Air Plan Approval; Arkansas; Infrastructure for the 2015 Ozone National Ambient Air Quality Standards, 39128-39135 [2020-13427]
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plan provided by or at the direction of
the appointing fiduciary, if –
(1) Such information is provided for
the stated purpose of assisting the
manager in the performance of the
manager’s investment duties, and
(2) The manager does not know and
has no reason to know that the
information is incorrect.
(e) [Reserved]
(f) Definitions. For purposes of this
section:
(1) The term ‘‘investment duties’’
means any duties imposed upon, or
assumed or undertaken by, a person in
connection with the investment of plan
assets which make or will make such
person a fiduciary of an employee
benefit plan or which are performed by
such person as a fiduciary of an
employee benefit plan as defined in
section 3(21)(A)(i) or (ii) of the Act.
(2) The term ‘‘investment course of
action’’ means any series or program of
investments or actions related to a
fiduciary’s performance of the
fiduciary’s investment duties, and
includes the selection of an investment
fund as a plan investment, or in the case
of an individual account plan, a
designated alternative under the plan.
(3) The term ‘‘pecuniary factor’’
means a factor that has a material effect
on the risk and/or return of an
investment based on appropriate
investment horizons consistent with the
plan’s investment objectives and the
funding policy established pursuant to
section 402(a)(1) of ERISA.
(4) The term ‘‘plan’’ means an
employee benefit plan to which Title I
of the Act applies.
(g) Effective date. This section shall be
effective on [60 days after date of
publication of final rule].
(h) Severability. Should a court of
competent jurisdiction hold any
provision(s) of this subpart to be
invalid, such action will not affect any
other provision of this subpart.
Signed at Washington, DC, June 22, 2020.
Jeanne Wilson,
Acting Assistant Secretary, Employee Benefits
Security Administration, Department of
Labor.
[FR Doc. 2020–13705 Filed 6–26–20; 4:15 pm]
BILLING CODE P
LIBRARY OF CONGRESS
U.S. Copyright Office
37 CFR Part 201
[Docket No. 2020–10]
Modernizing Recordation of Notices of
Termination
U.S. Copyright Office, Library
of Congress.
ACTION: Notice of proposed rulemaking;
notification of inquiry; extension of
comment period.
AGENCY:
The U.S. Copyright Office is
extending the deadline for the
submission of written comments in
response to its June 3, 2020, notice of
proposed rulemaking and notification of
inquiry regarding recordation of notices
of termination.
DATES: The comment period for the
proposed rule published June 3, 2020, at
85 FR 34150, is extended. Written
comments must be received no later
than 11:59 p.m. Eastern Time on August
5, 2020.
ADDRESSES: For reasons of government
efficiency, the Copyright Office is using
the regulations.gov system for the
submission and posting of public
comments in this proceeding. All
comments are therefore to be submitted
electronically through regulations.gov.
Specific instructions for submitting
comments are available on the
Copyright Office website at https://
www.copyright.gov/rulemaking/
termination-modernization/. If
electronic submission of comments is
not feasible due to lack of access to a
computer and/or the internet, please
contact the Office using the contact
information below for special
instructions.
FOR FURTHER INFORMATION CONTACT:
Regan A. Smith, General Counsel and
Associate Register of Copyrights,
regans@copyright.gov; Kevin R. Amer,
Deputy General Counsel, kamer@
copyright.gov; or Nicholas R. Bartelt,
Attorney-Advisor, niba@copyright.gov.
They can be reached by telephone at
(202) 707–8350.
SUPPLEMENTARY INFORMATION: On June 3,
2020, the U.S. Copyright Office issued a
notice of proposed rulemaking and
notification of inquiry (the ‘‘NPRM’’)
regarding recordation of notices of
termination.1 The NPRM requested
public comments on proposed updates
to the regulatory framework for notices
of termination before features permitting
electronic submission of notices are
SUMMARY:
1 85
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FR 34150 (June 3, 2020).
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developed for the online recordation
system. The Office also solicited
comments on two additional subjects:
(1) Whether the Office should develop
an optional form or template to assist
remitters in creating and serving notices
of termination; and (2) whether the
Office should consider regulatory
updates to address concerns about thirdparty agents failing to properly serve
and file notices on behalf of authors.
To ensure that members of the public
have sufficient time to comment, and to
ensure that the Office has the benefit of
a complete record, the Office is
extending the deadline for submission
of comments to 11:59 p.m. Eastern Time
on August 5, 2020.
Dated: June 26, 2020.
Regan A. Smith,
General Counsel and Associate Register of
Copyrights.
[FR Doc. 2020–14208 Filed 6–29–20; 8:45 am]
BILLING CODE 1410–30–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2019–0616; FRL–10010–
57-Region 6]
Air Plan Approval; Arkansas;
Infrastructure for the 2015 Ozone
National Ambient Air Quality
Standards
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
Under the Federal Clean Air
Act (CAA or Act), the Environmental
Protection Agency (EPA) is proposing to
approve elements of a State
Implementation Plan (SIP) submission
from the State of Arkansas (State) for the
2015 Ozone (O3) National Ambient Air
Quality Standards (NAAQS). This
submittal addresses how the existing
SIP provides for implementation,
maintenance, and enforcement of the
2015 O3 NAAQS (infrastructure SIP or
i-SIP). The i-SIP ensures that the
Arkansas SIP is adequate to meet the
state’s responsibilities under the CAA
for this NAAQS. We are also proposing
to approve changes to the State’s
regulations to bring the State’s rule up
to date and consistent with the 2015 O3
NAAQS.
DATES: Written comments must be
received on or before July 30, 2020.
ADDRESSES: Submit your comments,
identified by Docket No. EPA–R06–
OAR–2019–0616, at https://
www.regulations.gov or via email
SUMMARY:
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todd.robert@epa.gov. Follow the online
instructions for submitting comments.
Once submitted, comments cannot be
edited or removed from Regulations.gov.
EPA may publish any comment received
to its public docket. Do not submit
electronically any information you
consider to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Multimedia submissions (audio, video,
etc.) must be accompanied by a written
comment. The written comment is
considered the official comment and
should include discussion of all points
you wish to make. EPA will generally
not consider comments or comment
contents located outside of the primary
submission (i.e. on the web, cloud, or
other file sharing system). For
additional submission methods, please
contact Robert M. Todd, (214) 665–
2156, todd.robert@epa.gov. 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.
Docket: The docket index and
publicly available docket materials for
this action are available electronically at
www.regulations.gov. While all
documents in the docket are listed in
the index, some information may not be
publicly available due to file size or
content (e.g., CBI).
FOR FURTHER INFORMATION CONTACT:
Robert M. Todd, EPA Region 6 Office,
Infrastructure & Ozone Section, 214–
665–2156, todd.robert@epa.gov. Out of
an abundance of caution for members of
the public and our staff, the EPA Region
6 office may be closed to the public to
reduce the risk of transmitting COVID–
19. We encourage the public to submit
comments via https://
www.regulations.gov, as there will be a
delay in processing mail and no courier
or hand deliveries will be accepted.
Please call or email the contact listed
above if you need alternative access to
material indexed but not provided in
the docket.
SUPPLEMENTARY INFORMATION: In this
document ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ means
the EPA.
I. Background
Below is a short discussion of the
background on the 2015 O3 NAAQS and
the SIP revisions addressed in this
action. For more information, please see
the Technical Support Document (TSD)
in the docket for this action.1
1 The TSD for this action can be accessed through
www.regulations.gov (Docket No. EPA–R06–OAR–
2019–0616).
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Following a periodic review of the
2008 NAAQS for O3, EPA revised the
primary and secondary O3 NAAQS to
0.070 ppm (80 FR 65291, October 26,
2015).2 The primary NAAQS is
designed to protect human health, and
the secondary NAAQS is designed to
protect the public welfare.3
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 type of SIP submission is
commonly referred to as an
‘‘infrastructure SIP’’ or ‘‘i-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
provided guidance on the application of
infrastructure provisions in SIP
submissions and applied such guidance
in regional actions on infrastructure
submissions.4 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 facial
compliance with statutory and
regulatory requirements, not for the
state’s implementation of its SIP.5 The
EPA has other CAA authority to address
any issues concerning a state’s
implementation of the rules,
regulations, consent orders, etc. that
comprise its SIP.
Each state must submit an i-SIP
within three years after the
promulgation of a new or revised
NAAQS showing how it meets the
elements of section 110(a)(2) of the
CAA. This section of the CAA includes
a list of specific elements necessary for
a state’s air quality program. On October
2 Additional information on the history of the
NAAQS for ozone is available at https://
www.epa.gov/ground-level-ozone-pollution/tablehistorical-ozone-national-ambient-air-qualitystandards-naaqs.
3 Information on ozone formation and health
effects is available at https://www.epa.gov/
ozonepollution.
4 EPA explains and elaborates on these
ambiguities and its approach to address them in its
September 13, 2013, Infrastructure SIP Guidance
(available at https://www.epa.gov/sites/production/
files/2015-12/documents/guidance_on_
infrastructure_sip_elements_multipollutant_final_
sept_2013.pdf), as well as in numerous agency
actions, including EPA’s prior action on Louisiana’s
infrastructure SIP to address the 2006 PM2.5, 2008
PB, 2008 O3, 2010 NO2, 2010 SO2 and 2012 PM2.5
NAAQS (81 FR 68322 (October 4, 2016)).
