfere with maintenance of the NAAQS
downwind, reducing the identified upwind emissions through adoption of
permanent and enforceable measures. This framework was most recently
applied with respect to PM2.5 in the Cross-State Air
Pollution Rule (CSAPR), which addressed both the 1997 and 2006
PM2.5 standards, as well as the 1997 ozone standard. See 76
FR 48208 (August 8, 2011).
EPA's analysis for CSAPR, conducted consistent with the four-step
framework, included air-quality modeling that evaluated the impacts of
38 eastern states on identified receptors in the eastern United States.
EPA indicated that, for step 2 of the framework, states with impacts on
downwind receptors that are below the contribution threshold of 1% of
the relevant NAAQS would not be considered to significantly contribute
to nonattainment or interfere with maintenance of the relevant NAAQS,
and would, therefore, not be included in CSAPR. See 76 FR 48220. EPA
further indicated that such states could rely on EPA's analysis for
CSAPR as technical support in order to demonstrate that their existing
or future interstate transport SIP submittals are adequate to address
the transport requirements of 110(a)(2)(D)(i)(I) with regard to the
relevant NAAQS. Id.
In addition, as noted above, on March 17, 2016, EPA released the
2016 memorandum to provide information to states as they develop SIPs
addressing the Good Neighbor provision as it pertains to the 2012
PM2.5 NAAQS. Consistent with step 1 of the framework, the
2016 memorandum provides projected future-year annual PM2.5
design values for monitors throughout the country based on quality-
assured and certified ambient-monitoring data and recent air-quality
modeling and explains the methodology used to develop these projected
design values. The memorandum also describes how the projected values
can be used to help determine which monitors should be further
evaluated to potentially address if emissions from other states
significantly contribute to nonattainment or interfere with maintenance
of the 2012 PM2.5 NAAQS at these monitoring sites. The 2016
memorandum explained that the pertinent year for evaluating air quality
for purposes of addressing interstate transport for the 2012
PM2.5 NAAQS is 2021, the attainment deadline for 2012
PM2.5 NAAQS nonattainment areas classified as Moderate.
Accordingly, because the available data included 2017 and 2025
projected average and maximum PM2.5 design values calculated
through the CAMx photochemical model, the memorandum suggests
approaches states might use to interpolate PM2.5 values at
sites in 2021.
For all but one monitor site in the eastern United States, the
modeling data provided in the 2016 memorandum showed that monitors were
expected to both attain and maintain the 2012 PM2.5 NAAQS in
both 2017 and 2025. The modeling results project that this one monitor,
the Liberty monitor, (ID number 420030064), located in Allegheny
County, Pennsylvania, will be above the 2012 annual PM2.5
NAAQS in 2017, but only under the model's maximum projected conditions,
which are used in EPA's interstate transport framework to identify
maintenance receptors. The Liberty monitor (along with all the other
Allegheny County monitors) is projected to both attain and maintain the
NAAQS in 2025. The 2016 memorandum suggests that under such a condition
(again, where EPA's photochemical modeling indicates an area will
maintain the 2012 annual PM2.5 NAAQS in 2025, but not in
2017), further analysis of the site should be performed to determine if
the site may be a nonattainment or maintenance receptor in 2021 (which,
again, is the attainment deadline for moderate PM2.5 areas).
The memorandum also indicates that for certain states with incomplete
ambient monitoring data, additional information including the latest
available data, should be analyzed to determine whether there are
potential downwind air quality problems that may be impacted by
transported emissions. This rulemaking considers these analyses for New
Hampshire, as well as additional analysis conducted by EPA during
review of New Hampshire's submittals.
To develop the projected values presented in the memorandum, EPA
used the results of nationwide photochemical air-quality modeling that
it recently performed to support several rulemakings related to the
ozone NAAQS. Base-year modeling was performed for 2011. Future-year
modeling was performed for 2017 to support the proposed CSAPR Update
for
[[Page 15348]]
the 2008 Ozone NAAQS. See 80 FR 75705 (December 3, 2015). Future-year
modeling was also performed for 2025 to support the Regulatory Impact
Assessment of the final 2015 Ozone NAAQS.\7\ The outputs from these
model runs included hourly concentrations of PM2.5 that were
used in conjunction with measured data to project annual average
PM2.5 design values for 2017 and 2025. Areas that were
designated as moderate PM2.5 nonattainment areas for the
2012 annual PM2.5 NAAQS in 2014 must attain the NAAQS by
December 31, 2021, or as expeditiously as practicable. Although neither
the available 2017 nor 2025 future-year modeling data corresponds
directly to the future-year attainment deadline for moderate
PM2.5 nonattainment areas, EPA believes that the modeling
information is still helpful for identifying potential nonattainment
and maintenance receptors in the 2017-2021 period. Assessing downwind
PM2.5 air-quality problems based on estimates of air-quality
concentrations in a future year aligned with the relevant attainment
deadline is consistent with the instructions from the United States
Court of Appeals for the District of Columbia Circuit in North Carolina
v. EPA, 531 F.3d 896, 911-12 (DC Cir. 2008), that upwind emission
reductions should be harmonized, to the extent possible, with the
attainment deadlines for downwind areas.
