Air Plan Approval; Vermont; Infrastructure State Implementation Plan Requirements for the 2015 Ozone Standard, 18160-18173 [2020-06659]
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Potomac River, within an area bounded
by a line connecting the following
points: From the Rosilie Island
shoreline at latitude 38°47′30.30″ N,
longitude 077°01′26.70 W, thence west
to latitude 38°47′30.00″ N, longitude
077°01′37.30″ W, thence south to
latitude 38°47′08.20″ N, longitude
077°01′37.30″ W, thence east to latitude
38°47′09.00″ N, longitude 077°01′09.20″
W, thence southeast along the pier to
latitude 38°47′06.30″ N, longitude
077°01′02.50″ W, thence north along the
shoreline and west along the southern
extent of the Woodrow Wilson (I–95/I–
495) Memorial Bridge and south and
west along the shoreline to the point of
origin, located at National Harbor, MD.
These coordinates are based on datum
NAD 1983.
(b) Definitions. As used in this
section—
Captain of the Port (COTP) MarylandNational Capital Region means the
Commander, U.S. Coast Guard Sector
Maryland-National Capital Region or
any Coast Guard commissioned, warrant
or petty officer who has been authorized
by the COTP to act on his behalf.
Coast Guard Patrol Commander
(PATCOM) means a commissioned,
warrant, or petty officer of the U.S.
Coast Guard who has been designated
by the Commander, Coast Guard Sector
Maryland-National Capital Region.
Official patrol means any vessel
assigned or approved by Commander,
Coast Guard Sector Maryland-National
Capital Region with a commissioned,
warrant, or petty officer on board and
displaying a Coast Guard ensign.
Participant means all persons and
vessels registered with the event
sponsor as participating in the
Washington DC Sharkfest Swim event or
otherwise designated by the event
sponsor as having a function tied to the
event.
(c) Regulations. (1) Except for vessels
already at berth, all non-participants are
prohibited from entering, transiting
through, anchoring in, or remaining
within the regulated area described in
paragraph (a) of this section unless
authorized by the COTP MarylandNational Capital Region or PATCOM.
(2) To seek permission to enter,
contact the COTP Maryland-National
Capital Region at telephone number
410–576–2693 or on Marine Band
Radio, VHF–FM channel 16 (156.8
MHz) or the PATCOM on Marine Band
Radio, VHF–FM channel 16 (156.8
MHz). Those in the regulated area must
comply with all lawful orders or
directions given to them by the COTP
Maryland-National Capital Region or
PATCOM.
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(3) The COTP Maryland-National
Capital Region will provide notice of the
regulated area through advanced notice
via Fifth Coast Guard District Local
Notice to Mariners, broadcast notice to
mariners, and on-scene official patrols.
(d) Enforcement officials. The Coast
Guard may be assisted with marine
event patrol and enforcement of the
regulated area by other Federal, State,
and local agencies.
(e) Enforcement period. This section
will be enforced from 7 a.m. to 11 a.m.
June 20, 2020.
Dated: March 26, 2020.
Joseph B. Loring,
Captain, U.S. Coast Guard, Captain of the
Port Maryland-National Capital Region.
[FR Doc. 2020–06743 Filed 3–31–20; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R01–OAR–2020–0057; FRL–10007–
24–Region 1]
Air Plan Approval; Vermont;
Infrastructure State Implementation
Plan Requirements for the 2015 Ozone
Standard
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
The Environmental Protection
Agency (EPA) is proposing to approve a
State Implementation Plan (SIP)
revision submitted by the State of
Vermont. This revision addresses the
infrastructure requirements of the Clean
Air Act (CAA or Act)—including the
interstate transport provisions—for the
2015 ozone National Ambient Air
Quality Standards (NAAQS). The
infrastructure requirements are designed
to ensure that the structural components
of each state’s air-quality management
program, including provisions
prohibiting emissions that will have
certain adverse air-quality effects in
other states, are adequate to meet the
state’s responsibilities under the CAA.
EPA is also proposing to approve State
of Vermont Executive Order (E.O.) 19–
17, Executive Code of Ethics, which
Vermont submitted with its
infrastructure submission for the 2015
ozone NAAQS to be added to the SIP.
Because E.O. 19–17 supersedes and
replaces E.O. 09–11, EPA is also
proposing to remove E.O. 09–11 from
the Vermont SIP. This action is being
taken under the Clean Air Act.
SUMMARY:
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Written comments must be
received on or before May 1, 2020.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R01–
OAR–2020–0057 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, Air and
Radiation Division, 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 Branch,
U.S. Environmental Protection Agency,
EPA Region 1, 5 Post Office Square—
Suite 100, (Mail code 05–2), Boston, MA
02109–3912, tel. (617) 918–1684, email
simcox.alison@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
DATES:
Table of Contents
I. Background and Purpose
A. What is the scope of this rulemaking?
B. What guidance is EPA using to evaluate
these SIP submissions?
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II. EPA’s Evaluation of Vermont’s
Infrastructure SIP for the 2015 Ozone
Standard
A. Section 110(a)(2)(A)—Emission Limits
and Other Control Measures
B. Section 110(a)(2)(B)—Ambient Air
Quality Monitoring/Data System
C. Section 110(a)(2)(C)—Program for
Enforcement of Control Measures and for
Construction or Modification of
Stationary Sources
D. Section 110(a)(2)(D)—Interstate
Transport
E. Section 110(a)(2)(E)—Adequate
Resources
F. Section 110(a)(2)(F)—Stationary Source
Monitoring System
G. Section 110(a)(2)(G)—Emergency
Powers
H. Section 110(a)(2)(H)—Future SIP
Revisions
I. Section 110(a)(2)(I)—Nonattainment Area
Plan or Plan Revisions Under Part D
J. Section 110(a)(2)(J)—Consultation With
Government Officials; Public
Notifications; Prevention of Significant
Deterioration; Visibility Protection
K. Section 110(a)(2)(K)—Air Quality
Modeling/Data
L. Section 110(a)(2)(L)—Permitting Fees
M. Section 110(a)(2)(M)—Consultation/
Participation by Affected Local Entities
N. Vermont Executive Order Submitted for
Incorporation Into the SIP
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background and Purpose
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On October 1, 2015, EPA promulgated
a revision to the ozone NAAQS (2015
ozone NAAQS), lowering the level of
both the primary and secondary
standards to 0.070 parts per million
(ppm).1 Section 110(a)(1) of the CAA
requires states to submit, within 3 years
after promulgation of a new or revised
standard, SIPs meeting the applicable
requirements of section 110(a)(2).2 On
November 19, 2019, the Vermont Air
Quality and Climate Division (AQCD) of
the Department of Environmental
Conservation (DEC) submitted a revision
to its State Implementation Plan (SIP).
The SIP revision addresses the
infrastructure requirements of CAA
sections 110(a)(1) and 110(a)(2)—
including the ‘‘Good Neighbor’’ or
‘‘transport’’ provisions—for the 2015
ozone NAAQS.
1 National Ambient Air Quality Standards for
Ozone, Final Rule, 80 FR 65292 (October 26, 2015).
Although the level of the standard is specified in
the units of ppm, ozone concentrations are also
described in parts per billion (ppb). For example,
0.070 ppm is equivalent to 70 ppb.
2 SIP revisions that are intended to meet the
applicable requirements of section 110(a)(1) and (2)
of the CAA are often referred to as infrastructure
SIPs and the applicable elements under 110(a)(2)
are referred to as infrastructure requirements.
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A. What is the scope of this rulemaking?
EPA is acting on the SIP submission
from Vermont on the infrastructure
requirements of CAA sections 110(a)(1)
and 110(a)(2) for the 2015 ozone
NAAQS (including the transport
provisions).
Whenever EPA promulgates a new or
revised NAAQS, CAA section 110(a)(1)
requires states to make SIP submissions
to provide for the implementation,
maintenance, and enforcement of the
NAAQS. This particular type of SIP
submission is commonly referred to as
an ‘‘infrastructure SIP.’’ These
submissions must meet the various
requirements of CAA section 110(a)(2),
as applicable. Due to ambiguity in some
of the language of CAA section
110(a)(2), EPA believes that it is
appropriate to interpret these provisions
in the specific context of acting on
infrastructure SIP submissions. EPA has
previously provided comprehensive
guidance on the application of these
provisions through a guidance
document for infrastructure SIP
submissions and through regional
actions on infrastructure submissions.3
Unless otherwise noted below, we are
following that existing approach in
acting on this submission. In addition,
in the context of acting on such
infrastructure submissions, EPA
evaluates the submitting state’s SIP for
compliance with statutory and
regulatory requirements, not for the
state’s implementation of its SIP.4 EPA
has other authority to address any issues
concerning a state’s implementation of
the rules, regulations, consent orders,
etc. that comprise its SIP.
B. What guidance is EPA using to
evaluate Vermont’s infrastructure 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,
guidance document entitled ‘‘Guidance
on SIP Elements Required Under
Sections 110(a)(1) and (2) for the 1997
8-hour Ozone and PM2.5 National
Ambient Air Quality Standards’’ (2007
memorandum). EPA has issued
additional guidance documents and
3 EPA explains and elaborates on these
ambiguities and its approach to address them in its
September 13, 2013, Infrastructure SIP Guidance
(available at https://www3.epa.gov/airquality/
urbanair/sipstatus/docs/Guidance_on_
Infrastructure_SIP_Elements_Multipollutant_
FINAL_Sept_2013.pdf), as well as in numerous
agency actions, including EPA’s prior action on
Vermont’s infrastructure SIP to address the 2012
PM2.5 NAAQS. See 83 FR 45194 (September 6,
2018).
4 See Montana Envtl. Info. Ctr. v. Thomas, 902
F.3d 971 (9th Cir. 2018).
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memoranda, including a September 13,
2013, guidance document entitled
‘‘Guidance on Infrastructure State
Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1)
and 110(a)(2)’’ (2013 memorandum).
Additional guidance documents
specifically addressing the interstatetransport (‘‘good neighbor’’) provisions
of infrastructure SIPs (CAA Section
110(a)(2)(D)) are given under Section
II.D. below.
II. EPA’s Evaluation of Vermont’s
Infrastructure SIP for the 2015 Ozone
Standard
In this notice of proposed rulemaking,
EPA is proposing action on Vermont’s
November 19, 2019, infrastructure SIP
submission for the 2015 ozone NAAQS,
including the interstate transport
provisions (CAA section 110(a)(2)(D)(i)).
In Vermont’s submission, a detailed list
of Vermont Laws and previously SIPapproved Air Quality Regulations show
precisely how the various components
of its EPA-approved SIP meet each of
the requirements of section 110(a)(2) of
the CAA for the 2015 ozone NAAQS.
The following review evaluates the
state’s submission in light of section
110(a)(2) requirements and relevant EPA
guidance. For the state’s November 2019
submission, we provide an evaluation of
the applicable Section 110(a)(2)
elements, including the transport
provisions.
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.5 In the context of
an infrastructure SIP, EPA is not
evaluating the existing SIP provisions
for this purpose. Instead, EPA is only
evaluating whether the state’s SIP has
basic structural provisions for the
implementation of the NAAQS.
In its November 2019 submittal for
the 2015 ozone NAAQS, Vermont cites
a number of provisions of Vermont
Statutes Annotated (V.S.A.) in
satisfaction of element A: 10 V.S.A.
§ 554, ‘‘Powers,’’ authorizes the
Secretary of the Vermont Agency of
5 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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Natural Resources 6 (ANR) to ‘‘[a]dopt,
amend and repeal rules, implementing
the provisions’’ of Vermont’s air
pollution control laws set forth in 10
V.S.A. chapter 23. It also authorizes the
Secretary to ‘‘conduct studies,
investigations and research relating to
air contamination and air pollution’’
and to ‘‘[d]etermine by appropriate
means the degree of air contamination
and air pollution in the state and the
several parts thereof.’’ EPA approved 10
V.S.A. § 554 on June 27, 2017 (82 FR
29005). Vermont also cites 10 V.S.A.
§ 556, ‘‘Permits for the construction or
modification of air contaminant
sources,’’ which requires applicants to
obtain permits for constructing or
modifying air contaminant sources, and
10 V.S.A. § 558, ‘‘Emission control
requirements,’’ which authorizes the
Secretary ‘‘to establish emission control
requirements . . . necessary to prevent,
abate, or control air pollution.’’ In
addition, Vermont cites 10 V.S.A. § 579
‘‘Vehicle emissions labeling program for
new motor vehicles’’ for model year
2010 and later vehicles.
Under Element A of the November
2019 submittal, the state also cites more
than 20 Vermont Air Pollution Control
Regulations (VT APCR) that it has
adopted to control the emissions related
to ozone and ozone precursors (nitrogen
oxides (NOX) and volatile organic
compounds (VOCs)). A few, with their
EPA approval citation 7 are listed here:
§ 5–502—Major Stationary Sources and
Major Modifications (81 FR 50342;
August 1, 2016); § 5–251—Control of
Nitrogen Oxides Emissions (81 FR
50342; August 1, 2016); § 5–253.5—
Stage I Vapor Recovery Controls at
Gasoline Dispensing Facilities (81 FR
23164; April 20, 2016); 5–253.8—
Industrial Adhesives (84 FR 65009;
November 26, 2019); § 5–253.17—
Industrial Cleaning Solvents (84 FR
65009; November 26, 2019).
EPA proposes that Vermont meets the
infrastructure requirements of section
110(a)(2)(A) for the 2015 ozone NAAQS.
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 to make these data
available to EPA upon request. Each
year, states submit annual air
6 The Vermont Department of Environmental
Conservation is one of three departments within the
Vermont ANR.
7 The citations reference the most recent EPA
approval of the stated rule or of revisions to the
rule.
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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.
State law authorizes the Secretary of
ANR, or authorized representative, to
‘‘conduct studies, investigations and
research relating to air contamination
and air pollution’’ and to ‘‘[d]etermine
by appropriate means the degree of air
contamination and air pollution in the
state and the several parts thereof.’’ See
10 V.S.A. § 554(8), (9). Vermont
Department of Environmental
Conservation (DEC), one of several
departments within ANR, operates an
air quality monitoring network, and
EPA approved the state’s 2019 Annual
Air Monitoring Network Plan on August
15, 2019.8 Furthermore, Vermont
populates EPA’s Air Quality System
(AQS) with air-quality monitoring data
in a timely manner and provides EPA
with prior notification when
considering a change to its monitoring
network or plan. EPA proposes that
Vermont has met the infrastructure SIP
requirements of section 110(a)(2)(B)
with respect to the 2015 ozone 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 for 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.
8 See EPA approval letter located in the docket for
this action.
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Sub-Element 1: Enforcement of SIP
Measures
State law provides the Secretary of
ANR with the authority to enforce air
pollution control requirements,
including SIP-approved 10 V.S.A. § 554,
which authorizes the Secretary of ANR
to ‘‘[i]ssue orders as may be necessary
to effectuate the purposes of [the state’s
air pollution control laws] and enforce
the same by all appropriate
administrative and judicial
proceedings.’’ In addition, Vermont’s
SIP-approved regulations VT APCR § 5–
501, ‘‘Review of Construction or
Modification of Air Contaminant
Sources,’’ and VT APCR § 5–502, ‘‘Major
Stationary Sources and Major
Modifications,’’ establish requirements
for permits to construct, modify or
operate major air contaminant sources.
EPA proposes that Vermont has met
the enforcement of SIP measures
requirements of section 110(a)(2)(C)
with respect to the 2015 ozone NAAQS.
Sub-Element 2—PSD Program for Major
Sources and Major Modifications
PSD applies to new major sources or
modifications made to major sources for
pollutants where the area in which the
source is located is in attainment of, or
unclassifiable with regard to, the
relevant NAAQS. EPA interprets the
CAA as requiring each state to make an
infrastructure SIP submission for a new
or revised NAAQS demonstrating that
the air agency has a complete PSD
permitting program in place satisfying
the current requirements for all
regulated NSR pollutants. VT DEC’s
EPA-approved PSD rules, contained at
VT APCR Subchapters I, IV, and V,
contain provisions that address
applicable requirements for all regulated
NSR pollutants, including greenhouse
gases (GHGs).
In 2018, EPA evaluated Vermont’s
PSD permitting program in the context
of an infrastructure SIP submission
under CAA § 110(a)(2)(C) and
determined that it satisfies the current
requirements for all regulated NSR
pollutants. See 83 FR 45194 (September
6, 2018). For a detailed analysis, see
EPA’s proposal in that rulemaking. See
83 FR 30598 (June 29, 2018). No new or
revised PSD permitting program
requirements have become due since
that time. Therefore, for the reasons
provided in the June 29, 2018, notice,
EPA proposes to approve Vermont’s
infrastructure SIP for the 2015 ozone
NAAQS for the requirement in section
110(a)(2)(C) to include a PSD permitting
program in the SIP that covers the
requirements for all regulated NSR
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pollutants as required by part C of the
Act.
Sub-Element 3: Preconstruction
Permitting for Minor Sources and Minor
Modifications
To address the pre-construction
regulation of the modification and
construction of minor stationary sources
and minor modifications of major
stationary sources, an infrastructure SIP
submission should identify the existing
EPA-approved SIP provisions and/or
include new provisions that govern the
minor source pre-construction program
that regulate emissions of the relevant
NAAQS pollutants. On August 1, 2016,
EPA approved revisions to Vermont’s
minor NSR program. See 81 FR 50342.
Vermont and EPA rely on the existing
minor NSR program to ensure that new
and modified sources not captured by
the major NSR permitting programs, VT
APCR § 5–502, do not interfere with
attainment and maintenance of the 2015
ozone NAAQS.
We are proposing to find that
Vermont has met the requirement to
have a SIP-approved minor new source
review permit program as required
under Section 110(a)(2)(C) for the 2015
ozone NAAQS.
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D. Section 110(a)(2)(D)—Interstate
Transport
This section contains a
comprehensive set of air-qualitymanagement 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.
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)—Significant
Contribution to Nonattainment (Prong 1)
and Interference With Maintenance of
the NAAQS (Prong 2)
Background
Section 110(a)(2)(D)(i), known as the
‘‘good neighbor’’ provision, generally
requires SIPs to contain adequate
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provisions to prohibit in-state emissions
activities from having certain adverse
air-quality effects on other states due to
interstate transport of pollution. There
are four so-called ‘‘prongs’’ within CAA
section 110(a)(2)(D)(i): Section
110(a)(2)(D)(i)(I) contains prongs 1 and
2, while section 110(a)(2)(D)(i)(II)
includes prongs 3 and 4. This subelement addresses the first two prongs.