5 See U.S. Court of Appeals for the Ninth Circuit
decision in Montana Environmental Information
Center v. EPA, No. 16–71933 (Aug. 30, 2018).
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39129
4, 2019, the Governor of Arkansas made
one submission to address the 2015
NAAQS for O3.6 The submittal
addressed CAA sections 110(a)(2)(A)
through (M).
We are proposing that the Arkansas
SIP meets the requirements in CAA
section 110(a)(1) and parts of section
110(a)(2). Specifically, we are proposing
to approve the Arkansas i-SIP as it
demonstrates compliance with CAA
sections 110(a)(1) and 110(a)(2)(A)
through (C) and (E) through (M). We are
also proposing that Arkansas’ i-SIP
demonstrates compliance with CAA
section 110(a)(2)(D)(i)(II), Interference
with Prevention of Significant
Deterioration (often referred to as prong
3) and CAA section 110(a)(2)(D)(ii),
Interstate Pollution Abatement (which
refers to CAA section 126) and
International Air Pollution (which refers
to CAA section 115). The remaining
portions of the October 4, 2019,
submittal, addressing CAA section
110(a)(2)(D)(i)(I), often referred to as
interstate transport prongs 1 and 2, and
CAA section 110(a)(2)(D)(i)(II), often
referred to as interstate transport prong
4, will be addressed in separate,
subsequent actions.7 A copy of the
State’s submittal is provided in the
docket for this proposed rulemaking.
Also, on September 27, 2019, after
due opportunity for public notice and
comment and following all the state’s
required administrative procedures the
Arkansas Pollution Control and Ecology
Commission (APC&EC) adopted changes
to Regulation 19 (Regulations of the
Arkansas Plan for Air Pollution
Control). Regulation 19 changes were
made to Chapter 2, Definitions and
Appendix B, National Ambient Air
Quality Standards List, that bring the
state’s rules up to date and consistent
with the 2015 O3 NAAQS. These
changes were included in the i-SIP
submittal. We are proposing to approve
these changes into the Arkansas SIP.
6 Additional information, including the history of
the priority pollutants, their levels, the forms of the
standard and the determination of compliance;
EPA’s approach for reviewing the i-SIP submittal
and EPA’s evaluation; the statute and regulatory
citations in the Arkansas SIP specific to the review
of this i-SIP, applicable CAA and EPA regulatory
citations, Federal Register citations for the
Arkansas SIP approvals; Arkansas minor New
Source Review program and EPA approval
activities, and Arkansas’ Prevention of Significant
Deterioration program can be found in the TSD for
this action.
7 In an earlier action we proposed to approve the
Arkansas submittal for interstate transport prong 4
(visibility protection). See 85 FR 14847 (March 16,
2020).
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II. EPA’s Evaluation of the Arkansas
2015 O3 NAAQS Submission
Below is a summary of our evaluation
of the October 4, 2019, Arkansas
submittal for each element of CAA
section 110(a)(2) that we are proposing
to approve.8
(A). Emission limits and other control
measures: The SIP must include
enforceable emission limits and other
control measures, means or techniques,
as well as schedules and timetables for
compliance, as may be appropriate to
meet the applicable requirements of the
Act and other related matters as needed
to implement, maintain and enforce
each of the NAAQS.9
The State provided information to
show that Arkansas’ SIP contains
enforceable emission limitations and
other control measures requirements.
The relevant provisions to address such
requirements are included in the
Arkansas Water and Air Pollution
Control Act (AWAPCA), Arkansas Code
Annotated (‘‘Ark. Code Ann.’’) section
8–4–101 et seq., and those provisions of
the APC&EC Regulation 19, codified in
40 CFR 52.170. The regulations in
APC&EC Regulation 19 have been duly
adopted by the State and where these
provisions relate to CAA section 110
requirements, SIP revisions have been
submitted to and approved by EPA. The
EPA-approved SIP revisions are codified
at 40 CFR part 52, subpart E. Arkansas
has an EPA-approved air permitting
program for both major and minor
facilities, which ensures that all
applicable requirements are included in
any applicable facility permit. A
detailed list of the applicable authorities
and regulations is provided in the TSD
in the docket to this action. Arkansas’
SIP contains enforceable emission limits
and other control measures, which are
also in the federally enforceable SIP.
(B) Ambient air quality monitoring/
data system: The SIP must provide for
establishment and implementation of
ambient air quality monitors, collection
and analysis of ambient air quality data,
and providing such data to EPA upon
request.
8 A detailed discussion of our evaluation can be
found in the TSD for this action.
9 The specific nonattainment area plan
requirements of section 110(a)(2)(I) are subject to
the timing requirements of section 172, not the
timing requirement of section 110(a)(1). Thus,
section 110(a)(2)(A) does not require that states
submit regulations or emissions limits specifically
for attaining the 2015 Ozone NAAQS. Those SIP
provisions are due as part of each state’s attainment
plan and will be addressed separately from the
requirements of section 110(a)(2)(A). 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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The SIP-approved APC&EC
Regulation 19, Chapter 3 allows the
Arkansas Department of Environmental
Quality (ADEQ) to collect air monitoring
data, quality-assure the results, and
report the data. Arkansas’ Statewide Air
Quality Surveillance Network was
approved by EPA on August 6, 1981 (46
FR 40005) and consists of stations that
measure ambient concentrations of the
six criteria pollutants. ADEQ maintains
and operates a monitoring network to
measure levels of ozone, as well as other
pollutants, in accordance with EPA
regulations specifying siting and
monitoring requirements. All
monitoring data is measured using EPA
approved methods and subject to the
EPA quality assurance requirements.
ADEQ submits all required data to us,
following the EPA regulations. The
monitoring network was approved into
the SIP and it undergoes annual review
by EPA.10 In addition, ADEQ submits an
assessment of its monitoring network
every five years, as required by EPA
rules. The most recent of these annual
monitoring network assessments was
submitted by ADEQ and approved by us
on November 12, 2019. The most recent
of the five-year monitoring assessments
was submitted by ADEQ and approved
by us on July 22, 2016. The ADEQ
website provides the monitor locations
and posts past and current
concentrations of criteria pollutants
measured by the State’s network of
monitors.11
(C) Program for enforcement of
control measures: The SIP must include
the following three elements: (1) A
program providing for enforcement of
the measures in CAA section
110(a)(2)(A); (2) a minor new source
review (NSR) program for the regulation
of new and modified minor stationary
sources and minor modifications of new
major stationary sources as necessary to
protect the applicable NAAQS; and (3)
a major stationary source permit
program to meet the prevention of
significant deterioration (PSD)
permitting requirements of the CAA (for
areas designated as attainment or
unclassifiable for the NAAQS in
question). Each of these elements is
described in more detail in the TSD for
this action.
(1) Enforcement of SIP measures: The
state must provide a program for
enforcement of the necessary control
10 A copy of the 2019 Annual Air Monitoring
Network Plan and our approval letter, as well as the
most recent five-year assessment and approval
letter, are included in the docket for this proposed
rulemaking.
11 https://www.adeq.state.ar.us/techsvs/air_
chem_lab/ozone_monitors.aspx?desktop_version=y
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measures described in subparagraph
(A).
As discussed previously, the
AWAPCA provides the ADEQ with
authority to enforce the State’s
environmental quality rules. The ADEQ
established rules governing emissions of
the NAAQS and their precursors
throughout the state, and these rules are
in the federally-enforceable SIP. The
rules in Regulation 19, Chapters 1, 3–5,
7–10, 13 and 14; Regulation 26,
Chapters 3 and Regulation 31, Chapters
1, 3, 4 and 8 include allowable rates,
compliance, control plan requirements,
monitoring and testing requirements,
recordkeeping and reporting
requirements, and control schedules.
These rules set the boundaries beyond
which regulated entities in Arkansas
can expect enforcement action.
To meet the CAA requirement for
having a program for the regulation of
the modification and construction of
any stationary source within the areas
covered by the plan as necessary to
assure that national ambient air quality
standards are achieved—including a
permit program as required by Parts C
and D—generally, the State is required
to have SIP-approved PSD,
Nonattainment, and Minor NSR
permitting programs adequate to
implement the 2015 O3 NAAQS. As
explained in section I above and
footnote 5, we are not evaluating
nonattainment-related provisions—such
as the Nonattainment NSR program
required by part D in section
110(a)(2)(C) and measures for
attainment required by section
110(a)(2)(I), as part of the infrastructure
SIPs for these NAAQS—because these
submittals are required beyond the date
(3 years from NAAQS promulgation)
that CAA section 110 infrastructure
submittals are required.
(2) Minor New Source Review (NSR).