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\7\ See 2015 ozone NAAQS RIA at: https://www3.epa.gov/ttnecas1/docs/20151001ria.pdf.
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New Hampshire's Submissions for Prongs 1 and 2
On December 22, 2015, NH DES submitted an infrastructure SIP for
the 2012 PM2.5 NAAQS, which included transport provisions
that addressed prongs 1 and 2 with respect to the 2012 PM2.5
NAAQS. On June 8, 2016, New Hampshire submitted a supplement to the
December 2015 SIP that provides a technical demonstration. The state's
supplemental SIP relied in part on EPA's analysis performed for the
CSAPR rulemaking to conclude that the state will not significantly
contribute to nonattainment or interfere with maintenance of the 2012
PM2.5 NAAQS in any downwind area.
EPA analyzed the state's December 2015 and June 2016 submittals to
determine whether they fully address the prong 1 and 2 transport
provisions with respect to the 2012 PM2.5 NAAQS. As
discussed below, EPA concludes that emissions of PM2.5 and
PM2.5 precursors (NOX and SO2) in New
Hampshire will not significantly contribute to nonattainment or
interfere with maintenance of the 2012 PM2.5 NAAQS in any
other state.
Analysis of New Hampshire's Submission for the 2012 PM2.5
NAAQS
As noted above, the modeling discussed in EPA's 2016 memorandum
identified one potential maintenance receptor for the 2012
PM2.5 NAAQS at the Liberty monitor (ID number 420030064),
located in Allegheny County. The memorandum also identified certain
states with incomplete ambient monitoring data as areas that may
require further analysis to determine whether there are potential
downwind air quality problems that may be impacted by transported
emissions.
While developing the 2011 CSAPR rulemaking, EPA modeled the impacts
of all 38 eastern states in its modeling domain on fine particulate
matter concentrations at downwind receptors in other states in the 2012
analysis year in order to evaluate the contribution of upwind states on
downwind states with respect to the 1997 and 2006 PM2.5.
Although the modeling was not conducted for purposes of analyzing
upwind states' impacts on downwind receptors with respect to the 2012
PM2.5 NAAQS, the contribution analysis for the 1997 and 2006
standards can be informative for evaluating New Hampshire's compliance
with the Good Neighbor provision for the 2012 standard.
This CSAPR modeling showed that New Hampshire had a very small
impact (0.002 [mu]g/m\3\) on the Liberty monitor in Allegheny County,
Pennsylvania, which is the only out-of-state monitor that may be a
nonattainment or maintenance receptor in 2021. Although EPA has not
proposed a particular threshold for evaluating the 2012
PM2.5 NAAQS, EPA notes that New Hampshire's impact on the
Liberty monitor is far below the threshold of 1% for the annual 2012
PM2.5 NAAQS (i.e., 0.12 [mu]g/m\3\) that EPA previously used
to evaluate the contribution of upwind states to downwind air-quality
monitors. (A spreadsheet showing CSAPR contributions for ozone and
PM2.5 is included in docket EPA-HQ-OAR-2009-0491-4228.)
Therefore, even if the Liberty monitor were considered a receptor for
purposes of transport, the EPA proposes to conclude that New Hampshire
will not significantly contribute to nonattainment, or interfere with
maintenance, of the 2012 PM2.5 NAAQS at that monitor.
In addition, the Liberty monitor is already close to attaining the
2012 PM2.5 NAAQS, and expected emissions reductions in the
next four years will lead to additional reductions in measured
PM2.5 concentrations. There are both local and regional
components to measured PM2.5 levels. All monitors in
Allegheny County have a regional component, with the Liberty monitor
most strongly influenced by local sources. This is confirmed by the
fact that annual average measured concentrations at the Liberty monitor
have consistently been 2-4 [mu]g/m\3\ higher than other monitors in
Allegheny County.
Specifically, previous CSAPR modeling showed that regional
emissions from upwind states, particularly SO2 and
NOX emissions, contribute to PM2.5 nonattainment
at the Liberty monitor. In recent years, large SO2 and
NOX reductions from power plants have occurred in
Pennsylvania and states upwind from the Greater Pittsburgh region.