Under prongs 1 and 2 of the good
neighbor provision, a SIP for a new or
revised NAAQS must contain adequate
provisions prohibiting any source or
other type of emissions activity within
the state from emitting air pollutants in
amounts that will significantly
contribute to nonattainment of the
NAAQS in another state (prong 1) or
from interfering with maintenance of
the NAAQS in another state (prong 2).
EPA and states must give independent
significance to prong 1 and prong 2
when evaluating downwind air-quality
problems under section
110(a)(2)(D)(i)(I).9
We note that EPA has addressed the
interstate transport requirements of
CAA section 110(a)(2)(D)(i)(I) with
respect to prior ozone NAAQS in
several regional regulatory actions,
including the Cross-State Air Pollution
Rule (CSAPR), which addressed
interstate transport with respect to the
1997 ozone NAAQS as well as the 1997
and 2006 fine particulate matter (PM2.5)
standards, and the CSAPR Update for
the 2008 ozone NAAQS (CSAPR
Update).10 These actions only addressed
interstate transport in the eastern United
States 11 and did not address the 2015
ozone NAAQS.
Through the development and
implementation of CSAPR, the CSAPR
Update and previous regional
rulemakings pursuant to the good
neighbor provision,12 the EPA, working
in partnership with states, developed
the following four-step interstate
transport framework to address the
requirements of the good neighbor
provision for the ozone NAAQS: 13 (1)
9 See North Carolina v. EPA, 531 F.3d 896, 909–
911 (2008).
10 See 76 FR 48208 (August 8, 2011) (i.e., CSAPR);
81 FR 74504 (October 26, 2016) (i.e., CSAPR
Update).
11 For purposes of CSAPR and the CSAPR Update
action, the Western U.S. (or the West) was
considered to consist of the 11 western contiguous
states of Arizona, California, Colorado, Idaho,
Montana, Nevada, New Mexico, Oregon, Utah,
Washington, and Wyoming. The Eastern U.S. (or the
East) was considered to consist of the 37 states east
of the 11 Western states.
12 Other regional rulemakings addressing ozone
transport include the NOX SIP Call, 63 FR 57356
(October 27, 1998), and the Clean Air Interstate
Rule (CAIR), 70 FR 25162 (May 12, 2005).
13 The four-step interstate framework has also
been used to address requirements of the good
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Identify downwind air quality
problems; (2) identify upwind states
that impact those downwind air quality
problems sufficiently such that they are
considered ‘‘linked’’ and therefore
warrant further review and analysis; (3)
identify the emissions reductions
necessary (if any), considering cost and
air quality factors, to prevent linked
upwind states identified in step 2 from
contributing significantly to
nonattainment or interfering with
maintenance of the NAAQS at the
locations of the downwind air quality
problems; and (4) adopt permanent and
enforceable measures needed to achieve
those emissions reductions.
EPA has released several documents
containing information relevant to
evaluating interstate transport with
respect to the 2015 ozone NAAQS. First,
on January 6, 2017, EPA published a
notice of data availability (NODA) with
preliminary interstate ozone transport
modeling with projected ozone design
values for 2023, on which we requested
comment.14 The year 2023 was used as
the analytic year for this preliminary
modeling because that year aligns with
the expected attainment year for
Moderate ozone nonattainment areas.15
On October 27, 2017, we released a
memorandum (2017 memorandum)
containing updated modeling data for
2023, which incorporated changes made
in response to comments on the
NODA.16 Although the 2017
memorandum also released data for a
2023 modeling year, we specifically
stated that the modeling may be useful
for states developing SIPs to address
remaining good neighbor obligations for
the 2008 ozone NAAQS, but did not
address the 2015 ozone NAAQS. On
March 27, 2018, we issued a
memorandum (March 2018
memorandum) indicating the same 2023
modeling data released in the 2017
memorandum would also be useful for
evaluating potential downwind airquality problems with respect to the
neighbor provision for some previous particulate
matter and ozone NAAQS, including in the Western
United States. See, e.g., 83 FR 30380 (June 28,
2018); 83 FR 5375, 5376–77 (February 7, 2018).
14 See Notice of Availability of the EPA’s
Preliminary Interstate Ozone Transport Modeling
Data for the 2015 Ozone National Ambient Air
Quality Standard (NAAQS). 82 FR 1733 (January 6,
2017).
15 82 FR 1735 (January 6, 2017).
16 See Information on the Interstate Transport
State Implementation Plan Submissions for the
2008 Ozone National Ambient Air Quality
Standards under Clean Air Act Section
110(a)(2)(D)(i)(I), October 27, 2017, available in the
docket for this action or at https://www.epa.gov/
interstate-air-pollution-transport/interstate-airpollution-transport-memos-and-notices.
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2015 ozone NAAQS (step 1 of the fourstep framework).
The March 2018 memorandum
included newly available contributionmodeling results to assist states in
evaluating their impact on potential
downwind air-quality problems (step 2
of the four-step framework) in their
efforts to develop good neighbor SIPs for
the 2015 ozone NAAQS to address their
interstate transport obligations.17 EPA
subsequently issued two more
memoranda in August and October
2018, providing guidance to states
developing good neighbor SIPs for the
2015 ozone NAAQS concerning,
respectively, potential contribution
thresholds that may be appropriate to
apply in step 2 and considerations for
identifying downwind areas that may
have problems maintaining the standard
(under prong 2 of the good neighbor
provision) at step 1 of the framework.18
The March 2018 memorandum
describes the process and results of the
updated photochemical and sourceapportionment modeling used to project
ambient ozone concentrations for the
year 2023 and the state-by-state impacts
on those concentrations. The March
2018 memorandum also explains that
the selection of the 2023 analytic year
aligns with the 2015 ozone NAAQS
attainment year for Moderate
nonattainment areas. As described in
the 2017 and March 2018 memoranda,
EPA used the Comprehensive Air
Quality Model with Extensions (CAMx
version 6.40) to model average and
maximum design values in 2023 to
identify potential nonattainment and
maintenance receptors (i.e., monitoring
sites that are projected to have problems
attaining or maintaining the 2015 ozone
NAAQS).
The March 2018 memorandum
presents design values calculated in two
ways: first, following the EPA’s historic
17 See Information on the Interstate Transport
State Implementation Plan Submissions for the
2015 Ozone National Ambient Air Quality
Standards under Clean Air Act Section
110(a)(2)(D)(i)(I), March 27, 2018, available in the
docket for this action or at https://www.epa.gov/
interstate-air-pollution-transport/interstate-airpollution-transport-memos-and-notices.
18 See Analysis of Contribution Thresholds for
Use in Clean Air Act Section 110(a)(2)(D)(i)(I)
Interstate Transport State Implementation Plan
Submissions for the 2015 Ozone National Ambient
Air Quality Standards, August 31, 2018) (‘‘August
2018 memorandum’’), and Considerations for
Identifying Maintenance Receptors for Use in Clean
Air Act Section 110(a)(2)(D)(i)(I) Interstate
Transport State Implementation Plan Submissions
for the 2015 Ozone National Ambient Air Quality
Standards, October 19, 2018, available in the docket
for this action or at https://www.epa.gov/
airmarkets/memo-and-supplemental-informationregarding-interstate-transport-sips-2015-ozonenaaqs.
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‘‘3 x 3’’ approach 19 to evaluating all
sites, and second, following a modified
approach for coastal monitoring sites in
which ‘‘overwater’’ modeling data were
not included in the calculation of
future-year design values (referred to as
the ‘‘no water’’ approach).
For purposes of identifying potential
nonattainment and maintenance
receptors in 2023, EPA applied the same
approach used in the CSAPR Update,
wherein EPA considered a combination
of monitoring data and modeling
projections to identify monitoring sites
that are projected to have problems
attaining or maintaining the NAAQS.
Specifically, EPA identified
nonattainment receptors as those
monitoring sites with measured
values 20 exceeding the NAAQS that
also have projected (i.e., in 2023)
average design values exceeding the
NAAQS. EPA identified maintenance
receptors as those monitoring sites with
projected maximum design values
exceeding the NAAQS. This included
sites with measured values below the
NAAQS, but with projected average and
maximum design values exceeding the
NAAQS, and monitoring sites with
projected average design values below
the NAAQS, but with projected
maximum design values exceeding the
NAAQS. EPA included the design
values and monitoring data for all
monitoring sites projected to be
potential nonattainment or maintenance
receptors based on the updated 2023
modeling in Attachment B to the March
2018 memorandum.
After identifying potential downwind
nonattainment and maintenance
receptors, EPA performed nationwide,
state-level ozone source-apportionment
modeling to estimate the expected
impact from each state to each
nonattainment and maintenance
receptor.21 EPA included contribution
information resulting from the sourceapportionment modeling in Attachment
C to the March 2018 memorandum. For
more information on the modeling and
analysis, please see the 2017 and March
2018 memoranda, the NODA for the
preliminary interstate transport
assessment, and the supporting
19 See
March 2018 memorandum, p. 4.
used 2016 ozone design values, based on
2014–2016 measured data, which were the most
current data at the time of the analysis. See
attachment B of the March 2018 memorandum, p.
B–1.
21 As discussed in the March 2018 memorandum,
EPA performed source-apportionment model runs
for a modeling domain that covers the 48
contiguous United States and the District of
Columbia, and adjacent portions of Canada and
Mexico.
20 EPA
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technical documents included in the
docket for this action.
In the CSAPR and the CSAPR Update,
the EPA used a threshold of one percent
of the NAAQS to determine whether a
given upwind state was ‘‘linked’’ at step
2 of the four-step framework and would,
therefore, contribute to downwind
nonattainment and maintenance sites
identified in step 1. If a state’s impact
did not equal or exceed the one-percent
threshold, the upwind state was not
‘‘linked’’ to a downwind air quality
problem, and the EPA, therefore,
concluded the state will not
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS in the
downwind states. However, if a state’s
impact equaled or exceeded the onepercent threshold, the state’s emissions
were further evaluated in step 3, taking
into account both air-quality and cost
considerations, to determine what, if
any, emissions reductions might be
necessary to address the good neighbor
provision.
As noted previously, on August 31,
2018, the EPA issued a memorandum
(the August 2018 memorandum)
providing guidance concerning
potential contribution thresholds that
may be appropriate to apply with
respect to the 2015 ozone NAAQS in
step 2. Consistent with the process for
selecting the one-percent threshold in
CSAPR and the CSAPR Update, the
memorandum included analytical
information regarding the degree to
which potential air-quality thresholds
would capture the collective amount of
upwind contribution from upwind
states to downwind receptors for the
2015 ozone NAAQS. The August 2018
memorandum indicated that, based on
the EPA’s analysis of its most recent
modeling data, the amount of upwind
collective contribution captured using a
1 parts per billion (ppb) threshold is
generally comparable, overall, to the
amount captured using a threshold
equivalent to one percent of the 2015
ozone NAAQS. Accordingly, the EPA
indicated that it may be reasonable and
appropriate for states to use a 1 ppb
contribution threshold, as an alternative
to the one-percent threshold, at step 2
of the four-step framework in
developing their SIP revisions
addressing the good neighbor provision
for the 2015 ozone NAAQS.22
While the March 2018 memorandum
presented information regarding the
EPA’s latest analysis of ozone transport
following the approaches the EPA has
taken in prior regional rulemaking
actions, the EPA has not made any final
22 See
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determinations regarding how states
should identify downwind receptors
with respect to the 2015 ozone NAAQS
at step 1 of the four-step framework.
Rather, the EPA noted that states have
flexibility in developing their own SIPs
to follow different analytical approaches
than the EPA’s, so long as their chosen
approach has an adequate technical
justification and is consistent with the
requirements of the CAA.
Vermont’s Submission for Prongs 1 and
2
On November 19, 2019, Vermont
submitted a SIP revision addressing the
CAA section 110(a)(2)(D)(i)(I) interstate
transport requirements for the 2015
ozone NAAQS. This ‘‘good neighbor
SIP’’ was included as an enclosure in
the state’s infrastructure SIP for the
same NAAQS.
Vermont relied on the results of the
EPA’s modeling for the 2015 ozone
NAAQS contained in the March 2018
memorandum to identify downwind
nonattainment and maintenance
receptors that may be impacted by
emissions from sources in Vermont.
These results indicate Vermont’s
greatest impact on any potential
downwind nonattainment or
maintenance receptor would be 0.07
ppb. Vermont compared these values to
a screening threshold of 0.70 ppb,
representing one percent of the 2015
ozone NAAQS. Because Vermont’s
impacts to neighboring states are
projected to be less than 0.70 ppb,
Vermont concluded that emissions from
sources within the state will not
significantly contribute to
nonattainment or interfere with
maintenance of the 2015 ozone NAAQS
in any other state.
Vermont also reviewed ozone
concentrations and trends measured at
the state’s three ambient air-quality
monitors and noted that no
concentrations at these monitors has
exceeded the 2015 ozone NAAQS since
2010. Vermont also looked at EPA’s
projected emissions of ozone precursors
performed in support of the CSAPR
Update. This modeling included annual
total NOx and VOC emissions by state
for the years 2011 through 2017 and
projected emissions for 2023.23 For
Vermont, emissions of ozone precursors
have decreased for the period 2011–
2017 and are projected to be lower in
2023 than in 2017.
Vermont’s November 2019 Good
Neighbor submission also lists and
discusses Vermont’s regulations for
controlling emissions of ozone
23 https://www.epa.gov/air-emissions-modeling/
2011-version-63-platform.
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precursors, and its regional emissionscontrol strategies, including those it has
implemented as a member of the Ozone
Transport Commission.
EPA’s Evaluation of Vermont’s
Submission
The EPA is proposing to rely on the
2023 modeling data identifying
downwind receptors and upwind state
contributions, as released in the March
2018 memorandum, to evaluate
Vermont’s good neighbor obligation
with respect to the 2015 ozone NAAQS.
On September 13, 2019, the United
States Court of Appeals for the District
of Columbia Circuit (D.C. Circuit) issued
its decision in Wisconsin v. EPA
addressing legal challenges to the
CSAPR Update, in which the EPA
partially addressed certain upwind
states’ good neighbor obligations for the
2008 ozone NAAQS. 938 F.3d 303.
While the court generally upheld the
rule as to most of the challenges raised
in the litigation, the court remanded the
CSAPR Update to the extent it failed to
require upwind states to eliminate their
significant contributions in accordance
with the attainment dates found in CAA
section 181 by which downwind states
must come into compliance with the
NAAQS. Id. at 313. In light of the
court’s decision, the EPA is providing
further explanation regarding why it
proposes to find that it is appropriate
and consistent with the statute—as well
as the legal precedent—to use the 2023
analytic year for assessing good
neighbor obligations for the 2015 ozone
NAAQS.
The EPA believes that 2023 is an
appropriate year for analysis of good
neighbor obligations for the 2015 ozone
NAAQS because the 2023 ozone season
is the last relevant ozone season during
which achieved emissions reductions in
linked upwind states could assist
downwind states with meeting the
August 2, 2024, Moderate area
attainment date for the 2015 ozone
NAAQS. The EPA recognizes that the
attainment date for nonattainment areas
classified as Marginal for the 2015
ozone NAAQS is August 2, 2021, which
currently applies in several downwind
nonattainment areas evaluated in the
EPA’s modeling.24 However, as
explained below, the EPA does not
believe that either the statute or
24 The Marginal area attainment date is not
applicable for nonattainment areas already
classified as Moderate or higher, such as the New
York Metropolitan Area. For the status of all
nonattainment areas under the 2015 ozone NAAQS,
see U.S. EPA, 8-Hour Ozone (2015) Designated
Area/State Information, https://www3.epa.gov/
airquality/greenbook/jbtc.html (last updated Sept.
30, 2019).
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applicable case law requires the
evaluation of good neighbor obligations
in a future year aligned with the
attainment date for nonattainment areas
classified as Marginal.
The good neighbor provision instructs
the EPA and states to apply its
requirements ‘‘consistent with the
provisions of’’ title I of the CAA. CAA
section 110(a)(2)(D)(i); see also North
Carolina v. EPA, 531 F.3d 896, 911–12
(D.C. Circuit 2008). This consistency
instruction follows the requirement that
plans ‘‘contain adequate provisions
prohibiting’’ certain emissions in the
good neighbor provision. As the D.C.
Circuit held in North Carolina, and
more recently in Wisconsin, the good
neighbor provision must be applied in
a manner consistent with the
designation and planning requirements
in title I that apply in downwind states
and, in particular, the timeframe within
which downwind states are required to
implement specific emissions control
measures in nonattainment areas and
submit plans demonstrating how those
areas will attain, relative to the
applicable attainment dates. See North
Carolina, 896 F.3d at 912 (holding that
the good neighbor provision’s reference
to title I requires consideration of both
procedural and substantive provisions
in title I); Wisconsin, 938 F.3d at 313–
18.
While the EPA recognizes, as the
court held in North Carolina and
Wisconsin, that upwind emissionsreduction obligations, therefore, must
generally be aligned with downwind
receptors’ attainment dates, unique
features of the statutory requirements
associated with the Marginal area
planning requirements and attainment
date under CAA section 182 lead the
EPA to conclude that it is more
reasonable and appropriate to require
the alignment of upwind good neighbor
obligations with later attainment dates
applicable for Moderate or higher
classifications. Under the Clean Air Act,
states with areas designated
nonattainment are generally required to
submit, as part of their state
implementation plan, an ‘‘attainment
demonstration’’ that shows, usually
through air-quality modeling, how an
area will attain the NAAQS by the
applicable attainment date. See CAA
section 172(c)(1).25 Such plans must
also include, among other things, the
adoption of all ‘‘reasonably available’’
25 Part D of title I of the Clean Air Act provides
the plan requirements for all nonattainment areas.
Subpart 1, which includes section 172(c), applies to
all nonattainment areas. Congress provided in
subparts 2–5 additional requirements specific to the
various NAAQS pollutants that nonattainment areas
must meet.
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control measures on existing sources, a
demonstration of ‘‘reasonable further
progress’’ toward attainment, and
contingency measures, which are
specific controls that will take effect if
the area fails to attain by its attainment
date or fails to make reasonable further
progress toward attainment. See, e.g.,
CAA section 172(c)(1); 172(c)(2);
172(c)(9).