The SIP is required to include measures
to regulate construction and
modification of minor stationary sources
and minor modifications to major
stationary sources to protect the
NAAQS. The Arkansas minor NSR
permitting requirements are approved as
part of the SIP.12 Arkansas’ minor
12 EPA is not proposing in this action to approve
or disapprove the existing Arkansas minor NSR
program to the extent that it may be inconsistent
with EPA’s regulations governing this program. EPA
has maintained that the CAA does not require that
new infrastructure SIP submissions correct any
defects in existing EPA-approved provisions of
minor NSR programs for EPA to approve the
infrastructure SIP for element C, program for
enforcement of control measures (e.g., 76 FR 41076–
41079). The statutory requirements of section
110(a)(2)(C) of the Act provide for considerable
flexibility in designing minor NSR programs. See
the TSD for more information.
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source permitting requirements are
contained at APC&EC Regulation 19,
Chapter 4 and revisions to the rule were
previously approved by EPA at 72 FR
18394 (April 12, 2007) and 83 FR 30553
(June 29, 2018). The SIP continues to
require preconstruction permits for
minor sources and minor modifications.
(3) PSD permit program for major
stationary sources. The Arkansas PSD
portion of the SIP covers all NSR
regulated pollutants including the
requirements for the 2015 O3 NAAQS.
See the TSD to this proposal for a full
history on the state’s PSD permitting
program.
(D) Interstate and international
transport: The requirements for
interstate transport of O3 emissions are
that the SIP contain adequate provisions
prohibiting Arkansas emissions which
will (1) Contribute significantly to
nonattainment of the NAAQS, (2)
interfere with maintenance of the
NAAQS, (3) interfere with measures
required to prevent significant
deterioration or (4) interfere with
measures to protect visibility (CAA
section 110(a)(2)(D)(i)) in other states.
As noted earlier, EPA often refers to
these four requirements within CAA
section 110(a)(2)(D)(i) as prongs or subelements. We are not evaluating prongs
1, 2, and 4 in this rulemaking action, but
will address them in separate actions.
However, we are proposing to approve
prong 3 of CAA section 110(a)(2)(D)(i),
because the Arkansas has a SIPapproved PSD permitting program that
regulates all NSR pollutants, and thus,
prevents interference with measures
required to prevent significant
deterioration in other states.
Section 110(a)(2)(D)(ii) of the CAA
requires SIPs to include adequate
provisions to ensure compliance with
sections 115 and 126 of the Act, relating
to international and interstate pollution
abatement. Section 115 of the Act
addresses endangerment of public
health or welfare in foreign countries
from pollution emitted in the United
States. There are no final findings by the
EPA that Arkansas air emissions affect
other countries. Section 126(a) of the
Act requires new or modified sources to
notify neighboring states of potential
impacts from such sources. The
Arkansas SIP requires that each major
proposed new or modified source
provide such notification. The State also
has no pending obligations under CAA
section 126. See the TSD for more
detail.
(E) Adequate authority, resources,
implementation, and oversight: The SIP
must provide for the following: (1)
Necessary assurances that the state (and
other entities within the state
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responsible for implementing the SIP)
will have adequate personnel, funding,
and authority under state or local law to
implement the SIP, and that there are no
legal impediments to such
implementation; (2) requirements
relating to state boards; and (3)
necessary assurances that the state has
responsibility for ensuring adequate
implementation of any plan provision
for which it relies on local governments
or other entities to carry out that portion
of the plan. As discussed in previously
in the discussion of elements (A) and
(E), the requirement that there is
adequate authority to implement and
enforce the SIP and that there are no
legal impediments are addressed. The iSIP submission for the 2015 O3 NAAQS
describes the SIP regulations governing
the various functions of personnel
within the ADEQ, including the
administrative, technical support,
planning, enforcement, and permitting
functions of the program. With respect
to necessary assurances, and the
requirement to address funding,
Arkansas has authority to establish and
collect fees for operation of the state’s
permitting programs. Ark. Code Ann.
section 8–1–103(1)(A) grants APC&EC
the authority to establish, by regulation,
reasonable fees for initial issuance,
annual review, and modification of
permits. Under Ark. Code Ann. section
8–1–103(3), ADEQ is authorized to
collect the fees established by APC&EC
and shall deny the issuance of an initial
permit, a renewal permit, or a
modification permit if and when a
facility fails or refuses to pay the fees
after reasonable notice. APC&EC
Regulation 9, Fee Regulation, Chapter 5
Air Permit Fees, contains the air permit
fees applicable to non-part 70 permits,
part 70 permits and general permits.
More specific information on permitting
fees is provided in the TSD.
With respect to authority and
personnel, Ark. Code Ann. section 8–1–
202(b)(2)(D) states that the Director of
ADEQ’s duties include the day-to-day
administration of all activities that the
Department is empowered by law to
perform, including, but not limited to,
the employment and supervision of
such technical, legal, and administrative
staff, within approved appropriations,
as is necessary to carry out the
responsibilities vested with ADEQ. The
AWAPCA provides the ADEQ adequate
authority, in part ‘‘to administer and
enforce all laws and regulations relating
to pollution of the air.’’ Ark. Code Ann.
section 8–4–311(7). APC&EC Regulation
19.301 gives ADEQ the responsibility of
meeting all applicable regulations and
requirements contained in the CAA, as
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39131
amended, if any area of the state is
determined to be in violation of the
NAAQS. APC&EC Regulation 19.410
gives ADEQ the authority to revoke,
suspend, or modify any permit for
cause. For further details, please refer to
the TSD.
CAA section 110(a)(2)(E)(ii) requires
that the State’s SIP comply with CAA
section 128, which requires: (1) That the
majority of the members of the state
body that approves permits or
enforcement orders do not derive any
significant portions of their income from
entities subject to permitting or
enforcement orders under the CAA; and
(2) any potential conflicts of interest by
such body be adequately disclosed. In
1982, the EPA approved the State’s SIP
submittal to demonstrate compliance of
the SIP with Section 128 of the CAA. 47
FR 19136 (May 4, 1982). The submittal
cited AWAPCA section 82–1901 as
demonstrating compliance with CAA
section 128(a)(1) and cited Arkansas
Code of Ethics Law Act 570 of 1979,
Section 3: Use of Public Office to Obtain
Special Privilege Prohibited: Section 4:
Use and Disclosure of Information—
Acquired by Reason of Office Activities
Requiring Disclosure; Section 5:
Requirement to File Statement and
Section 6: Statements Period Retained
Public Access Signature Required.
Under APC&EC Regulation 8.202, the
Director or the Director’s delegate shall
issue all permits with nothing in
APC&EC Regulation 8 being construed
to authorize APC&EC to issue a permit,
including the power to reverse or affirm
a permitting decision by the Director.
Under Ark. Code Ann. section 21–8–
1001, no member of a state board or
commission or board member of an
entity receiving state funds shall
participate in, vote on, influence or
attempt to influence an official decision
if the member has pecuniary interest in
the matter under consideration by the
board, commission, or entity. In
addition, no member of a state board or
commission or board member of an
entity receiving state funds shall
participate in any discussion or vote on
a rule or regulation that exclusively
benefits the member. As required by the
CAA, the SIP stipulates that any board
or body, which approves permits or
enforcement orders, must 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 or who appear
before the board on issues related to the
CAA. The members of the board or
body, or the head of an agency with
similar powers, are required to
adequately disclose any potential
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conflicts of interest. While the ADEQ
has no board or commission, the ADEQ
submitted a letter dated January 19,
2012, that clarified that the Director of
the ADEQ is considered the ‘‘the head
of an executive agency with similar
powers,’’ and must meet the
requirement to adequately disclose any
potential conflicts of interest. The
requirements of CAA section
110(a)(2)(E)(iii) concerning local
governments or other entities, are not
applicable to Arkansas because it does
not rely on local agencies for specific
SIP implementation.
(F) Stationary source monitoring
system: The SIP must provide for the
establishment of a system to monitor
emissions from stationary sources and
to submit periodic emission reports. It
must 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 SIP shall also require periodic
reports on the nature and amounts of
emissions and emissions-related data
from such sources and require that the
state correlate the source reports with
emission limitations or standards
established under the CAA. These
reports must be made available for
public inspection at reasonable times.
The relevant regulatory requirements
have been codified in APC&E
Regulation 19, Regulations of the
Arkansas Plan of Implementation for Air
Pollution Control, Chapter 7 (pertaining
to sampling and testing). Provisions in
APC&EC Chapter 7, Regulation 19.705
provide for the reporting of emissions
inventories in a format established by
the ADEQ on a schedule set forth in that
section. In addition, APC&EC
Regulation 19.705 requires the
submission of emission statements as
required by the CAA. Area, mobile, and
non-road data are required to be
reported on a three-year cycle.
Enforceable emission limitations and
other control measures are covered in
the Arkansas Water and Air Pollution
Control Act and those provisions of Ark.
Code Ann. sections 8–4–310 and 8–4–
311. Elements of the program for
enforcement are found in the
monitoring, recordkeeping and
reporting requirements for sources in
these control measures as well as
individual SIP permits.
More detail and links to Arkansas’
emissions data are provided in the TSD
for this action.
(G) Emergency authority: The SIP
must provide for authority to address
activities causing imminent and
substantial endangerment to public
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health or welfare or the environment
and to include contingency plans to
implement such authorities as
necessary.