Pennsylvania's energy sector emissions of SO2 will have
decreased 166,000 tons between 2015-2017 as a result of CSAPR
implementation. This is due to both the installation of emissions
controls and retirements of electric generating units (EGUs). Projected
power plant closures and additional emissions controls in Pennsylvania
and upwind states will help further reduce both direct PM2.5
and PM2.5 precursors. Regional emission reductions will
continue to occur from current on-the-books federal and state
regulations such as the federal on-road and non-road vehicle programs,
and various rules for major stationary emissions sources. See proposed
approval of the Ohio Infrastructure SIP for the 2012 PM2.5
NAAQS (82 FR 57689; December 7, 2017).
In addition to regional emissions reductions and plant closures,
additional local reductions to both direct PM2.5 and
SO2 emissions are expected to occur and should contribute to
further declines in Allegheny County's PM2.5 monitor
concentrations. For example, significant SO2 reductions have
recently occurred at US Steel's integrated steel mill facilities in
southern Allegheny County as part of a 1-hr SO2 NAAQS
SIP.\8\ Reductions are largely due to declining sulfur content in the
Clairton Coke Work's coke oven gas (COG). Because this COG is burned at
US Steel's Clairton Coke Works, Irvin Mill, and Edgar Thompson Steel
Mill, these reductions in sulfur content should contribute to much
lower PM2.5 precursor emissions in the immediate future. The
Allegheny SO2 SIP also projects lower SO2
emissions resulting
[[Page 15349]]
from vehicle fuel standards, reductions in general emissions due to
declining population in the Greater Pittsburgh region, and several
shutdowns of significant sources of emissions in Allegheny County.
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\8\ https://www.achd.net/air/pubs/SIPs/SO2_2010_NAAQS_SIP_9-14-2017.pdf.
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EPA modeling projections, the recent downward trend in local and
upwind emissions reductions, the expected continued downward trend in
emissions between 2017 and 2021, and the downward trend in monitored
PM2.5 concentrations all indicate that the Liberty monitor
will attain and be able to maintain the 2012 annual PM2.5
NAAQS by 2021. See proposed approval of the Ohio Infrastructure SIP (82
FR 57689).
As noted in the 2016 memorandum, several states have had recent
data-quality issues identified as part of the PM2.5
designations process. In particular, some ambient PM2.5 data
for certain time periods between 2009 and 2013 in Florida, Illinois,
Idaho, Tennessee, and Kentucky did not meet all data-quality
requirements under 40 CFR part 50, appendix L. The lack of data means
that the relevant areas in those states could potentially be in
nonattainment or be maintenance receptors in 2021. However, as
mentioned above, EPA's analysis for the 2011 CSAPR rulemaking with
respect to the 2006 PM2.5 NAAQS determined that New
Hampshire's impact to all these downwind receptors would be well below
the 1% contribution threshold for this NAAQS. That conclusion informs
the analysis of New Hampshire's contributions for purposes of the 2012
PM2.5 NAAQS as well. Given this, and the fact, discussed
below, that the state's PM2.5 design values for all ambient
monitors have been well below the 2012 PM2.5 NAAQS since
2009-2013, EPA concludes that it is highly unlikely that New Hampshire
significantly contributes to nonattainment or interferes with
maintenance of the 2012 PM2.5 NAAQS in areas with data-
quality issues.\9\
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\9\ New Hampshire's PM2.5 design values for all
ambient monitors from 2004-2006 through 2013-2015 are available on
Table 6 of the 2015 Design Value Report at https://19january2017snapshot.epa.gov/air-trends/air-quality-design-values_.html.
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Additional information in New Hampshire's 2016 supplemental SIP
submission corroborates EPA's proposed conclusion that New Hampshire's
SIPs meets its Good Neighbor obligations. The state's technical
analysis in that submission includes 2012-2014 24-hr and annual average
PM2.5 monitoring data for New Hampshire and the contiguous
states of Massachusetts, Maine, and Vermont; projected maximum 2017 and
2025 design values for New Hampshire and contiguous states; as well as
meteorology and New Hampshire PM2.5 control programs. The
annual and design values from all monitors in New Hampshire and
neighboring states show compliance with the 2012 PM2.5
NAAQS. This technical analysis is supported by additional indications
that, in most areas of the state, air quality is improving and
emissions are falling. Specifically, certified annual PM2.5
monitor values recorded since 2014 show that the highest value in 2015
was 8.7 [mu]g/m\3\ at a monitor in Keene, and the highest value in 2016
was 6.7 [mu]g/m\3\ at the same monitor in Keene, with many monitors
continuing to show declines as indicated by 2017 preliminary
results.\10\
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\10\ 24-hour and annual PM2.5 monitor values for
individual monitoring sites throughout New Hampshire are available
at https://www.epa.gov/outdoor-air-quality-data/monitor-values-report.