Ozone nonattainment areas classified
as Marginal are excepted from these
general requirements under the CAA—
unlike other areas designated
nonattainment under the Act (including
for other NAAQS pollutants), Marginal
ozone nonattainment areas are
specifically exempted from submitting
an attainment demonstration and are
not required to implement any specific
emissions controls at existing sources in
order to meet the planning requirements
applicable to such areas. See CAA
section 182(a): ‘‘The requirements of
this subsection shall apply in lieu of any
requirement that the State submit a
demonstration that the applicable
implementation plan provides for
attainment of the ozone standard by the
applicable attainment date in any
Marginal Area.’’ 26 Marginal ozone
nonattainment areas are also exempted
from demonstrating reasonable further
progress towards attainment and
submitting contingency measures. See
CAA section 182(a), which does not
include a reasonable further progress
requirement and specifically notes that
‘‘Section [172(c)(9)] of this title (relating
to contingency measures) shall not
apply to Marginal Areas.’’
Existing regulations—either local,
state, or federal—are typically part of
the reason why ‘‘additional’’ local
controls are not needed to bring
Marginal nonattainment areas into
attainment. As described in EPA’s
record for its final rule defining area
classifications for the 2015 ozone
NAAQS and establishing associated
attainment dates, history has shown that
most areas classified as Marginal for
prior ozone standards attained the
respective standards by the Marginal
area attainment date (i.e., without being
re-classified to a Moderate designation).
See 83 FR 10376.
26 States with Marginal nonattainment areas are
required to implement new source review
permitting for new and modified sources, but the
purpose of those requirements is to ensure that
potential emissions increases do not interfere with
progress towards attainment, as opposed to
reducing existing emissions. Moreover, EPA
acknowledges that states within ozone transport
regions must implement certain emission control
measures at existing sources in accordance with
CAA section 184, but those requirements apply
regardless of the applicable area designation or
classification.
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As part of a historical lookback, EPA
calculated that by the relevant
attainment date for areas classified as
Marginal, 85 percent of such areas
attained the 1979 1-hour ozone NAAQS,
and 64 percent attained the 2008 ozone
NAAQS. See Response to Comments,
section A.2.4.27 Based on these
historical data, EPA expects that many
areas classified Marginal for the 2015
ozone NAAQS will also attain by the
relevant attainment date as a result of
emissions reductions that are already
expected to occur through
implementation of existing local, state,
and federal emissions reduction
programs. To the extent states have
concerns about meeting their attainment
date for a Marginal area, the CAA under
section 181(b)(3) provides authority for
them to voluntarily request a higher
classification for individual areas, if
needed.
Areas that are classified as Moderate
typically have more pronounced airquality problems than Marginal areas or
have been unable to attain the NAAQS
under the minimal requirements that
apply to Marginal areas. See CAA
sections 181(a)(1) (classifying areas
based on the degree of nonattainment
relative to the NAAQS), and 181(b)(2)
(providing for reclassification to the
next highest designation upon failure to
attain the standard by the attainment
date). Thus, unlike Marginal areas, the
statute explicitly requires a state with an
ozone nonattainment area classified as
Moderate or higher to develop an
attainment plan demonstrating how the
state will address the more significant
air-quality problem, which generally
requires the application of various
control measures to existing sources of
emissions located in the nonattainment
area. See generally CAA sections 172(c)
and 182(b)–(e).
Given that downwind states are not
required to demonstrate attainment by
the attainment date or impose
additional controls on existing sources
in a Marginal nonattainment area, EPA
believes that it would be inconsistent to
interpret the good neighbor provision as
requiring EPA to evaluate the necessity
for upwind state emissions reductions
based on air quality modeled in a future
year aligned with the Marginal area
attainment date. Rather, EPA believes it
is more appropriate and consistent with
the nonattainment planning provisions
in title I to evaluate downwind air
quality and upwind state contributions,
and, therefore, the necessity for upwind
state emissions reductions, in a year
aligned with an area classification in
27 Available at https://www.regulations.gov/
document?D=EPA-HQ-OAR-2016-0202-0122.
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connection with which downwind
states are also required to demonstrate
attainment and implement controls on
existing sources—i.e., with the
Moderate area attainment date, rather
than the Marginal area date. With
respect to the 2015 ozone NAAQS, the
Moderate area attainment date will be in
the summer of 2024, and the last full
year of monitored ozone-season data
that will inform attainment
demonstrations is, therefore, 2023.
The EPA’s interpretation of the good
neighbor requirements in relation to the
Marginal area attainment date is
consistent with the Wisconsin opinion.
For the reasons explained below, the
court’s holding does not contradict the
EPA’s view that 2023 is an appropriate
analytic year in evaluating good
neighbor SIPs for the 2015 ozone
NAAQS. The court in Wisconsin was
concerned that allowing upwind
emission reductions to be implemented
after the applicable attainment date
would require downwind states to
obtain more emissions reductions than
the Act requires of them, to make up for
the absence of sufficient emissions
reductions from upwind states. See 938
F.3d at 316. As discussed previously,
however, this equitable concern only
arises for nonattainment areas classified
as Moderate or higher for which
downwind states are required by the
CAA to develop attainment plans
securing reductions from existing
sources and demonstrating how such
areas will attain by the attainment date.
See, e.g., CAA section 182(b)(1) & (2)
(establishing ‘‘reasonable further
progress’’ and ‘‘reasonably available
control technology’’ requirements for
Moderate nonattainment areas). Ozone
nonattainment areas classified as
Marginal are not required to meet these
same planning requirements, and thus
the equitable concerns raised by the
Wisconsin court do not arise with
respect to downwind areas subject to
the Marginal area attainment date.
The distinction between planning
obligations for Marginal nonattainment
areas and higher classifications was not
before the court in Wisconsin. Rather,
the court was considering whether the
EPA, in implementing its obligation to
promulgate federal implementation
plans under CAA section 110(c), was
required to fully resolve good neighbor
obligations by the 2018 Moderate area
attainment date for the 2008 ozone
NAAQS. See 938 F.3d at 312–13.
Although the court noted that
petitioners had not ‘‘forfeited’’ an
argument with respect to the Marginal
area attainment date, see id. at 314, the
court did not address whether its
holding with respect to the 2018
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Moderate area date would have applied
with equal force to the Marginal area
attainment date because that date had
already passed. Thus, the court did not
have the opportunity to consider these
differential planning obligations in
reaching its decision regarding the
EPA’s obligations relative to the thenapplicable 2018 Moderate area
attainment date, because such
considerations were not applicable to
the case before the court.28 For the
reasons discussed here, the equitable
concerns supporting the Wisconsin
court’s holding as to upwind state
obligations relative to the Moderate area
attainment date also support the EPA’s
interpretation of the good neighbor
provision relative to the Marginal area
attainment date. Thus, EPA proposes to
conclude that its reliance on an
evaluation of air quality in the 2023
analytical year for purposes of assessing
good neighbor obligations with respect
to the 2015 ozone NAAQS is based on
a reasonable interpretation of the CAA
and legal precedent.
As previously discussed, the March
2018 memorandum identifies potential
downwind nonattainment and
maintenance receptors, using the
definitions applied in the CSAPR
Update and using both the ‘‘3 x 3’’ and
the ‘‘no water’’ approaches to
calculating future year design values.
The March 2018 memorandum
identifies 57 potential nonattainment
and maintenance receptors in the West
in Arizona (2), California (49), and
Colorado (6).29 The March 2018
memorandum also provides
28 The D.C. Circuit, in a short judgment,
subsequently vacated and remanded the EPA’s
action purporting to fully resolve good neighbor
obligations for certain states for the 2008 ozone
NAAQS, referred to as the CSAPR Close-Out, 83 FR
65878 (Dec. 21, 2018). New York v. EPA, No. 19–
1019 (Oct. 1, 2019). That result necessarily followed
from the Wisconsin decision, because as the EPA
conceded, the Close-Out ‘‘relied upon the same
statutory interpretation of the Good Neighbor
Provision’’ rejected in Wisconsin. Id. slip op. at 3.
In the Close-Out, the EPA had analyzed the year
2023, which was two years after the Serious area
attainment date for the 2008 ozone NAAQS and not
aligned with any attainment date for that NAAQS.
Id. at 2. In New York, as in Wisconsin, the court
was not faced with addressing specific issues
associated with the unique planning requirements
associated with the Marginal area attainment date.
29 The number of receptors in the identified
western states is 57, irrespective of whether the ‘‘3
x 3’’ or ‘‘no water’’ approach is used. Further,
although the EPA has indicated that states may
have flexibilities to apply a different analytic
approach to evaluating interstate transport,
including identifying downwind air quality
problems, because the EPA is also concluding in
this proposed action that Vermont will have an
insignificant impact on any potential receptors
identified in its analysis, Vermont need not
definitively determine whether the identified
monitoring sites should be treated as receptors for
the 2015 ozone standard.
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contribution data regarding the impact
of other states on the potential
receptors.
For purposes of evaluating Vermont’s
2015 ozone NAAQS interstate transport
SIP submission, given that the state
contributes less than one percent to
downwind nonattainment and
maintenance sites, it is reasonable to
conclude that the state’s impact will not
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS in any other
state. This is consistent with our
October 13, 2016, action on Vermont’s
SIP with respect to the 2008 ozone
NAAQS (81 FR 70631) and with the
EPA’s approach to both the 1997 and
2008 ozone NAAQS in CSAPR and the
CSAPR Update. EPA notes, nonetheless,
that consistent with the August 2018
memorandum, it may be reasonable and
appropriate for states to use a 1 ppb
contribution threshold, as an alternative
to a one-percent threshold, at step 2 of
the four-step framework in developing
their SIP revisions addressing the good
neighbor provision for the 2015 ozone
NAAQS. However, for the reasons
discussed below, it is unnecessary for
EPA to determine whether it may be
appropriate to apply a 1 ppb threshold
for purposes of this action.
The EPA’s updated 2023 modeling
discussed in the March 2018
memorandum indicates that Vermont’s
largest impact on any potential
downwind nonattainment and
maintenance receptor is 0.07 ppb.30
This value is less than 0.70 ppb (one
percent of the 2015 ozone NAAQS),31
and demonstrates that emissions from
Vermont are not linked to any 2023
downwind potential nonattainment and
maintenance receptors identified in the
March 2018 memorandum. Accordingly,
we propose to conclude that emissions
from Vermont will not contribute to any
30 The EPA’s analysis indicates that Vermont will
have a 0.07 ppb impact at the potential
nonattainment receptor in Queens, NY (Site ID
360810124), which has a 2023 projected average
design value of 70.2 ppb, a 2023 projected
maximum design value of 72.0 ppb, and had a
2014–2016 design value of 69 ppb. The EPA’s
analysis further indicates that Vermont will have a
0.02 ppb impact at a potential nonattainment
receptor in Suffolk, NY (Site ID 361030002), which
has a projected 2023 average design value of 74.0
ppb, a 2023 projected maximum design value of
75.5 ppb, and had a 2014–2016 design value of 72
ppb. In addition, Vermont will have a 0.02 ppb
impact at a potential nonattainment receptor in
New Haven, CT (Site ID 90099002), which has a
projected 2023 average design value of 69.9 ppb, a
2023 projected maximum design value of 72.6 ppb,
and had a 2014–2016 design value of 76 ppb. See
the March 2018 memorandum, attachment C.
31 Because none of Vermont’s impacts equal or
exceed 0.70 ppb, they necessarily also do not equal
or exceed the 1 ppb contribution threshold
discussed in the August 2018 memorandum.
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potential receptors, and, thus, the state
will not significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS in any other
state.
Sub-Element 2: Section
110(a)(2)(D)(i)(II)—PSD (Prong 3)
To prevent significant deterioration of
air quality, this sub-element requires
SIPs to include provisions that prohibit
any source or other type of emissions
activity in one state from interfering
with measures that are required in any
other state’s SIP under Part C of the
CAA. As explained in the 2013
memorandum, a state may meet this
requirement with respect to in-state
sources and pollutants that are subject
to PSD permitting through a
comprehensive PSD permitting program
that applies to all regulated NSR
pollutants and that satisfies the
requirements of EPA’s PSD
implementation rules. As discussed
above under element C, Vermont has
such a PSD permitting program. For instate 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’s
latest approval of some revisions to
Vermont’s NNSR regulations was on
August 1, 2016. See 81 FR 50342.
Therefore, we are proposing to approve
this sub-element for the 2015 ozone
NAAQS.
Sub-Element 3: Section
110(a)(2)(D)(i)(II)—Visibility Protection
(Prong 4)
With regard to applicable
requirements for visibility protection of
section 110(a)(2)(D)(i)(II), states are
subject to visibility and regional haze
program requirements under part C of
the CAA (which includes sections 169A
and 169B). The 2009 memorandum,
2011 memorandum, and 2013
memorandum 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 include all measures
needed to achieve the state’s
apportionment of emission reduction
obligations agreed upon through a
regional planning process and will
therefore ensure that emissions from
sources under the air agency’s
jurisdiction are not interfering with
measures required to be included in
other air agencies’ plans to protect
visibility. EPA approved Vermont’s
Regional Haze SIP on May 22, 2012. See
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77 FR 30212. Accordingly, EPA
proposes that Vermont meets the
visibility protection requirements of
110(a)(2)(D)(i)(II) for the 2015 ozone
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.
On August 1, 2016 (81 FR 50342),
EPA approved revisions to VT APCR
§ 5–501, which includes a provision that
requires VT ANR to provide notice of a
draft PSD permit to, among other
entities, any state whose lands may be
affected by emissions from the source.
VT APCR § 5–501(7)(c). Vermont’s
public notice requirements are
consistent with the Federal PSD
program’s public notice requirements
for affected states under 40 CFR
51.166(q). Therefore, we propose to
approve Vermont’s compliance with the
infrastructure SIP requirements of
section 126(a) for the 2015 ozone
NAAQS. Vermont has no obligations
under any other provision of section
126, and no source or sources within the
state are the subject of an active finding
under section 126 of the CAA with
respect to the 2015 ozone NAAQS.
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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.
Section 115 authorizes the
Administrator to require a state to revise
its SIP to alleviate international
transport into another country where
the Administrator has made a finding
with respect to emissions of the
particular NAAQS pollutant and its
precursors, if applicable. There are no
final findings under section 115 of the
CAA against Vermont with respect to
the 2015 ozone NAAQS. Therefore, EPA
is proposing that Vermont has met the
applicable infrastructure SIP
requirements of section 110(a)(2)(D)(ii)
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related to section 115 of the CAA for the
2015 ozone NAAQS.
portion of section 110(a)(2)(E) for the
2015 ozone 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 for state
boards in CAA section 128. Finally,
section 110(a)(2)(E)(iii) requires that,
where a state relies upon local or
regional governments or agencies for the
implementation of its SIP provisions,
the state retain responsibility for
ensuring implementation of SIP
obligations with respect to relevant
NAAQS. Section 110(a)(2)(E)(iii),
however, does not apply to this action
because Vermont does not rely upon
local or regional governments or
agencies for the implementation of its
SIP provisions.
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. Section 128 further provides
that a state may adopt more stringent
conflicts of interest requirements and
requires EPA to approve any such
requirements submitted as part of a SIP.
In Vermont, no board or body
approves permits or enforcement orders;
these are approved by the Secretary of
Vermont ANR. Thus, with respect to
this sub-element, Vermont is subject
only to the requirements of paragraph
(a)(2) of section 128 of the CAA
(regarding conflicts of interest).
Vermont’s November 19, 2019,
infrastructure SIP included State of
Vermont Executive Order (E.O.) 19–17,
Executive Code of Ethics, and requested
that we approve it into the SIP and
remove E.O. 09–11, which E.O. 19–17
supersedes and replaces. EPA originally
approved E.O. 09–11 into the SIP on
June 27, 2017. See 82 FR 29005.
The submitted Order, E.O. 19–17,
prohibits all Vermont executive branch
appointees (including the ANR
Secretary) from taking ‘‘any action in
any matter in which he or she has either
a Conflict of Interest or the appearance
of a Conflict of Interest, until the
Conflict is resolved.’’ 33 The Order also
Sub-Element 1: Adequate Personnel,
Funding, and Legal Authority Under
State Law To Carry Out its SIP, and
Related Issues
Vermont, through its infrastructure
SIP submittal, has documented that its
air agency has the requisite authority
and resources to carry out its SIP
obligations. Vermont cites 10 V.S.A.
§ 553, which designates ANR as the air
pollution control agency of the state,
and 10 V.S.A. § 554, which provides the
Secretary of ANR with the power to
‘‘[a]dopt, amend and repeal rules,
implementing the provisions’’ of 10
V.S.A. Chapter 23, Air Pollution
Control, and to ‘‘[a]ppoint and employ
personnel and consultants as may be
necessary for the administration of’’ 10
V.S.A. Chapter 23. Section 554 also
authorizes the Secretary of ANR to
‘‘[a]ccept, receive and administer grants
or other funds or gifts from public and
private agencies, including the federal
government, for the purposes of carrying
out any of the functions of’’ 10 V.S.A.
Chapter 23. Additionally, 3 V.S.A.
§ 2822 provides the Secretary of ANR
with the authority to assess air permit
and registration fees, which fund state
air programs. In addition to Federal
funding and permit and registration
fees, Vermont notes that the Vermont
DEC Air Quality and Climate Division
(AQCD) receives state funding to
implement its air programs.32
EPA proposes that Vermont meets the
infrastructure SIP requirements of this
32 VT ANR’s authority to carry out the provisions
of the SIP identified in 40 CFR 51.230 is discussed
in the sections of this document assessing elements
A, C, F, and G, as applicable.
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33 The Order defines ‘‘Conflict of Interest’’ as ‘‘a
significant interest of an Appointee or such an
interest, known to the Appointee, of a member of
his or her immediate family or household, or of a
business associate, in the outcome of a particular
matter pending before the Appointee or his or her
Public Body. ‘Conflict of Interest’ does not include
any interest that (i) is no greater than that of other
persons generally affected by the outcome of a
matter (such as a policyholder in an insurance
company or a depositor in a bank), or (ii) has been
disclosed to the Secretary and found not to be
significant.’’ ‘‘Appearance of a Conflict of Interest’’
is defined in the Order as ‘‘the impression that a
reasonable person might have, after full disclosure
of the facts, that an Appointee’s judgment might be
significantly influenced by outside interests, even
though there may be no actual Conflict of Interest.’’
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prohibits a full-time appointee from
being ‘‘the owner of, or financially
interested, directly or indirectly, in any
Private Entity or private interest subject
to the supervision of his or her
respective Public Body, except as a
policy holder in an insurance company
or a depositor in a bank.’’ 34
Additionally, the Order requires an
appointee to ‘‘take all reasonable steps
to avoid any action or circumstances,
including acts or circumstances which
may not be specifically prohibited by
th[e] Code [of Ethics], which might
result in (1) [u]ndermining his or her
independence or impartiality or action;
(2) [t]aking official action based on
unfair considerations; (3) [g]iving
preferential treatment to any private
interest or Private Entity based on unfair
considerations; (4) [g]iving preferential
treatment to any family member or
member of the Appointee’s household;
(5) [u]sing public office for the
advancement of personal interest; (6)
[u]sing public office to secure special
privileges or exemptions; (7) [a]dversely
affecting the confidence of the public in
the integrity of State government; or (8)
undermining the climate of civility and
respect required for every open,
democratic government to thrive.’’