Ark. Code Ann. section 8–1–
202(b)(2)(C) empowers the ADEQ to
issue orders under circumstances that
reasonably require emergency measures
to be taken to protect the environment
or the public health and safety. APC&EC
Regulation 8.502 requires ADEQ to
publish a Notice of Emergency Order in
a newspaper covering the affected area,
or in a newspaper of statewide
circulation. The notice must contain a
description of the action, ADEQ’s
authority for taking the action and other
information appropriate to ensure the
public is informed about the action.
Ark. Code Ann. section 8–4–202(e)(1)
empowers APC&EC to declare an
emergency and implement emergency
rules, regulations, suspensions, or
moratoria on categories or types of
permits if APC&EC determines that
imminent peril to the public health,
safety, or welfare requires immediate
change in the rules or immediate
suspension or moratorium on categories
or types of permits. APC&EC Regulation
8, Administrative Procedures,
Regulation 8.807 authorizes the
Commission to waive or reduce the
notice requirements in cases involving
emergency rulemaking. No emergency
rule shall be effective for more than 180
days.
(H) Future SIP revisions: States must
have the authority to revise their SIPs in
response to changes in the NAAQS,
availability of improved methods for
attaining the NAAQS, or in response to
an EPA finding that the SIP is
substantially inadequate to attain the
NAAQS.
The AWAPCA, Section 82–1935(1),
empowers the APC&EC to ‘‘formulate
and promulgate, amend, repeal, and
enforce rules and regulations
implementing or effectuating the powers
and duties of the Commission [. . .] to
control air pollution’’. Therefore,
Arkansas has the authority to revise its
SIP as may be necessary to take into
account revisions of primary or
secondary NAAQS, or the availability of
improved or more expeditious methods
of attaining such standards.
Furthermore, Arkansas also has the
authority under the AWAPCA
provisions to revise its SIP in the event
the EPA (pursuant to the Act) finds the
SIP to be substantially inadequate to
attain the NAAQS. APC&EC Regulation
19, Regulations of the Arkansas Plan of
Implementation for Air Pollution
Control, Chapter 1, provides a clear
delineation of those regulations that are
promulgated by APC&EC in satisfaction
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of certain requirements of the CAA. Ark.
Code Ann. section 8–4–311(a)(7)
empowers ADEQ to administer and
enforce all laws and regulations relating
to pollution of the air. Ark. Code Ann.
section 8–4–202(d)(4)(A)(ii) authorizes
APC&EC to refer to the Code of Federal
Regulations for any APC&EC standard or
regulation that is identical to a
regulation promulgated by the EPA. The
APC&EC’s Regulation 19, Regulations of
the Arkansas Plan of Implementation for
Air Pollution Control, Chapter 1,
demonstrates that those regulations that
are promulgated by the Commission
satisfy the requirements of this
provision of the CAA.
(I) Nonattainment areas: CAA section
110(a)(2)(I) requires that in the case of
a plan or plan revision for areas
designated as nonattainment, states
must meet applicable requirements of
part D of the CAA, relating to SIP
requirements for designated
nonattainment areas. EPA does not
expect infrastructure SIP submissions to
address CAA section 110(a)(2)(I). The
specific SIP submissions for designated
nonattainment areas, as required under
CAA title I, part D, are subject to
different submission schedules than
those for section 110 infrastructure
elements. Instead, EPA will act on any
part D nonattainment plan SIP
submissions through a separate
rulemaking process governed by the
requirements for nonattainment areas,
as described in part D.13
(J) Consultation with government
officials, public notification, PSD and
visibility protection: The SIP must meet
the following three CAA requirements:
(1) Section 121, relating to interagency
consultation regarding certain CAA
requirements; (2) section 127, relating to
public notification of NAAQS
exceedances and related issues; (3)
prevention of significant deterioration of
air quality; and (4) visibility protection.
Under APC&EC Regulation 19,
Chapter 9, Arkansas has incorporated by
reference the requirements in 40 CFR
part 52 for PSD in their entirety, with
the exception of 40 CFR
52.21(b)(2)(iii)(a), 52.21(b)(49),
52.21(b)(50), 52.21(b)(55–58), 52.21(i)
and 52.21(cc). These provisions were
approved by EPA as part of the
federally-approved SIP. These
incorporated provisions also provide for
protection of visibility in Federal Class
I areas. All new major sources and major
modifications are subject to a
comprehensive EPA-approved PSD
permitting program, including GHG PSD
permitting that was approved on April
13 Arkansas does not presently have any
designated ozone nonattainment areas.
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2, 2013 (78 FR 19596) and PM2.5 PSD
permitting approved on March 4, 2015
(80 FR 11573). Chapter 9 of APC&EC
Regulation 19 authorizes enforcement of
regulations governing the prevention of
significant deterioration of air quality
and regulations governing the protection
of visibility in mandatory Federal Class
I areas. The visibility sub-element of
Element J is not being addressed
because as EPA stated in a September
13, 2013 ‘‘Guidance on Infrastructure
State Implementation Plan Elements
under CAA sections 110(a)(1) and
110(a)(2),’’ we believe that there are no
newly applicable visibility protection
obligations pursuant to Element J after
the promulgation of new or revised
NAAQS.
(1) Consultation With Identified
Official on Certain Actions: The i-SIP
needs to show that there is an
established process for consultation
with general purpose local governments,
designated organization of elected
officials of local governments, and any
federal land manager having authority
over federal land to which the plan
applies, consistent with CAA section
121, which lists the specific types of
actions for which consultation is
required. If the relevant statute is selfexecuting such that there is no
associated regulation or other
documents, then the statute would need
to be included in the SIP. If a regulation
or other document meeting the CAA
requirements exists, then the regulation
or other document would need to be
included in the SIP submission, and the
authorizing statute should be referenced
but the statute is not required to be part
of the EPA approved SIP. Under the
requirements of 40 CFR 51.240, the SIP
would need to identify organizations
‘‘that will participate in developing,
implementing, and enforcing the plan
and the responsibilities of such
organizations.’’ The plan should include
any agreements or memoranda of
understanding among the organizations.
The AWAPCA, as codified under Ark
Code Ann. section 8–1–203 provides
that the APC&EC ‘‘shall meet regularly
in publicly noticed open meetings to
discuss and rule upon matters of
environmental concern’’ prior to the
adoption of any rule or regulation
implementing the substantive statutes
charged to the ADEQ for administration.
In addition, Ark. Code Ann. section 8–
4–311(a)(2) provides that the ADEQ or
its successor shall have the power and
duty ‘‘to advise, consult, and cooperate
with other agencies of the state, political
subdivisions, industries, other states,
the Federal Government, and with
affected groups in the furtherance of the
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purposes of this chapter.’’ Further,
Regulation 19.904(D) provides that
ADEQ shall make determinations that a
source may affect air quality or visibility
in a mandatory Class I federal area
based on screening criteria agreed upon
by the ADEQ and the Federal Land
Manager.14
(2) Public Notification: The i-SIP
submission needs to demonstrate that
the air agency does regularly notify the
public of instances or areas in which the
new or revised primary NAAQS was
exceeded; it needs to advise the public
of health hazards associated with such
exceedances and of ways in which the
public can participate in regulatory and
other efforts to improve air quality.
Public notification begins with the air
quality forecasts, which advise the
public of conditions capable of
exceeding the 8-hour ozone 15 and PM2.5
NAAQS. The air quality forecasts can be
found on the ADEQ website: For 8- hour
ozone and PM2.5, the forecast includes
two regions in the State. Ozone forecasts
are made daily during the ozone season
for each of the forecast areas.16 The
ozone forecasts are made, in most cases,
a day in advance by 2:00 p.m. local time
and are valid for the next day. When the
forecast indicates that ozone levels will
be above the 8-hour ozone standard, the
ADEQ and the Arkansas Department of
Health issue an Ozone Health Advisory.
In addition, the State implements an
Ozone Action Day (OAD) program 17
and will issue an ozone alert in the
afternoon on the day before an elevated
level of ozone is expected to occur.
Announcements for an OAD will be
broadcast through television and other
news media, and to employers
participating in the OAD program. The
OAD program includes examples of
actions that can be implemented by
individuals and organizations to reduce
ozone levels and exposure to ozone.
Also, through the Metroplan website,
the public can subscribe to an electronic
information system that provides air
14 See
72 FR 18394 (April 12, 2007).
ADEQ forecasts for 8-hour ozone are based
on the 2015 ozone standard, which is 70 ppb.
16 Ozone is a gas composed of three oxygen
atoms. Ground level ozone is generally not emitted
directly from a vehicle’s exhaust or an industrial
smokestack but is created by a chemical reaction
between NOX and VOCs in the presence of sunlight
and high ambient temperatures. Thus, ozone is
known primarily as a summertime air pollutant. For
Arkansas, the ozone season runs from March 1
through November 31 (see 40 CFR 58, APPENDIX
D, Table D–3). The Arkansas air quality control
regions are defined at 45 FR 6571 (January 29,
1980).
17 The 2 forecast areas for 8-hour ozone and PM
2.5
are Little Rock and Springdale. See https://
www.adeq.state.ar.us/techsvs/air_chem_lab/ozone_
monitors.aspx and https://www.adeq.state.ar.us/
techsvs/air_chem_lab/pm_monitors.aspx.
