Air Plan Approval; Rhode Island; Infrastructure State Implementation Plan Requirements for the 2012 PM2.5, 1025-1037 [2019-00658]
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Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• This action is not expected to be an
Executive Order 13771 regulatory action
because this action is not significant
under Executive Order 12866;
• 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, Regional haze, Reporting and
recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
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Dated: December 21, 2018.
Alexandra Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2019–00657 Filed 1–31–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2017–0443; FRL–9988–28Region 1]
Air Plan Approval; Rhode Island;
Infrastructure State Implementation
Plan Requirements for the 2012 PM2.5
NAAQS
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve
most elements of a State
Implementation Plan (SIP) submission
from Rhode Island that addresses the
infrastructure requirements of the Clean
Air Act (CAA or Act) for the 2012 fine
particle (PM2.5) National Ambient Air
Quality Standard (NAAQS). We are also
proposing to conditionally approve
certain elements of this submittal that
relate to requirements for the state’s
Prevention of Significant Deterioration
(PSD) program. In addition, EPA is
proposing to disapprove the submission
with respect to future SIP revisions.
However, a federal implementation plan
has been in place for this requirement
since 1973. 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 with respect to this
NAAQS under the CAA.
DATES: Written comments must be
received on or before March 4, 2019.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2017–0443 at https://
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.
SUMMARY:
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The written comment is considered the
official comment and should include
discussion of all points you wish to
make. The EPA will generally not
consider comments or comment
contents located outside of the primary
submission (i.e., on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact the person identified in the FOR
FURTHER INFORMATION CONTACT section.
For the full EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www.epa.gov/dockets/
commenting-epa-dockets. Publicly
available docket materials are available
at https://www.regulations.gov or at the
U.S. Environmental Protection Agency,
EPA Region 1 Regional Office, Office of
Ecosystem Protection, Air Quality
Planning Unit, 5 Post Office Square—
Suite 100, Boston, MA. EPA requests
that if at all possible, you contact the
contact listed in the FOR FURTHER
INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding legal holidays.
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.
Table of Contents
I. Background and Purpose
A. What Rhode Island SIP submission does
this rulemaking address?
B. What is the scope of this rulemaking?
II. What guidance is EPA using to evaluate
this SIP submission?
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
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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 Rhode Island SIP submission
does this rulemaking address?
This rulemaking addresses a
December 6, 2017, submission from the
Rhode Island Department of
Environmental Management (RI DEM)
regarding the infrastructure SIP
requirements of the CAA for the 2012
fine particle (PM2.5 1) National Ambient
Air Quality Standard (NAAQS). The
primary, health-based annual standard
is set at 12.0 micrograms per cubic
meter (mg/m3) and the 24-hour standard
is set at 35 mg/m3. See 78 FR 3086.
Under sections 110(a)(1) and (2) of the
CAA, states are required to provide
infrastructure SIP submissions to ensure
that state 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 a SIP submission
from RI DEP that addresses the
infrastructure requirements of the Act
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
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’’
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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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
rulemaking 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 this SIP submission?
EPA highlighted the statutory
requirement to submit infrastructure
SIPs within 3 years of promulgation of
a new NAAQS in an October 2, 2007,
memorandum 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
memorandum). EPA has issued
additional guidance documents and
memoranda, including a September 25,
2009, memorandum entitled ‘‘Guidance
on SIP Elements Required Under
Sections 110(a)(1) and (2) for the 2006
24-Hour Fine Particle (PM2.5) National
Ambient Air Quality Standards
(NAAQS)’’ (2009 memorandum), and a
September 13, 2013, memorandum
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entitled ‘‘Guidance on Infrastructure
State Implementation Plan (SIP)
Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2)’’ (2013
memorandum).2
With respect to the ‘‘Good Neighbor’’
or interstate transport requirements for
infrastructure SIPs, the most recent
relevant EPA guidance is 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
EPA is soliciting comment on our
evaluation of Rhode Island’s
infrastructure SIP submission in this
notice of proposed rulemaking. In
Rhode Island’s submission, a detailed
list of Rhode Island Laws and
previously SIP-approved Air Quality
Regulations show 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.
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
2 These memoranda and other referenced
guidance documents and memoranda are included
in the docket for today’s action.
3 See, for example, EPA’s final rule on ‘‘National
Ambient Air Quality Standards for Lead.’’ 73 FR
66964, 67034 (November 12, 2008).
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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.
The Rhode Island submittal cites
Rhode Island General Laws (RIGL) and
RI Air Pollution Control Regulations
(APCR) that the state has adopted to
control the emissions of criteria
pollutants, including PM2.5, and PM2.5
precursors sulfur dioxide (SO2) and
nitrogen oxides (NOX).
RIGL § 23–23–5(12), ‘‘Powers and
duties of the director,’’ authorizes the RI
DEM Director ‘‘to make, issue, and
amend rules and regulations . . . for the
prevention, control, abatement, and
limitation of air pollution . . . .’’ In
addition, this section authorizes the
Director to ‘‘prohibit emissions,
discharges and/or releases and . . .
require specific control technology.’’
The Rhode Island submittal cites more
than a dozen specific rules that the state
has adopted to control the emissions of
PM2.5 and the PM2.5 precursors SO2 and
NOX. A few, with their EPA approval
citation are listed here: No. 3—
Particulate Emissions from Industrial
Processes (81 FR 47708; July 22, 2016);
No. 5—Fugitive Dust (46 FR 25446; May
7, 1981); No. 8—Sulfur Content of Fuels
(83 FR 39888; August 13, 2018); No. 9—
Air Pollution Control Permits (78 FR
63383; October 24, 2013); No. 12—
Incinerators (07/22/2016; 81 FR 47708);
No. 27—Control of Nitrogen Oxide
Emissions (83 FR 39888; August 13,
2018); and No. 45—Rhode Island Diesel
Engine Anti-Idling Program (73 FR
16203; March 27, 2008). See 40 CFR
52.2070.
EPA proposes that Rhode Island
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 emissions 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 provide
for establishment and operation of
appropriate devices, methods, systems,
and procedures necessary to monitor,
compile, and analyze ambient air
quality data, and make such 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
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locations throughout the state using
EPA-approved Federal Reference
Methods or Federal Equivalent Method
monitors; (ii) submits data to EPA’s Air
Quality System (AQS) in a timely
manner; and (iii) provides EPA Regional
Offices with prior notification of any
planned changes to monitoring sites or
the network plan.
RI DEM operates an air-quality
monitoring network, and EPA approved
the state’s most recent Annual Air
Monitoring Network Plan for PM2.5 on
October 25, 2018.4 Furthermore, RI DEM
populates AQS with air quality
monitoring data in a timely manner, and
provides EPA with prior notification
when considering a change to its
monitoring network or plan. EPA
proposes that RI DEM meets the
infrastructure SIP requirements of
section 110(a)(2)(B) with respect to the
2012 PM2.5 NAAQS.
C. Section 110(a)(2)(C)—Program for
Enforcement of Control Measures 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 new source
review (NSR) requirements under
prevention of significant deterioration
(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
The Rhode Island General Laws
provide the Director of RI DEM with the
legal authority to enforce air pollution
control requirements. Such enforcement
authority is provided by RIGL § 23–23–
5, which grants the Director of RI DEM
general enforcement power, inspection
and investigative authority, and the
power to issue administrative orders,
among other things. In addition, APCR
No. 9, ‘‘Air Pollution Control Permits,’’
sets forth requirements for new and
modified major and minor stationary
sources. Section 9.3 of the regulation
4 See EPA approval letter located in the docket for
this action.
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contains specific requirements for new
and modified minor sources. Section 9.4
of the regulation contains specific new
source review requirements applicable
to major stationary source or major
modifications located in nonattainment
areas. Section 9.5 contains specific new
source review requirements applicable
to major stationary sources or major
modifications located in attainment or
unclassifiable areas (PSD).
EPA proposes that Rhode Island has
met the enforcement of SIP measures
requirements of section 110(a)(2)(C)
with respect to the 2012 PM2.5 NAAQS.
Sub-Element 2: PSD Program for Major
Sources and Major Modifications
PSD applies to new major sources or
major modifications for pollutants
where the area in which the source is
located is in attainment of, or is
unclassifiable with regard to, the
relevant NAAQS. RI DEM’s EPAapproved PSD rules, contained at APCR
No. 9, contain provisions that address
most applicable infrastructure SIP
requirements related to all regulated
NSR pollutants.
EPA’s ‘‘Final Rule to Implement the 8Hour Ozone National Ambient Air
Quality Standard—Phase 2; Final Rule
to Implement Certain Aspects of the
1990 Amendments Relating to New
Source Review and Prevention of
Significant Deterioration as They Apply
in Carbon Monoxide, Particulate Matter,
and Ozone NAAQS; Final Rule for
Reformulated Gasoline’’ (Phase 2 Rule)
was published on November 29, 2005
(70 FR 71612). Among other
requirements, the Phase 2 Rule
obligated states to revise their PSD
programs to explicitly identify NOX as
a precursor to ozone. See 70 FR 71679.
This requirement is codified in 40 CFR
51.166, and requires that states submit
SIP revisions incorporating the
requirements of the rule, including
provisions that would treat NOX as a
precursor to ozone provisions. These
SIP revisions were to have been
submitted to EPA by states by June 15,
2007. See 70 FR 71683.
Rhode Island has already
incorporated several of the changes
required by the Phase 2 Rule but has not
made the necessary change to the
definition of ‘‘major stationary source’’
identifying NOX as a precursor to ozone.
The December 2017 infrastructure
submittal states that Rhode Island is
amending APCR No. 9 to comply with
40 CFR 51.166 regarding identifying
NOX as a precursor to ozone, and on
March 26, 2018, Rhode Island submitted
a SIP revision to address this deficiency.
EPA is currently reviewing this
submittal to verify that it satisfies this
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requirement. Therefore, we are
proposing to conditionally approve
section 110(a)(2)(C) with respect to this
requirement of the Phase 2 Rule for the
2012 PM2.5 NAAQS.
On May 16, 2008 (73 FR 28321), EPA
issued the Final Rule on the
‘‘Implementation of the New Source
Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers
(PM2.5)’’ (2008 NSR Rule). The 2008
NSR Rule finalized several new
requirements for SIPs to address sources
that emit direct PM2.5 and other
pollutants that contribute to secondary
PM2.5 formation. One of these
requirements is for NSR permits to
address pollutants responsible for the
secondary formation of PM2.5, otherwise
known as precursors. In the 2008 rule,
EPA identified precursors to PM2.5 for
the PSD program to be SO2 and NOX
(unless the state demonstrates to the
Administrator’s satisfaction or EPA
demonstrates that NOX emissions in an
area are not a significant contributor to
that area’s ambient PM2.5
concentrations). The 2008 NSR Rule
also specifies that Volatile Organic
Compounds (VOCs) are not considered
to be precursors to PM2.5 in the PSD
program unless the state demonstrates
to the Administrator’s satisfaction or
EPA demonstrates that emissions of
VOCs in an area are significant
contributors to that area’s ambient PM2.5
concentrations.
The explicit references to SO2, NOX,
and VOCs as they pertain to secondary
PM2.5 formation are codified at 40 CFR
51.166(b)(49)(i)(b) and 40 CFR
52.21(b)(50)(i)(b). As part of identifying
pollutants that are precursors to PM2.5,
the 2008 NSR Rule also required states
to revise the definition of ‘‘significant’’
as it relates to a net emissions increase
or the potential of a source to emit
pollutants. Specifically, 40 CFR
51.166(b)(23)(i) and 40 CFR
52.21(b)(23)(i) define ‘‘significant’’ for
PM2.5 to mean the following emissions
rates: 10 tons per year (tpy) of direct
PM2.5; 40 tpy of SO2; and 40 tpy of NOX
(unless the state demonstrates to the
Administrator’s satisfaction or EPA
demonstrates that NOX emissions in an
area are not a significant contributor to
that area’s ambient PM2.5
concentrations). The deadline for states
to submit SIP revisions to their PSD
programs incorporating these changes
was May 16, 2011. See 73 FR 28321 at
28341.5
5 EPA notes that on January 4, 2013, the U.S.
Court of Appeals for the D.C. Circuit, in Natural
Resources Defense Council v. EPA, 706 F.3d 428
(DC Cir.), held that EPA should have issued the
2008 NSR Rule in accordance with the CAA’s
requirements for PM10 nonattainment areas (Title I,
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On January 18, 2011, Rhode Island
submitted revisions to its PSD program
incorporating the necessary changes
obligated by the 2008 NSR Rule, with
respect to provisions that explicitly
identify precursors to PM2.5. EPA
approved Rhode Island’s 2011 SIP
revision on April 21, 2015 (80 FR
22106).