The Order also includes specific
disclosure requirements. Every
appointee earning $30,000 or more per
year, which includes the ANR Secretary,
must file annually with the Vermont
Secretary of Civil and Military Affairs
an ‘‘Ethics Questionnaire’’ identifying
‘‘significant personal interests’’ that
‘‘might conflict with the best interests of
the state.’’ Agency Secretaries must also
disclose certain additional financial and
contractual interests to the State Ethics
Commission biennially. EPA proposes
to find that E.O. 19–17 satisfies the CAA
§ 128 requirement applicable to
Vermont that potential conflicts of
interest by the head of an executive
agency that approves permits or
enforcement orders under the CAA be
‘‘adequately disclosed.’’ Consequently,
EPA proposes to approve E.O. 19–17
into the Vermont SIP and, concurrently,
to remove E.O. 09–11 from the Vermont
SIP.
EPA proposes that Vermont meets the
infrastructure SIP requirements of this
portion of section 110(a)(2)(E) for the
2015 ozone NAAQS.
34 The Order defines ‘‘a direct or indirect
financial interest’’ to exclude ‘‘any insignificant
interest held individually or by a member of the
Appointee’s immediate household or by a business
associate’’ and ‘‘any interest which is no greater
than that of other persons who might be generally
affected by the Supervision of the Appointee’s
Public Body.’’
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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.
Vermont’s infrastructure submittal
references existing state regulations
previously approved by EPA that
require sources to monitor emissions
and submit reports. In particular, VT
APCR § 5–405, Required Air
Monitoring, provides that ANR ‘‘may
require the owner or operator of any air
contaminant source to install, use and
maintain such monitoring equipment
and records, establish and maintain
such records, and make such periodic
emission reports as [ANR] shall
prescribe.’’ See 45 FR 10775 (February
19, 1980). Moreover, section 5–402,
Written Reports When Requested,
authorizes ANR to ‘‘require written
reports from the person operating or
responsible for any proposed or existing
air contaminant source, which reports
shall contain,’’ among other things,
information concerning the ‘‘nature and
amount and time periods or durations of
emissions and such other information as
may be relevant to the air pollution
potential of the source. These reports
shall also include the results of such
source testing as may be required under
Section 5–404 herein.’’ See 81 FR 50342
(August 1, 2016).
Section 5–404, Methods for Sampling
and Testing of Sources authorizes ANR
to ‘‘require the owner or operator of [a]
source to conduct tests to determine the
quantity of particulate and/or gaseous
matter being emitted’’ and requires a
source to allow access, should ANR
have reason to believe that emission
limits are being violated by the source,
and allows ANR ‘‘to conduct tests of
[its] own to determine compliance.’’ See
45 FR 10775 (February 19, 1980). In
addition, operators of sources that emit
more than five tons of any and all air
contaminants per year are required to
register the source with the Secretary of
ANR and to submit emissions data
annually, pursuant to § 5–802,
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Requirement for Registration, and § 5–
803, Registration Procedure. See 60 FR
2524 (January 10, 1995).
Vermont also certifies that nothing in
its SIP would preclude the use,
including the exclusive use, of any
credible evidence or information,
relevant to whether a source would have
been in compliance with applicable
requirements if the appropriate
performance or compliance test or
procedure had been performed. See 40
CFR 51.212(c).
Vermont provides for correlation by
VT DEC of emissions reports by sources
with applicable emission limitations or
standards, as required by CAA
§ 110(a)(2)(F)(iii). Vermont receives
emissions data through its annual
registration program. Currently, VT DEC
analyzes a portion of these data
manually to correlate a facility’s
reported data with permit conditions,
including hours of operation, fuel usage,
and annual emissions limits for both
criteria emissions and hazardous air
contaminant emissions. VT DEC reports
that it has finished the process of setting
up an integrated electronic database that
merges all air contaminant source
information across permitting,
compliance and registration programs,
so that information concerning permit
conditions, annual emissions data, and
compliance data are accessible in one
location for a particular air contaminant
source. VT DEC further reports that it is
working on a database function that
would automatically correlate emissions
data with permit conditions and other
applicable standards electronically to
enable VT DEC to complete correlation
more efficiently and accurately.
Regarding the section 110(a)(2)(F)
requirement that the SIP ensure that the
public has availability to emission
reports, Vermont certified in its
November 19, 2019, submittal for the
2015 ozone NAAQS that the Vermont
Public Records Act, 1 V.S.A. §§ 315–
320, provides for the free and open
examination of public records,
including emissions reports.
Furthermore, 10 V.S.A. § 563
specifically provides that the ANR
‘‘Secretary shall not withhold emissions
data and emission monitoring data from
public inspection or review’’ and ‘‘shall
keep confidential any record or other
information furnished to or obtained by
the Secretary concerning an air
contaminant source, other than
emissions data and emission monitoring
data, that qualifies as a trade secret
pursuant to 1 V.S.A. § 317(c)(9).’’
(emphasis added). EPA approved
section 563 into the Vermont SIP on
June 27, 2017. See 82 FR 29005.
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Consequently, EPA proposes that
Vermont meets the infrastructure SIP
requirements of section 110(a)(2)(F) for
the 2015 ozone NAAQS.
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G. Section 110(a)(2)(G)—Emergency
Powers
This section requires that a plan
provide for state authority analogous to
that provided to the EPA Administrator
in section 303 of the CAA, and adequate
contingency plans to implement such
authority. Section 303 of the CAA
provides authority to the EPA
Administrator to seek a court order to
restrain any source from causing or
contributing to emissions that present
an ‘‘imminent and substantial
endangerment to public health or
welfare, or the environment.’’ Section
303 further authorizes the Administrator
to issue ‘‘such orders as may be
necessary to protect public health or
welfare or the environment’’ in the
event that ‘‘it is not practicable to assure
prompt protection . . . by
commencement of such civil action.’’
On June 27, 2017, EPA approved a
Vermont SIP revision addressing the
requirement that the plan provide for
state authority comparable to that in
section 303 of the CAA. See 82 FR
29005. For a detailed analysis
explaining how Vermont meets this
requirement, see EPA’s notice of
proposed rulemaking for that action. See
82 FR 15671, 15679 (March 30, 2017).
For the reasons provided in the March
2017 notice, we are proposing to
approve the state’s submittal for this
requirement of Section 110(a)(2)(G) with
respect to the 2015 ozone NAAQS.
Section 110(a)(2)(G) also requires that
Vermont have an approved contingency
plan for any Air Quality Control Region
(AQCR) within the state that is
classified as Priority I, IA, or II for
certain pollutants. See 40 CFR 51.150,
51.152(c). In general, contingency plans
for Priority I, IA, and II areas must meet
the applicable requirements of 40 CFR
part 51, subpart H (40 CFR 51.150
through 51.153) (‘‘Prevention of Air
Pollution Emergency Episodes’’) for the
relevant NAAQS, if the NAAQS is
covered by those regulations. Both
AQCRs in Vermont are classified as
Priority III for ozone, 40 CFR 52.2371,
and, therefore, Vermont does not need
to submit a contingency plan to
implement its emergency episode
authority.35 Although not expected, if
35 Classification of regions in Vermont is available
at https://www.ecfr.gov/cgi-bin/text-idx?SID=
73d43a45cf13909292d606aad27c9cc6&
mc=true&node=se40.5.52_12371&rgn=div8 and
ozone monitor values for individual monitoring
sites throughout Vermont are available at
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ozone conditions were to change,
Vermont does have general authority, as
noted previously (i.e., 10 V.S.A. § 560
and 10 V.S.A. § 8009), to order a source
to cease operations if it is determined
that emissions from the source pose an
imminent danger to human health or
safety or an immediate threat of
substantial harm to the environment.
In addition, as stated in Vermont’s
infrastructure SIP submittal under the
discussion of public notification
(Element J), Vermont posts near realtime air quality data, air quality
predictions and a record of historical
data on the VT DEC website and, when
forecast or measured ozone
concentrations exceed the level of the
2015 ozone NAAQS, distributes air
quality alerts by email to many parties,
including the media and the National
Weather Service. Alerts include
information about the health
implications of elevated pollutant levels
and list actions to reduce emissions and
to reduce the public’s exposure. In
addition, daily forecasted ozone levels
are also made available on the internet
through the EPA AirNow and
EnviroFlash systems. Information
regarding these two systems is available
on EPA’s website at www.airnow.gov.
Notices are sent out to EnviroFlash
participants when levels are forecast to
exceed the current ozone standard.
EPA proposes that Vermont meets the
applicable infrastructure SIP
requirements for section 110(a)(2)(G)
with respect to contingency plans for
the 2015 ozone NAAQS.
H. Section 110(a)(2)(H)—Future SIP
Revisions
This section requires that a state’s SIP
provide for revision from time to time
as may be necessary to take account of
changes in the NAAQS or availability of
improved methods for attaining the
NAAQS and whenever EPA finds that
the SIP is substantially inadequate. To
address this requirement, Vermont’s
infrastructure submittal references 10
V.S.A. § 554, which provides the
Secretary of Vermont ANR with the
power to ‘‘[p]repare and develop a
comprehensive plan or plans for the
prevention, abatement and control of air
pollution in this state’’ and to ‘‘[a]dopt,
amend and repeal rules, implementing
the provisions’’ of Vermont’s air
pollution control laws set forth in 10
V.S.A. chapter 23. EPA approved 10
V.S.A. § 554 into the SIP on June 27,
2017. See 82 FR 29005. EPA proposes
that Vermont meets the infrastructure
SIP requirements of CAA section
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110(a)(2)(H) with respect to the 2015
ozone NAAQS.
I. Section 110(a)(2)(I)—Nonattainment
Area Plan or Plan Revisions Under Part
D
Section 110(a)(2)(I) provides that each
plan or plan revision for an area
designated as a nonattainment area shall
meet the applicable requirements of part
D of the CAA. EPA interprets section
110(a)(2)(I) to be inapplicable to the
infrastructure SIP process because
specific SIP submissions for designated
nonattainment areas, as required under
part D, are subject to a different
submission schedule under subparts 2
through 5 of part D, extending as far as
10 years following area designations for
some elements, whereas infrastructure
SIP submissions are due within three
years after adoption or revision of a
NAAQS. Accordingly, EPA takes action
on part D attainment plans through
separate processes.
J. Section 110(a)(2)(J)—Consultation
With Government Officials; Public
Notifications; Prevention of Significant
Deterioration; Visibility Protection
Section 110(a)(2)(J) of the CAA
requires that each SIP ‘‘meet the
applicable requirements of section 121
of this title (relating to consultation),
section 127 of this title (relating to
public notification), and part C of this
subchapter (relating to PSD of air
quality and visibility protection).’’ The
evaluation of the submission from
Vermont 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.
Vermont’s 10 V.S.A. § 554 specifies
that the Secretary of Vermont ANR shall
have the power to ‘‘[a]dvise, consult,
contract and cooperate with other
agencies of the state, local governments,
industries, other states, interstate or
interlocal agencies, and the federal
government, and with interested
persons or groups.’’ EPA approved 10
V.S.A. § 554 into the SIP on June 27,
2017. See 82 FR 29005. In addition, VT
APCR § 5–501(7)(c) requires VT ANR to
provide notice to local governments and
federal land managers of a
determination by ANR to issue a draft
PSD permit for a major stationary source
or major modification. On August 1,
2016, EPA approved VT APCR § 5–
501(7)(c) into Vermont’s SIP. See 81 FR
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50342. Therefore, EPA proposes that
Vermont meets the infrastructure SIP
requirements of this portion of section
110(a)(2)(J) for the 2015 ozone 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.
Vermont’s 10 V.S.A. § 554 authorizes
the Secretary of Vermont ANR to
‘‘[c]ollect and disseminate information
and conduct educational and training
programs relating to air contamination
and air pollution.’’ In addition, the VT
DEC Air Quality and Climate Division
website includes near real-time air
quality data, and a record of historical
data. Air quality forecasts are
distributed daily via email to interested
parties. Air quality alerts are sent by
email to a large number of affected
parties, including the media. Alerts
include information about the health
implications of elevated pollutant levels
and list actions to reduce emissions and
to reduce the public’s exposure. Also,
Air Quality Data Summaries of the
year’s air quality monitoring results are
issued annually and posted on the VT
DEC Air Quality and Climate Division
website. Vermont is also an active
partner in EPA’s AirNow and
EnviroFlash air quality alert programs.
EPA proposes that Vermont meets the
infrastructure SIP requirements of this
portion of section 110(a)(2)(J) for the
2015 ozone NAAQS.
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Sub-Element 3: PSD
EPA has already discussed Vermont’s
PSD program in the context of
infrastructure SIPs in the paragraphs
addressing section 110(a)(2)(C) and
110(a)(2)(D)(i)(II) and determined that it
satisfies the requirements of EPA’s PSD
implementation rules. Therefore, the
SIP also satisfies the PSD sub-element of
section 110(a)(2)(J) for the 2015 ozone
NAAQS.
Sub-Element 4: Visibility Protection
With regard to the applicable
requirements for visibility protection,
states are subject to visibility and
regional haze program requirements
under part C of the CAA (which
includes sections 169A and 169B). In
the event of the establishment of a new
NAAQS, however, the visibility and
regional haze program requirements
under part C do not change. Thus, as
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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 2015 ozone
NAAQS.
Based on the above analysis, EPA
proposes that Vermont meets the
infrastructure SIP requirements of subelements 1–3 of section 110(a)(2)(J) for
the 2015 ozone NAAQS. We are not
proposing action on sub-element 4
because, as noted above, it is not
germane to infrastructure SIPs.
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 modeling guidelines
at 40 CFR part 51, Appendix W, for
predicting the effects of emissions of
criteria pollutants on ambient air
quality. EPA also recommends in the
2013 memorandum that, to meet section
110(a)(2)(K), 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.
In its submittal, Vermont cites to VT
APCR § 5–406, Required Air Modeling,
which authorizes ‘‘[t]he Air Pollution
Control Officer [to] require the owner or
operator of any proposed air
contaminant source . . . to conduct . . .
air quality modeling and to submit an
air quality impact evaluation to
demonstrate that operation of the
proposed source . . . will not directly
or indirectly result in a violation of any
ambient air quality standard, interfere
with the attainment of any ambient air
quality standard, or violate any
applicable prevention of significant
deterioration increment . . . .’’
Vermont reviews the potential impact of
such sources consistent with EPA’s
‘‘Guidelines on Air Quality Models’’ at
40 CFR part 51, appendix W. See VT
APCR § 5–406(2). Vermont also cites to
VT APCR § 5–502, Major Stationary
Sources and Major Modifications, which
requires the submittal of an air quality
impact evaluation or air quality
modeling to ANR to demonstrate
impacts of new and modified major
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18171
sources, in accordance with VT APCR
§ 5–406. The modeling data are sent to
EPA along with the draft major permit.
As a result, the SIP provides for such air
quality modeling as the Administrator
has prescribed and for the submission,
upon request, of data related to such
modeling.
The state also collaborates with the
Ozone Transport Commission (OTC)
and the Mid-Atlantic Regional Air
Management Association and EPA in
order to perform large-scale urban air
shed modeling for ozone and PM, if
necessary. EPA proposes that Vermont
meets the infrastructure SIP
requirements of section 110(a)(2)(K) for
the 2015 ozone 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.
Vermont state law requires
application fees for construction or
modification permits for major
stationary sources, 10 V.S.A. § 556; VT
APCR § 5–504, and sets forth fee
amounts, 3 V.S.A. § 2822(j)(1)(A)(ii)(I).
State law also requires major stationary
sources to pay annual registration
renewal fees. Id. § 2822(j)(1)(B); VT
APCR §§ 5–802, 5–806. Moreover, EPA
fully approved Vermont’s Title V permit
program, see VT APCR subchapter X, on
November 29, 2001. See 66 FR 59535;
see also 40 CFR part 70, appendix A. To
gain this approval, Vermont
demonstrated that the annual fees
required of Title V sources (which
includes major stationary sources)
under State law are sufficient to cover
the costs of reviewing, approving,
implementing, and enforcing the
permits. See 61 FR 26145 (May 24,
1996).
Therefore, EPA proposes that
Vermont meets the infrastructure SIP
requirements of section 110(a)(2)(L) for
the 2015 ozone NAAQS.
M. Section 110(a)(2)(M)—Consultation/
Participation by Affected Local Entities
To satisfy Element M, states must
provide for consultation with, and
participation by, local political
subdivisions affected by the SIP.
Vermont’s infrastructure submittal
references 10 V.S.A. § 554, which was
approved into the VT SIP on June 27,
2017. See 82 FR 29005. This statute
authorizes the Secretary of Vermont
ANR to ‘‘[a]dvise, consult, contract and
cooperate with other agencies of the
state, local governments, industries,
other states, interstate or interlocal
agencies, and the federal government,
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and with interested persons or groups.’’
In addition, VT APCR § 5–501(7)
provides for notification to local
officials and agencies about the
opportunity for participating in
permitting determinations for the
construction or modification of major
sources. EPA proposes that Vermont
meets the infrastructure SIP
requirements of section 110(a)(2)(M)
with respect to the 2015 ozone NAAQS.
N. Vermont Executive Order Submitted
for Incorporation Into the SIP
Vermont’s November 19, 2019,
infrastructure SIP submittal for the 2015
ozone NAAQS included State of
Vermont Executive Order (E.O.) 19–17,
Executive Code of Ethics. As requested
by Vermont, EPA is proposing to
approve E.O. 19–17 into the Vermont
SIP and, because E.O. 19–17 supersedes
and replaces E.O. 09–11, to remove E.O.
09–11 from the Vermont SIP.
III. Proposed Action.
EPA is proposing to approve the
elements of the infrastructure SIP
submitted by Vermont on November 19,
2019, for the 2015 ozone NAAQS.
Specifically, EPA’s proposed action
regarding each infrastructure SIP
requirement is contained in Table 1
below.
INFORMATION CONTACT section of this
TABLE 1—PROPOSED ACTION ON
VERMONT’S INFRASTRUCTURE SIP preamble for more information).
SUBMITTAL FOR THE 2015 OZONE V. Statutory and Executive Order
NAAQS—Continued
Reviews
Element
2015 Ozone
(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
In the above table, the key is as
follows:
A ...........
NA ........
+ ...........