15 The
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39133
quality forecast and ozone alert
information via email. Ozone data are
posted on the ADEQ website; current,
regional hourly and regional 8-hour
ozone data are posted hourly (See
https://www.adeq.state.ar.us/techsvs/air_
chem_lab/ozone_monitors.aspx).
Provisions regarding public availability
of emission data were also approved
into the Arkansas SIP on April 12, 2007
(72 FR 18394).
(3) PSD: CAA section 110(a)(2)(J)
requires Arkansas to meet the applicable
requirements of Part C, PSD. The state
has a comprehensive EPA approved
PSD permitting program, including GHG
PSD permitting, in the Arkansas SIP.
The PSD requirements for this subelement are much the same as those
addressed earlier under CAA section
110(a)(2)(C), Program for enforcement of
control measures.
(4) Visibility Protection: The ADEQ
SIP requirements relating to visibility
protection are not affected when EPA
establishes or revises a NAAQS.
Therefore, EPA believes that there are
no new visibility protection
requirements due to the revision of the
NAAQS, and consequently there are no
newly applicable visibility protection
obligations.
(K) Air quality and modeling/data:
The SIP must provide for performing air
quality modeling, as prescribed by EPA,
to predict the effects on ambient air
quality of any emissions of any NAAQS
pollutant, and for submission of such
data to EPA upon request.
APC&EC Regulation 19, Chapter 3,
requires that ADEQ conduct ambient air
monitoring and computer modeling of
regulated air pollutant emissions in any
area that can reasonably be expected to
be in excess of the NAAQS and to
review the ambient air impacts of any
new or modified source of federally
regulated air emission that is the subject
of the requirements of the SIP. See
APC&EC Regulation 19.302(A) and (B).
Under APC&EC Regulation 19.302(B),
all computer modeling shall be
performed using EPA-approved models
and using averaging times
commensurate with averaging times
stated in the NAAQS. ADEQ has the
ability to submit data related to air
quality modeling to the EPA under Ark.
Code Ann. section 8–4–311(a)(2) which
gives ADEQ the power to advise,
consult, and cooperate with the Federal
Government. Modeling and emissions
reductions measures have been
submitted by Arkansas and approved
into the SIP. For example, we reference
the air modeling and emissions
reductions data submitted within the
Crittenden County Economic
Development Zone SIP revisions, as
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well as the demonstration of
maintenance of the 2008 8-hour ozone
standard in Crittenden County. 81 FR
24030 (April 25, 2016). The measures in
these SIPs were approved by EPA and
adopted into the SIP.
The ADEQ has the power and duty, to
conduct air quality research and
assessments, including the causes,
effects, prevention, control and
abatement of air pollution. Past
modeling and emissions reductions
measures have been submitted by the
State and approved into the SIP.
Additionally, ADEQ can perform
modeling for primary and secondary
NAAQS on a case-by-case permit basis
consistent with their SIP approved PSD
rules and with EPA guidance.
(L) Permitting Fees: The SIP must
require each major stationary source to
pay permitting fees to the permitting
authority, as a condition of any permit
required under the CAA, to cover the
cost of reviewing and acting upon any
application for such a permit, and, if the
permit is issued, the costs of
implementing and enforcing the terms
of the permit. The fee requirement
applies until a fee program established
by the state pursuant to Title V of the
CAA, relating to operating permits, is
approved by EPA.
Arkansas’ statutes give ADEQ the
authority to establish permit fees and
adjust them as necessary. APC&EC
Regulation No 26, Chapter 11 meets the
CAA requirements for Title V permitting
fee programs and Regulation No. 9,
Chapter 5 contains the air permit fees
applicable to non-part 70 permits and
general permits.18 The ADEQ has
adequate authority to hire and
compensate employees; accept and
administer grants or other funds;
establish an emissions fee schedule for
sources in order to fund the reasonable
costs of administering various air
pollution control programs; and
authorizes the collection of additional
fees necessary to cover reasonable costs
associated with processing air permit
applications and the costs of
implementing and enforcing the terms
and provisions of the permits. The state
has in place fee programs for major and
minor sources of air pollution, as well
as an area source operating fee program
that covers other sources in the state.
(M) Consultation/participation by
affected local entities: The SIP must
provide for consultation and
participation by local political
subdivisions affected by the SIP.
See the earlier discussions for CAA
sections 110(a)(2)(J), sub-elements (1)
and (2) for a description of the SIP’s
public participation process, the
authority to advise and consult, and the
PSD SIP’s public participation
requirements. Ark. Code. Ann. section
8–1–203 provides that the APC&EC
shall meet regularly in publicly noticed
open meetings to discuss and rule upon
matters of environmental concern prior
to the adoption of any rule or regulation
implementing the substantive statutes
charged to the ADEQ for administration.
Additionally, the state noted that
pursuant to APC&EC Regulation 8,
Arkansas will continue to provide for
consultation and participation from
those affected by the SIP. Under
APC&EC Regulation 8, those
organizations affected by the SIP will be
able to participate in developing the SIP
via comments and potential public
hearings. ADEQ is the sole state-level
enforcer and implementer of the SIP.
See APC&EC Regulation 8.205 Public
Notice of Permit Application; APC&EC
Regulation. 8.206 Request for Public
Hearing on Application for Permit;
APC&EC Regulation 8.207 Public Notice
of Draft Permitting Decision; APC&EC
Regulation. 8.208 Public Comment on
Draft Permitting Decision; APC&EC
Regulation 8.209 Public Hearings;
APC&EC Regulation 8.405 Public Notice
of Notices of Violations and Consent
Administrative Orders; APC&EC
Regulation 8.801 Public Notice of
Rulemaking.
ADEQ participates in the Central State
Air Resources Agencies, which is an
organization of states, tribes, federal
agencies and other interested parties
concerned with air quality. The
interactions and public participation on
rule and plan development are
consistent with the requirements of
CAA section 110(a)(2)(M).
Modifications to Regulation 19,
Definitions and Regulation 19,
Appendix B
As part of the state’s implementation
of the 2015 O3 NAAQS, the State
modified their Regulation 19 definition
of ‘‘National Ambient Air Quality
Standards’’ to include the 2015 O3
NAAQS. The State also made the same
change to the table entitled ‘‘Appendix
B: National Ambient Air Quality
Standard List’’ of Regulation 19. The
APC&EC adopted these changes on
September 27, 2019 and submitted them
for inclusion into the state SIP along
with the 2015 O3 i-SIP elements. We
find these changes are appropriate and
will enable the State to implement the
2015 O3 NAAQS. We are proposing to
approve the changes to Regulation 19,
Definitions, and the change to
Regulation 19, Appendix B, into the
Arkansas SIP.
III. Proposed Action
EPA is proposing to approve portions
of the October 25, 2018, Arkansas i-SIP
submittal for the 2015 ozone NAAQS as
detailed in Table 1, below. The portions
of the submittal dealing with CAA
section 110(a)(2)(D)(i)(I), prongs 1 and 2,
Significant Contribution to
Nonattainment and Interference with
Maintenance in other States, and CAA
section 110(a)(2)(D)(i)(II), prong 4,
Interference with Visibility Protection in
other States will be addressed in
separate, future actions.
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TABLE 1—PROPOSED ACTION ON ARKANSAS INFRASTRUCTURE AND TRANSPORT SIP SUBMITTALS FOR THE 2015 OZONE
NAAQS
Element
Proposed
action
(A): Emission limits and other control measures ................................................................................................................................
(B): Ambient air quality monitoring and data system ..........................................................................................................................
(C)(i): Enforcement of SIP measures ..................................................................................................................................................
(C)(ii): PSD program for major sources and major modifications .......................................................................................................
(C)(iii): Permitting program for minor sources and minor modifications .............................................................................................
(D)(i)(I): Contribute to nonattainment/interfere with maintenance of NAAQS (prongs 1 and 2) ........................................................
(D)(i)(II): PSD (prong 3) ......................................................................................................................................................................
(D)(i)(II): Visibility Protection (prong 4) ...............................................................................................................................................
(D)(ii): Interstate and International Pollution Abatement .....................................................................................................................
A
A
A
A
A
SA
A
SA
A
18 Last approved by EPA at 83 FR 6471, February
14, 2018.
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TABLE 1—PROPOSED ACTION ON ARKANSAS INFRASTRUCTURE AND TRANSPORT SIP SUBMITTALS FOR THE 2015 OZONE
NAAQS—Continued
Element
Proposed
action
(E)(i): Adequate resources ..................................................................................................................................................................
(E)(ii): State boards .............................................................................................................................................................................
(E)(iii): Necessary assurances with respect to local agencies ...........................................................................................................
(F): Stationary source monitoring system ...........................................................................................................................................
(G): Emergency power ........................................................................................................................................................................
(H): Future SIP revisions .....................................................................................................................................................................
(I): Nonattainment area plan or plan revisions under part D ..............................................................................................................
(J)(i): Consultation with government officials ......................................................................................................................................
(J)(ii): Public notification ......................................................................................................................................................................
(J)(iii): PSD ..........................................................................................................................................................................................
(J)(iv): Visibility protection ...................................................................................................................................................................
(K): Air quality modeling and data ......................................................................................................................................................