The 2008 NSR Rule did not require
states to immediately account for gases
that could condense to form particulate
matter, known as condensables, in PM2.5
and PM10 emission limits in NSR
permits. Instead, EPA determined that
states had to account for PM2.5 and PM10
condensables for applicability
determinations and in establishing
emissions limitations for PM2.5 and
PM10 in PSD permits beginning on or
after January 1, 2011. See 73 FR 28321
at 28334. This requirement is codified
in 40 CFR 51.166(b)(49)(i)(a) and 40
CFR 52.21(b)(50)(i)(a). Revisions to
states’ PSD programs incorporating the
inclusion of condensables were required
be submitted to EPA by May 16, 2011
(See 73 FR 28321 at 28341).
Rhode Island’s SIP-approved PSD
program does not contain the exact
language in 40 CFR 51.166(b)(49)(i)(a).
However, EPA has previously
determined that Rhode Island’s SIPapproved regulations define PM2.5 and
PM10 such that the state’s PSD program
adequately accounts for the condensable
fraction of PM2.5 and PM10. See 78 FR
63383 at 63386 (October 24, 2013).
Therefore, we are proposing that Rhode
Island meets the requirements of section
110(a)(2)(C) for the 2012 PM2.5 NAAQS
regarding the requirements of the 2008
NSR Rule.
part D, subpart 4), and not the general requirements
for nonattainment areas under subpart 1 (Natural
Resources Defense Council v. EPA, No. 08–1250).
As the subpart 4 provisions apply only to
nonattainment areas, EPA does not consider the
portions of the 2008 rule that address requirements
for PM2.5 attainment and unclassifiable areas to be
affected by the court’s opinion. Moreover, EPA does
not anticipate the need to revise any PSD
requirements promulgated by the 2008 NSR rule in
order to comply with the court’s decision.
Accordingly, EPA’s action on Rhode Island’s
infrastructure SIP in regard to Elements (C), D(i)(II),
or J with respect to the PSD requirements
promulgated by the 2008 implementation rule does
not conflict with the court’s opinion.
The Court’s decision with respect to the
nonattainment NSR requirements promulgated by
the 2008 implementation rule also does not affect
EPA’s action on the present infrastructure action.
EPA interprets the CAA to exclude nonattainment
area requirements, including requirements
associated with a nonattainment NSR program,
from infrastructure SIP submissions due three years
after adoption or revision of a NAAQS. Instead,
these elements are typically referred to as
nonattainment SIP or attainment plan elements,
which would be due by the dates statutorily
prescribed under subpart 2 through 5 under part D,
extending as far as 10 years following designations
for some elements.
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On October 20, 2010 (75 FR 64864),
EPA issued the final rule on the
‘‘Prevention of Significant Deterioration
(PSD) for Particulate Matter Less Than
2.5 Micrometers (PM2.5)—Increments,
Significant Impact Levels (SILs) and
Significant Monitoring Concentration
(SMC)’’ (2010 NSR Rule). This rule
established several components for
making PSD permitting determinations
for PM2.5, including a system of
‘‘increments,’’ which is the mechanism
used to estimate significant
deterioration of ambient air quality for
a pollutant. These increments are
codified in 40 CFR 51.166(c) and 40
CFR 52.21(c).
The 2010 NSR Rule also established a
new ‘‘major source baseline date’’ for
PM2.5 as October 20, 2010, and a new
trigger date for PM2.5 of October 20,
2011, in the definition of ‘‘minor source
baseline date.’’ These revisions are
codified in 40 CFR 51.166(b)(14)(i)(c)
and (b)(14)(ii)(c), and 40 CFR
52.21(b)(14)(i)(c) and (b)(14)(ii)(c).
Lastly, the 2010 NSR Rule revised the
definition of ‘‘baseline area’’ to include
a level of significance (SIL) of 0.3
micrograms per cubic meter (mg/m3),
annual average, for PM2.5. This change is
codified in 40 CFR 51.166(b)(15)(i) and
40 CFR 52.21(b)(15)(i). The December
2017 infrastructure submittal states that
Rhode Island is amending APCR No. 9
to comply with the 2010 NSR Rule, and
Rhode Island subsequently submitted
the March 26, 2018 SIP revision to
address these additional elements of
PM2.5 implementation in PSD
permitting. EPA is currently reviewing
the March 2018 submittal to verify that
it satisfies the requirements of the 2010
NSR Rule. Therefore, we are proposing
to conditionally approve this part of
sub-element 2 of section 110(a)(2)(C)
relating to requirements for state NSR
regulations outlined within our 2010
NSR regulation for the 2012 PM2.5
NAAQS.
With respect to Elements (C) and (J),
EPA interprets the Clean Air Act to
require each state to make an
infrastructure SIP submission for a new
or revised NAAQS that demonstrates
that the air agency has a complete PSD
permitting program meeting the current
requirements for all regulated NSR
pollutants. The requirements of Element
(D)(i)(II) may also be satisfied by
demonstrating the air agency has a
complete PSD permitting program
correctly addressing all regulated NSR
pollutants. Rhode Island has shown that
it currently has a PSD program in place
that covers all regulated NSR pollutants,
including GHGs, with the exception of
the deficiencies described elsewhere in
this document.
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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.’’
On August 19, 2015, EPA amended its
PSD and title V regulations to remove
from the Code of Federal Regulations
portions of those regulations that the
D.C. Circuit specifically identified as
vacated. EPA intends to further revise
the PSD and title V regulations to fully
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
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planned revisions to EPA’s PSD
regulations. EPA is not expecting states
to have revised their PSD programs in
anticipation of EPA’s additional actions
to revise its PSD program rules in
response to the court decisions for
purposes of infrastructure SIP
submissions. Instead, EPA is only
evaluating such submissions to assure
that the state’s program addresses GHGs
consistent with both the court decision,
and the revisions to PSD regulations
that EPA has completed at this time.
At present, EPA has determined that
Rhode Island’s SIP is sufficient to satisfy
Elements (C), (D)(i)(II), and (J) with
respect to GHGs. This is because the
PSD permitting program previously
approved by EPA into the SIP continues
to require that PSD permits issued to
‘‘anyway sources’’ contain limitations
on GHG emissions based on the
application of BACT. Rhode Island has,
however, removed step 2 from its PSD
permitting program and has submitted
these changes to EPA in its March 26,
2018 SIP submittal, which EPA is
reviewing to verify that it is consistent
with the D.C. Circuit’s vacated
provisions at 40 CFR 51.166(b)(48)(v).
Nevertheless, the presence of these
provisions in the previously-approved
plan does not render the infrastructure
SIP submission inadequate to satisfy
Elements (C), (D)(i)(II), and (J). The SIP
contains the PSD requirements for
applying the BACT requirement to GHG
emissions from ‘‘anyway sources’’ that
are necessary at this time. The
application of those requirements is not
impeded by the presence of other
previously-approved provisions
regarding the permitting of Step 2
sources. Accordingly, the Supreme
Court decision and subsequent D.C.
Circuit judgment do not prevent EPA’s
approval of Rhode Island’s
infrastructure SIP as to the requirements
of Elements (C), (as well as sub-elements
(D)(i)(II), and (J)(iii)).
For the purposes of the 2012 PM2.5
NAAQS infrastructure SIPs, EPA
reiterates that NSR Reform is not in the
scope of these actions.
In summary, we are proposing to
approve the majority of Rhode Island’s
submittal for this sub-element with
respect to the 2012 PM2.5 NAAQS, but
to conditionally approve the submittal
regarding the identification of NOX as a
precursor to ozone in the definition of
major stationary source and regarding
the revisions required by the 2010 NSR
Rule, as described above.
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1029
Sub-Element 3: Preconstruction
Permitting for Minor Sources and Minor
Modifications
To address the pre-construction
regulation of the modification and
construction of minor stationary sources
and minor modifications of major
stationary sources, an infrastructure SIP
submission should identify the existing
EPA-approved SIP provisions and/or
include new provisions that govern the
minor source pre-construction program
that regulates emissions of the relevant
NAAQS pollutants. EPA last approved
Rhode Island’s minor NSR program, on
May 7, 1981 (46 FR 25446) as well as
updates to that program. Since this date,
Rhode Island and EPA have relied on
the existing minor NSR program to
ensure that new and modified sources
not captured by the major NSR
permitting programs do not interfere
with attainment and maintenance of the
2012 PM2.5 NAAQS.
We are proposing to find that Rhode
Island meets 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.
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; 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.
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
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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
portion of Rhode Island’s December 6,
2017 SIP submission that addresses 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
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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, monitoring sites 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
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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 Rhode Island, as well
as additional analysis conducted by
EPA during review of Rhode Island’s
submittal.
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
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.6 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 correspond 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
through 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
(D.C. Cir. 2008), that upwind emission
reductions should be harmonized, to the
extent possible, with the attainment
deadlines for downwind areas.
Rhode Island’s Submission for Prongs 1
and 2
On December 6, 2017, RI DEM
submitted an infrastructure SIP for the
6 See 2015 ozone NAAQS RIA at: www3.epa.gov/
ttnecas1/docs/20151001ria.pdf.
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2012 PM2.5 NAAQS that addressed
prongs 1 and 2. The state’s SIP
submission 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
2017 submittal to determine whether it
fully addressed 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 Rhode Island will not
significantly contribute to
nonattainment or interfere with
maintenance of the 2012 PM2.5 NAAQS
in any other state.
Analysis of Rhode Island’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 Rhode
Island’s compliance with the Good
Neighbor provision for the 2012
standard.
This CSAPR modeling showed that
Rhode Island had no discernable impact
(0.000 mg/m3) on the Liberty monitor in
Allegheny County, which is the only
out-of-state monitor that may be a
nonattainment or maintenance receptor
in 2021. Although EPA has not
proposed a specific threshold for
evaluating the 2012 PM2.5 NAAQS, EPA
notes that Rhode Island’s impact on the
Liberty monitor is far below the
threshold of 1% for the annual PM2.5
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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 Rhode
Island 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 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
through 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.
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1031
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.7 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
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
and final approval of the Ohio
Infrastructure SIP (82 FR 57689,
December 7, 2017and 83 FR 4845,
February 2, 2018).
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
Rhode Island’s impact to all these
downwind receptors would be well
below the 1% contribution threshold for
this NAAQS. That conclusion informs
the analysis of Rhode Island’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 during the 2007 through
2009 period to the 2013 through 2015
period, EPA concludes that it is highly
unlikely that Rhode Island significantly
7 www.achd.net/air/pubs/SIPs/SO2_2010_
NAAQS_SIP_9-14-2017.pdf.
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contributes to nonattainment or
interferes with maintenance of the 2012
PM2.5 NAAQS in areas with data-quality
issues.8
Information in Rhode Island’s
December 2017 SIP submission
corroborates EPA’s proposed conclusion
that Rhode Island’s SIP meets its Good
Neighbor obligations. The state’s
technical analysis in that submission
includes 24-hour and annual PM2.5
values for 2013 through 2015 for the six
official monitors in Rhode Island as well
as for monitors in the neighboring states
of Massachusetts and Connecticut, a list
of Rhode Island’s 10 largest point
sources of PM2.5, and results of EPA’s
CSAPR modeling. As mentioned above,
the state’s PM2.5 design values for all
ambient monitors have been well below
the 2012 PM2.5 NAAQS since 2007
through 2009. In addition, the 24-hour
and annual design values for all
monitors in the neighboring states of
Massachusetts and Connecticut also
have been below the 2012 PM2.5 NAAQS
since 2007 through 2009.