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Second, New Hampshire's sources are well-controlled. New
Hampshire's 2016 submission indicates that the state has many SIP-
approved rules and programs that limit emissions of PM2.5
and the interstate transport of pollution, including Chapter Env-A 300
(Ambient air quality standards), Part Env-A 619 (PSD), Part Env-A 618
(NNSR), Chapter Env-A 2300 (Mitigation of Regional Haze), Chapter Env-A
800 (Testing and monitoring procedures), and Chapter Env-A 900
(Recordkeeping and reporting obligations), as well as delegation for a
Title V permitting program.
It should also be noted that New Hampshire is not in the CSAPR
program because EPA analyses show that the state does not emit ozone-
season NOX at a level that contributes significantly to non-
attainment or interferes with maintenance of the 1997 and 2006
PM2.5 NAAQS in any other state.
For the reasons explained herein, EPA agrees with New Hampshire's
conclusions and proposes to determine that New Hampshire will not
significantly contribute to nonattainment or interfere with maintenance
of the 2012 PM2.5 NAAQS in any other state. Therefore, EPA
is proposing to approve the December 2015 and June 2016 infrastructure
SIP submissions from New Hampshire addressing prongs 1 and 2 of CAA
section 110(a)(2)(D)(i)(I) for the 2012 PM2.5 NAAQS.
Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
To prevent significant deterioration of air quality, this sub-
element requires SIPs to include provisions that prohibit any source or
other type of emissions activity in one state from interfering with
measures that are required in any other state's SIP under Part C of the
CAA. As explained in the 2013 Guidance, a state may meet this
requirement with respect to in-state sources and pollutants that are
subject to PSD permitting through a comprehensive PSD permitting
program that applies to all regulated NSR pollutants and that satisfies
the requirements of EPA's PSD implementation rules. As discussed above
under element C, New Hampshire has such a PSD permitting program.
For in-state sources not subject to PSD for any one or more of the
pollutants subject to regulation under the CAA, prong 3 may be
satisfied through an approved NNSR program with respect to any previous
NAAQS. EPA approved New Hampshire's NNSR regulations on July 27, 2001
(66 FR 39104). These regulations contain provisions for how the state
must treat and control sources in nonattainment areas, consistent with
40 CFR 51.165, or appendix S to 40 CFR part 51. EPA proposes that New
Hampshire has met the requirements with respect to the prohibition of
interference with a neighboring state's PSD program for the 2012
PM2.5 NAAQS related to section 110(a)(2)(D)(i)(II).
Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection
(Prong 4)
With regard to applicable requirements for visibility protection of
section 110(a)(2)(D)(i)(II), states are subject to visibility and
regional-haze program requirements under part C of the CAA (which
includes sections 169A and 169B). The 2009 Guidance, 2011 Guidance, and
2013 Guidance recommend that these requirements can be satisfied by an
approved SIP addressing reasonably attributable visibility impairment,
if required, or an approved SIP addressing regional haze. A fully
approved regional haze SIP meeting the requirements of 40 CFR 51.308
will ensure that emissions from sources under an air agency's
jurisdiction are not interfering with measures required to be included
in other air agencies' plans to protect visibility. New Hampshire's
Regional Haze SIP was approved by EPA on August 22, 2012 (77 FR 50602).
Accordingly, EPA proposes that New Hampshire has met the visibility
protection requirements of 110(a)(2)(D)(i)(II) for the 2012
PM2.5 NAAQS.
[[Page 15350]]
Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution Abatement
This sub-element requires each SIP to contain provisions requiring
compliance with requirements of section 126 relating to interstate
pollution abatement. Section 126(a) requires new or modified sources to
notify neighboring states of potential impacts from the source. The
statute does not specify the method by which the source should provide
the notification. States with SIP-approved PSD programs must have a
provision requiring such notification by new or modified sources.
On May 25, 2017, EPA approved into the New Hampshire SIP revisions
to the state's PSD program that require the NHDES to provide notice of
a draft PSD permit to, among other entities, any state whose lands may
be affected by emissions from the source. See Env-A 621.03, .04(e)(3);
82 FR 24057 at 24060; see also Env-A 619.07(d). These public notice
requirements are consistent with the Federal SIP-approved PSD program's
public notice requirements for affected states under 40 CFR 51.166(q).
Therefore, we propose to approve New Hampshire's compliance with the
infrastructure SIP requirements of section 126(a) with respect to the
2012 PM2.5 NAAQS. New Hampshire has no obligations under any
other provision of section 126 and no source or sources within the
state are the subject of an active finding under section 126 of the CAA
with respect to the 2012 PM2.5 NAAQS.
Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution
Abatement
This sub-element requires each SIP to contain provisions requiring
compliance with the applicable requirements of section 115 relating to
international pollution abatement. There are no final findings under
section 115 of the CAA against New Hampshire with respect to the 2012
PM2.5 NAAQS. Therefore, EPA is proposing that New Hampshire
has met the applicable infrastructure SIP requirements of section
110(a)(2)(D)(ii) related to section 115 of the CAA (international
pollution abatement) for the 2012 PM2.5 NAAQS.