Approve
Not applicable
Not germane to infrastructure SIPs
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In addition, EPA is proposing to
approve, and incorporate into the
Vermont SIP, the following Executive
Order, which was included for approval
in Vermont’s infrastructure SIP
submittal:
State of Vermont Executive Order No.
19–17, Executive Code of Ethics,
effective December 4, 2017.
TABLE 1—PROPOSED ACTION ON
EPA is also proposing to remove State
VERMONT’S INFRASTRUCTURE SIP of Vermont Executive Order No. 09–11,
SUBMITTAL FOR THE 2015 OZONE Executive Code of Ethics, which has
NAAQS
been superseded and replaced by
Executive Order No. 19–17.
Element
2015 Ozone
EPA is soliciting public comments on
the issues discussed in this notice or on
(A): Emission limits and other
A
other relevant matters. These comments
control measures.
will be considered before taking final
(B): Ambient air quality moniA
toring and data system.
action. Interested parties may
(C)1: Enforcement of SIP
A
participate in the Federal rulemaking
measures.
procedure by submitting written
(C)2: PSD program for major
A
comments to this proposed rule by
sources and major modificafollowing the instructions listed in the
tions.
ADDRESSES section of this Federal
(C)3: PSD program for minor
A
Register.
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 ..........
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16:31 Mar 31, 2020
A
A
A
A
A
A
A
NA
A
A
A
Jkt 250001
IV. Incorporation by Reference
In this rule, EPA is proposing to
include in a final EPA rule regulatory
text that includes incorporation by
reference. In accordance with
requirements of 1 CFR 51.5, EPA is
proposing to incorporate by reference
the Vermont executive order regarding
the State’s executive code of ethics
discussed in Section II of this preamble.
EPA has made, and will continue to
make, these documents generally
available through https://
www.regulations.gov and at the EPA
Region 1 Office (please contact the
person identified in the FOR FURTHER
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Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this proposed action
merely approves state law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by state law. For that
reason, this proposed action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• 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).
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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: March 24, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 721
[EPA–HQ–OPPT–2019–0614; FRL–10004–
51]
RIN 2070–AB27
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to amend
the significant new use rules (SNURs)
for chemical substances, which were the
subject of a premanufacture notice
(PMN) and a significant new use notice
(SNUN). This action would amend the
SNURs to allow certain new uses
reported in the SNUNs without
additional notification requirements and
modify the significant new use
notification requirements based on the
actions and determinations for the
SNUN submissions. EPA is proposing
this amendment based on review of new
and existing data for the chemical
substances.
jbell on DSKJLSW7X2PROD with PROPOSALS
SUMMARY:
Comments must be received on
or before May 1, 2020.
ADDRESSES: Submit your comments,
identified by docket identification (ID)
number EPA–HQ–OPPT–2019–0614, by
one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
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B. What should I consider as I prepare
my comments for EPA?
I. General Information
A. Does this action apply to me?
II. Background
You may be potentially affected by
this action if you manufacture, process,
or use the chemical substances
contained in this proposed rule. The
following list of North American
Industrial Classification System
(NAICS) codes is not intended to be
exhaustive, but rather provides a guide
to help readers determine whether this
document applies to them. Potentially
affected entities may include:
• Manufacturers or processors of the
chemical substance (NAICS codes 325
and 324110), e.g., chemical
manufacturing and petroleum refineries.
This proposed rule may affect certain
entities through pre-existing import
certification and export notification
rules under TSCA. Chemical importers
are subject to the TSCA section 13 (15
U.S.C. 2612) import certification
requirements promulgated at 19 CFR
12.118 through 12.127 and 19 CFR
127.28 and must certify that the
shipment of the chemical substance
complies with all applicable rules and
orders under TSCA. Importers of
A. What action is the Agency taking?
For
technical information contact: Kenneth
Moss, Chemical Control Division, Office
of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC
20460–0001; telephone number: (202)
564–8974; email address:
moss.kenneth@epa.gov.
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
SUPPLEMENTARY INFORMATION:
Modification of Significant New Uses
of Certain Chemical Substances
chemicals subject to a SNUR must
certify their compliance with the SNUR
requirements. Any person who exports
or intends to export the chemical
substance that is the subject of a final
rule are subject to the export
notification provisions of TSCA section
12(b) (15 U.S.C. 2611(b)) (40 CFR
721.20), and must comply with the
export notification requirements in 40
CFR part 707, subpart D.
1. Submitting CBI. Do not submit this
information to EPA through
regulations.gov or email. Clearly mark
the part or all of the information that
you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to EPA, mark the outside of the
disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments.
When preparing and submitting your
comments, see the commenting tips at
https://www.epa.gov/dockets/
comments.html.
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2020–06659 Filed 3–31–20; 8:45 am]
DATES:
instructions for submitting comments.
Do not submit electronically any
information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute.
• Mail: Document Control Office
(7407M), Office of Pollution Prevention
and Toxics (OPPT), Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW, Washington, DC 20460–0001.
• Hand Delivery: To make special
arrangements for hand delivery or
delivery of boxed information, please
follow the instructions at https://
www.epa.gov/dockets/contacts.html.
Additional instructions on commenting
or visiting the docket, along with more
information about dockets generally, is
available at https://www.epa.gov/
dockets.
18173
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EPA is proposing amendments to the
SNURs for chemical substances in 40
CFR part 721, subpart E. A SNUR for a
chemical substance designates certain
activities as a significant new use.
Persons who intend to manufacture or
process the chemical substance for the
significant new use must notify EPA at
least 90 days before commencing that
activity. The required notification
would initiate EPA’s evaluation of the
intended use within the applicable
review period. Manufacture and
processing for the significant new use
would be unable to commence until
EPA conducted a review of the notice,
made an appropriate determination on
the notice, and took such actions as are
required with that determination.
B. What is the Agency’s authority for
taking this action?
TSCA section 5(a)(2) (15 U.S.C.
2604(a)(2)) authorizes EPA to determine
that a use of a chemical substance is a
‘‘significant new use.’’ EPA must make
E:\FR\FM\01APP1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 63 (Wednesday, April 1, 2020)]
[Proposed Rules]
[Pages 18160-18173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06659]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2020-0057; FRL-10007-24-Region 1]
Air Plan Approval; Vermont; Infrastructure State Implementation
Plan Requirements for the 2015 Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted by the
State of Vermont. This revision addresses the infrastructure
requirements of the Clean Air Act (CAA or Act)--including the
interstate transport provisions--for the 2015 ozone National Ambient
Air Quality Standards (NAAQS). The infrastructure requirements are
designed to ensure that the structural components of each state's air-
quality management program, including provisions prohibiting emissions
that will have certain adverse air-quality effects in other states, are
adequate to meet the state's responsibilities under the CAA. EPA is
also proposing to approve State of Vermont Executive Order (E.O.) 19-
17, Executive Code of Ethics, which Vermont submitted with its
infrastructure submission for the 2015 ozone NAAQS to be added to the
SIP. Because E.O. 19-17 supersedes and replaces E.O. 09-11, EPA is also
proposing to remove E.O. 09-11 from the Vermont SIP. This action is
being taken under the Clean Air Act.
DATES: Written comments must be received on or before May 1, 2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2020-0057 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov,
follow the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, the EPA may publish any comment received to its
public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. The EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the For Further Information Contact section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit 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, Air and Radiation Division, 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 Branch,
U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office
Square--Suite 100, (Mail code 05-2), Boston, MA 02109-3912, tel. (617)
918-1684, email [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background and Purpose
A. What is the scope of this rulemaking?
B. What guidance is EPA using to evaluate these SIP submissions?
[[Page 18161]]
II. EPA's Evaluation of Vermont's Infrastructure SIP for the 2015
Ozone Standard
A. Section 110(a)(2)(A)--Emission Limits and Other Control
Measures
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data
System
C. Section 110(a)(2)(C)--Program for Enforcement of Control
Measures and for Construction or Modification of Stationary Sources
D. Section 110(a)(2)(D)--Interstate Transport
E. Section 110(a)(2)(E)--Adequate Resources
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
G. Section 110(a)(2)(G)--Emergency Powers
H. Section 110(a)(2)(H)--Future SIP Revisions
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan
Revisions Under Part D
J. Section 110(a)(2)(J)--Consultation With Government Officials;
Public Notifications; Prevention of Significant Deterioration;
Visibility Protection
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
L. Section 110(a)(2)(L)--Permitting Fees
M. Section 110(a)(2)(M)--Consultation/Participation by Affected
Local Entities
N. Vermont Executive Order Submitted for Incorporation Into the
SIP
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews
I. Background and Purpose
On October 1, 2015, EPA promulgated a revision to the ozone NAAQS
(2015 ozone NAAQS), lowering the level of both the primary and
secondary standards to 0.070 parts per million (ppm).\1\ Section
110(a)(1) of the CAA requires states to submit, within 3 years after
promulgation of a new or revised standard, SIPs meeting the applicable
requirements of section 110(a)(2).\2\ On November 19, 2019, the Vermont
Air Quality and Climate Division (AQCD) of the Department of
Environmental Conservation (DEC) submitted a revision to its State
Implementation Plan (SIP). The SIP revision addresses the
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)--
including the ``Good Neighbor'' or ``transport'' provisions--for the
2015 ozone NAAQS.
---------------------------------------------------------------------------
\1\ National Ambient Air Quality Standards for Ozone, Final
Rule, 80 FR 65292 (October 26, 2015). Although the level of the
standard is specified in the units of ppm, ozone concentrations are
also described in parts per billion (ppb). For example, 0.070 ppm is
equivalent to 70 ppb.
\2\ SIP revisions that are intended to meet the applicable
requirements of section 110(a)(1) and (2) of the CAA are often
referred to as infrastructure SIPs and the applicable elements under
110(a)(2) are referred to as infrastructure requirements.
---------------------------------------------------------------------------
A. What is the scope of this rulemaking?
EPA is acting on the SIP submission from Vermont on the
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for
the 2015 ozone NAAQS (including the transport provisions).
Whenever EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make SIP submissions to provide for the
implementation, maintenance, and enforcement of the NAAQS. This
particular type of SIP submission is commonly referred to as an
``infrastructure SIP.'' These submissions must meet the various
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity
in some of the language of CAA section 110(a)(2), EPA believes that it
is appropriate to interpret these provisions in the specific context of
acting on infrastructure SIP submissions. EPA has previously provided
comprehensive guidance on the application of these provisions through a
guidance document for infrastructure SIP submissions and through
regional actions on infrastructure submissions.\3\ Unless otherwise
noted below, we are following that existing approach in acting on this
submission. In addition, in the context of acting on such
infrastructure submissions, EPA evaluates the submitting state's SIP
for compliance with statutory and regulatory requirements, not for the
state's implementation of its SIP.\4\ EPA has other authority to
address any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
---------------------------------------------------------------------------
\3\ EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013, Infrastructure
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior
action on Vermont's infrastructure SIP to address the 2012
PM2.5 NAAQS. See 83 FR 45194 (September 6, 2018).
\4\ See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th
Cir. 2018).
---------------------------------------------------------------------------
B. What guidance is EPA using to evaluate Vermont's infrastructure 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, guidance document entitled ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2007
memorandum). EPA has issued additional guidance documents and
memoranda, including a September 13, 2013, guidance document entitled
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' (2013
memorandum). Additional guidance documents specifically addressing the
interstate-transport (``good neighbor'') provisions of infrastructure
SIPs (CAA Section 110(a)(2)(D)) are given under Section II.D. below.
II. EPA's Evaluation of Vermont's Infrastructure SIP for the 2015 Ozone
Standard
In this notice of proposed rulemaking, EPA is proposing action on
Vermont's November 19, 2019, infrastructure SIP submission for the 2015
ozone NAAQS, including the interstate transport provisions (CAA section
110(a)(2)(D)(i)). In Vermont's submission, a detailed list of Vermont
Laws and previously SIP-approved Air Quality Regulations show precisely
how the various components of its EPA-approved SIP meet each of the
requirements of section 110(a)(2) of the CAA for the 2015 ozone NAAQS.
The following review evaluates the state's submission in light of
section 110(a)(2) requirements and relevant EPA guidance. For the
state's November 2019 submission, we provide an evaluation of the
applicable Section 110(a)(2) elements, including the transport
provisions.
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.\5\ In the context of
an infrastructure SIP, EPA is not evaluating the existing SIP
provisions for this purpose. Instead, EPA is only evaluating whether
the state's SIP has basic structural provisions for the implementation
of the NAAQS.
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\5\ 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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In its November 2019 submittal for the 2015 ozone NAAQS, Vermont
cites a number of provisions of Vermont Statutes Annotated (V.S.A.) in
satisfaction of element A: 10 V.S.A. Sec. 554, ``Powers,'' authorizes
the Secretary of the Vermont Agency of
[[Page 18162]]
Natural Resources \6\ (ANR) to ``[a]dopt, amend and repeal rules,
implementing the provisions'' of Vermont's air pollution control laws
set forth in 10 V.S.A. chapter 23. It also authorizes the Secretary to
``conduct studies, investigations and research relating to air
contamination and air pollution'' and to ``[d]etermine by appropriate
means the degree of air contamination and air pollution in the state
and the several parts thereof.'' EPA approved 10 V.S.A. Sec. 554 on
June 27, 2017 (82 FR 29005). Vermont also cites 10 V.S.A. Sec. 556,
``Permits for the construction or modification of air contaminant
sources,'' which requires applicants to obtain permits for constructing
or modifying air contaminant sources, and 10 V.S.A. Sec. 558,
``Emission control requirements,'' which authorizes the Secretary ``to
establish emission control requirements . . . necessary to prevent,
abate, or control air pollution.'' In addition, Vermont cites 10 V.S.A.
Sec. 579 ``Vehicle emissions labeling program for new motor vehicles''
for model year 2010 and later vehicles.
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\6\ The Vermont Department of Environmental Conservation is one
of three departments within the Vermont ANR.
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Under Element A of the November 2019 submittal, the state also
cites more than 20 Vermont Air Pollution Control Regulations (VT APCR)
that it has adopted to control the emissions related to ozone and ozone
precursors (nitrogen oxides (NOX) and volatile organic
compounds (VOCs)). A few, with their EPA approval citation \7\ are
listed here: Sec. 5-502--Major Stationary Sources and Major
Modifications (81 FR 50342; August 1, 2016); Sec. 5-251--Control of
Nitrogen Oxides Emissions (81 FR 50342; August 1, 2016); Sec. 5-
253.5--Stage I Vapor Recovery Controls at Gasoline Dispensing
Facilities (81 FR 23164; April 20, 2016); 5-253.8--Industrial Adhesives
(84 FR 65009; November 26, 2019); Sec. 5-253.17--Industrial Cleaning
Solvents (84 FR 65009; November 26, 2019).
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\7\ The citations reference the most recent EPA approval of the
stated rule or of revisions to the rule.
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EPA proposes that Vermont meets the infrastructure requirements of
section 110(a)(2)(A) for the 2015 ozone NAAQS.
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 to make these data available to EPA upon request. Each year, states
submit annual air monitoring network plans to EPA for review and
approval. EPA's review of these annual monitoring plans includes our
evaluation of whether the state: (i) Monitors air quality at
appropriate locations throughout the state using EPA-approved Federal
Reference Methods or Federal Equivalent Method monitors; (ii) submits
data to EPA's Air Quality System (AQS) in a timely manner; and (iii)
provides EPA Regional Offices with prior notification of any planned
changes to monitoring sites or the network plan.
State law authorizes the Secretary of ANR, or authorized
representative, to ``conduct studies, investigations and research
relating to air contamination and air pollution'' and to ``[d]etermine
by appropriate means the degree of air contamination and air pollution
in the state and the several parts thereof.'' See 10 V.S.A. Sec.
554(8), (9). Vermont Department of Environmental Conservation (DEC),
one of several departments within ANR, operates an air quality
monitoring network, and EPA approved the state's 2019 Annual Air
Monitoring Network Plan on August 15, 2019.\8\ Furthermore, Vermont
populates EPA's Air Quality System (AQS) with air-quality monitoring
data in a timely manner and provides EPA with prior notification when
considering a change to its monitoring network or plan. EPA proposes
that Vermont has met the infrastructure SIP requirements of section
110(a)(2)(B) with respect to the 2015 ozone NAAQS.
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\8\ See EPA approval letter located in the docket for this
action.
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C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures
and for Construction or Modification of Stationary Sources
States are required to include a program providing for enforcement
of all SIP measures and for 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
State law provides the Secretary of ANR with the authority to
enforce air pollution control requirements, including SIP-approved 10
V.S.A. Sec. 554, which authorizes the Secretary of ANR to ``[i]ssue
orders as may be necessary to effectuate the purposes of [the state's
air pollution control laws] and enforce the same by all appropriate
administrative and judicial proceedings.'' In addition, Vermont's SIP-
approved regulations VT APCR Sec. 5-501, ``Review of Construction or
Modification of Air Contaminant Sources,'' and VT APCR Sec. 5-502,
``Major Stationary Sources and Major Modifications,'' establish
requirements for permits to construct, modify or operate major air
contaminant sources.
EPA proposes that Vermont has met the enforcement of SIP measures
requirements of section 110(a)(2)(C) with respect to the 2015 ozone
NAAQS.
Sub-Element 2--PSD Program for Major Sources and Major Modifications
PSD applies to new major sources or modifications made to major
sources for pollutants where the area in which the source is located is
in attainment of, or unclassifiable with regard to, the relevant NAAQS.
EPA interprets the CAA as requiring each state to make an
infrastructure SIP submission for a new or revised NAAQS demonstrating
that the air agency has a complete PSD permitting program in place
satisfying the current requirements for all regulated NSR pollutants.
VT DEC's EPA-approved PSD rules, contained at VT APCR Subchapters I,
IV, and V, contain provisions that address applicable requirements for
all regulated NSR pollutants, including greenhouse gases (GHGs).
In 2018, EPA evaluated Vermont's PSD permitting program in the
context of an infrastructure SIP submission under CAA Sec.
110(a)(2)(C) and determined that it satisfies the current requirements
for all regulated NSR pollutants. See 83 FR 45194 (September 6, 2018).
For a detailed analysis, see EPA's proposal in that rulemaking. See 83
FR 30598 (June 29, 2018). No new or revised PSD permitting program
requirements have become due since that time. Therefore, for the
reasons provided in the June 29, 2018, notice, EPA proposes to approve
Vermont's infrastructure SIP for the 2015 ozone NAAQS for the
requirement in section 110(a)(2)(C) to include a PSD permitting program
in the SIP that covers the requirements for all regulated NSR
[[Page 18163]]
pollutants as required by part C of the Act.
Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor
Modifications
To address the pre-construction regulation of the modification and
construction of minor stationary sources and minor modifications of
major stationary sources, an infrastructure SIP submission should
identify the existing EPA-approved SIP provisions and/or include new
provisions that govern the minor source pre-construction program that
regulate emissions of the relevant NAAQS pollutants. On August 1, 2016,
EPA approved revisions to Vermont's minor NSR program. See 81 FR 50342.
Vermont and EPA rely on the existing minor NSR program to ensure that
new and modified sources not captured by the major NSR permitting
programs, VT APCR Sec. 5-502, do not interfere with attainment and
maintenance of the 2015 ozone NAAQS.
We are proposing to find that Vermont has met the requirement to
have a SIP-approved minor new source review permit program as required
under Section 110(a)(2)(C) for the 2015 ozone 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. 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)--Significant Contribution to
Nonattainment (Prong 1) and Interference With Maintenance of the NAAQS
(Prong 2)
Background
Section 110(a)(2)(D)(i), known as the ``good neighbor'' provision,
generally requires SIPs to contain adequate provisions to prohibit in-
state emissions activities from having certain adverse air-quality
effects on other states due to interstate transport of pollution. There
are four so-called ``prongs'' within CAA section 110(a)(2)(D)(i):
Section 110(a)(2)(D)(i)(I) contains prongs 1 and 2, while section
110(a)(2)(D)(i)(II) includes prongs 3 and 4. This sub-element addresses
the first two prongs.
Under prongs 1 and 2 of the good neighbor provision, a SIP for a
new or revised NAAQS must contain adequate provisions prohibiting any
source or other type of emissions activity within the state from
emitting air pollutants in amounts that will significantly contribute
to nonattainment of the NAAQS in another state (prong 1) or from
interfering with maintenance of the NAAQS in another state (prong 2).
EPA and states must give independent significance to prong 1 and prong
2 when evaluating downwind air-quality problems under section
110(a)(2)(D)(i)(I).\9\
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\9\ See North Carolina v. EPA, 531 F.3d 896, 909-911 (2008).
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We note that EPA has addressed the interstate transport
requirements of CAA section 110(a)(2)(D)(i)(I) with respect to prior
ozone NAAQS in several regional regulatory actions, including the
Cross-State Air Pollution Rule (CSAPR), which addressed interstate
transport with respect to the 1997 ozone NAAQS as well as the 1997 and
2006 fine particulate matter (PM2.5) standards, and the
CSAPR Update for the 2008 ozone NAAQS (CSAPR Update).\10\ These actions
only addressed interstate transport in the eastern United States \11\
and did not address the 2015 ozone NAAQS.
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\10\ See 76 FR 48208 (August 8, 2011) (i.e., CSAPR); 81 FR 74504
(October 26, 2016) (i.e., CSAPR Update).
\11\ For purposes of CSAPR and the CSAPR Update action, the
Western U.S. (or the West) was considered to consist of the 11
western contiguous states of Arizona, California, Colorado, Idaho,
Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming.
The Eastern U.S. (or the East) was considered to consist of the 37
states east of the 11 Western states.
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Through the development and implementation of CSAPR, the CSAPR
Update and previous regional rulemakings pursuant to the good neighbor
provision,\12\ the EPA, working in partnership with states, developed
the following four-step interstate transport framework to address the
requirements of the good neighbor provision for the ozone NAAQS: \13\
(1) Identify downwind air quality problems; (2) identify upwind states
that impact those downwind air quality problems sufficiently such that
they are considered ``linked'' and therefore warrant further review and
analysis; (3) identify the emissions reductions necessary (if any),
considering cost and air quality factors, to prevent linked upwind
states identified in step 2 from contributing significantly to
nonattainment or interfering with maintenance of the NAAQS at the
locations of the downwind air quality problems; and (4) adopt permanent
and enforceable measures needed to achieve those emissions reductions.
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\12\ Other regional rulemakings addressing ozone transport
include the NOX SIP Call, 63 FR 57356 (October 27, 1998),
and the Clean Air Interstate Rule (CAIR), 70 FR 25162 (May 12,
2005).
\13\ The four-step interstate framework has also been used to
address requirements of the good neighbor provision for some
previous particulate matter and ozone NAAQS, including in the
Western United States. See, e.g., 83 FR 30380 (June 28, 2018); 83 FR
5375, 5376-77 (February 7, 2018).
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EPA has released several documents containing information relevant
to evaluating interstate transport with respect to the 2015 ozone
NAAQS. First, on January 6, 2017, EPA published a notice of data
availability (NODA) with preliminary interstate ozone transport
modeling with projected ozone design values for 2023, on which we
requested comment.\14\ The year 2023 was used as the analytic year for
this preliminary modeling because that year aligns with the expected
attainment year for Moderate ozone nonattainment areas.\15\
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\14\ See Notice of Availability of the EPA's Preliminary
Interstate Ozone Transport Modeling Data for the 2015 Ozone National
Ambient Air Quality Standard (NAAQS). 82 FR 1733 (January 6, 2017).
\15\ 82 FR 1735 (January 6, 2017).
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On October 27, 2017, we released a memorandum (2017 memorandum)
containing updated modeling data for 2023, which incorporated changes
made in response to comments on the NODA.\16\ Although the 2017
memorandum also released data for a 2023 modeling year, we specifically
stated that the modeling may be useful for states developing SIPs to
address remaining good neighbor obligations for the 2008 ozone NAAQS,
but did not address the 2015 ozone NAAQS. On March 27, 2018, we issued
a memorandum (March 2018 memorandum) indicating the same 2023 modeling
data released in the 2017 memorandum would also be useful for
evaluating potential downwind air-quality problems with respect to the
[[Page 18164]]
2015 ozone NAAQS (step 1 of the four-step framework).
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\16\ See Information on the Interstate Transport State
Implementation Plan Submissions for the 2008 Ozone National Ambient
Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I), October 27, 2017, available in the docket for
this action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
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The March 2018 memorandum included newly available contribution-
modeling results to assist states in evaluating their impact on
potential downwind air-quality problems (step 2 of the four-step
framework) in their efforts to develop good neighbor SIPs for the 2015
ozone NAAQS to address their interstate transport obligations.\17\ EPA
subsequently issued two more memoranda in August and October 2018,
providing guidance to states developing good neighbor SIPs for the 2015
ozone NAAQS concerning, respectively, potential contribution thresholds
that may be appropriate to apply in step 2 and considerations for
identifying downwind areas that may have problems maintaining the
standard (under prong 2 of the good neighbor provision) at step 1 of
the framework.\18\
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\17\ See Information on the Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards under Clean Air Act Section
110(a)(2)(D)(i)(I), March 27, 2018, available in the docket for this
action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
\18\ See Analysis of Contribution Thresholds for Use in Clean
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State
Implementation Plan Submissions for the 2015 Ozone National Ambient
Air Quality Standards, August 31, 2018) (``August 2018
memorandum''), and Considerations for Identifying Maintenance
Receptors for Use in Clean Air Act Section 110(a)(2)(D)(i)(I)
Interstate Transport State Implementation Plan Submissions for the
2015 Ozone National Ambient Air Quality Standards, October 19, 2018,
available in the docket for this action or at https://www.epa.gov/airmarkets/memo-and-supplemental-information-regarding-interstate-transport-sips-2015-ozone-naaqs.
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The March 2018 memorandum describes the process and results of the
updated photochemical and source-apportionment modeling used to project
ambient ozone concentrations for the year 2023 and the state-by-state
impacts on those concentrations. The March 2018 memorandum also
explains that the selection of the 2023 analytic year aligns with the
2015 ozone NAAQS attainment year for Moderate nonattainment areas. As
described in the 2017 and March 2018 memoranda, EPA used the
Comprehensive Air Quality Model with Extensions (CAMx version 6.40) to
model average and maximum design values in 2023 to identify potential
nonattainment and maintenance receptors (i.e., monitoring sites that
are projected to have problems attaining or maintaining the 2015 ozone
NAAQS).
The March 2018 memorandum presents design values calculated in two
ways: first, following the EPA's historic ``3 x 3'' approach \19\ to
evaluating all sites, and second, following a modified approach for
coastal monitoring sites in which ``overwater'' modeling data were not
included in the calculation of future-year design values (referred to
as the ``no water'' approach).
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\19\ See March 2018 memorandum, p. 4.
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For purposes of identifying potential nonattainment and maintenance
receptors in 2023, EPA applied the same approach used in the CSAPR
Update, wherein EPA considered a combination of monitoring data and
modeling projections to identify monitoring sites that are projected to
have problems attaining or maintaining the NAAQS. Specifically, EPA
identified nonattainment receptors as those monitoring sites with
measured values \20\ exceeding the NAAQS that also have projected
(i.e., in 2023) average design values exceeding the NAAQS. EPA
identified maintenance receptors as those monitoring sites with
projected maximum design values exceeding the NAAQS. This included
sites with measured values below the NAAQS, but with projected average
and maximum design values exceeding the NAAQS, and monitoring sites
with projected average design values below the NAAQS, but with
projected maximum design values exceeding the NAAQS. EPA included the
design values and monitoring data for all monitoring sites projected to
be potential nonattainment or maintenance receptors based on the
updated 2023 modeling in Attachment B to the March 2018 memorandum.
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\20\ EPA used 2016 ozone design values, based on 2014-2016
measured data, which were the most current data at the time of the
analysis. See attachment B of the March 2018 memorandum, p. B-1.
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After identifying potential downwind nonattainment and maintenance
receptors, EPA performed nationwide, state-level ozone source-
apportionment modeling to estimate the expected impact from each state
to each nonattainment and maintenance receptor.\21\ EPA included
contribution information resulting from the source-apportionment
modeling in Attachment C to the March 2018 memorandum. For more
information on the modeling and analysis, please see the 2017 and March
2018 memoranda, the NODA for the preliminary interstate transport
assessment, and the supporting technical documents included in the
docket for this action.
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\21\ As discussed in the March 2018 memorandum, EPA performed
source-apportionment model runs for a modeling domain that covers
the 48 contiguous United States and the District of Columbia, and
adjacent portions of Canada and Mexico.
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In the CSAPR and the CSAPR Update, the EPA used a threshold of one
percent of the NAAQS to determine whether a given upwind state was
``linked'' at step 2 of the four-step framework and would, therefore,
contribute to downwind nonattainment and maintenance sites identified
in step 1. If a state's impact did not equal or exceed the one-percent
threshold, the upwind state was not ``linked'' to a downwind air
quality problem, and the EPA, therefore, concluded the state will not
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS in the downwind states. However, if a state's impact
equaled or exceeded the one-percent threshold, the state's emissions
were further evaluated in step 3, taking into account both air-quality
and cost considerations, to determine what, if any, emissions
reductions might be necessary to address the good neighbor provision.
As noted previously, on August 31, 2018, the EPA issued a
memorandum (the August 2018 memorandum) providing guidance concerning
potential contribution thresholds that may be appropriate to apply with
respect to the 2015 ozone NAAQS in step 2. Consistent with the process
for selecting the one-percent threshold in CSAPR and the CSAPR Update,
the memorandum included analytical information regarding the degree to
which potential air-quality thresholds would capture the collective
amount of upwind contribution from upwind states to downwind receptors
for the 2015 ozone NAAQS. The August 2018 memorandum indicated that,
based on the EPA's analysis of its most recent modeling data, the
amount of upwind collective contribution captured using a 1 parts per
billion (ppb) threshold is generally comparable, overall, to the amount
captured using a threshold equivalent to one percent of the 2015 ozone
NAAQS. Accordingly, the EPA indicated that it may be reasonable and
appropriate for states to use a 1 ppb contribution threshold, as an
alternative to the one-percent threshold, at step 2 of the four-step
framework in developing their SIP revisions addressing the good
neighbor provision for the 2015 ozone NAAQS.\22\
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\22\ See August 2018 memorandum, p. 4.
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While the March 2018 memorandum presented information regarding the
EPA's latest analysis of ozone transport following the approaches the
EPA has taken in prior regional rulemaking actions, the EPA has not
made any final
[[Page 18165]]
determinations regarding how states should identify downwind receptors
with respect to the 2015 ozone NAAQS at step 1 of the four-step
framework. Rather, the EPA noted that states have flexibility in
developing their own SIPs to follow different analytical approaches
than the EPA's, so long as their chosen approach has an adequate
technical justification and is consistent with the requirements of the
CAA.
Vermont's Submission for Prongs 1 and 2
On November 19, 2019, Vermont submitted a SIP revision addressing
the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements
for the 2015 ozone NAAQS. This ``good neighbor SIP'' was included as an
enclosure in the state's infrastructure SIP for the same NAAQS.
Vermont relied on the results of the EPA's modeling for the 2015
ozone NAAQS contained in the March 2018 memorandum to identify downwind
nonattainment and maintenance receptors that may be impacted by
emissions from sources in Vermont. These results indicate Vermont's
greatest impact on any potential downwind nonattainment or maintenance
receptor would be 0.07 ppb. Vermont compared these values to a
screening threshold of 0.70 ppb, representing one percent of the 2015
ozone NAAQS. Because Vermont's impacts to neighboring states are
projected to be less than 0.70 ppb, Vermont concluded that emissions
from sources within the state will not significantly contribute to
nonattainment or interfere with maintenance of the 2015 ozone NAAQS in
any other state.
Vermont also reviewed ozone concentrations and trends measured at
the state's three ambient air-quality monitors and noted that no
concentrations at these monitors has exceeded the 2015 ozone NAAQS
since 2010. Vermont also looked at EPA's projected emissions of ozone
precursors performed in support of the CSAPR Update. This modeling
included annual total NOx and VOC emissions by state for the years 2011
through 2017 and projected emissions for 2023.\23\ For Vermont,
emissions of ozone precursors have decreased for the period 2011-2017
and are projected to be lower in 2023 than in 2017.
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\23\ https://www.epa.gov/air-emissions-modeling/2011-version-63-platform.
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Vermont's November 2019 Good Neighbor submission also lists and
discusses Vermont's regulations for controlling emissions of ozone
precursors, and its regional emissions-control strategies, including
those it has implemented as a member of the Ozone Transport Commission.
EPA's Evaluation of Vermont's Submission
The EPA is proposing to rely on the 2023 modeling data identifying
downwind receptors and upwind state contributions, as released in the
March 2018 memorandum, to evaluate Vermont's good neighbor obligation
with respect to the 2015 ozone NAAQS. On September 13, 2019, the United
States Court of Appeals for the District of Columbia Circuit (D.C.
Circuit) issued its decision in Wisconsin v. EPA addressing legal
challenges to the CSAPR Update, in which the EPA partially addressed
certain upwind states' good neighbor obligations for the 2008 ozone
NAAQS. 938 F.3d 303. While the court generally upheld the rule as to
most of the challenges raised in the litigation, the court remanded the
CSAPR Update to the extent it failed to require upwind states to
eliminate their significant contributions in accordance with the
attainment dates found in CAA section 181 by which downwind states must
come into compliance with the NAAQS. Id. at 313. In light of the
court's decision, the EPA is providing further explanation regarding
why it proposes to find that it is appropriate and consistent with the
statute--as well as the legal precedent--to use the 2023 analytic year
for assessing good neighbor obligations for the 2015 ozone NAAQS.
The EPA believes that 2023 is an appropriate year for analysis of
good neighbor obligations for the 2015 ozone NAAQS because the 2023
ozone season is the last relevant ozone season during which achieved
emissions reductions in linked upwind states could assist downwind
states with meeting the August 2, 2024, Moderate area attainment date
for the 2015 ozone NAAQS. The EPA recognizes that the attainment date
for nonattainment areas classified as Marginal for the 2015 ozone NAAQS
is August 2, 2021, which currently applies in several downwind
nonattainment areas evaluated in the EPA's modeling.\24\ However, as
explained below, the EPA does not believe that either the statute or
applicable case law requires the evaluation of good neighbor
obligations in a future year aligned with the attainment date for
nonattainment areas classified as Marginal.
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\24\ The Marginal area attainment date is not applicable for
nonattainment areas already classified as Moderate or higher, such
as the New York Metropolitan Area. For the status of all
nonattainment areas under the 2015 ozone NAAQS, see U.S. EPA, 8-Hour
Ozone (2015) Designated Area/State Information, https://www3.epa.gov/airquality/greenbook/jbtc.html (last updated Sept. 30,
2019).
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The good neighbor provision instructs the EPA and states to apply
its requirements ``consistent with the provisions of'' title I of the
CAA. CAA section 110(a)(2)(D)(i); see also North Carolina v. EPA, 531
F.3d 896, 911-12 (D.C. Circuit 2008). This consistency instruction
follows the requirement that plans ``contain adequate provisions
prohibiting'' certain emissions in the good neighbor provision. As the
D.C. Circuit held in North Carolina, and more recently in Wisconsin,
the good neighbor provision must be applied in a manner consistent with
the designation and planning requirements in title I that apply in
downwind states and, in particular, the timeframe within which downwind
states are required to implement specific emissions control measures in
nonattainment areas and submit plans demonstrating how those areas will
attain, relative to the applicable attainment dates. See North
Carolina, 896 F.3d at 912 (holding that the good neighbor provision's
reference to title I requires consideration of both procedural and
substantive provisions in title I); Wisconsin, 938 F.3d at 313-18.
While the EPA recognizes, as the court held in North Carolina and
Wisconsin, that upwind emissions-reduction obligations, therefore, must
generally be aligned with downwind receptors' attainment dates, unique
features of the statutory requirements associated with the Marginal
area planning requirements and attainment date under CAA section 182
lead the EPA to conclude that it is more reasonable and appropriate to
require the alignment of upwind good neighbor obligations with later
attainment dates applicable for Moderate or higher classifications.
Under the Clean Air Act, states with areas designated nonattainment are
generally required to submit, as part of their state implementation
plan, an ``attainment demonstration'' that shows, usually through air-
quality modeling, how an area will attain the NAAQS by the applicable
attainment date. See CAA section 172(c)(1).\25\ Such plans must also
include, among other things, the adoption of all ``reasonably
available''
[[Page 18166]]
control measures on existing sources, a demonstration of ``reasonable
further progress'' toward attainment, and contingency measures, which
are specific controls that will take effect if the area fails to attain
by its attainment date or fails to make reasonable further progress
toward attainment. See, e.g., CAA section 172(c)(1); 172(c)(2);
172(c)(9).
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\25\ Part D of title I of the Clean Air Act provides the plan
requirements for all nonattainment areas. Subpart 1, which includes
section 172(c), applies to all nonattainment areas. Congress
provided in subparts 2-5 additional requirements specific to the
various NAAQS pollutants that nonattainment areas must meet.