At specific monitors in Rhode Island,
the highest 24-hour and annual mean
values satisfying minimum data
completion criteria were 49 mg/m3 in
1999 and 14.9 mg/m3 in 2000,
respectively, at a monitor in
Providence.9 However, since 2004, all
monitors in the state have been below
the 2012 PM2.5 NAAQS.
Second, Rhode Island’s sources are
well-controlled. Rhode Island’s 2017
submission indicates that the state has
many SIP-approved regulations and
programs that limit emissions of PM2.5
and the PM2.5 precursors SO2 and
NOX.10 Among others, these regulations
include APCR No. 3 ‘‘Particulate
Emissions from Industrial Processes’’
(81 FR 47708; July 22, 2016); APCR No.
8 ‘‘Sulfur Content of Fuels’’ (83 FR
39888; August 13, 2018); APCR No. 9
‘‘Air Pollution Control Permits’’ (78 FR
63383; October 24, 2013); APCR No. 13
‘‘Particulate Emissions from Fossil Fuel
Fired Steam or Hot Water Generating
Units’’ (48 FR 13026; March 29, 1983);
and APCR No. 27 ‘‘Control of Nitrogen
Oxide Emissions’’ (83 FR 39888; August
13, 2018).
It should also be noted that Rhode
Island is not in the CSAPR program
because EPA analyses show that the
8 Rhode
Island’s PM2.5 design values for all
ambient monitors are available in the Design Value
Reports at https://19january2017snapshot.epa.gov/
air-trends/air-quality-design-values_.html.
9 24-hour and annual PM
2.5 monitor values for
individual monitoring sites throughout Rhode
Island are available at https://www.epa.gov/
outdoor-air-quality-data/monitor-values-report.
10 SO and NO contribute to the formation of
2
X
PM2.5.
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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 Rhode Island’s conclusions
and proposes to determine that Rhode
Island will not significantly contribute
to nonattainment or interfere with
maintenance of the 2012 PM2.5 NAAQS
in any other state. Therefore, EPA
proposes to approve the December 2017
infrastructure SIP submission from
Rhode Island with regard to 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. One way for a state to meet this
requirement, specifically with respect to
in-state sources and pollutants that are
subject to PSD permitting, is through a
comprehensive PSD permitting program
that applies to all regulated NSR
pollutants and that satisfies the
requirements of EPA’s PSD
implementation rules. For in-state
sources not subject to PSD, this
requirement can be satisfied through a
fully-approved nonattainment new
source review (NNSR) program with
respect to any previous NAAQS. EPA
approved Rhode Island’s latest NNSR
regulations on April 21, 2015 (80 FR
22106). These regulations contain
provisions for how the state must treat
and control sources in nonattainment
areas, consistent with 40 CFR 51.165, or
appendix S to 40 CFR 51.
As noted above and in Element (C),
Rhode Island’s PSD program does not
fully satisfy the requirements of EPA’s
PSD implementation rules. As stated
previously, Rhode Island submitted, on
March 26, 2018, a SIP revision to
address these deficiencies, and EPA is
reviewing this submittal to verify that it
satisfies the required provisions.
Consequently, we are proposing to
conditionally approve Rhode Island’s
infrastructure SIP submission for the
2012 PM2.5 NAAQS related to section
110(a)(2)(D)(i)(II) Prong 3 for the reasons
discussed under Element (C).
Sub-Element 3: Section
110(a)(2)(D)(i)(II)—Visibility Protection
(Prong 4)
Regarding the applicable
requirements for visibility protection of
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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, 2011, and 2013
memoranda 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.
Rhode Island’s Regional Haze SIP was
approved by EPA on May 22, 2012 (77
FR 30214). Accordingly, EPA proposes
that Rhode Island meets the visibility
protection requirements of
110(a)(2)(D)(i)(II) for the 2012 PM2.5
NAAQS.
Sub-Element 4: Section
110(a)(2)(D)(ii)—Interstate Pollution
Abatement
This sub-element requires that each
SIP 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.
EPA approved Rhode Island’s PSD
program, as well as updates to that
program, with the most recent approval
occurring on April 21, 2015 (80 FR
22106), which includes a provision
requiring notice to neighboring states of
RI DEM’s intention to either issue a
draft PSD permit or deny a permit
application. See APCR No. 9, section
9.12.3(e). Therefore, we propose to
approve Rhode Island’s compliance
with the infrastructure SIP requirements
of section 126(a) with respect to the
2012 PM2.5 NAAQS. Rhode Island has
no obligations under any other
provision of section 126.
Sub-Element 5: Section
110(a)(2)(D)(ii)—International Pollution
Abatement
This sub-element also requires each
SIP to contain provisions requiring
compliance with the applicable
requirements of section 115 relating to
international pollution abatement.
Rhode Island does not have any pending
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obligations under section 115 for the
2012 PM2.5 NAAQS. Therefore, EPA is
proposing that Rhode Island meets 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 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 under
CAA section 128 about state boards.
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 retains 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 Rhode Island does not rely
upon local or regional governments or
agencies for the implementation of its
SIP provisions.
Sub-Element 1: Adequate Personnel,
Funding, and Legal Authority Under
State Law To Carry Out Its SIP, and
Related Issues
Rhode Island, through its
infrastructure SIP submittals, has
documented that its air agency has the
requisite authority and resources to
carry out its SIP obligations. Rhode
Island cites to RIGL § 23–23–5, which
provides the Director of DEM with the
legal authority to enforce air pollution
control requirements. Additionally, this
statute provides the Director with the
authority to assess preconstruction
permit fees and annual operating permit
fees from air emissions sources and
establishes a general revenue reserve
account within the general fund to
finance the state clean air programs. RI
DEM further cites APCR No. 28,
‘‘Operating Permit Fees,’’ which
requires that major sources pay annual
operating permit fees. Finally, Section
III of the 1972 RI SIP specifies RI DEM’s
legal authority to implement SIP
measures, and Section VII of the 1972
SIP describes the resources and
manpower estimates for RI DEM.
EPA proposes that Rhode Island
meets the infrastructure SIP
requirements of this portion of section
110(a)(2)(E) with respect to the 2012
PM2.5 NAAQS.
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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.
In Rhode Island, no board or body
approves permits or enforcement orders;
these are approved by the Director of RI
DEM. Thus, with respect to this subelement, Rhode Island is subject only to
the requirements of paragraph (a)(2) of
section 128 of the CAA (regarding
conflicts of interest). The Rhode Island
Code of Ethics (RIGL § 36–14) applies to
state employees and public officials and
requires disclosure of potential conflicts
of interest. It also provides that ‘‘No
person subject to this Code of Ethics
shall have any interest, financial or
otherwise, direct or indirect, or engage
in any business, employment,
transaction, or professional activity, or
incur any obligation of any nature,
which is in substantial conflict with the
proper discharge of his or her duties or
employment in the public interest and
of his or her responsibilities.’’ See RIGL
§ 36–14–5(a). RIGL §§ 36–14–1 through
–7 were approved by EPA into the
Rhode Island SIP on April 20, 2016 (81
FR 23175).
Consequently, EPA proposes that
Rhode Island has met the applicable
infrastructure SIP requirements for this
sub-element for the 2012 PM2.5 NAAQS.
F. Section 110(a)(2)(F)—Stationary
Source Monitoring System
States must establish a system to
monitor emissions from stationary
sources and submit periodic emissions
reports. Each plan shall also require the
installation, maintenance, and
replacement of equipment, and the
implementation of other necessary
steps, by owners or operators of
stationary sources to monitor emissions
from such sources. The state plan shall
also require periodic reports on the
nature and amounts of emissions and
emissions-related data from such
sources, and correlation of such reports
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1033
by each state agency with any emission
limitations or standards. Lastly, the
reports shall be available at reasonable
times for public inspection.
Rhode Island’s infrastructure
submittal references existing state laws
and regulations previously approved by
EPA that require sources to monitor
emissions and submit reports and that
provide for the correlation of emissions
data with emission limitations and for
the public availability of emission data.
For example, Rhode Island’s submittal
references RIGL § 23–23–5(16), which
authorizes RI DEM to require a source
to install, maintain, and use air
pollution emission monitoring devices
and to submit periodic reports on the
nature and amounts of emissions. In
addition, under RIGL § 23–23–13 and
the Rhode Island public records act, see
RIGL Title 38, emissions data are made
available to the public and are not
protected as ‘‘trade secret or proprietary
information.’’ With respect to state
regulations, APCR No. 9, ‘‘Air Pollution
Control Permits,’’ requires emissions
testing of permitted processes within
180 days of full operation and specifies
that preconstruction permits issued
contain an emissions testing section. In
addition, APCR No. 6, ‘‘Continuous
Emission Monitors,’’ requires certain
sources to install, calibrate, operate, and
maintain a continuous emission
monitoring system and to report certain
emissions-related data to RI DEM.
Finally, APCR No. 14, ‘‘Record Keeping
and Reporting,’’ requires emission
sources to report emissions and other
data to RI DEM annually, and provides
that information in certain reports
obtained pursuant to APCR No. 14 ‘‘will
be correlated with applicable emission
and other limitations and will be
available for public inspection.’’
Therefore, EPA proposes that Rhode
Island meets 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 comparable
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
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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 a combination
of state statutes and regulations
discussed in RI DEM’s submittal
provides for authority comparable to
that in CAA section 303. The statutes
and regulations are: RIGL §§ 10–20, 23–
23–16, 23–23.1–5, 23–23.1–7, 23–23.1–
8, 42–17.1–2, and APCR No. 7. In our
proposal to approve this requirement for
Rhode Island’s infrastructure SIP
submissions for the 1997 PM2.5, 2006
PM2.5, 2008 lead, 2008 ozone, 2010 NO2,
and 2010 SO2 NAAQS (81 FR 10168;
February 29, 2016), we explained how
this combination of authorities provides
Rhode Island with authority comparable
to that in CAA § 303. See 81 FR 10168,
10177 (February 29, 2016). These
statutes and the regulation apply in the
same manner to particulate matter
emissions as they do to emissions of the
other NAAQS pollutants. Accordingly,
for the reasons contained in our
proposal to approve this element for the
1997 PM2.5, 2006 PM2.5, 2008 lead, 2008
ozone, 2010 NO2, and 2010 SO2
infrastructure SIPs, we propose to find
that this combination of state statutes
and regulations provide for authority
comparable to that in CAA § 303 for the
2012 PM2.5 infrastructure SIP.
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. See 40
CFR 51.152(c). A contingency plan is
not required if the entire state is
classified as Priority III for a particular
pollutant. Id. There is only one AQCR
in Rhode Island—the Metropolitan
Providence Interstate AQCR—and
Rhode Island’s portion thereof is
classified as a Priority I area for PM,
SOX, carbon monoxide, and ozone and
as a Priority III area for NO2. See 40 CFR
52.2071. 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). See 40 CFR 51.150.
Consequently, Rhode Island’s SIP is not
required to contain an emergency
contingency plan meeting the specific
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requirements of 40 CFR 51.151 and
51.152 with respect to the 2012 PM2.5
NAAQS.
Although PM2.5 is not explicitly
included in the contingency plan
requirements of 40 CFR subpart H, the
EPA 2009 memorandum recommends in
the context of the 2006 PM2.5 NAAQS
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 Rhode Island’s certified
air-quality data in EPA’s Air Quality
System (AQS) indicates that the highest
24-hour PM2.5 concentration since 2006
(i.e., data through 2017) is 92.5 mg/m3,
which occurred in 2015 at a monitor in
Providence. Although not expected, if
PM2.5 conditions were to change, Rhode
Island does have general authority, as
noted previously (81 FR 10168;
February 29, 2016), to order a source to
cease operations if it is determined that
emissions from the source pose an
immediate danger, or unreasonable and
emergency risk, to public health or
safety or to the environment. In
addition, Rhode Island posts near realtime air-quality data, air-quality
predictions and historical data on the RI
DEM website. RI DEM’s predictions are
also displayed daily in the Providence
Journal. Alerts are sent by email to
many affected parties, including
emissions sources, concerned
individuals, schools, health and
environmental agencies and the media.