E. Section 110(a)(2)(E)--Adequate Resources
Section 110(a)(2)(E)(i) requires each SIP to provide necessary
assurances that the state will have adequate personnel, funding, and
legal authority under state law to carry out its SIP. In addition,
section 110(a)(2)(E)(ii) requires each state to comply with the
requirements with respect to state boards under CAA section 128.
Finally, section 110(a)(2)(E)(iii) requires that, where a state relies
upon local or regional governments or agencies for the implementation
of its SIP provisions, the state retain responsibility for ensuring
implementation of SIP obligations with respect to relevant NAAQS.
Section 110(a)(2)(E)(iii), however, does not apply to this action
because New Hampshire does not rely upon local or regional governments
or agencies for the implementation of its SIP provisions.
Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under
State Law To Carry Out Its SIP, and Related Issues
New Hampshire, through its infrastructure SIP submittal, has
documented that its air agency has authority and resources to carry out
its SIP obligations. New Hampshire RSA 125-C:6, ``Powers and Duties of
the Commissioner,'' authorizes the Commissioner of the NHDES to enforce
the state's air laws, establish a permit program, accept and administer
grants, and exercise incidental powers necessary to carry out the law.
Additionally, RSA-125-C:12, ``Administrative Requirements,'' authorizes
the Commissioner to collect fees to recover the costs of reviewing and
acting upon permit applications and enforcing the terms of permits
issued. The New Hampshire SIP, as originally submitted on January 27,
1972, and subsequently amended, provides additional descriptions of the
organizations, staffing, funding and physical resources necessary to
carry out the plan. EPA proposes that New Hampshire has met the
infrastructure SIP requirements of this portion of section 110(a)(2)(E)
with respect to the 2012 PM2.5 NAAQS.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
Section 110(a)(2)(E)(ii) requires each SIP to contain provisions
that comply with the state board requirements of section 128 of the
CAA. That provision contains two explicit requirements: (1) That any
board or body which approves permits or enforcement orders under this
chapter shall have at least a majority of members who represent the
public interest and do not derive any significant portion of their
income from persons subject to permits and enforcement orders under
this chapter, and (2) that any potential conflicts of interest by
members of such board or body or the head of an executive agency with
similar powers be adequately disclosed.
New Hampshire RSA 21-O:11, ``Air Resources Council,'' established
the New Hampshire Air Resources Council, a state board that hears all
administrative appeals from department enforcement and permitting
decisions. The Council consists of 11 members, 6 of whom ``shall
represent the public interest.'' RSA 21-O:11, I. Those representing the
public interest ``may not derive any significant portion of their
income from persons subject to permits or enforcement orders, and may
not serve as attorney for, act as consultant for, serve as officer or
director of, or hold any other official or contractual relationship
with any person subject to permits or enforcement orders.'' Id. The
statute further provides that ``[a]ll potential conflicts of interest
shall be adequately disclosed.'' Id. On December 16, 2015, EPA approved
RSA 21-O:11 for incorporation into the New Hampshire SIP as satisfying
the requirements of section 128. See 80 FR 78135. Additional details
are provided in our July 17, 2015 proposal notification. See 80 FR
42446. New Hampshire's SIP continues to meet the requirements of
section 110(a)(2)(E)(ii), and, we propose to approve the infrastructure
SIP for the 2012 PM2.5 NAAQS for this element.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
States must establish a system to monitor emissions from stationary
sources and submit periodic emissions reports. Each plan shall also
require the installation, maintenance, and replacement of equipment,
and the implementation of other necessary steps, by owners or operators
of stationary sources to monitor emissions from such sources. The state
plan shall also require periodic reports on the nature and amounts of
emissions and emissions-related data from such sources, and correlation
of such reports by each state agency with any emission limitations or
standards established pursuant to this chapter. Lastly, the reports
shall be available at reasonable times for public inspection.
New Hampshire RSA 125-C:6, ``Powers and Duties of the
Commissioner,'' authorizes the Commissioner of NHDES to require the
installation, maintenance, and use of emissions monitoring devices and
to require periodic reporting to the Commissioner of the nature and
extent of the emissions. This authority also enables the Commissioner
to correlate this information to any applicable emissions standard and
to make such
[[Page 15351]]
information available to the public. NHDES implements Chapter Env-A
800, ``Testing and Monitoring Procedures,'' and Chapter Env-A 900,
``Owner or Operator Recordkeeping and Reporting Obligations,'' as the
primary means of fulfilling these obligations. New Hampshire's Chapters
Env-A 800 and 900 have been approved into the SIP (See 77 FR 66388;
November 5, 2012). Additionally, under RSA 125-C:6, VII, and Env-A
103.04, emissions data are not considered confidential information. EPA
recognizes that New Hampshire routinely collects information on air
emissions from its industrial sources and makes this information
available to the public.