(L): Permitting fees ..............................................................................................................................................................................
(M): Consultation and participation by affected local entities .............................................................................................................
A
A
A
A
A
A
+
A
A
A
+
A
A
A
Key to Table 1:
A: Proposing to Approve.
+: Not germane to infrastructure SIPs.
SA: EPA is acting on this infrastructure requirement in a separate rulemaking action.
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Based upon review of the State’s
infrastructure SIP submission and
relevant statutory and regulatory
authorities and provisions referenced in
this submission or referenced in the
EPA-approved Arkansas SIP, EPA
believes that Arkansas has the
infrastructure in place to address all
applicable required elements of CAA
sections 110(a)(1) and (2), except as
noted above, to ensure that the 2015 O3
NAAQS is implemented in the State.
We are also proposing to approve the
submitted changes to Regulation 19
Definitions and Appendix B that
reference the 2015 ozone NAAQS.
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
Act and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve state choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely proposes to approve state law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by state law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Is not an Executive Order 13771 (82
FR 9339, February 2, 2017) regulatory
action because SIP approvals are
exempted under Executive Order 12866;
• Does not impose an information
collection burden under the provisions
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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 CAA; and
• Does not provide EPA with the
discretionary authority to address, as
appropriate, disproportionate human
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
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 proposed rule does not
have tribal implications and will not
impose substantial direct costs on tribal
governments or preempt tribal law as
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specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Ozone.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 16, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020–13427 Filed 6–29–20; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2019–0661; FRL–10010–
47–Region 4]
Air Plan Approval; GA: NonInterference Demonstration and
Maintenance Plan Revision for the
Removal of Transportation Control
Measures in the Atlanta Area
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 Georgia, through
the Georgia Environmental Protection
Division (GA EPD), on September 16,
2019, for the purpose of removing
certain transportation control measures
(TCMs) from thirteen counties in the
Atlanta, Georgia area. EPA is also
proposing to approve Georgia’s update
to the 2008 8-hour ozone maintenance
SUMMARY:
E:\FR\FM\30JNP1.SGM
30JNP1
]]>Agencies
[Federal Register Volume 85, Number 126 (Tuesday, June 30, 2020)]
[Proposed Rules]
[Pages 39128-39135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13427]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2019-0616; FRL-10010-57-Region 6]
Air Plan Approval; Arkansas; Infrastructure for the 2015 Ozone
National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Under the Federal Clean Air Act (CAA or Act), the
Environmental Protection Agency (EPA) is proposing to approve elements
of a State Implementation Plan (SIP) submission from the State of
Arkansas (State) for the 2015 Ozone (O3) National Ambient
Air Quality Standards (NAAQS). This submittal addresses how the
existing SIP provides for implementation, maintenance, and enforcement
of the 2015 O3 NAAQS (infrastructure SIP or i-SIP). The i-
SIP ensures that the Arkansas SIP is adequate to meet the state's
responsibilities under the CAA for this NAAQS. We are also proposing to
approve changes to the State's regulations to bring the State's rule up
to date and consistent with the 2015 O3 NAAQS.
DATES: Written comments must be received on or before July 30, 2020.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2019-0616, at https://www.regulations.gov or via email
[[Page 39129]]
[email protected]. Follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
Regulations.gov. EPA may publish any comment received to its public
docket. Do not submit electronically any information you consider to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Multimedia submissions (audio,
video, etc.) must be accompanied by a written comment. The written
comment is considered the official comment and should include
discussion of all points you wish to make. EPA will generally not
consider comments or comment contents located outside of the primary
submission (i.e. on the web, cloud, or other file sharing system). For
additional submission methods, please contact Robert M. Todd, (214)
665-2156, [email protected]. 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.
Docket: The docket index and publicly available docket materials
for this action are available electronically at www.regulations.gov.
While all documents in the docket are listed in the index, some
information may not be publicly available due to file size or content
(e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Robert M. Todd, EPA Region 6 Office,
Infrastructure & Ozone Section, 214-665-2156, [email protected]. Out
of an abundance of caution for members of the public and our staff, the
EPA Region 6 office may be closed to the public to reduce the risk of
transmitting COVID-19. We encourage the public to submit comments via
https://www.regulations.gov, as there will be a delay in processing
mail and no courier or hand deliveries will be accepted. Please call or
email the contact listed above if you need alternative access to
material indexed but not provided in the docket.
SUPPLEMENTARY INFORMATION: In this document ``we,'' ``us,'' and ``our''
means the EPA.
I. Background
Below is a short discussion of the background on the 2015
O3 NAAQS and the SIP revisions addressed in this action. For
more information, please see the Technical Support Document (TSD) in
the docket for this action.\1\
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\1\ The TSD for this action can be accessed through
www.regulations.gov (Docket No. EPA-R06-OAR-2019-0616).
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Following a periodic review of the 2008 NAAQS for O3,
EPA revised the primary and secondary O3 NAAQS to 0.070 ppm
(80 FR 65291, October 26, 2015).\2\ The primary NAAQS is designed to
protect human health, and the secondary NAAQS is designed to protect
the public welfare.\3\
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\2\ Additional information on the history of the NAAQS for ozone
is available at https://www.epa.gov/ground-level-ozone-pollution/table-historical-ozone-national-ambient-air-quality-standards-naaqs.
\3\ Information on ozone formation and health effects is
available at https://www.epa.gov/ozonepollution.
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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 type of
SIP submission is commonly referred to as an ``infrastructure SIP'' or
``i-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 provided guidance on the
application of infrastructure provisions in SIP submissions and applied
such guidance in regional actions on infrastructure submissions.\4\ 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 facial compliance with
statutory and regulatory requirements, not for the state's
implementation of its SIP.\5\ The EPA has other CAA authority to
address any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
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\4\ EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013, Infrastructure
SIP Guidance (available at https://www.epa.gov/sites/production/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf), as well as in numerous agency actions, including EPA's prior
action on Louisiana's infrastructure SIP to address the 2006
PM2.5, 2008 PB, 2008 O3, 2010 NO2,
2010 SO2 and 2012 PM2.5 NAAQS (81 FR 68322
(October 4, 2016)).
\5\ See U.S. Court of Appeals for the Ninth Circuit decision in
Montana Environmental Information Center v. EPA, No. 16-71933 (Aug.
30, 2018).
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Each state must submit an i-SIP within three years after the
promulgation of a new or revised NAAQS showing how it meets the
elements of section 110(a)(2) of the CAA. This section of the CAA
includes a list of specific elements necessary for a state's air
quality program. On October 4, 2019, the Governor of Arkansas made one
submission to address the 2015 NAAQS for O3.\6\ The
submittal addressed CAA sections 110(a)(2)(A) through (M).
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\6\ Additional information, including the history of the
priority pollutants, their levels, the forms of the standard and the
determination of compliance; EPA's approach for reviewing the i-SIP
submittal and EPA's evaluation; the statute and regulatory citations
in the Arkansas SIP specific to the review of this i-SIP, applicable
CAA and EPA regulatory citations, Federal Register citations for the
Arkansas SIP approvals; Arkansas minor New Source Review program and
EPA approval activities, and Arkansas' Prevention of Significant
Deterioration program can be found in the TSD for this action.
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We are proposing that the Arkansas SIP meets the requirements in
CAA section 110(a)(1) and parts of section 110(a)(2). Specifically, we
are proposing to approve the Arkansas i-SIP as it demonstrates
compliance with CAA sections 110(a)(1) and 110(a)(2)(A) through (C) and
(E) through (M). We are also proposing that Arkansas' i-SIP
demonstrates compliance with CAA section 110(a)(2)(D)(i)(II),
Interference with Prevention of Significant Deterioration (often
referred to as prong 3) and CAA section 110(a)(2)(D)(ii), Interstate
Pollution Abatement (which refers to CAA section 126) and International
Air Pollution (which refers to CAA section 115). The remaining portions
of the October 4, 2019, submittal, addressing CAA section
110(a)(2)(D)(i)(I), often referred to as interstate transport prongs 1
and 2, and CAA section 110(a)(2)(D)(i)(II), often referred to as
interstate transport prong 4, will be addressed in separate, subsequent
actions.\7\ A copy of the State's submittal is provided in the docket
for this proposed rulemaking.
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\7\ In an earlier action we proposed to approve the Arkansas
submittal for interstate transport prong 4 (visibility protection).
See 85 FR 14847 (March 16, 2020).
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Also, on September 27, 2019, after due opportunity for public
notice and comment and following all the state's required
administrative procedures the Arkansas Pollution Control and Ecology
Commission (APC&EC) adopted changes to Regulation 19 (Regulations of
the Arkansas Plan for Air Pollution Control). Regulation 19 changes
were made to Chapter 2, Definitions and Appendix B, National Ambient
Air Quality Standards List, that bring the state's rules up to date and
consistent with the 2015 O3 NAAQS. These changes were
included in the i-SIP submittal. We are proposing to approve these
changes into the Arkansas SIP.
[[Page 39130]]
II. EPA's Evaluation of the Arkansas 2015 O3 NAAQS Submission
Below is a summary of our evaluation of the October 4, 2019,
Arkansas submittal for each element of CAA section 110(a)(2) that we
are proposing to approve.\8\
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\8\ A detailed discussion of our evaluation can be found in the
TSD for this action.