Alerts include information about the
health implications of elevated
pollutant levels and list actions to
reduce emissions. Furthermore, daily
forecasted ozone and fine-particle levels
are made available on the internet
through the EPA AirNow and
EnviroFlash systems. Information about
these two systems is available on EPA’s
website at www.airnow.gov. Notices are
sent to EnviroFlash participants when
levels are forecast to exceed the current
8-hour ozone or 24-hour PM2.5 standard.
EPA proposes that Rhode Island
meets the applicable infrastructure SIP
requirements for 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 in response to:
Changes in the NAAQS, availability of
improved methods for attaining the
NAAQS, or an EPA finding that the SIP
is substantially inadequate. In 1973, it
was determined that Rhode Island’s
original SIP did not fully satisfy section
110(a)(2)(H) and EPA promulgated
federal regulations to address the gap in
the SIP. See 40 CFR 52.2080. Since
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Rhode Island’s December 6, 2017,
submittal does not address the gap in
the SIP that led to a disapproval in
1973, EPA proposes to find that Rhode
Island has not met applicable
infrastructure SIP requirements for
element (H) with respect to the 2012
PM2.5 NAAQS. Accordingly, EPA
proposes to disapprove the state’s
submittal for element (H). No further
action by EPA or the state is required,
however, because remedying federal
regulations are already in place.
Moreover, mandatory sanctions under
CAA section 179 are inapplicable,
because the submittal is not required
under CAA title I part D nor in response
to a SIP call under CAA section
110(k)(5).
I. Section 110(a)(2)(I)—Nonattainment
Area Plan or Plan Revisions Under Part
D
The CAA requires that each plan or
plan revision for an area designated as
a nonattainment area meet the
applicable requirements of part D of the
CAA. Part D relates to nonattainment
areas. EPA has determined that section
110(a)(2)(I) is not applicable to the
infrastructure SIP process. Instead, EPA
takes action on part D attainment plans
through separate processes.
J. Section 110(a)(2)(J)—Consultation
With Government Officials; Public
Notifications; Prevention of Significant
Deterioration; Visibility Protection
Section 110(a)(2)(J) of the CAA
requires that each SIP meet the
applicable requirements of section 121
of the CAA (relating to consultation),
section 127 of the CAA (relating to
public notification), and part C of
subchapter I of the CAA (relating to PSD
and visibility protection). The
evaluation of the submission from
Rhode Island 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.
Rhode Island General Law § 23–23–5,
authorizes the RI DEM Director ‘‘[t]o
advise, consult, and cooperate with the
cities and towns and other agencies of
the state, federal government, and other
states and interstate agencies, and with
effective groups in industries in
furthering the purposes of this chapter.’’
EPA approved this statute into Rhode
Island’s SIP on April 20, 2016. See 81
FR 23175. In addition, APCR No. 9,
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which is in Rhode Island’s SIP, see 78
FR 63383 (October 24, 2013), directs RI
DEM to notify relevant municipal
officials and FLMs, among others, of
tentative determinations by RI DEM
with respect to permit applications for
major stationary sources and major
modifications.
EPA proposes that Rhode Island has
met the infrastructure SIP requirements
of this portion of section 110(a)(2)(J)
with respect to the 2012 PM2.5 NAAQS.
Sub-Element 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.
Rhode Island’s APCR No. 10, ‘‘Air
Pollution Episodes,’’ specifies criteria
for, and measures to be implemented
during, air pollution alerts, warnings,
and episodes. In addition, the RI DEM
website includes near real-time air
quality data, air quality predictions and
a record of historical data. DEM’s
predictions are also displayed daily in
the Providence Journal, a newspaper
with statewide circulation. Alerts are
sent by email to many affected parties,
including emissions sources, concerned
individuals, schools, health and
environmental agencies and the media.
Alerts include information about the
health implications of elevated
pollutant levels and list actions to
reduce emissions. In addition, AQS
summaries of the year’s air-qualitymonitoring results are issued annually.
The summaries are sent to a mailing list
of interested parties and posted on the
RI DEM website. Rhode Island is also an
active partner in EPA’s AirNow and
EnviroFlash air-quality alert programs.
EPA proposes that Rhode Island meets
the infrastructure SIP requirements of
this portion of section 110(a)(2)(J) with
respect to the 2012 PM2.5 NAAQS.
Sub-Element 3: PSD
State plans must meet applicable
requirements of part C of the CAA
related to PSD. Rhode Island’s PSD
program in the context of infrastructure
SIPs has already been discussed in the
paragraphs addressing sections
110(a)(2)(C) and 110(a)(2)(D)(i)(II) and,
as we have noted, does not fully satisfy
the requirements of EPA’s PSD
implementation rules. However, the
December 2017 infrastructure submittal
states that Rhode Island is amending
APCR No. 9 to comply with 40 CFR
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51.166 regarding PM2.5 emissions and
identifying NOX as a precursor to ozone.
As stated previously, Rhode Island
submitted, on March 26, 2018, a SIP to
address these deficiencies, which EPA
is currently reviewing to verify that it
satisfies the required provisions.
Consequently, we are proposing to
conditionally approve the PSD subelement of section 110(a)(2)(J) for the
2012 PM2.5 NAAQS, consistent with the
actions we are proposing for sections
110(a)(2)(C) and 110(a)(2)(D)(i)(II).
Sub-Element 4: Visibility Protection
Regarding 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 memorandum, 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 Rhode Island meets 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
Section 110(a)(2)(K) of the Act
requires that a SIP provide for the
performance of such air-quality
modeling as the EPA Administrator may
prescribe for the purpose of predicting
the effect on ambient air quality of any
emissions of any air pollutant for which
EPA has established a NAAQS, and the
submission, upon request, of data
related to such air quality modeling.
EPA has published the Guideline on Air
Quality Models (‘‘Guideline’’) at 40 CFR
part 51, Appendix W, for predicting the
effects of emissions of criteria pollutants
on ambient air quality. The Guideline is
used by EPA, other federal, state,
territorial, local, and tribal air quality
agencies, and industry to prepare and
review new or modified source permits,
SIP submittals or revisions, conformity,
and other air quality assessments
required under the CAA and EPA
regulations. EPA has interpreted section
110(a)(2)(K) to require a state submit or
reference the statutory or regulatory
provisions that provide the air agency
with the authority to conduct such air
quality modeling and to provide such
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1035
modeling data to EPA upon request. See
2013 Memorandum at 55.
Rhode Island state law implicitly
authorizes RI DEM to perform air
quality modeling and to provide such
modeling data to EPA upon request. See
RIGL §§ 23–23–2, 23–23–5. In addition,
Rhode Island APCR No. 9, ‘‘Air
Pollution Control Permits,’’ requires
permit applicants to submit air quality
modeling based on applicable air
quality models, data bases, and other
requirements specified in the Guideline
in Appendix W to demonstrate impacts
of new and modified major sources. The
modeling data are sent to EPA along
with the draft major permit.
The state also collaborates with the
Ozone Transport Commission (OTC)
and the Mid-Atlantic Regional Air
Management Association and EPA to
perform large-scale urban airshed
modeling for ozone and PM, if
necessary. EPA proposes that Rhode
Island meets 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.
Section 23–23–5 of the RIGL provides
RI DEM with the authority to collect
fees for preconstruction permits and
operating permits for air emissions
sources. In addition, RI DEM’s ‘‘Rules
and Regulations Governing the
Establishment of Various Fees’’ sets
forth permit fee requirements for air
emissions sources and the legal
authority to collect those fees. These
rules and regulations are promulgated
pursuant to RIGL Chapter 23–23 Air
Pollution, and Chapter 42–35,
Administrative Procedures. Rhode
Island’s infrastructure SIP submittal also
refers to its regulations implementing its
operating permit program pursuant to
40 CFR part 70. Rhode Island’s title V
permitting program, APCR No. 28,
‘‘Operating Permit Fees,’’ requires major
sources to pay annual operating permit
fees. EPA’s full approval of Rhode
Island’s title V program (APCR No. 28)
became effective on November 30, 2001.
See 66 FR 49839 (October 1, 2001). To
gain this approval, Rhode Island
demonstrated the ability to collect
sufficient fees to run the program. The
fees collected from title V sources are
above the presumptive minimum in
accordance with 40 CFR 70.9(b)(2)(i).
EPA proposes that Rhode Island meets
the infrastructure SIP requirements of
section 110(a)(2)(L) for the 2012 PM2.5
NAAQS.
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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. Rhode
Island’s infrastructure submittals
reference RIGL § 23–23–5, which
provides for consultation with affected
local political subdivisions and
authorizes the RI DEM Director ‘‘to
advise, consult, and cooperate with the
cities and towns and other agencies of
the state . . . and other states and
interstate agencies . . . in furthering the
purposes of’’ the state Clean Air Act
(i.e., RIGL chapter 23–23). EPA proposes
that Rhode Island meets 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 SIP
submitted by Rhode Island on December
6, 2017, for the 2012 PM2.5 NAAQS,
with the exception of certain aspects
relating to the state’s PSD program,
including 110(a)(2)(C)2, (D)2, and (J)3,
which we are proposing to conditionally
approve, and section 110(a)(2)(H),
which we are proposing to disapprove.
In regard to section (H), no further
action by EPA or the state is required,
however, since federal regulations are
already in place that address the gap in
the state’s submittal with respect to
element (H).
Specifically, EPA’s proposed action
regarding each infrastructure SIP
requirement is contained in Table 1
below.
TABLE 1—PROPOSED ACTION ON RHODE ISLAND’S INFRASTRUCTURE SIP SUBMITTAL FOR THE 2012 PM2.5 NAAQS
2012 PM2.5
NAAQS
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
D
+
A
A
A*
+
A
A
A
In the above table, the key is as
follows:
A .....................
A* ....................
D .....................
+ ......................
NA ...................
Approve.
Approve but conditionally approve aspect of PSD program relating to the identification of NOX as a precursor of ozone and the
revisions required by the 2010 NSR rule.
Disapprove, but no further action required because federal regulations already in place.
Not germane to infrastructure SIPs.
Not applicable.
As noted in Table 1, we are proposing
to conditionally approve portions of
Rhode Island’s infrastructure SIP
submittals pertaining to the state’s PSD
program for the 2012 PM2.5 NAAQS.
Under section 110(k)(4) of the Act, EPA
may conditionally approve a plan based
on a commitment from the State to
adopt specific enforceable measures by
a date certain, but not later than 1 year
from the date of approval. If EPA
conditionally approves the commitment
in a final rulemaking action, the State
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must meet its commitment to submit an
update to its PSD program that fully
remedies the deficiencies mentioned
above under element (C). If the State
fails to do so, this action will become a
disapproval one year from the date of
final approval. EPA will notify the State
by letter that this action has occurred.
At that time, this commitment will no
longer be a part of the approved Rhode
Island SIP. EPA subsequently will
publish a document in the Federal
Register notifying the public that the
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conditional approval automatically
converted to a disapproval. If the State
meets its commitment, within the
applicable time frame, the conditionally
approved submission will remain a part
of the SIP until EPA takes final action
approving or disapproving the new
submittal. If EPA disapproves the new
submittal, the conditionally approved
infrastructure SIP elements for all
affected pollutants will be disapproved.
In addition, a final disapproval triggers
the Federal Implementation Plan
E:\FR\FM\01FEP1.SGM
01FEP1
Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules
requirement under section 110(c). If
EPA approves the new submittal, the
PSD program and relevant infrastructure
SIP elements will be fully approved and
replace the conditionally approved
program in the SIP.