Therefore, EPA proposes that New Hampshire has met the
infrastructure SIP requirements of section 110(a)(2)(F) with respect to
the 2012 PM2.5 NAAQS.
G. Section 110(a)(2)(G)--Emergency Powers
This section requires that a plan provide for state authority
analogous to that provided to the EPA Administrator in section 303 of
the CAA, and adequate contingency plans to implement such authority.
Section 303 of the CAA provides authority to the EPA Administrator to
seek a court order to restrain any source from causing or contributing
to emissions that present an ``imminent and substantial endangerment to
public health or welfare, or the environment.'' Section 303 further
authorizes the Administrator to issue ``such orders as may be necessary
to protect public health or welfare or the environment'' in the event
that ``it is not practicable to assure prompt protection . . . by
commencement of such civil action.''
We propose to find that New Hampshire's submittals and certain
state statutes provide for authority comparable to that in section 303.
New Hampshire's submittals specify that RSA 125-C:9, ``Authority of the
Commissioner in Cases of Emergency,'' authorizes the Commissioner of
NHDES, with the consent of the Governor and Air Resources Council, to
issue an order requiring actions to be taken as the Commissioner deems
necessary to address an air pollution emergency. Such orders are
effective immediately upon issuance. Id. We note also that RSA 125-
C:15, I, provides that, ``[u]pon a finding by the commissioner that
there is an imminent and substantial endangerment to the public health
or welfare or the environment, the commissioner shall issue an order of
abatement requiring immediate compliance and said order shall be final
and enforceable upon issuance, but may be appealed to the council
within 30 days of its issuance, and the council may, after hearing,
uphold, modify, or abrogate said order.'' With regard to the authority
to bring suit, RSA 125-C:15, II, further provides that violation of
such an order ``shall be subject to enforcement by injunction,
including mandatory injunction, issued by the superior court upon
application of the attorney general.''
Section 110(a)(2)(G) also requires a state to submit for EPA
approval a contingency plan (also known as an emergency episode plan)
to implement the air agency's emergency episode authority for any Air
Quality Control Region (AQCR) within the state that is classified as
Priority I, IA, or II for certain pollutants. See 40 CFR 51.150. AQCRs
classified as Priority III do not require contingency plans. 40 CFR
51.152(c). In general, contingency plans for Priority I, IA, and II
areas must meet the applicable requirements of 40 CFR part 51, subpart
H (40 CFR 51.150 through 51.153) (``Prevention of Air Pollution
Emergency Episodes'') for the relevant NAAQS, if the NAAQS is covered
by those regulations. In the case of PM2.5, EPA has not
promulgated regulations that provide the ambient levels to classify
different priority levels for the 2012 standard (or any
PM2.5 NAAQS). For the 2006 PM2.5 NAAQS, EPA's
2009 Guidance recommends that states develop emergency episode plans
for any area that has monitored and recorded 24-hour PM2.5
levels greater than 140 [mu]g/m\3\ since 2006. EPA's review of New
Hampshire's certified air quality data in AQS indicates that the
highest 24-hour PM2.5 level recorded since 2006 was 61.5
[mu]g/m\3\, which occurred in 2015 in the city of Keene in Cheshire
County. Therefore, EPA proposes that a specific contingency plan from
New Hampshire for PM2.5 is not required. Furthermore,
although not expected, if PM2.5 conditions in New Hampshire
were to change, NHDES has general authority to order a source to reduce
or discontinue air pollution as required to protect the public health
or safety or the environment, as discussed earlier. In addition, as a
matter of practice, New Hampshire posts on the internet daily
forecasted fine particulate levels through the EPA AIRNOW and EPA
ENVIROFLASH systems. Information regarding these two systems is
available on EPA's website at www.airnow.gov. When levels are forecast
to exceed the 24-hour fine particulate standard in New Hampshire,
notices are sent out to ENVIROFLASH participants, the media are alerted
via a press release, and the National Weather Service (NWS) is alerted
to issue an Air Quality Advisory through the normal NWS weather alert
system. These actions are similar to the notification and communication
requirements of 40 CFR 51.152.
Therefore, EPA proposes that New Hampshire, through the combination
of statutes and regulations discussed above and participation in EPA's
AirNow program, has met the applicable infrastructure SIP requirements
of section 110(a)(2)(G) with respect to the 2012 PM2.5
NAAQS.