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Ozone nonattainment areas classified as Marginal are excepted from
these general requirements under the CAA--unlike other areas designated
nonattainment under the Act (including for other NAAQS pollutants),
Marginal ozone nonattainment areas are specifically exempted from
submitting an attainment demonstration and are not required to
implement any specific emissions controls at existing sources in order
to meet the planning requirements applicable to such areas. See CAA
section 182(a): ``The requirements of this subsection shall apply in
lieu of any requirement that the State submit a demonstration that the
applicable implementation plan provides for attainment of the ozone
standard by the applicable attainment date in any Marginal Area.'' \26\
Marginal ozone nonattainment areas are also exempted from demonstrating
reasonable further progress towards attainment and submitting
contingency measures. See CAA section 182(a), which does not include a
reasonable further progress requirement and specifically notes that
``Section [172(c)(9)] of this title (relating to contingency measures)
shall not apply to Marginal Areas.''
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\26\ States with Marginal nonattainment areas are required to
implement new source review permitting for new and modified sources,
but the purpose of those requirements is to ensure that potential
emissions increases do not interfere with progress towards
attainment, as opposed to reducing existing emissions. Moreover, EPA
acknowledges that states within ozone transport regions must
implement certain emission control measures at existing sources in
accordance with CAA section 184, but those requirements apply
regardless of the applicable area designation or classification.
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Existing regulations--either local, state, or federal--are
typically part of the reason why ``additional'' local controls are not
needed to bring Marginal nonattainment areas into attainment. As
described in EPA's record for its final rule defining area
classifications for the 2015 ozone NAAQS and establishing associated
attainment dates, history has shown that most areas classified as
Marginal for prior ozone standards attained the respective standards by
the Marginal area attainment date (i.e., without being re-classified to
a Moderate designation). See 83 FR 10376.
As part of a historical lookback, EPA calculated that by the
relevant attainment date for areas classified as Marginal, 85 percent
of such areas attained the 1979 1-hour ozone NAAQS, and 64 percent
attained the 2008 ozone NAAQS. See Response to Comments, section
A.2.4.\27\ Based on these historical data, EPA expects that many areas
classified Marginal for the 2015 ozone NAAQS will also attain by the
relevant attainment date as a result of emissions reductions that are
already expected to occur through implementation of existing local,
state, and federal emissions reduction programs. To the extent states
have concerns about meeting their attainment date for a Marginal area,
the CAA under section 181(b)(3) provides authority for them to
voluntarily request a higher classification for individual areas, if
needed.
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\27\ Available at https://www.regulations.gov/document?D=EPA-HQ-OAR-2016-0202-0122.
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Areas that are classified as Moderate typically have more
pronounced air-quality problems than Marginal areas or have been unable
to attain the NAAQS under the minimal requirements that apply to
Marginal areas. See CAA sections 181(a)(1) (classifying areas based on
the degree of nonattainment relative to the NAAQS), and 181(b)(2)
(providing for reclassification to the next highest designation upon
failure to attain the standard by the attainment date). Thus, unlike
Marginal areas, the statute explicitly requires a state with an ozone
nonattainment area classified as Moderate or higher to develop an
attainment plan demonstrating how the state will address the more
significant air-quality problem, which generally requires the
application of various control measures to existing sources of
emissions located in the nonattainment area. See generally CAA sections
172(c) and 182(b)-(e).
Given that downwind states are not required to demonstrate
attainment by the attainment date or impose additional controls on
existing sources in a Marginal nonattainment area, EPA believes that it
would be inconsistent to interpret the good neighbor provision as
requiring EPA to evaluate the necessity for upwind state emissions
reductions based on air quality modeled in a future year aligned with
the Marginal area attainment date. Rather, EPA believes it is more
appropriate and consistent with the nonattainment planning provisions
in title I to evaluate downwind air quality and upwind state
contributions, and, therefore, the necessity for upwind state emissions
reductions, in a year aligned with an area classification in connection
with which downwind states are also required to demonstrate attainment
and implement controls on existing sources--i.e., with the Moderate
area attainment date, rather than the Marginal area date. With respect
to the 2015 ozone NAAQS, the Moderate area attainment date will be in
the summer of 2024, and the last full year of monitored ozone-season
data that will inform attainment demonstrations is, therefore, 2023.
The EPA's interpretation of the good neighbor requirements in
relation to the Marginal area attainment date is consistent with the
Wisconsin opinion. For the reasons explained below, the court's holding
does not contradict the EPA's view that 2023 is an appropriate analytic
year in evaluating good neighbor SIPs for the 2015 ozone NAAQS. The
court in Wisconsin was concerned that allowing upwind emission
reductions to be implemented after the applicable attainment date would
require downwind states to obtain more emissions reductions than the
Act requires of them, to make up for the absence of sufficient
emissions reductions from upwind states. See 938 F.3d at 316. As
discussed previously, however, this equitable concern only arises for
nonattainment areas classified as Moderate or higher for which downwind
states are required by the CAA to develop attainment plans securing
reductions from existing sources and demonstrating how such areas will
attain by the attainment date. See, e.g., CAA section 182(b)(1) & (2)
(establishing ``reasonable further progress'' and ``reasonably
available control technology'' requirements for Moderate nonattainment
areas). Ozone nonattainment areas classified as Marginal are not
required to meet these same planning requirements, and thus the
equitable concerns raised by the Wisconsin court do not arise with
respect to downwind areas subject to the Marginal area attainment date.
The distinction between planning obligations for Marginal
nonattainment areas and higher classifications was not before the court
in Wisconsin. Rather, the court was considering whether the EPA, in
implementing its obligation to promulgate federal implementation plans
under CAA section 110(c), was required to fully resolve good neighbor
obligations by the 2018 Moderate area attainment date for the 2008
ozone NAAQS. See 938 F.3d at 312-13. Although the court noted that
petitioners had not ``forfeited'' an argument with respect to the
Marginal area attainment date, see id. at 314, the court did not
address whether its holding with respect to the 2018
[[Page 18167]]
Moderate area date would have applied with equal force to the Marginal
area attainment date because that date had already passed. Thus, the
court did not have the opportunity to consider these differential
planning obligations in reaching its decision regarding the EPA's
obligations relative to the then-applicable 2018 Moderate area
attainment date, because such considerations were not applicable to the
case before the court.\28\ For the reasons discussed here, the
equitable concerns supporting the Wisconsin court's holding as to
upwind state obligations relative to the Moderate area attainment date
also support the EPA's interpretation of the good neighbor provision
relative to the Marginal area attainment date. Thus, EPA proposes to
conclude that its reliance on an evaluation of air quality in the 2023
analytical year for purposes of assessing good neighbor obligations
with respect to the 2015 ozone NAAQS is based on a reasonable
interpretation of the CAA and legal precedent.
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\28\ The D.C. Circuit, in a short judgment, subsequently vacated
and remanded the EPA's action purporting to fully resolve good
neighbor obligations for certain states for the 2008 ozone NAAQS,
referred to as the CSAPR Close-Out, 83 FR 65878 (Dec. 21, 2018). New
York v. EPA, No. 19-1019 (Oct. 1, 2019). That result necessarily
followed from the Wisconsin decision, because as the EPA conceded,
the Close-Out ``relied upon the same statutory interpretation of the
Good Neighbor Provision'' rejected in Wisconsin. Id. slip op. at 3.
In the Close-Out, the EPA had analyzed the year 2023, which was two
years after the Serious area attainment date for the 2008 ozone
NAAQS and not aligned with any attainment date for that NAAQS. Id.
at 2. In New York, as in Wisconsin, the court was not faced with
addressing specific issues associated with the unique planning
requirements associated with the Marginal area attainment date.
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As previously discussed, the March 2018 memorandum identifies
potential downwind nonattainment and maintenance receptors, using the
definitions applied in the CSAPR Update and using both the ``3 x 3''
and the ``no water'' approaches to calculating future year design
values. The March 2018 memorandum identifies 57 potential nonattainment
and maintenance receptors in the West in Arizona (2), California (49),
and Colorado (6).\29\ The March 2018 memorandum also provides
contribution data regarding the impact of other states on the potential
receptors.
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\29\ The number of receptors in the identified western states is
57, irrespective of whether the ``3 x 3'' or ``no water'' approach
is used. Further, although the EPA has indicated that states may
have flexibilities to apply a different analytic approach to
evaluating interstate transport, including identifying downwind air
quality problems, because the EPA is also concluding in this
proposed action that Vermont will have an insignificant impact on
any potential receptors identified in its analysis, Vermont need not
definitively determine whether the identified monitoring sites
should be treated as receptors for the 2015 ozone standard.
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For purposes of evaluating Vermont's 2015 ozone NAAQS interstate
transport SIP submission, given that the state contributes less than
one percent to downwind nonattainment and maintenance sites, it is
reasonable to conclude that the state's impact will not significantly
contribute to nonattainment or interfere with maintenance of the NAAQS
in any other state. This is consistent with our October 13, 2016,
action on Vermont's SIP with respect to the 2008 ozone NAAQS (81 FR
70631) and with the EPA's approach to both the 1997 and 2008 ozone
NAAQS in CSAPR and the CSAPR Update. EPA notes, nonetheless, that
consistent with the August 2018 memorandum, it may be reasonable and
appropriate for states to use a 1 ppb contribution threshold, as an
alternative to a one-percent threshold, at step 2 of the four-step
framework in developing their SIP revisions addressing the good
neighbor provision for the 2015 ozone NAAQS. However, for the reasons
discussed below, it is unnecessary for EPA to determine whether it may
be appropriate to apply a 1 ppb threshold for purposes of this action.
The EPA's updated 2023 modeling discussed in the March 2018
memorandum indicates that Vermont's largest impact on any potential
downwind nonattainment and maintenance receptor is 0.07 ppb.\30\ This
value is less than 0.70 ppb (one percent of the 2015 ozone NAAQS),\31\
and demonstrates that emissions from Vermont are not linked to any 2023
downwind potential nonattainment and maintenance receptors identified
in the March 2018 memorandum. Accordingly, we propose to conclude that
emissions from Vermont will not contribute to any potential receptors,
and, thus, the state will not significantly contribute to nonattainment
or interfere with maintenance of the NAAQS in any other state.
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\30\ The EPA's analysis indicates that Vermont will have a 0.07
ppb impact at the potential nonattainment receptor in Queens, NY
(Site ID 360810124), which has a 2023 projected average design value
of 70.2 ppb, a 2023 projected maximum design value of 72.0 ppb, and
had a 2014-2016 design value of 69 ppb. The EPA's analysis further
indicates that Vermont will have a 0.02 ppb impact at a potential
nonattainment receptor in Suffolk, NY (Site ID 361030002), which has
a projected 2023 average design value of 74.0 ppb, a 2023 projected
maximum design value of 75.5 ppb, and had a 2014-2016 design value
of 72 ppb. In addition, Vermont will have a 0.02 ppb impact at a
potential nonattainment receptor in New Haven, CT (Site ID
90099002), which has a projected 2023 average design value of 69.9
ppb, a 2023 projected maximum design value of 72.6 ppb, and had a
2014-2016 design value of 76 ppb. See the March 2018 memorandum,
attachment C.
\31\ Because none of Vermont's impacts equal or exceed 0.70 ppb,
they necessarily also do not equal or exceed the 1 ppb contribution
threshold discussed in the August 2018 memorandum.
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Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
To prevent significant deterioration of air quality, this sub-
element requires SIPs to include provisions that prohibit any source or
other type of emissions activity in one state from interfering with
measures that are required in any other state's SIP under Part C of the
CAA. As explained in the 2013 memorandum, a state may meet this
requirement with respect to in-state sources and pollutants that are
subject to PSD permitting through a comprehensive PSD permitting
program that applies to all regulated NSR pollutants and that satisfies
the requirements of EPA's PSD implementation rules. As discussed above
under element C, Vermont has such a PSD permitting program. 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's latest approval of some
revisions to Vermont's NNSR regulations was on August 1, 2016. See 81
FR 50342. Therefore, we are proposing to approve this sub-element for
the 2015 ozone NAAQS.
Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection
(Prong 4)
With regard to applicable requirements for visibility protection of
section 110(a)(2)(D)(i)(II), states are subject to visibility and
regional haze program requirements under part C of the CAA (which
includes sections 169A and 169B). The 2009 memorandum, 2011 memorandum,
and 2013 memorandum 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 include all measures needed to achieve the state's
apportionment of emission reduction obligations agreed upon through a
regional planning process and will therefore ensure that emissions from
sources under the air agency's jurisdiction are not interfering with
measures required to be included in other air agencies' plans to
protect visibility. EPA approved Vermont's Regional Haze SIP on May 22,
2012. See
[[Page 18168]]
77 FR 30212. Accordingly, EPA proposes that Vermont meets the
visibility protection requirements of 110(a)(2)(D)(i)(II) for the 2015
ozone 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.
On August 1, 2016 (81 FR 50342), EPA approved revisions to VT APCR
Sec. 5-501, which includes a provision that requires VT ANR to provide
notice of a draft PSD permit to, among other entities, any state whose
lands may be affected by emissions from the source. VT APCR Sec. 5-
501(7)(c). Vermont's public notice requirements are consistent with the
Federal PSD program's public notice requirements for affected states
under 40 CFR 51.166(q). Therefore, we propose to approve Vermont's
compliance with the infrastructure SIP requirements of section 126(a)
for the 2015 ozone NAAQS. Vermont has no obligations under any other
provision of section 126, and no source or sources within the state are
the subject of an active finding under section 126 of the CAA with
respect to the 2015 ozone NAAQS.
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. Section 115 authorizes
the Administrator to require a state to revise its SIP to alleviate
international transport into another country where the Administrator
has made a finding with respect to emissions of the particular NAAQS
pollutant and its precursors, if applicable. There are no final
findings under section 115 of the CAA against Vermont with respect to
the 2015 ozone NAAQS. Therefore, EPA is proposing that Vermont has met
the applicable infrastructure SIP requirements of section
110(a)(2)(D)(ii) related to section 115 of the CAA for the 2015 ozone
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
for state boards in CAA section 128. Finally, section 110(a)(2)(E)(iii)
requires that, where a state relies upon local or regional governments
or agencies for the implementation of its SIP provisions, the state
retain responsibility for ensuring implementation of SIP obligations
with respect to relevant NAAQS. Section 110(a)(2)(E)(iii), however,
does not apply to this action because Vermont 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
Vermont, through its infrastructure SIP submittal, has documented
that its air agency has the requisite authority and resources to carry
out its SIP obligations. Vermont cites 10 V.S.A. Sec. 553, which
designates ANR as the air pollution control agency of the state, and 10
V.S.A. Sec. 554, which provides the Secretary of ANR with the power to
``[a]dopt, amend and repeal rules, implementing the provisions'' of 10
V.S.A. Chapter 23, Air Pollution Control, and to ``[a]ppoint and employ
personnel and consultants as may be necessary for the administration
of'' 10 V.S.A. Chapter 23. Section 554 also authorizes the Secretary of
ANR to ``[a]ccept, receive and administer grants or other funds or
gifts from public and private agencies, including the federal
government, for the purposes of carrying out any of the functions of''
10 V.S.A. Chapter 23. Additionally, 3 V.S.A. Sec. 2822 provides the
Secretary of ANR with the authority to assess air permit and
registration fees, which fund state air programs. In addition to
Federal funding and permit and registration fees, Vermont notes that
the Vermont DEC Air Quality and Climate Division (AQCD) receives state
funding to implement its air programs.\32\
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\32\ VT ANR's authority to carry out the provisions of the SIP
identified in 40 CFR 51.230 is discussed in the sections of this
document assessing elements A, C, F, and G, as applicable.
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EPA proposes that Vermont meets the infrastructure SIP requirements
of this portion of section 110(a)(2)(E) for the 2015 ozone 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. Section 128 further provides
that a state may adopt more stringent conflicts of interest
requirements and requires EPA to approve any such requirements
submitted as part of a SIP.
In Vermont, no board or body approves permits or enforcement
orders; these are approved by the Secretary of Vermont ANR. Thus, with
respect to this sub-element, Vermont is subject only to the
requirements of paragraph (a)(2) of section 128 of the CAA (regarding
conflicts of interest).
Vermont's November 19, 2019, infrastructure SIP included State of
Vermont Executive Order (E.O.) 19-17, Executive Code of Ethics, and
requested that we approve it into the SIP and remove E.O. 09-11, which
E.O. 19-17 supersedes and replaces. EPA originally approved E.O. 09-11
into the SIP on June 27, 2017. See 82 FR 29005.
The submitted Order, E.O. 19-17, prohibits all Vermont executive
branch appointees (including the ANR Secretary) from taking ``any
action in any matter in which he or she has either a Conflict of
Interest or the appearance of a Conflict of Interest, until the
Conflict is resolved.'' \33\ The Order also
[[Page 18169]]
prohibits a full-time appointee from being ``the owner of, or
financially interested, directly or indirectly, in any Private Entity
or private interest subject to the supervision of his or her respective
Public Body, except as a policy holder in an insurance company or a
depositor in a bank.'' \34\ Additionally, the Order requires an
appointee to ``take all reasonable steps to avoid any action or
circumstances, including acts or circumstances which may not be
specifically prohibited by th[e] Code [of Ethics], which might result
in (1) [u]ndermining his or her independence or impartiality or action;
(2) [t]aking official action based on unfair considerations; (3)
[g]iving preferential treatment to any private interest or Private
Entity based on unfair considerations; (4) [g]iving preferential
treatment to any family member or member of the Appointee's household;
(5) [u]sing public office for the advancement of personal interest; (6)
[u]sing public office to secure special privileges or exemptions; (7)
[a]dversely affecting the confidence of the public in the integrity of
State government; or (8) undermining the climate of civility and
respect required for every open, democratic government to thrive.''
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\33\ The Order defines ``Conflict of Interest'' as ``a
significant interest of an Appointee or such an interest, known to
the Appointee, of a member of his or her immediate family or
household, or of a business associate, in the outcome of a
particular matter pending before the Appointee or his or her Public
Body. `Conflict of Interest' does not include any interest that (i)
is no greater than that of other persons generally affected by the
outcome of a matter (such as a policyholder in an insurance company
or a depositor in a bank), or (ii) has been disclosed to the
Secretary and found not to be significant.'' ``Appearance of a
Conflict of Interest'' is defined in the Order as ``the impression
that a reasonable person might have, after full disclosure of the
facts, that an Appointee's judgment might be significantly
influenced by outside interests, even though there may be no actual
Conflict of Interest.''