EPA is soliciting public comments on
the issues discussed in this proposal or
on other relevant matters. These
comments will be considered before
EPA takes final action. Interested parties
may participate in the Federal
rulemaking procedure by submitting
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 Orders12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• This action is not expected to be an
Executive Order 13771 regulatory action
because this action is not significant
under Executive Order 12866;
• 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);
VerDate Sep<11>2014
16:27 Jan 31, 2019
Jkt 247001
• 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: December 19, 2018.
Alexandra Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2019–00658 Filed 1–31–19; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2018–0064; FRL–9988–81–
Region 4]
Air Plan Approval; Georgia: Permit
Exemption for Fire Fighting Equipment
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA or Agency) is proposing to
approve two revisions to the Georgia
State Implementation Plan (SIP),
submitted by the State of Georgia,
through the Georgia Environmental
Protection Division (Georgia EPD), with
two letters dated November 13, 2017,
and July 31, 2018. Specifically, EPA is
proposing to approve changes that
SUMMARY:
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Fmt 4702
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1037
revise existing exemptions for
firefighting equipment. EPA is
proposing to approve this SIP revision
because the Agency believes that it is
consistent with the Clean Air Act (CAA
or Act).
DATES: Comments must be received on
or before March 4, 2019.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R04–
OAR–2018–0064 at https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, the full
EPA public comment policy,
information about CBI or multimedia
submissions, and general guidance on
making effective comments, please visit
https://www2.epa.gov/dockets/
commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT:
Andres Febres, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air, Pesticides
and Toxics Management Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW, Atlanta,
Georgia 30303–8960. The telephone
number is (404) 562–8966. Mr. Febres
can also be reached via electronic mail
at febres-martinez.andres@epa.gov.
SUPPLEMENTARY INFORMATION:
I. What action is the Agency proposing?
Through a letter dated November 13,
2017, Georgia EPD submitted a SIP
revision for EPA’s approval that
included several miscellaneous rule
amendments.1 Specifically, the
November 13, 2017, SIP revision
included changes to Georgia’s Air
Quality Control Rule 391–3–1–.01—
‘‘Definitions,’’ Rule 391–3–1–.02(4)—
‘‘Ambient Air Standards,’’ Rule 391–3–
1–.02(7)—‘‘Prevention of Significant
Deterioration of Air Quality,’’ Rule 391–
3–1–.03(6)—‘‘Exemptions,’’ Rule 391–3–
1 EPA notes that the Agency received this
submittal on November 29, 2017.
E:\FR\FM\01FEP1.SGM
01FEP1
Agencies
[Federal Register Volume 84, Number 22 (Friday, February 1, 2019)]
[Proposed Rules]
[Pages 1025-1037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00658]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2017-0443; FRL-9988-28-Region 1]
Air Plan Approval; Rhode Island; 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 most elements of a State Implementation Plan (SIP) submission
from Rhode Island that addresses the infrastructure requirements of the
Clean Air Act (CAA or Act) for the 2012 fine particle
(PM2.5) National Ambient Air Quality Standard (NAAQS). We
are also proposing to conditionally approve certain elements of this
submittal that relate to requirements for the state's Prevention of
Significant Deterioration (PSD) program. In addition, EPA is proposing
to disapprove the submission with respect to future SIP revisions.
However, a federal implementation plan has been in place for this
requirement since 1973. 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
with respect to this NAAQS under the CAA.
DATES: Written comments must be received on or before March 4, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2017-0443 at https://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 https://www.epa.gov/dockets/commenting-epa-dockets. Publicly
available docket materials are available at https://www.regulations.gov
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional
Office, Office of Ecosystem Protection, Air Quality Planning Unit, 5
Post Office Square--Suite 100, Boston, MA. EPA requests that if at all
possible, you contact the contact listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your inspection. The Regional Office's
official hours of business are Monday through Friday, 8:30 a.m. to 4:30
p.m., excluding legal holidays.
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.
Table of Contents
I. Background and Purpose
A. What Rhode Island SIP submission does this rulemaking
address?
B. What is the scope of this rulemaking?
II. What guidance is EPA using to evaluate this SIP submission?
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
[[Page 1026]]
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 Rhode Island SIP submission does this rulemaking address?
This rulemaking addresses a December 6, 2017, submission from the
Rhode Island Department of Environmental Management (RI DEM) regarding
the infrastructure SIP requirements of the CAA for the 2012 fine
particle (PM2.5 \1\) National Ambient Air Quality Standard
(NAAQS). The primary, health-based annual standard is set at 12.0
micrograms per cubic meter ([micro]g/m\3\) and the 24-hour standard is
set at 35 [micro]g/m\3\. See 78 FR 3086. Under sections 110(a)(1) and
(2) of the CAA, states are required to provide infrastructure SIP
submissions to ensure that state 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 a SIP submission from RI DEP that addresses the
infrastructure requirements of the Act 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 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 rulemaking 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 this SIP submission?
EPA highlighted the statutory requirement to submit infrastructure
SIPs within 3 years of promulgation of a new NAAQS in an October 2,
2007, memorandum 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
memorandum). EPA has issued additional guidance documents and
memoranda, including a September 25, 2009, memorandum entitled
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2)
for the 2006 24-Hour Fine Particle (PM2.5) National Ambient
Air Quality Standards (NAAQS)'' (2009 memorandum), and a September 13,
2013, memorandum entitled ``Guidance on Infrastructure State
Implementation Plan (SIP) Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2)'' (2013 memorandum).\2\
---------------------------------------------------------------------------
\2\ These memoranda and other referenced guidance documents and
memoranda are included in the docket for today's action.
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With respect to the ``Good Neighbor'' or interstate transport
requirements for infrastructure SIPs, the most recent relevant EPA
guidance is 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
EPA is soliciting comment on our evaluation of Rhode Island's
infrastructure SIP submission in this notice of proposed rulemaking. In
Rhode Island's submission, a detailed list of Rhode Island Laws and
previously SIP-approved Air Quality Regulations show 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.
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
[[Page 1027]]
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.
---------------------------------------------------------------------------
\3\ See, for example, EPA's final rule on ``National Ambient Air
Quality Standards for Lead.'' 73 FR 66964, 67034 (November 12,
2008).
---------------------------------------------------------------------------
The Rhode Island submittal cites Rhode Island General Laws (RIGL)
and RI Air Pollution Control Regulations (APCR) that the state has
adopted to control the emissions of criteria pollutants, including
PM2.5, and PM2.5 precursors sulfur dioxide
(SO2) and nitrogen oxides (NOX).
RIGL Sec. 23-23-5(12), ``Powers and duties of the director,''
authorizes the RI DEM Director ``to make, issue, and amend rules and
regulations . . . for the prevention, control, abatement, and
limitation of air pollution . . . .'' In addition, this section
authorizes the Director to ``prohibit emissions, discharges and/or
releases and . . . require specific control technology.'' The Rhode
Island submittal cites more than a dozen specific rules that the state
has adopted to control the emissions of PM2.5 and the
PM2.5 precursors SO2 and NOX. A few,
with their EPA approval citation are listed here: No. 3--Particulate
Emissions from Industrial Processes (81 FR 47708; July 22, 2016); No.
5--Fugitive Dust (46 FR 25446; May 7, 1981); No. 8--Sulfur Content of
Fuels (83 FR 39888; August 13, 2018); No. 9--Air Pollution Control
Permits (78 FR 63383; October 24, 2013); No. 12--Incinerators (07/22/
2016; 81 FR 47708); No. 27--Control of Nitrogen Oxide Emissions (83 FR
39888; August 13, 2018); and No. 45--Rhode Island Diesel Engine Anti-
Idling Program (73 FR 16203; March 27, 2008). See 40 CFR 52.2070.
EPA proposes that Rhode Island 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 emissions 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 provide for establishment and
operation of appropriate devices, methods, systems, and procedures
necessary to monitor, compile, and analyze ambient air quality data,
and make such data available to EPA upon request. Each year, states
submit annual air monitoring network plans to EPA for review and
approval. EPA's review of these annual monitoring plans includes our
evaluation of whether the state: (i) Monitors air quality at
appropriate locations throughout the state using EPA-approved Federal
Reference Methods or Federal Equivalent Method monitors; (ii) submits
data to EPA's Air Quality System (AQS) in a timely manner; and (iii)
provides EPA Regional Offices with prior notification of any planned
changes to monitoring sites or the network plan.
RI DEM operates an air-quality monitoring network, and EPA approved
the state's most recent Annual Air Monitoring Network Plan for
PM2.5 on October 25, 2018.\4\ Furthermore, RI DEM populates
AQS with air quality monitoring data in a timely manner, and provides
EPA with prior notification when considering a change to its monitoring
network or plan. EPA proposes that RI DEM meets the infrastructure SIP
requirements of section 110(a)(2)(B) with respect to the 2012
PM2.5 NAAQS.
---------------------------------------------------------------------------
\4\ See EPA approval letter located in the docket for this
action.
---------------------------------------------------------------------------
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 new source review (NSR)
requirements under prevention of significant deterioration (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
The Rhode Island General Laws provide the Director of RI DEM with
the legal authority to enforce air pollution control requirements. Such
enforcement authority is provided by RIGL Sec. 23-23-5, which grants
the Director of RI DEM general enforcement power, inspection and
investigative authority, and the power to issue administrative orders,
among other things. In addition, APCR No. 9, ``Air Pollution Control
Permits,'' sets forth requirements for new and modified major and minor
stationary sources. Section 9.3 of the regulation contains specific
requirements for new and modified minor sources. Section 9.4 of the
regulation contains specific new source review requirements applicable
to major stationary source or major modifications located in
nonattainment areas. Section 9.5 contains specific new source review
requirements applicable to major stationary sources or major
modifications located in attainment or unclassifiable areas (PSD).
EPA proposes that Rhode Island has met the enforcement of SIP
measures requirements of section 110(a)(2)(C) with respect to the 2012
PM2.5 NAAQS.
Sub-Element 2: PSD Program for Major Sources and Major Modifications
PSD applies to new major sources or major modifications for
pollutants where the area in which the source is located is in
attainment of, or is unclassifiable with regard to, the relevant NAAQS.
RI DEM's EPA-approved PSD rules, contained at APCR No. 9, contain
provisions that address most applicable infrastructure SIP requirements
related to all regulated NSR pollutants.
EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects
of the 1990 Amendments Relating to New Source Review and Prevention of
Significant Deterioration as They Apply in Carbon Monoxide, Particulate
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase
2 Rule) was published on November 29, 2005 (70 FR 71612). Among other
requirements, the Phase 2 Rule obligated states to revise their PSD
programs to explicitly identify NOX as a precursor to ozone.
See 70 FR 71679. This requirement is codified in 40 CFR 51.166, and
requires that states submit SIP revisions incorporating the
requirements of the rule, including provisions that would treat
NOX as a precursor to ozone provisions. These SIP revisions
were to have been submitted to EPA by states by June 15, 2007. See 70
FR 71683.
Rhode Island has already incorporated several of the changes
required by the Phase 2 Rule but has not made the necessary change to
the definition of ``major stationary source'' identifying
NOX as a precursor to ozone. The December 2017
infrastructure submittal states that Rhode Island is amending APCR No.
9 to comply with 40 CFR 51.166 regarding identifying NOX as
a precursor to ozone, and on March 26, 2018, Rhode Island submitted a
SIP revision to address this deficiency. EPA is currently reviewing
this submittal to verify that it satisfies this
[[Page 1028]]
requirement. Therefore, we are proposing to conditionally approve
section 110(a)(2)(C) with respect to this requirement of the Phase 2
Rule for the 2012 PM2.5 NAAQS.
On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule).