H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires that a state's SIP provide for revision from
time to time as may be necessary to take account of changes in the
NAAQS or availability of improved methods for attaining the NAAQS and
whenever the EPA finds that the SIP is substantially inadequate. New
Hampshire RSA 125-C:6, ``Powers and Duties of the Commissioner,''
provides that the Commissioner of NHDES may develop a comprehensive
program and provide services for the study, prevention, and abatement
of air pollution. Additionally, Chapter Env-A 200, ``Procedural
Rules,'' which was approved into the New Hampshire SIP on October 28,
2002 (67 FR 65710) provides for public hearings for SIP revision
requests prior to their submittal to EPA. EPA proposes that New
Hampshire has met the infrastructure SIP requirements of CAA section
110(a)(2)(H) with respect to the 2012 PM2.5 NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions
Under Part D
The CAA requires that each plan or plan revision for an area
designated as a nonattainment area meet the applicable requirements of
part D of the CAA. Part D relates to nonattainment areas. EPA has
determined that section 110(a)(2)(I) is not applicable to the
infrastructure SIP process. Instead, EPA takes action on part D
attainment plans through separate processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notifications; Prevention of Significant Deterioration; Visibility
Protection
Section 110(a)(2)(J) of the CAA requires that each SIP ``meet the
applicable requirements of section 121 of this title (relating to
consultation), section 127 of this title (relating to public
notification), and part C of this subchapter (relating to PSD of air
quality and visibility protection).'' The evaluation of the submission
from New
[[Page 15352]]
Hampshire with respect to these requirements is described below.
Sub-Element 1: Consultation With Government Officials
Pursuant to CAA section 121, a state must provide a satisfactory
process for consultation with local governments and Federal Land
Managers (FLMs) in carrying out its NAAQS implementation requirements.
New Hampshire RSA 125-C:6, ``Powers and Duties of the
Commissioner,'' authorizes the Commissioner of NHDES to advise,
consult, and cooperate with the cities, towns, and other agencies of
the state and federal government, interstate agencies, and other groups
or agencies in matters relating to air quality. Additionally, RSA 125-
C:6 enables the Commissioner to coordinate and regulate the air
pollution control programs of political subdivisions to plan and
implement programs for the control and abatement of air pollution.
Furthermore, New Hampshire regulations at Part Env-A 621 direct NHDES
to notify town officials, regional planning agencies, and FLMs, among
others, of the receipt of certain permit applications and the NH DES'
preliminary determination to issue, amend, or deny such permits. EPA
proposes that New Hampshire has met the infrastructure SIP requirements
of section 121 with respect to the 2012 PM2.5 NAAQS.
Sub-Element 2: Public Notification
Pursuant to CAA section 127, states must notify the public if NAAQS
are exceeded in an area, advise the public of health hazards associated
with exceedances, and enhance public awareness of measures that can be
taken to prevent exceedances and of ways in which the public can
participate in regulatory and other efforts to improve air quality.
As part of the fulfillment of RSA 125-C:6, New Hampshire issues
press releases and posts warnings on its website advising people what
they can do to help prevent NAAQS exceedances and avoid adverse health
effects on poor air quality days. New Hampshire is also an active
partner in EPA's AIRNOW and ENVIROFLASH air quality alert programs. EPA
proposes that New Hampshire has met the infrastructure SIP requirements
of section 127 with respect to the 2012 PM2.5 NAAQS.
Sub-Element 3: PSD
EPA has already discussed New Hampshire's PSD program in the
context of infrastructure SIPs in the paragraphs addressing section
110(a)(2)(C) and 110(a)(2)(D)(i)(II) and determined that it satisfies
the requirements of EPA's PSD implementation rules. Therefore, the SIP
also satisfies the PSD sub-element of section 110(a)(2)(J) for the 2012
PM2.5 NAAQS.
Sub-Element 4: Visibility Protection
With regard to the applicable requirements for visibility
protection, states are subject to visibility and regional haze program
requirements under part C of the CAA (which includes sections 169A and
169B). In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C do not
change. Thus, as noted in EPA's 2013 guidance, we find that there is no
new visibility obligation ``triggered'' under section 110(a)(2)(J) when
a new NAAQS becomes effective. In other words, the visibility
protection requirements of section 110(a)(2)(J) are not germane to
infrastructure SIPs for the 2012 PM2.5 NAAQS.
Based on the above analysis, EPA proposes that New Hampshire has
met the infrastructure SIP requirements of section 110(a)(2)(J) with
respect to the 2012 PM2.5 NAAQS.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
To satisfy Element K, the state air agency must demonstrate that it
has the authority to perform air quality modeling to predict effects on
air quality of emissions of any NAAQS pollutant and submission of such
data to EPA upon request.