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(A). Emission limits and other control measures: The SIP must
include enforceable emission limits and other control measures, means
or techniques, as well as schedules and timetables for compliance, as
may be appropriate to meet the applicable requirements of the Act and
other related matters as needed to implement, maintain and enforce each
of the NAAQS.\9\
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\9\ The specific nonattainment area plan requirements of section
110(a)(2)(I) are subject to the timing requirements of section 172,
not the timing requirement of section 110(a)(1). Thus, section
110(a)(2)(A) does not require that states submit regulations or
emissions limits specifically for attaining the 2015 Ozone NAAQS.
Those SIP provisions are due as part of each state's attainment plan
and will be addressed separately from the requirements of section
110(a)(2)(A). 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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The State provided information to show that Arkansas' SIP contains
enforceable emission limitations and other control measures
requirements. The relevant provisions to address such requirements are
included in the Arkansas Water and Air Pollution Control Act (AWAPCA),
Arkansas Code Annotated (``Ark. Code Ann.'') section 8-4-101 et seq.,
and those provisions of the APC&EC Regulation 19, codified in 40 CFR
52.170. The regulations in APC&EC Regulation 19 have been duly adopted
by the State and where these provisions relate to CAA section 110
requirements, SIP revisions have been submitted to and approved by EPA.
The EPA-approved SIP revisions are codified at 40 CFR part 52, subpart
E. Arkansas has an EPA-approved air permitting program for both major
and minor facilities, which ensures that all applicable requirements
are included in any applicable facility permit. A detailed list of the
applicable authorities and regulations is provided in the TSD in the
docket to this action. Arkansas' SIP contains enforceable emission
limits and other control measures, which are also in the federally
enforceable SIP.
(B) Ambient air quality monitoring/data system: The SIP must
provide for establishment and implementation of ambient air quality
monitors, collection and analysis of ambient air quality data, and
providing such data to EPA upon request.
The SIP-approved APC&EC Regulation 19, Chapter 3 allows the
Arkansas Department of Environmental Quality (ADEQ) to collect air
monitoring data, quality-assure the results, and report the data.
Arkansas' Statewide Air Quality Surveillance Network was approved by
EPA on August 6, 1981 (46 FR 40005) and consists of stations that
measure ambient concentrations of the six criteria pollutants. ADEQ
maintains and operates a monitoring network to measure levels of ozone,
as well as other pollutants, in accordance with EPA regulations
specifying siting and monitoring requirements. All monitoring data is
measured using EPA approved methods and subject to the EPA quality
assurance requirements. ADEQ submits all required data to us, following
the EPA regulations. The monitoring network was approved into the SIP
and it undergoes annual review by EPA.\10\ In addition, ADEQ submits an
assessment of its monitoring network every five years, as required by
EPA rules. The most recent of these annual monitoring network
assessments was submitted by ADEQ and approved by us on November 12,
2019. The most recent of the five-year monitoring assessments was
submitted by ADEQ and approved by us on July 22, 2016. The ADEQ website
provides the monitor locations and posts past and current
concentrations of criteria pollutants measured by the State's network
of monitors.\11\
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\10\ A copy of the 2019 Annual Air Monitoring Network Plan and
our approval letter, as well as the most recent five-year assessment
and approval letter, are included in the docket for this proposed
rulemaking.
\11\ https://www.adeq.state.ar.us/techsvs/air_chem_lab/ozone_monitors.aspx?desktop_version=y
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(C) Program for enforcement of control measures: The SIP must
include the following three elements: (1) A program providing for
enforcement of the measures in CAA section 110(a)(2)(A); (2) a minor
new source review (NSR) program for the regulation of new and modified
minor stationary sources and minor modifications of new major
stationary sources as necessary to protect the applicable NAAQS; and
(3) a major stationary source permit program to meet the prevention of
significant deterioration (PSD) permitting requirements of the CAA (for
areas designated as attainment or unclassifiable for the NAAQS in
question). Each of these elements is described in more detail in the
TSD for this action.
(1) Enforcement of SIP measures: The state must provide a program
for enforcement of the necessary control measures described in
subparagraph (A).
As discussed previously, the AWAPCA provides the ADEQ with
authority to enforce the State's environmental quality rules. The ADEQ
established rules governing emissions of the NAAQS and their precursors
throughout the state, and these rules are in the federally-enforceable
SIP. The rules in Regulation 19, Chapters 1, 3-5, 7-10, 13 and 14;
Regulation 26, Chapters 3 and Regulation 31, Chapters 1, 3, 4 and 8
include allowable rates, compliance, control plan requirements,
monitoring and testing requirements, recordkeeping and reporting
requirements, and control schedules. These rules set the boundaries
beyond which regulated entities in Arkansas can expect enforcement
action.
To meet the CAA requirement for having a program for the regulation
of the modification and construction of any stationary source within
the areas covered by the plan as necessary to assure that national
ambient air quality standards are achieved--including a permit program
as required by Parts C and D--generally, the State is required to have
SIP-approved PSD, Nonattainment, and Minor NSR permitting programs
adequate to implement the 2015 O3 NAAQS. As explained in
section I above and footnote 5, we are not evaluating nonattainment-
related provisions--such as the Nonattainment NSR program required by
part D in section 110(a)(2)(C) and measures for attainment required by
section 110(a)(2)(I), as part of the infrastructure SIPs for these
NAAQS--because these submittals are required beyond the date (3 years
from NAAQS promulgation) that CAA section 110 infrastructure submittals
are required.
(2) Minor New Source Review (NSR). The SIP is required to include
measures to regulate construction and modification of minor stationary
sources and minor modifications to major stationary sources to protect
the NAAQS. The Arkansas minor NSR permitting requirements are approved
as part of the SIP.\12\ Arkansas' minor
[[Page 39131]]
source permitting requirements are contained at APC&EC Regulation 19,
Chapter 4 and revisions to the rule were previously approved by EPA at
72 FR 18394 (April 12, 2007) and 83 FR 30553 (June 29, 2018). The SIP
continues to require preconstruction permits for minor sources and
minor modifications.
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\12\ EPA is not proposing in this action to approve or
disapprove the existing Arkansas minor NSR program to the extent
that it may be inconsistent with EPA's regulations governing this
program. EPA has maintained that the CAA does not require that new
infrastructure SIP submissions correct any defects in existing EPA-
approved provisions of minor NSR programs for EPA to approve the
infrastructure SIP for element C, program for enforcement of control
measures (e.g., 76 FR 41076-41079). The statutory requirements of
section 110(a)(2)(C) of the Act provide for considerable flexibility
in designing minor NSR programs. See the TSD for more information.
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(3) PSD permit program for major stationary sources. The Arkansas
PSD portion of the SIP covers all NSR regulated pollutants including
the requirements for the 2015 O3 NAAQS. See the TSD to this
proposal for a full history on the state's PSD permitting program.
(D) Interstate and international transport: The requirements for
interstate transport of O3 emissions are that the SIP
contain adequate provisions prohibiting Arkansas emissions which will
(1) Contribute significantly to nonattainment of the NAAQS, (2)
interfere with maintenance of the NAAQS, (3) interfere with measures
required to prevent significant deterioration or (4) interfere with
measures to protect visibility (CAA section 110(a)(2)(D)(i)) in other
states. As noted earlier, EPA often refers to these four requirements
within CAA section 110(a)(2)(D)(i) as prongs or sub-elements. We are
not evaluating prongs 1, 2, and 4 in this rulemaking action, but will
address them in separate actions. However, we are proposing to approve
prong 3 of CAA section 110(a)(2)(D)(i), because the Arkansas has a SIP-
approved PSD permitting program that regulates all NSR pollutants, and
thus, prevents interference with measures required to prevent
significant deterioration in other states.
Section 110(a)(2)(D)(ii) of the CAA requires SIPs to include
adequate provisions to ensure compliance with sections 115 and 126 of
the Act, relating to international and interstate pollution abatement.
Section 115 of the Act addresses endangerment of public health or
welfare in foreign countries from pollution emitted in the United
States. There are no final findings by the EPA that Arkansas air
emissions affect other countries. Section 126(a) of the Act requires
new or modified sources to notify neighboring states of potential
impacts from such sources. The Arkansas SIP requires that each major
proposed new or modified source provide such notification. The State
also has no pending obligations under CAA section 126. See the TSD for
more detail.