The 2008 NSR Rule finalized several new requirements for SIPs to
address sources that emit direct PM2.5 and other pollutants
that contribute to secondary PM2.5 formation. One of these
requirements is for NSR permits to address pollutants responsible for
the secondary formation of PM2.5, otherwise known as
precursors. In the 2008 rule, EPA identified precursors to
PM2.5 for the PSD program to be SO2 and
NOX (unless the state demonstrates to the Administrator's
satisfaction or EPA demonstrates that NOX emissions in an
area are not a significant contributor to that area's ambient
PM2.5 concentrations). The 2008 NSR Rule also specifies that
Volatile Organic Compounds (VOCs) are not considered to be precursors
to PM2.5 in the PSD program unless the state demonstrates to
the Administrator's satisfaction or EPA demonstrates that emissions of
VOCs in an area are significant contributors to that area's ambient
PM2.5 concentrations.
The explicit references to SO2, NOX, and VOCs
as they pertain to secondary PM2.5 formation are codified at
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of
identifying pollutants that are precursors to PM2.5, the
2008 NSR Rule also required states to revise the definition of
``significant'' as it relates to a net emissions increase or the
potential of a source to emit pollutants. Specifically, 40 CFR
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for
PM2.5 to mean the following emissions rates: 10 tons per
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40
tpy of NOX (unless the state demonstrates to the
Administrator's satisfaction or EPA demonstrates that NOX
emissions in an area are not a significant contributor to that area's
ambient PM2.5 concentrations). The deadline for states to
submit SIP revisions to their PSD programs incorporating these changes
was May 16, 2011. See 73 FR 28321 at 28341.\5\
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\5\ EPA notes that on January 4, 2013, the U.S. Court of Appeals
for the D.C. Circuit, in Natural Resources Defense Council v. EPA,
706 F.3d 428 (DC Cir.), held that EPA should have issued the 2008
NSR Rule in accordance with the CAA's requirements for
PM10 nonattainment areas (Title I, part D, subpart 4),
and not the general requirements for nonattainment areas under
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250).
As the subpart 4 provisions apply only to nonattainment areas, EPA
does not consider the portions of the 2008 rule that address
requirements for PM2.5 attainment and unclassifiable
areas to be affected by the court's opinion. Moreover, EPA does not
anticipate the need to revise any PSD requirements promulgated by
the 2008 NSR rule in order to comply with the court's decision.
Accordingly, EPA's action on Rhode Island's infrastructure SIP in
regard to Elements (C), D(i)(II), or J with respect to the PSD
requirements promulgated by the 2008 implementation rule does not
conflict with the court's opinion.
The Court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 implementation rule also does
not affect EPA's action on the present infrastructure action. EPA
interprets the CAA to exclude nonattainment area requirements,
including requirements associated with a nonattainment NSR program,
from infrastructure SIP submissions due three years after adoption
or revision of a NAAQS. Instead, these elements are typically
referred to as nonattainment SIP or attainment plan elements, which
would be due by the dates statutorily prescribed under subpart 2
through 5 under part D, extending as far as 10 years following
designations for some elements.
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On January 18, 2011, Rhode Island submitted revisions to its PSD
program incorporating the necessary changes obligated by the 2008 NSR
Rule, with respect to provisions that explicitly identify precursors to
PM2.5. EPA approved Rhode Island's 2011 SIP revision on
April 21, 2015 (80 FR 22106).
The 2008 NSR Rule did not require states to immediately account for
gases that could condense to form particulate matter, known as
condensables, in PM2.5 and PM10 emission limits
in NSR permits. Instead, EPA determined that states had to account for
PM2.5 and PM10 condensables for applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10 in PSD permits beginning on or
after January 1, 2011. See 73 FR 28321 at 28334. This requirement is
codified in 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a).
Revisions to states' PSD programs incorporating the inclusion of
condensables were required be submitted to EPA by May 16, 2011 (See 73
FR 28321 at 28341).
Rhode Island's SIP-approved PSD program does not contain the exact
language in 40 CFR 51.166(b)(49)(i)(a). However, EPA has previously
determined that Rhode Island's SIP-approved regulations define
PM2.5 and PM10 such that the state's PSD program
adequately accounts for the condensable fraction of PM2.5
and PM10. See 78 FR 63383 at 63386 (October 24, 2013).
Therefore, we are proposing that Rhode Island meets the requirements of
section 110(a)(2)(C) for the 2012 PM2.5 NAAQS regarding the
requirements of the 2008 NSR Rule.
On October 20, 2010 (75 FR 64864), EPA issued the final rule on the
``Prevention of Significant Deterioration (PSD) for Particulate Matter
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)''
(2010 NSR Rule). This rule established several components for making
PSD permitting determinations for PM2.5, including a system
of ``increments,'' which is the mechanism used to estimate significant
deterioration of ambient air quality for a pollutant. These increments
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c).
The 2010 NSR Rule also established a new ``major source baseline
date'' for PM2.5 as October 20, 2010, and a new trigger date
for PM2.5 of October 20, 2011, in the definition of ``minor
source baseline date.'' These revisions are codified in 40 CFR
51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 52.21(b)(14)(i)(c)
and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of
``baseline area'' to include a level of significance (SIL) of 0.3
micrograms per cubic meter ([micro]g/m\3\), annual average, for
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i)
and 40 CFR 52.21(b)(15)(i). The December 2017 infrastructure submittal
states that Rhode Island is amending APCR No. 9 to comply with the 2010
NSR Rule, and Rhode Island subsequently submitted the March 26, 2018
SIP revision to address these additional elements of PM2.5
implementation in PSD permitting. EPA is currently reviewing the March
2018 submittal to verify that it satisfies the requirements of the 2010
NSR Rule. Therefore, we are proposing to conditionally approve this
part of sub-element 2 of section 110(a)(2)(C) relating to requirements
for state NSR regulations outlined within our 2010 NSR regulation for
the 2012 PM2.5 NAAQS.
With respect to Elements (C) and (J), EPA interprets the Clean Air
Act to require each state to make an infrastructure SIP submission for
a new or revised NAAQS that demonstrates that the air agency has a
complete PSD permitting program meeting the current requirements for
all regulated NSR pollutants. The requirements of Element (D)(i)(II)
may also be satisfied by demonstrating the air agency has a complete
PSD permitting program correctly addressing all regulated NSR
pollutants. Rhode Island has shown that it currently has a PSD program
in place that covers all regulated NSR pollutants, including GHGs, with
the exception of the deficiencies described elsewhere in this document.
[[Page 1029]]
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.''
On August 19, 2015, EPA amended its PSD and title V regulations to
remove from the Code of Federal Regulations portions of those
regulations that the D.C. Circuit specifically identified as vacated.
EPA intends to further revise the PSD and title V regulations to fully
implement the Supreme Court and D.C. Circuit rulings in a separate
rulemaking. This future rulemaking will include revisions to additional
definitions in the PSD regulations.
Some states have begun to revise their existing SIP-approved PSD
programs in light of these court decisions, and some states may prefer
not to initiate this process until they have more information about the
additional planned revisions to EPA's PSD regulations. EPA is not
expecting states to have revised their PSD programs in anticipation of
EPA's additional actions to revise its PSD program rules in response to
the court decisions for purposes of infrastructure SIP submissions.
Instead, EPA is only evaluating such submissions to assure that the
state's program addresses GHGs consistent with both the court decision,
and the revisions to PSD regulations that EPA has completed at this
time.
At present, EPA has determined that Rhode Island's SIP is
sufficient to satisfy Elements (C), (D)(i)(II), and (J) with respect to
GHGs. This is because the PSD permitting program previously approved by
EPA into the SIP continues to require that PSD permits issued to
``anyway sources'' contain limitations on GHG emissions based on the
application of BACT. Rhode Island has, however, removed step 2 from its
PSD permitting program and has submitted these changes to EPA in its
March 26, 2018 SIP submittal, which EPA is reviewing to verify that it
is consistent with the D.C. Circuit's vacated provisions at 40 CFR
51.166(b)(48)(v). Nevertheless, the presence of these provisions in the
previously-approved plan does not render the infrastructure SIP
submission inadequate to satisfy Elements (C), (D)(i)(II), and (J). The
SIP contains the PSD requirements for applying the BACT requirement to
GHG emissions from ``anyway sources'' that are necessary at this time.
The application of those requirements is not impeded by the presence of
other previously-approved provisions regarding the permitting of Step 2
sources. Accordingly, the Supreme Court decision and subsequent D.C.
Circuit judgment do not prevent EPA's approval of Rhode Island's
infrastructure SIP as to the requirements of Elements (C), (as well as
sub-elements (D)(i)(II), and (J)(iii)).
For the purposes of the 2012 PM2.5 NAAQS infrastructure
SIPs, EPA reiterates that NSR Reform is not in the scope of these
actions.
In summary, we are proposing to approve the majority of Rhode
Island's submittal for this sub-element with respect to the 2012
PM2.5 NAAQS, but to conditionally approve the submittal
regarding the identification of NOX as a precursor to ozone
in the definition of major stationary source and regarding the
revisions required by the 2010 NSR Rule, as described above.
Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor
Modifications
To address the pre-construction regulation of the modification and
construction of minor stationary sources and minor modifications of
major stationary sources, an infrastructure SIP submission should
identify the existing EPA-approved SIP provisions and/or include new
provisions that govern the minor source pre-construction program that
regulates emissions of the relevant NAAQS pollutants. EPA last approved
Rhode Island's minor NSR program, on May 7, 1981 (46 FR 25446) as well
as updates to that program. Since this date, Rhode Island and EPA have
relied on the existing minor NSR program to ensure that new and
modified sources not captured by the major NSR permitting programs do
not interfere with attainment and maintenance of the 2012
PM2.5 NAAQS.
We are proposing to find that Rhode Island meets 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.
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; 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.
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
[[Page 1030]]
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 portion
of Rhode Island's December 6, 2017 SIP submission that addresses 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, monitoring sites 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 Rhode Island, as well as additional
analysis conducted by EPA during review of Rhode Island's submittal.
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 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.\6\ 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 correspond
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 through 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 (D.C. Cir. 2008), that upwind
emission reductions should be harmonized, to the extent possible, with
the attainment deadlines for downwind areas.
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\6\ See 2015 ozone NAAQS RIA at: www3.epa.gov/ttnecas1/docs/20151001ria.pdf.
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Rhode Island's Submission for Prongs 1 and 2
On December 6, 2017, RI DEM submitted an infrastructure SIP for the
[[Page 1031]]
2012 PM2.5 NAAQS that addressed prongs 1 and 2. The state's
SIP submission 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 2017 submittal to determine
whether it fully addressed 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 Rhode Island will not
significantly contribute to nonattainment or interfere with maintenance
of the 2012 PM2.5 NAAQS in any other state.
Analysis of Rhode Island'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 Rhode Island's compliance
with the Good Neighbor provision for the 2012 standard.
This CSAPR modeling showed that Rhode Island had no discernable
impact (0.000 [mu]g/m\3\) on the Liberty monitor in Allegheny County,
which is the only out-of-state monitor that may be a nonattainment or
maintenance receptor in 2021. Although EPA has not proposed a specific
threshold for evaluating the 2012 PM2.5 NAAQS, EPA notes
that Rhode Island's impact on the Liberty monitor is far below the
threshold of 1% for the annual 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 Rhode Island 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 through 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.\7\ 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 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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\7\ 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 and final approval of the Ohio
Infrastructure SIP (82 FR 57689, December 7, 2017and 83 FR 4845,
February 2, 2018).
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 Rhode
Island's impact to all these downwind receptors would be well below the
1% contribution threshold for this NAAQS. That conclusion informs the
analysis of Rhode Island'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 during
the 2007 through 2009 period to the 2013 through 2015 period, EPA
concludes that it is highly unlikely that Rhode Island significantly
[[Page 1032]]
contributes to nonattainment or interferes with maintenance of the 2012
PM2.5 NAAQS in areas with data-quality issues.\8\
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\8\ Rhode Island's PM2.5 design values for all
ambient monitors are available in the Design Value Reports at
https://19january2017snapshot.epa.gov/air-trends/air-quality-design-values_.html.