Pursuant to the authority granted to the Commissioner of NHDES in
RSA 125-C:6, New Hampshire reviews the potential impact of major
sources consistent with 40 CFR part 51, Appendix W, ``Guidelines on Air
Quality Models.'' The modeling data are sent to EPA along with the
draft major permit. For non-major sources, Part Env-A 606, Air
Pollution Dispersion Modeling Impact Analysis Requirements, specifies
the air pollution dispersion modeling impact analysis requirements that
apply to owners and operators of certain sources and devices in order
to demonstrate compliance with the New Hampshire SIP, RSA 125-C, RSA
125-I, and any rules adopted thereunder. The state also collaborates
with the Ozone Transport Commission (OTC), the Mid-Atlantic Regional
Air Management Association, and EPA in order to perform large scale
urban airshed modeling. Based on the above, EPA proposes that New
Hampshire has met the infrastructure SIP requirements of section
110(a)(2)(K) with respect to the 2012 PM2.5 NAAQS.
L. Section 110(a)(2)(L)--Permitting Fees
This section requires SIPs to mandate that each major stationary
source pay permitting fees to cover the costs of reviewing, approving,
implementing, and enforcing a permit.
New Hampshire implements and operates the Title V permit program,
which EPA approved on September 24, 2001. See 66 FR 48806. Chapter Env-
A 700, Permit Fee System, establishes a fee system requiring the
payment of fees to cover the costs of: Reviewing and acting upon
applications for the issuance of, amendment to, modification to, or
renewal of a temporary permit, state permit to operate, or Title V
operating permit; implementing and enforcing the terms and conditions
of these permits; and developing, implementing, and administering the
Title V operating permit program. In addition, Part Env-A 705
establishes the emission-based fee program for Title V and non-Title V
sources. EPA proposes that New Hampshire has met the infrastructure SIP
requirements of section 110(a)(2)(L) with respect to the 2012
PM2.5 NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
To satisfy Element M, states must provide for consultation with,
and participation by, local political subdivisions affected by the SIP.
As previously mentioned, Chapter Env-A 200, Part Env-A 204 provides a
public participation process for all stakeholders that includes a
minimum of a 30-day comment period and an opportunity for public
hearing for revisions to the SIP. Additionally, RSA 125-C:6, ``Powers
and Duties of the Commissioner,'' authorizes the Commissioner to
consult and cooperate with the cities, towns, other agencies of the
state and federal government, interstate agencies, and other affected
agencies or groups in matters relating to air quality.
EPA proposes that New Hampshire has met the infrastructure SIP
requirements of section 110(a)(2)(M) with respect to the 2012
PM2.5 NAAQS.
IV. Proposed Action
EPA is proposing to approve the elements of the infrastructure SIPs
submitted by New Hampshire on December 22, 2015 and June 8, 2016, for
the 2012 PM2.5 NAAQS. Specifically, EPA's proposed action
regarding each infrastructure SIP requirement is contained in Table 1
below.
[[Page 15353]]
Table 1--Proposed Action on New Hampshire's Infrastructure SIP Submittal
for the 2012 PM2.5 NAAQS
------------------------------------------------------------------------
2012
Element PM2.5
------------------------------------------------------------------------
(A): Emission limits and other control measures.............. A
(B): Ambient air quality monitoring and data system.......... A
(C)1: Enforcement of SIP measures............................ A
(C)2: PSD program for major sources and major modifications.. A
(C)3: PSD program for minor sources and minor modifications.. A
(D)1: Contribute to nonattainment/interfere with maintenance A
of NAAQS....................................................
(D)2: PSD.................................................... A
(D)3: Visibility Protection.................................. A
(D)4: Interstate Pollution Abatement......................... A
(D)5: International Pollution Abatement...................... A
(E)1: Adequate resources..................................... A
(E)2: State boards........................................... A
(E)3: Necessary assurances with respect to local agencies.... NA
(F): Stationary source monitoring system..................... A
(G): Emergency power......................................... A
(H): Future SIP revisions.................................... A
(I): Nonattainment area plan or plan revisions under part D.. +
(J)1: Consultation with government officials................. A
(J)2: Public notification.................................... A
(J)3: PSD.................................................... A
(J)4: Visibility protection.................................. +
(K): Air quality modeling and data........................... A
(L): Permitting fees......................................... A
(M): Consultation and participation by affected local A
entities....................................................
------------------------------------------------------------------------
In the above table, the key is as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
A............................... Approve.
NA.............................. Not applicable.
+............................... Not germane to infrastructure SIPs.
------------------------------------------------------------------------
EPA is soliciting public comments on the issues discussed in this
proposal or on other relevant matters. These comments will be
considered before EPA takes final action. Interested parties may
participate in the Federal rulemaking procedure by submitting comments
to this proposed rule by following the instructions listed in the
ADDRESSES section of this Federal Register.
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by state law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: April 2, 2018.
Alexandra Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2018-07230 Filed 4-9-18; 8:45 am]
BILLING CODE 6560-50-P