\34\ The Order defines ``a direct or indirect financial
interest'' to exclude ``any insignificant interest held individually
or by a member of the Appointee's immediate household or by a
business associate'' and ``any interest which is no greater than
that of other persons who might be generally affected by the
Supervision of the Appointee's Public Body.''
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The Order also includes specific disclosure requirements. Every
appointee earning $30,000 or more per year, which includes the ANR
Secretary, must file annually with the Vermont Secretary of Civil and
Military Affairs an ``Ethics Questionnaire'' identifying ``significant
personal interests'' that ``might conflict with the best interests of
the state.'' Agency Secretaries must also disclose certain additional
financial and contractual interests to the State Ethics Commission
biennially. EPA proposes to find that E.O. 19-17 satisfies the CAA
Sec. 128 requirement applicable to Vermont that potential conflicts of
interest by the head of an executive agency that approves permits or
enforcement orders under the CAA be ``adequately disclosed.''
Consequently, EPA proposes to approve E.O. 19-17 into the Vermont SIP
and, concurrently, to remove E.O. 09-11 from the Vermont SIP.
EPA proposes that Vermont meets the infrastructure SIP requirements
of this portion of section 110(a)(2)(E) for the 2015 ozone 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.
Vermont's infrastructure submittal references existing state
regulations previously approved by EPA that require sources to monitor
emissions and submit reports. In particular, VT APCR Sec. 5-405,
Required Air Monitoring, provides that ANR ``may require the owner or
operator of any air contaminant source to install, use and maintain
such monitoring equipment and records, establish and maintain such
records, and make such periodic emission reports as [ANR] shall
prescribe.'' See 45 FR 10775 (February 19, 1980). Moreover, section 5-
402, Written Reports When Requested, authorizes ANR to ``require
written reports from the person operating or responsible for any
proposed or existing air contaminant source, which reports shall
contain,'' among other things, information concerning the ``nature and
amount and time periods or durations of emissions and such other
information as may be relevant to the air pollution potential of the
source. These reports shall also include the results of such source
testing as may be required under Section 5-404 herein.'' See 81 FR
50342 (August 1, 2016).
Section 5-404, Methods for Sampling and Testing of Sources
authorizes ANR to ``require the owner or operator of [a] source to
conduct tests to determine the quantity of particulate and/or gaseous
matter being emitted'' and requires a source to allow access, should
ANR have reason to believe that emission limits are being violated by
the source, and allows ANR ``to conduct tests of [its] own to determine
compliance.'' See 45 FR 10775 (February 19, 1980). In addition,
operators of sources that emit more than five tons of any and all air
contaminants per year are required to register the source with the
Secretary of ANR and to submit emissions data annually, pursuant to
Sec. 5-802, Requirement for Registration, and Sec. 5-803,
Registration Procedure. See 60 FR 2524 (January 10, 1995).
Vermont also certifies that nothing in its SIP would preclude the
use, including the exclusive use, of any credible evidence or
information, relevant to whether a source would have been in compliance
with applicable requirements if the appropriate performance or
compliance test or procedure had been performed. See 40 CFR 51.212(c).
Vermont provides for correlation by VT DEC of emissions reports by
sources with applicable emission limitations or standards, as required
by CAA Sec. 110(a)(2)(F)(iii). Vermont receives emissions data through
its annual registration program. Currently, VT DEC analyzes a portion
of these data manually to correlate a facility's reported data with
permit conditions, including hours of operation, fuel usage, and annual
emissions limits for both criteria emissions and hazardous air
contaminant emissions. VT DEC reports that it has finished the process
of setting up an integrated electronic database that merges all air
contaminant source information across permitting, compliance and
registration programs, so that information concerning permit
conditions, annual emissions data, and compliance data are accessible
in one location for a particular air contaminant source. VT DEC further
reports that it is working on a database function that would
automatically correlate emissions data with permit conditions and other
applicable standards electronically to enable VT DEC to complete
correlation more efficiently and accurately.
Regarding the section 110(a)(2)(F) requirement that the SIP ensure
that the public has availability to emission reports, Vermont certified
in its November 19, 2019, submittal for the 2015 ozone NAAQS that the
Vermont Public Records Act, 1 V.S.A. Sec. Sec. 315-320, provides for
the free and open examination of public records, including emissions
reports. Furthermore, 10 V.S.A. Sec. 563 specifically provides that
the ANR ``Secretary shall not withhold emissions data and emission
monitoring data from public inspection or review'' and ``shall keep
confidential any record or other information furnished to or obtained
by the Secretary concerning an air contaminant source, other than
emissions data and emission monitoring data, that qualifies as a trade
secret pursuant to 1 V.S.A. Sec. 317(c)(9).'' (emphasis added). EPA
approved section 563 into the Vermont SIP on June 27, 2017. See 82 FR
29005.
[[Page 18170]]
Consequently, EPA proposes that Vermont meets the infrastructure
SIP requirements of section 110(a)(2)(F) for the 2015 ozone NAAQS.
G. Section 110(a)(2)(G)--Emergency Powers
This section requires that a plan provide for state authority
analogous to that provided to the EPA Administrator in section 303 of
the CAA, and adequate contingency plans to implement such authority.
Section 303 of the CAA provides authority to the EPA Administrator to
seek a court order to restrain any source from causing or contributing
to emissions that present an ``imminent and substantial endangerment to
public health or welfare, or the environment.'' Section 303 further
authorizes the Administrator to issue ``such orders as may be necessary
to protect public health or welfare or the environment'' in the event
that ``it is not practicable to assure prompt protection . . . by
commencement of such civil action.''
On June 27, 2017, EPA approved a Vermont SIP revision addressing
the requirement that the plan provide for state authority comparable to
that in section 303 of the CAA. See 82 FR 29005. For a detailed
analysis explaining how Vermont meets this requirement, see EPA's
notice of proposed rulemaking for that action. See 82 FR 15671, 15679
(March 30, 2017). For the reasons provided in the March 2017 notice, we
are proposing to approve the state's submittal for this requirement of
Section 110(a)(2)(G) with respect to the 2015 ozone NAAQS.
Section 110(a)(2)(G) also requires that Vermont have an approved
contingency plan for any Air Quality Control Region (AQCR) within the
state that is classified as Priority I, IA, or II for certain
pollutants. See 40 CFR 51.150, 51.152(c). In general, contingency plans
for Priority I, IA, and II areas must meet the applicable requirements
of 40 CFR part 51, subpart H (40 CFR 51.150 through 51.153)
(``Prevention of Air Pollution Emergency Episodes'') for the relevant
NAAQS, if the NAAQS is covered by those regulations. Both AQCRs in
Vermont are classified as Priority III for ozone, 40 CFR 52.2371, and,
therefore, Vermont does not need to submit a contingency plan to
implement its emergency episode authority.\35\ Although not expected,
if ozone conditions were to change, Vermont does have general
authority, as noted previously (i.e., 10 V.S.A. Sec. 560 and 10 V.S.A.
Sec. 8009), to order a source to cease operations if it is determined
that emissions from the source pose an imminent danger to human health
or safety or an immediate threat of substantial harm to the
environment.
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\35\ Classification of regions in Vermont is available at
https://www.ecfr.gov/cgi-bin/text-idx?SID=73d43a45cf13909292d606aad27c9cc6&mc=true&node=se40.5.52_12371&rgn=div8 and ozone monitor values for individual monitoring sites
throughout Vermont are available at www.epa.gov/outdoor-air-quality-data/monitor-values-report.
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In addition, as stated in Vermont's infrastructure SIP submittal
under the discussion of public notification (Element J), Vermont posts
near real-time air quality data, air quality predictions and a record
of historical data on the VT DEC website and, when forecast or measured
ozone concentrations exceed the level of the 2015 ozone NAAQS,
distributes air quality alerts by email to many parties, including the
media and the National Weather Service. Alerts include information
about the health implications of elevated pollutant levels and list
actions to reduce emissions and to reduce the public's exposure. In
addition, daily forecasted ozone levels are also made available on the
internet through the EPA AirNow and EnviroFlash systems. Information
regarding these two systems is available on EPA's website at
www.airnow.gov. Notices are sent out to EnviroFlash participants when
levels are forecast to exceed the current ozone standard.
EPA proposes that Vermont meets the applicable infrastructure SIP
requirements for section 110(a)(2)(G) with respect to contingency plans
for the 2015 ozone NAAQS.
H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires that a state's SIP provide for revision from
time to time as may be necessary to take account of changes in the
NAAQS or availability of improved methods for attaining the NAAQS and
whenever EPA finds that the SIP is substantially inadequate. To address
this requirement, Vermont's infrastructure submittal references 10
V.S.A. Sec. 554, which provides the Secretary of Vermont ANR with the
power to ``[p]repare and develop a comprehensive plan or plans for the
prevention, abatement and control of air pollution in this state'' and
to ``[a]dopt, amend and repeal rules, implementing the provisions'' of
Vermont's air pollution control laws set forth in 10 V.S.A. chapter 23.
EPA approved 10 V.S.A. Sec. 554 into the SIP on June 27, 2017. See 82
FR 29005. EPA proposes that Vermont meets the infrastructure SIP
requirements of CAA section 110(a)(2)(H) with respect to the 2015 ozone
NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions
Under Part D
Section 110(a)(2)(I) provides that each plan or plan revision for
an area designated as a nonattainment area shall meet the applicable
requirements of part D of the CAA. EPA interprets section 110(a)(2)(I)
to be inapplicable to the infrastructure SIP process because specific
SIP submissions for designated nonattainment areas, as required under
part D, are subject to a different submission schedule under subparts 2
through 5 of part D, extending as far as 10 years following area
designations for some elements, whereas infrastructure SIP submissions
are due within three years after adoption or revision of a NAAQS.
Accordingly, EPA takes action on part D attainment plans through
separate processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notifications; Prevention of Significant Deterioration; Visibility
Protection
Section 110(a)(2)(J) of the CAA requires that each SIP ``meet the
applicable requirements of section 121 of this title (relating to
consultation), section 127 of this title (relating to public
notification), and part C of this subchapter (relating to PSD of air
quality and visibility protection).'' The evaluation of the submission
from Vermont 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.
Vermont's 10 V.S.A. Sec. 554 specifies that the Secretary of
Vermont ANR shall have the power to ``[a]dvise, consult, contract and
cooperate with other agencies of the state, local governments,
industries, other states, interstate or interlocal agencies, and the
federal government, and with interested persons or groups.'' EPA
approved 10 V.S.A. Sec. 554 into the SIP on June 27, 2017. See 82 FR
29005. In addition, VT APCR Sec. 5-501(7)(c) requires VT ANR to
provide notice to local governments and federal land managers of a
determination by ANR to issue a draft PSD permit for a major stationary
source or major modification. On August 1, 2016, EPA approved VT APCR
Sec. 5-501(7)(c) into Vermont's SIP. See 81 FR
[[Page 18171]]
50342. Therefore, EPA proposes that Vermont meets the infrastructure
SIP requirements of this portion of section 110(a)(2)(J) for the 2015
ozone 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.
Vermont's 10 V.S.A. Sec. 554 authorizes the Secretary of Vermont
ANR to ``[c]ollect and disseminate information and conduct educational
and training programs relating to air contamination and air
pollution.'' In addition, the VT DEC Air Quality and Climate Division
website includes near real-time air quality data, and a record of
historical data. Air quality forecasts are distributed daily via email
to interested parties. Air quality alerts are sent by email to a large
number of affected parties, including the media. Alerts include
information about the health implications of elevated pollutant levels
and list actions to reduce emissions and to reduce the public's
exposure. Also, Air Quality Data Summaries of the year's air quality
monitoring results are issued annually and posted on the VT DEC Air
Quality and Climate Division website. Vermont is also an active partner
in EPA's AirNow and EnviroFlash air quality alert programs.
EPA proposes that Vermont meets the infrastructure SIP requirements
of this portion of section 110(a)(2)(J) for the 2015 ozone NAAQS.
Sub-Element 3: PSD
EPA has already discussed Vermont's PSD program in the context of
infrastructure SIPs in the paragraphs addressing section 110(a)(2)(C)
and 110(a)(2)(D)(i)(II) and determined that it satisfies the
requirements of EPA's PSD implementation rules. Therefore, the SIP also
satisfies the PSD sub-element of section 110(a)(2)(J) for the 2015
ozone NAAQS.
Sub-Element 4: Visibility Protection
With regard to the applicable requirements for visibility
protection, states are subject to visibility and regional haze program
requirements under part C of the CAA (which includes sections 169A and
169B). In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C do not
change. Thus, as noted in EPA's 2013 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 2015 ozone NAAQS.
Based on the above analysis, EPA proposes that Vermont meets the
infrastructure SIP requirements of sub-elements 1-3 of section
110(a)(2)(J) for the 2015 ozone NAAQS. We are not proposing action on
sub-element 4 because, as noted above, it is not germane to
infrastructure SIPs.
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 modeling guidelines at
40 CFR part 51, Appendix W, for predicting the effects of emissions of
criteria pollutants on ambient air quality. EPA also recommends in the
2013 memorandum that, to meet section 110(a)(2)(K), 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.
In its submittal, Vermont cites to VT APCR Sec. 5-406, Required
Air Modeling, which authorizes ``[t]he Air Pollution Control Officer
[to] require the owner or operator of any proposed air contaminant
source . . . to conduct . . . air quality modeling and to submit an air
quality impact evaluation to demonstrate that operation of the proposed
source . . . will not directly or indirectly result in a violation of
any ambient air quality standard, interfere with the attainment of any
ambient air quality standard, or violate any applicable prevention of
significant deterioration increment . . . .'' Vermont reviews the
potential impact of such sources consistent with EPA's ``Guidelines on
Air Quality Models'' at 40 CFR part 51, appendix W. See VT APCR Sec.
5-406(2). Vermont also cites to VT APCR Sec. 5-502, Major Stationary
Sources and Major Modifications, which requires the submittal of an air
quality impact evaluation or air quality modeling to ANR to demonstrate
impacts of new and modified major sources, in accordance with VT APCR
Sec. 5-406. The modeling data are sent to EPA along with the draft
major permit. As a result, the SIP provides for such air quality
modeling as the Administrator has prescribed and for the submission,
upon request, of data related to such modeling.
The state also collaborates with the Ozone Transport Commission
(OTC) and the Mid-Atlantic Regional Air Management Association and EPA
in order to perform large-scale urban air shed modeling for ozone and
PM, if necessary. EPA proposes that Vermont meets the infrastructure
SIP requirements of section 110(a)(2)(K) for the 2015 ozone 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.
Vermont state law requires application fees for construction or
modification permits for major stationary sources, 10 V.S.A. Sec. 556;
VT APCR Sec. 5-504, and sets forth fee amounts, 3 V.S.A. Sec.
2822(j)(1)(A)(ii)(I). State law also requires major stationary sources
to pay annual registration renewal fees. Id. Sec. 2822(j)(1)(B); VT
APCR Sec. Sec. 5-802, 5-806. Moreover, EPA fully approved Vermont's
Title V permit program, see VT APCR subchapter X, on November 29, 2001.
See 66 FR 59535; see also 40 CFR part 70, appendix A. To gain this
approval, Vermont demonstrated that the annual fees required of Title V
sources (which includes major stationary sources) under State law are
sufficient to cover the costs of reviewing, approving, implementing,
and enforcing the permits. See 61 FR 26145 (May 24, 1996).
Therefore, EPA proposes that Vermont meets the infrastructure SIP
requirements of section 110(a)(2)(L) for the 2015 ozone NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
To satisfy Element M, states must provide for consultation with,
and participation by, local political subdivisions affected by the SIP.
Vermont's infrastructure submittal references 10 V.S.A. Sec. 554,
which was approved into the VT SIP on June 27, 2017. See 82 FR 29005.
This statute authorizes the Secretary of Vermont ANR to ``[a]dvise,
consult, contract and cooperate with other agencies of the state, local
governments, industries, other states, interstate or interlocal
agencies, and the federal government,
[[Page 18172]]
and with interested persons or groups.'' In addition, VT APCR Sec. 5-
501(7) provides for notification to local officials and agencies about
the opportunity for participating in permitting determinations for the
construction or modification of major sources. EPA proposes that
Vermont meets the infrastructure SIP requirements of section
110(a)(2)(M) with respect to the 2015 ozone NAAQS.
N. Vermont Executive Order Submitted for Incorporation Into the SIP
Vermont's November 19, 2019, infrastructure SIP submittal for the
2015 ozone NAAQS included State of Vermont Executive Order (E.O.) 19-
17, Executive Code of Ethics. As requested by Vermont, EPA is proposing
to approve E.O. 19-17 into the Vermont SIP and, because E.O. 19-17
supersedes and replaces E.O. 09-11, to remove E.O. 09-11 from the
Vermont SIP.
III. Proposed Action.
EPA is proposing to approve the elements of the infrastructure SIP
submitted by Vermont on November 19, 2019, for the 2015 ozone NAAQS.
Specifically, EPA's proposed action regarding each infrastructure SIP
requirement is contained in Table 1 below.
Table 1--Proposed Action on Vermont's Infrastructure SIP Submittal for
the 2015 Ozone NAAQS
------------------------------------------------------------------------
Element 2015 Ozone
------------------------------------------------------------------------
(A): Emission limits and other control A
measures.
(B): Ambient air quality monitoring and A
data 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/ A
interfere 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................. A
(I): Nonattainment area plan or plan +
revisions under part D.
(J)1: Consultation with government A
officials.
(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
NA..................................... Not applicable
+...................................... Not germane to infrastructure
SIPs
------------------------------------------------------------------------
In addition, EPA is proposing to approve, and incorporate into the
Vermont SIP, the following Executive Order, which was included for
approval in Vermont's infrastructure SIP submittal:
State of Vermont Executive Order No. 19-17, Executive Code of
Ethics, effective December 4, 2017.
EPA is also proposing to remove State of Vermont Executive Order
No. 09-11, Executive Code of Ethics, which has been superseded and
replaced by Executive Order No. 19-17.
EPA is soliciting public comments on the issues discussed in this
notice or on other relevant matters. These comments will be considered
before taking final action. Interested parties may participate in the
Federal rulemaking procedure by submitting written comments to this
proposed rule by following the instructions listed in the ADDRESSES
section of this Federal Register.
IV. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by
reference the Vermont executive order regarding the State's executive
code of ethics discussed in Section II of this preamble. EPA has made,
and will continue to make, these documents generally available through
https://www.regulations.gov and at the EPA Region 1 Office (please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section of this preamble for more information).
V. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by state law. For that reason, this proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
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).
[[Page 18173]]
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: March 24, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.
[FR Doc. 2020-06659 Filed 3-31-20; 8:45 am]
BILLING CODE 6560-50-P