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Information in Rhode Island's December 2017 SIP submission
corroborates EPA's proposed conclusion that Rhode Island's SIP meets
its Good Neighbor obligations. The state's technical analysis in that
submission includes 24-hour and annual PM2.5 values for 2013
through 2015 for the six official monitors in Rhode Island as well as
for monitors in the neighboring states of Massachusetts and
Connecticut, a list of Rhode Island's 10 largest point sources of
PM2.5, and results of EPA's CSAPR modeling. As mentioned
above, the state's PM2.5 design values for all ambient
monitors have been well below the 2012 PM2.5 NAAQS since
2007 through 2009. In addition, the 24-hour and annual design values
for all monitors in the neighboring states of Massachusetts and
Connecticut also have been below the 2012 PM2.5 NAAQS since
2007 through 2009.
At specific monitors in Rhode Island, the highest 24-hour and
annual mean values satisfying minimum data completion criteria were 49
[mu]g/m\3\ in 1999 and 14.9 [mu]g/m\3\ in 2000, respectively, at a
monitor in Providence.\9\ However, since 2004, all monitors in the
state have been below the 2012 PM2.5 NAAQS.
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\9\ 24-hour and annual PM2.5 monitor values for
individual monitoring sites throughout Rhode Island are available at
https://www.epa.gov/outdoor-air-quality-data/monitor-values-report.
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Second, Rhode Island's sources are well-controlled. Rhode Island's
2017 submission indicates that the state has many SIP-approved
regulations and programs that limit emissions of PM2.5 and
the PM2.5 precursors SO2 and NOX.\10\
Among others, these regulations include APCR No. 3 ``Particulate
Emissions from Industrial Processes'' (81 FR 47708; July 22, 2016);
APCR No. 8 ``Sulfur Content of Fuels'' (83 FR 39888; August 13, 2018);
APCR No. 9 ``Air Pollution Control Permits'' (78 FR 63383; October 24,
2013); APCR No. 13 ``Particulate Emissions from Fossil Fuel Fired Steam
or Hot Water Generating Units'' (48 FR 13026; March 29, 1983); and APCR
No. 27 ``Control of Nitrogen Oxide Emissions'' (83 FR 39888; August 13,
2018).
---------------------------------------------------------------------------
\10\ SO2 and NOX contribute to the
formation of PM2.5.
---------------------------------------------------------------------------
It should also be noted that Rhode Island 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 Rhode Island's
conclusions and proposes to determine that Rhode Island will not
significantly contribute to nonattainment or interfere with maintenance
of the 2012 PM2.5 NAAQS in any other state. Therefore, EPA
proposes to approve the December 2017 infrastructure SIP submission
from Rhode Island with regard to 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. One way for a state to meet this requirement, specifically with
respect to in-state sources and pollutants that are subject to PSD
permitting, is through a comprehensive PSD permitting program that
applies to all regulated NSR pollutants and that satisfies the
requirements of EPA's PSD implementation rules. For in-state sources
not subject to PSD, this requirement can be satisfied through a fully-
approved nonattainment new source review (NNSR) program with respect to
any previous NAAQS. EPA approved Rhode Island's latest NNSR regulations
on April 21, 2015 (80 FR 22106). These regulations contain provisions
for how the state must treat and control sources in nonattainment
areas, consistent with 40 CFR 51.165, or appendix S to 40 CFR 51.
As noted above and in Element (C), Rhode Island's PSD program does
not fully satisfy the requirements of EPA's PSD implementation rules.
As stated previously, Rhode Island submitted, on March 26, 2018, a SIP
revision to address these deficiencies, and EPA is reviewing this
submittal to verify that it satisfies the required provisions.
Consequently, we are proposing to conditionally approve Rhode Island's
infrastructure SIP submission for the 2012 PM2.5 NAAQS
related to section 110(a)(2)(D)(i)(II) Prong 3 for the reasons
discussed under Element (C).
Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection
(Prong 4)
Regarding the applicable requirements for visibility protection of
section 110(a)(2)(D)(i)(II), states are subject to visibility and
regional haze program requirements under part C of the CAA (which
includes sections 169A and 169B). The 2009, 2011, and 2013 memoranda
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.
Rhode Island's Regional Haze SIP was approved by EPA on May 22,
2012 (77 FR 30214). Accordingly, EPA proposes that Rhode Island meets
the visibility protection requirements of 110(a)(2)(D)(i)(II) for the
2012 PM2.5 NAAQS.
Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution Abatement
This sub-element requires that each SIP 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.
EPA approved Rhode Island's PSD program, as well as updates to that
program, with the most recent approval occurring on April 21, 2015 (80
FR 22106), which includes a provision requiring notice to neighboring
states of RI DEM's intention to either issue a draft PSD permit or deny
a permit application. See APCR No. 9, section 9.12.3(e). Therefore, we
propose to approve Rhode Island's compliance with the infrastructure
SIP requirements of section 126(a) with respect to the 2012
PM2.5 NAAQS. Rhode Island has no obligations under any other
provision of section 126.
Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution
Abatement
This sub-element also requires each SIP to contain provisions
requiring compliance with the applicable requirements of section 115
relating to international pollution abatement. Rhode Island does not
have any pending
[[Page 1033]]
obligations under section 115 for the 2012 PM2.5 NAAQS.
Therefore, EPA is proposing that Rhode Island meets 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 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
under CAA section 128 about state boards. 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 retains 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 Rhode Island does not rely upon local or regional governments
or agencies for the implementation of its SIP provisions.
Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under
State Law To Carry Out Its SIP, and Related Issues
Rhode Island, through its infrastructure SIP submittals, has
documented that its air agency has the requisite authority and
resources to carry out its SIP obligations. Rhode Island cites to RIGL
Sec. 23-23-5, which provides the Director of DEM with the legal
authority to enforce air pollution control requirements. Additionally,
this statute provides the Director with the authority to assess
preconstruction permit fees and annual operating permit fees from air
emissions sources and establishes a general revenue reserve account
within the general fund to finance the state clean air programs. RI DEM
further cites APCR No. 28, ``Operating Permit Fees,'' which requires
that major sources pay annual operating permit fees. Finally, Section
III of the 1972 RI SIP specifies RI DEM's legal authority to implement
SIP measures, and Section VII of the 1972 SIP describes the resources
and manpower estimates for RI DEM.
EPA proposes that Rhode Island meets 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.
In Rhode Island, no board or body approves permits or enforcement
orders; these are approved by the Director of RI DEM. Thus, with
respect to this sub-element, Rhode Island is subject only to the
requirements of paragraph (a)(2) of section 128 of the CAA (regarding
conflicts of interest). The Rhode Island Code of Ethics (RIGL Sec. 36-
14) applies to state employees and public officials and requires
disclosure of potential conflicts of interest. It also provides that
``No person subject to this Code of Ethics shall have any interest,
financial or otherwise, direct or indirect, or engage in any business,
employment, transaction, or professional activity, or incur any
obligation of any nature, which is in substantial conflict with the
proper discharge of his or her duties or employment in the public
interest and of his or her responsibilities.'' See RIGL Sec. 36-14-
5(a). RIGL Sec. Sec. 36-14-1 through -7 were approved by EPA into the
Rhode Island SIP on April 20, 2016 (81 FR 23175).
Consequently, EPA proposes that Rhode Island has met the applicable
infrastructure SIP requirements for this sub-element for the 2012
PM2.5 NAAQS.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
States must establish a system to monitor emissions from stationary
sources and submit periodic emissions reports. Each plan shall also
require the installation, maintenance, and replacement of equipment,
and the implementation of other necessary steps, by owners or operators
of stationary sources to monitor emissions from such sources. The state
plan shall also require periodic reports on the nature and amounts of
emissions and emissions-related data from such sources, and correlation
of such reports by each state agency with any emission limitations or
standards. Lastly, the reports shall be available at reasonable times
for public inspection.
Rhode Island's infrastructure submittal references existing state
laws and regulations previously approved by EPA that require sources to
monitor emissions and submit reports and that provide for the
correlation of emissions data with emission limitations and for the
public availability of emission data. For example, Rhode Island's
submittal references RIGL Sec. 23-23-5(16), which authorizes RI DEM to
require a source to install, maintain, and use air pollution emission
monitoring devices and to submit periodic reports on the nature and
amounts of emissions. In addition, under RIGL Sec. 23-23-13 and the
Rhode Island public records act, see RIGL Title 38, emissions data are
made available to the public and are not protected as ``trade secret or
proprietary information.'' With respect to state regulations, APCR No.
9, ``Air Pollution Control Permits,'' requires emissions testing of
permitted processes within 180 days of full operation and specifies
that preconstruction permits issued contain an emissions testing
section. In addition, APCR No. 6, ``Continuous Emission Monitors,''
requires certain sources to install, calibrate, operate, and maintain a
continuous emission monitoring system and to report certain emissions-
related data to RI DEM. Finally, APCR No. 14, ``Record Keeping and
Reporting,'' requires emission sources to report emissions and other
data to RI DEM annually, and provides that information in certain
reports obtained pursuant to APCR No. 14 ``will be correlated with
applicable emission and other limitations and will be available for
public inspection.''
Therefore, EPA proposes that Rhode Island meets 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
comparable 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
[[Page 1034]]
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 a combination of state statutes and
regulations discussed in RI DEM's submittal provides for authority
comparable to that in CAA section 303. The statutes and regulations
are: RIGL Sec. Sec. 10-20, 23-23-16, 23-23.1-5, 23-23.1-7, 23-23.1-8,
42-17.1-2, and APCR No. 7. In our proposal to approve this requirement
for Rhode Island's infrastructure SIP submissions for the 1997
PM2.5, 2006 PM2.5, 2008 lead, 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS (81 FR 10168; February
29, 2016), we explained how this combination of authorities provides
Rhode Island with authority comparable to that in CAA Sec. 303. See 81
FR 10168, 10177 (February 29, 2016). These statutes and the regulation
apply in the same manner to particulate matter emissions as they do to
emissions of the other NAAQS pollutants. Accordingly, for the reasons
contained in our proposal to approve this element for the 1997
PM2.5, 2006 PM2.5, 2008 lead, 2008 ozone, 2010
NO2, and 2010 SO2 infrastructure SIPs, we propose
to find that this combination of state statutes and regulations provide
for authority comparable to that in CAA Sec. 303 for the 2012
PM2.5 infrastructure SIP.
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. See 40 CFR 51.152(c). A contingency plan is not
required if the entire state is classified as Priority III for a
particular pollutant. Id. There is only one AQCR in Rhode Island--the
Metropolitan Providence Interstate AQCR--and Rhode Island's portion
thereof is classified as a Priority I area for PM, SOX,
carbon monoxide, and ozone and as a Priority III area for
NO2. See 40 CFR 52.2071. 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). See 40 CFR 51.150. Consequently, Rhode
Island's SIP is not required to contain an emergency contingency plan
meeting the specific requirements of 40 CFR 51.151 and 51.152 with
respect to the 2012 PM2.5 NAAQS.
Although PM2.5 is not explicitly included in the
contingency plan requirements of 40 CFR subpart H, the EPA 2009
memorandum recommends in the context of the 2006 PM2.5 NAAQS
that states develop emergency episode plans for any area that has
monitored and recorded 24-hour PM2.5 levels greater than 140
[micro]g/m\3\ since 2006. EPA's review of Rhode Island's certified air-
quality data in EPA's Air Quality System (AQS) indicates that the
highest 24-hour PM2.5 concentration since 2006 (i.e., data
through 2017) is 92.5 [micro]g/m\3\, which occurred in 2015 at a
monitor in Providence. Although not expected, if PM2.5
conditions were to change, Rhode Island does have general authority, as
noted previously (81 FR 10168; February 29, 2016), to order a source to
cease operations if it is determined that emissions from the source
pose an immediate danger, or unreasonable and emergency risk, to public
health or safety or to the environment. In addition, Rhode Island posts
near real-time air-quality data, air-quality predictions and historical
data on the RI DEM website. RI DEM's predictions are also displayed
daily in the Providence Journal. Alerts are sent by email to many
affected parties, including emissions sources, concerned individuals,
schools, health and environmental agencies and the media. Alerts
include information about the health implications of elevated pollutant
levels and list actions to reduce emissions. Furthermore, daily
forecasted ozone and fine-particle levels are made available on the
internet through the EPA AirNow and EnviroFlash systems. Information
about these two systems is available on EPA's website at
www.airnow.gov. Notices are sent to EnviroFlash participants when
levels are forecast to exceed the current 8-hour ozone or 24-hour
PM2.5 standard.
EPA proposes that Rhode Island meets the applicable infrastructure
SIP requirements for 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 in
response to: Changes in the NAAQS, availability of improved methods for
attaining the NAAQS, or an EPA finding that the SIP is substantially
inadequate. In 1973, it was determined that Rhode Island's original SIP
did not fully satisfy section 110(a)(2)(H) and EPA promulgated federal
regulations to address the gap in the SIP. See 40 CFR 52.2080. Since
Rhode Island's December 6, 2017, submittal does not address the gap in
the SIP that led to a disapproval in 1973, EPA proposes to find that
Rhode Island has not met applicable infrastructure SIP requirements for
element (H) with respect to the 2012 PM2.5 NAAQS.
Accordingly, EPA proposes to disapprove the state's submittal for
element (H). No further action by EPA or the state is required,
however, because remedying federal regulations are already in place.
Moreover, mandatory sanctions under CAA section 179 are inapplicable,
because the submittal is not required under CAA title I part D nor in
response to a SIP call under CAA section 110(k)(5).
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions
Under Part D
The CAA requires that each plan or plan revision for an area
designated as a nonattainment area meet the applicable requirements of
part D of the CAA. Part D relates to nonattainment areas. EPA has
determined that section 110(a)(2)(I) is not applicable to the
infrastructure SIP process. Instead, EPA takes action on part D
attainment plans through separate processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notifications; Prevention of Significant Deterioration; Visibility
Protection
Section 110(a)(2)(J) of the CAA requires that each SIP meet the
applicable requirements of section 121 of the CAA (relating to
consultation), section 127 of the CAA (relating to public
notification), and part C of subchapter I of the CAA (relating to PSD
and visibility protection). The evaluation of the submission from Rhode
Island 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.
Rhode Island General Law Sec. 23-23-5, authorizes the RI DEM
Director ``[t]o advise, consult, and cooperate with the cities and
towns and other agencies of the state, federal government, and other
states and interstate agencies, and with effective groups in industries
in furthering the purposes of this chapter.'' EPA approved this statute
into Rhode Island's SIP on April 20, 2016. See 81 FR 23175. In
addition, APCR No. 9,
[[Page 1035]]
which is in Rhode Island's SIP, see 78 FR 63383 (October 24, 2013),
directs RI DEM to notify relevant municipal officials and FLMs, among
others, of tentative determinations by RI DEM with respect to permit
applications for major stationary sources and major modifications.
EPA proposes that Rhode Island has met the infrastructure SIP
requirements of this portion of section 110(a)(2)(J) with respect to
the 2012 PM2.5 NAAQS.
Sub-Element 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.
Rhode Island's APCR No. 10, ``Air Pollution Episodes,'' specifies
criteria for, and measures to be implemented during, air pollution
alerts, warnings, and episodes. In addition, the RI DEM website
includes near real-time air quality data, air quality predictions and a
record of historical data. DEM's predictions are also displayed daily
in the Providence Journal, a newspaper with statewide circulation.
Alerts are sent by email to many affected parties, including emissions
sources, concerned individuals, schools, health and environmental
agencies and the media. Alerts include information about the health
implications of elevated pollutant levels and list actions to reduce
emissions. In addition, AQS summaries of the year's air-quality-
monitoring results are issued annually. The summaries are sent to a
mailing list of interested parties and posted on the RI DEM website.
Rhode Island is also an active partner in EPA's AirNow and EnviroFlash
air-quality alert programs. EPA proposes that Rhode Island meets the
infrastructure SIP requirements of this portion of section 110(a)(2)(J)
with respect to the 2012 PM2.5 NAAQS.
Sub-Element 3: PSD
State plans must meet applicable requirements of part C of the CAA
related to PSD. Rhode Island's PSD program in the context of
infrastructure SIPs has already been discussed in the paragraphs
addressing sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II) and, as we
have noted, does not fully satisfy the requirements of EPA's PSD
implementation rules. However, the December 2017 infrastructure
submittal states that Rhode Island is amending APCR No. 9 to comply
with 40 CFR 51.166 regarding PM2.5 emissions and identifying
NOX as a precursor to ozone. As stated previously, Rhode
Island submitted, on March 26, 2018, a SIP to address these
deficiencies, which EPA is currently reviewing to verify that it
satisfies the required provisions. Consequently, we are proposing to
conditionally approve the PSD sub-element of section 110(a)(2)(J) for
the 2012 PM2.5 NAAQS, consistent with the actions we are
proposing for sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II).
Sub-Element 4: Visibility Protection
Regarding 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
memorandum, 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 Rhode Island meets
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
Section 110(a)(2)(K) of the Act requires that a SIP provide for the
performance of such air-quality modeling as the EPA Administrator may
prescribe for the purpose of predicting the effect on ambient air
quality of any emissions of any air pollutant for which EPA has
established a NAAQS, and the submission, upon request, of data related
to such air quality modeling. EPA has published the Guideline on Air
Quality Models (``Guideline'') at 40 CFR part 51, Appendix W, for
predicting the effects of emissions of criteria pollutants on ambient
air quality. The Guideline is used by EPA, other federal, state,
territorial, local, and tribal air quality agencies, and industry to
prepare and review new or modified source permits, SIP submittals or
revisions, conformity, and other air quality assessments required under
the CAA and EPA regulations. EPA has interpreted section 110(a)(2)(K)
to require a state submit or reference the statutory or regulatory
provisions that provide the air agency with the authority to conduct
such air quality modeling and to provide such modeling data to EPA upon
request. See 2013 Memorandum at 55.
Rhode Island state law implicitly authorizes RI DEM to perform air
quality modeling and to provide such modeling data to EPA upon request.
See RIGL Sec. Sec. 23-23-2, 23-23-5. In addition, Rhode Island APCR
No. 9, ``Air Pollution Control Permits,'' requires permit applicants to
submit air quality modeling based on applicable air quality models,
data bases, and other requirements specified in the Guideline in
Appendix W to demonstrate impacts of new and modified major sources.
The modeling data are sent to EPA along with the draft major permit.
The state also collaborates with the Ozone Transport Commission
(OTC) and the Mid-Atlantic Regional Air Management Association and EPA
to perform large-scale urban airshed modeling for ozone and PM, if
necessary. EPA proposes that Rhode Island meets 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.
Section 23-23-5 of the RIGL provides RI DEM with the authority to
collect fees for preconstruction permits and operating permits for air
emissions sources. In addition, RI DEM's ``Rules and Regulations
Governing the Establishment of Various Fees'' sets forth permit fee
requirements for air emissions sources and the legal authority to
collect those fees. These rules and regulations are promulgated
pursuant to RIGL Chapter 23-23 Air Pollution, and Chapter 42-35,
Administrative Procedures. Rhode Island's infrastructure SIP submittal
also refers to its regulations implementing its operating permit
program pursuant to 40 CFR part 70. Rhode Island's title V permitting
program, APCR No. 28, ``Operating Permit Fees,'' requires major sources
to pay annual operating permit fees. EPA's full approval of Rhode
Island's title V program (APCR No. 28) became effective on November 30,
2001. See 66 FR 49839 (October 1, 2001). To gain this approval, Rhode
Island demonstrated the ability to collect sufficient fees to run the
program. The fees collected from title V sources are above the
presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). EPA
proposes that Rhode Island meets the infrastructure SIP requirements of
section 110(a)(2)(L) for the 2012 PM2.5 NAAQS.
[[Page 1036]]
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.
Rhode Island's infrastructure submittals reference RIGL Sec. 23-23-5,
which provides for consultation with affected local political
subdivisions and authorizes the RI DEM Director ``to advise, consult,
and cooperate with the cities and towns and other agencies of the state
. . . and other states and interstate agencies . . . in furthering the
purposes of'' the state Clean Air Act (i.e., RIGL chapter 23-23). EPA
proposes that Rhode Island meets 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 SIP
submitted by Rhode Island on December 6, 2017, for the 2012
PM2.5 NAAQS, with the exception of certain aspects relating
to the state's PSD program, including 110(a)(2)(C)2, (D)2, and (J)3,
which we are proposing to conditionally approve, and section
110(a)(2)(H), which we are proposing to disapprove. In regard to
section (H), no further action by EPA or the state is required,
however, since federal regulations are already in place that address
the gap in the state's submittal with respect to element (H).
Specifically, EPA's proposed action regarding each infrastructure
SIP requirement is contained in Table 1 below.
Table 1--Proposed Action on Rhode Island's Infrastructure SIP Submittal
for the 2012 PM2.5 NAAQS
------------------------------------------------------------------------
Element 2012 PM2.5 NAAQS
------------------------------------------------------------------------
(A): Emission limits and other control A
measures.
(B): Ambient air quality monitoring and data A
system.
(C)1: Enforcement of SIP measures........... A
(C)2: PSD program for major sources and A*
major modifications.
(C)3: PSD program for minor sources and A
minor modifications.
(D)1: Contribute to nonattainment/interfere A
with maintenance 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 NA
local agencies.
(F): Stationary source monitoring system.... A
(G): Emergency power........................ A
(H): Future SIP revisions................... D
(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 A
affected local entities.
------------------------------------------------------------------------
In the above table, the key is as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
A....................... Approve.
A*...................... Approve but conditionally approve aspect of
PSD program relating to the identification of
NOX as a precursor of ozone and the revisions
required by the 2010 NSR rule.
D....................... Disapprove, but no further action required
because federal regulations already in place.
+....................... Not germane to infrastructure SIPs.
NA...................... Not applicable.
------------------------------------------------------------------------
As noted in Table 1, we are proposing to conditionally approve
portions of Rhode Island's infrastructure SIP submittals pertaining to
the state's PSD program for the 2012 PM2.5 NAAQS. Under
section 110(k)(4) of the Act, EPA may conditionally approve a plan
based on a commitment from the State to adopt specific enforceable
measures by a date certain, but not later than 1 year from the date of
approval. If EPA conditionally approves the commitment in a final
rulemaking action, the State must meet its commitment to submit an
update to its PSD program that fully remedies the deficiencies
mentioned above under element (C). If the State fails to do so, this
action will become a disapproval one year from the date of final
approval. EPA will notify the State by letter that this action has
occurred. At that time, this commitment will no longer be a part of the
approved Rhode Island SIP. EPA subsequently will publish a document in
the Federal Register notifying the public that the conditional approval
automatically converted to a disapproval. If the State meets its
commitment, within the applicable time frame, the conditionally
approved submission will remain a part of the SIP until EPA takes final
action approving or disapproving the new submittal. If EPA disapproves
the new submittal, the conditionally approved infrastructure SIP
elements for all affected pollutants will be disapproved. In addition,
a final disapproval triggers the Federal Implementation Plan
[[Page 1037]]
requirement under section 110(c). If EPA approves the new submittal,
the PSD program and relevant infrastructure SIP elements will be fully
approved and replace the conditionally approved program in the SIP.
EPA is soliciting public comments on the issues discussed in this
proposal or on other relevant matters. These comments will be
considered before EPA takes final action. Interested parties may
participate in the Federal rulemaking procedure by submitting 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 Orders12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
This action is not expected to be an Executive Order 13771
regulatory action because this action is not significant under
Executive Order 12866;
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: December 19, 2018.
Alexandra Dunn,
Regional Administrator, EPA Region 1.
[FR Doc. 2019-00658 Filed 1-31-19; 8:45 am]
BILLING CODE 6560-50-P