(E) Adequate authority, resources, implementation, and oversight:
The SIP must provide for the following: (1) Necessary assurances that
the state (and other entities within the state responsible for
implementing the SIP) will have adequate personnel, funding, and
authority under state or local law to implement the SIP, and that there
are no legal impediments to such implementation; (2) requirements
relating to state boards; and (3) necessary assurances that the state
has responsibility for ensuring adequate implementation of any plan
provision for which it relies on local governments or other entities to
carry out that portion of the plan. As discussed in previously in the
discussion of elements (A) and (E), the requirement that there is
adequate authority to implement and enforce the SIP and that there are
no legal impediments are addressed. The i-SIP submission for the 2015
O3 NAAQS describes the SIP regulations governing the various
functions of personnel within the ADEQ, including the administrative,
technical support, planning, enforcement, and permitting functions of
the program. With respect to necessary assurances, and the requirement
to address funding, Arkansas has authority to establish and collect
fees for operation of the state's permitting programs. Ark. Code Ann.
section 8-1-103(1)(A) grants APC&EC the authority to establish, by
regulation, reasonable fees for initial issuance, annual review, and
modification of permits. Under Ark. Code Ann. section 8-1-103(3), ADEQ
is authorized to collect the fees established by APC&EC and shall deny
the issuance of an initial permit, a renewal permit, or a modification
permit if and when a facility fails or refuses to pay the fees after
reasonable notice. APC&EC Regulation 9, Fee Regulation, Chapter 5 Air
Permit Fees, contains the air permit fees applicable to non-part 70
permits, part 70 permits and general permits. More specific information
on permitting fees is provided in the TSD.
With respect to authority and personnel, Ark. Code Ann. section 8-
1-202(b)(2)(D) states that the Director of ADEQ's duties include the
day-to-day administration of all activities that the Department is
empowered by law to perform, including, but not limited to, the
employment and supervision of such technical, legal, and administrative
staff, within approved appropriations, as is necessary to carry out the
responsibilities vested with ADEQ. The AWAPCA provides the ADEQ
adequate authority, in part ``to administer and enforce all laws and
regulations relating to pollution of the air.'' Ark. Code Ann. section
8-4-311(7). APC&EC Regulation 19.301 gives ADEQ the responsibility of
meeting all applicable regulations and requirements contained in the
CAA, as amended, if any area of the state is determined to be in
violation of the NAAQS. APC&EC Regulation 19.410 gives ADEQ the
authority to revoke, suspend, or modify any permit for cause. For
further details, please refer to the TSD.
CAA section 110(a)(2)(E)(ii) requires that the State's SIP comply
with CAA section 128, which requires: (1) That the majority of the
members of the state body that approves permits or enforcement orders
do not derive any significant portions of their income from entities
subject to permitting or enforcement orders under the CAA; and (2) any
potential conflicts of interest by such body be adequately disclosed.
In 1982, the EPA approved the State's SIP submittal to demonstrate
compliance of the SIP with Section 128 of the CAA. 47 FR 19136 (May 4,
1982). The submittal cited AWAPCA section 82-1901 as demonstrating
compliance with CAA section 128(a)(1) and cited Arkansas Code of Ethics
Law Act 570 of 1979, Section 3: Use of Public Office to Obtain Special
Privilege Prohibited: Section 4: Use and Disclosure of Information--
Acquired by Reason of Office Activities Requiring Disclosure; Section
5: Requirement to File Statement and Section 6: Statements Period
Retained Public Access Signature Required.
Under APC&EC Regulation 8.202, the Director or the Director's
delegate shall issue all permits with nothing in APC&EC Regulation 8
being construed to authorize APC&EC to issue a permit, including the
power to reverse or affirm a permitting decision by the Director. Under
Ark. Code Ann. section 21-8-1001, no member of a state board or
commission or board member of an entity receiving state funds shall
participate in, vote on, influence or attempt to influence an official
decision if the member has pecuniary interest in the matter under
consideration by the board, commission, or entity. In addition, no
member of a state board or commission or board member of an entity
receiving state funds shall participate in any discussion or vote on a
rule or regulation that exclusively benefits the member. As required by
the CAA, the SIP stipulates that any board or body, which approves
permits or enforcement orders, must 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 or who appear before the board on issues related to
the CAA. The members of the board or body, or the head of an agency
with similar powers, are required to adequately disclose any potential
[[Page 39132]]
conflicts of interest. While the ADEQ has no board or commission, the
ADEQ submitted a letter dated January 19, 2012, that clarified that the
Director of the ADEQ is considered the ``the head of an executive
agency with similar powers,'' and must meet the requirement to
adequately disclose any potential conflicts of interest. The
requirements of CAA section 110(a)(2)(E)(iii) concerning local
governments or other entities, are not applicable to Arkansas because
it does not rely on local agencies for specific SIP implementation.
(F) Stationary source monitoring system: The SIP must provide for
the establishment of a system to monitor emissions from stationary
sources and to submit periodic emission reports. It must 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 SIP
shall also require periodic reports on the nature and amounts of
emissions and emissions-related data from such sources and require that
the state correlate the source reports with emission limitations or
standards established under the CAA. These reports must be made
available for public inspection at reasonable times.
The relevant regulatory requirements have been codified in APC&E
Regulation 19, Regulations of the Arkansas Plan of Implementation for
Air Pollution Control, Chapter 7 (pertaining to sampling and testing).
Provisions in APC&EC Chapter 7, Regulation 19.705 provide for the
reporting of emissions inventories in a format established by the ADEQ
on a schedule set forth in that section. In addition, APC&EC Regulation
19.705 requires the submission of emission statements as required by
the CAA. Area, mobile, and non-road data are required to be reported on
a three-year cycle.
Enforceable emission limitations and other control measures are
covered in the Arkansas Water and Air Pollution Control Act and those
provisions of Ark. Code Ann. sections 8-4-310 and 8-4-311. Elements of
the program for enforcement are found in the monitoring, recordkeeping
and reporting requirements for sources in these control measures as
well as individual SIP permits.
More detail and links to Arkansas' emissions data are provided in
the TSD for this action.
(G) Emergency authority: The SIP must provide for authority to
address activities causing imminent and substantial endangerment to
public health or welfare or the environment and to include contingency
plans to implement such authorities as necessary.
Ark. Code Ann. section 8-1-202(b)(2)(C) empowers the ADEQ to issue
orders under circumstances that reasonably require emergency measures
to be taken to protect the environment or the public health and safety.
APC&EC Regulation 8.502 requires ADEQ to publish a Notice of Emergency
Order in a newspaper covering the affected area, or in a newspaper of
statewide circulation. The notice must contain a description of the
action, ADEQ's authority for taking the action and other information
appropriate to ensure the public is informed about the action. Ark.
Code Ann. section 8-4-202(e)(1) empowers APC&EC to declare an emergency
and implement emergency rules, regulations, suspensions, or moratoria
on categories or types of permits if APC&EC determines that imminent
peril to the public health, safety, or welfare requires immediate
change in the rules or immediate suspension or moratorium on categories
or types of permits. APC&EC Regulation 8, Administrative Procedures,
Regulation 8.807 authorizes the Commission to waive or reduce the
notice requirements in cases involving emergency rulemaking. No
emergency rule shall be effective for more than 180 days.
(H) Future SIP revisions: States must have the authority to revise
their SIPs in response to changes in the NAAQS, availability of
improved methods for attaining the NAAQS, or in response to an EPA
finding that the SIP is substantially inadequate to attain the NAAQS.
The AWAPCA, Section 82-1935(1), empowers the APC&EC to ``formulate
and promulgate, amend, repeal, and enforce rules and regulations
implementing or effectuating the powers and duties of the Commission [.
. .] to control air pollution''. Therefore, Arkansas has the authority
to revise its SIP as may be necessary to take into account revisions of
primary or secondary NAAQS, or the availability of improved or more
expeditious methods of attaining such standards. Furthermore, Arkansas
also has the authority under the AWAPCA provisions to revise its SIP in
the event the EPA (pursuant to the Act) finds the SIP to be
substantially inadequate to attain the NAAQS. APC&EC Regulation 19,
Regulations of the Arkansas Plan of Implementation for Air Pollution
Control, Chapter 1, provides a clear delineation of those regulations
that are promulgated by APC&EC in satisfaction of certain requirements
of the CAA. Ark. Code Ann. section 8-4-311(a)(7) empowers ADEQ to
administer and enforce all laws and regulations relating to pollution
of the air. Ark. Code Ann. section 8-4-202(d)(4)(A)(ii) authorizes
APC&EC to refer to the Code of Federal Regulations for any APC&EC
standard or regulation that is identical to a regulation promulgated by
the EPA. The APC&EC's Regulation 19, Regulations of the Arkansas Plan
of Implementation for Air Pollution Control, Chapter 1, demonstrates
that those regulations that are promulgated by the Commission satisfy
the requirements of this provision of the CAA.
(I) Nonattainment areas: CAA section 110(a)(2)(I) requires that in
the case of a plan or plan revision for areas designated as
nonattainment, states must meet applicable requirements of part D of
the CAA, relating to SIP requirements for designated nonattainment
areas. EPA does not expect infrastructure SIP submissions to address
CAA section 110(a)(2)(I). The specific SIP submissions for designated
nonattainment areas, as required under CAA title I, part D, are subject
to different submission schedules than those for section 110
infrastructure elements. Instead, EPA will act on any part D
nonattainment plan SIP submissions through a separate rulemaking
process governed by the requirements for nonattainment areas, as
described in part D.\13\
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\13\ Arkansas does not presently have any designated ozone
nonattainment areas.
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(J) Consultation with government officials, public notification,
PSD and visibility protection: The SIP must meet the following three
CAA requirements: (1) Section 121, relating to interagency consultation
regarding certain CAA requirements; (2) section 127, relating to public
notification of NAAQS exceedances and related issues; (3) prevention of
significant deterioration of air quality; and (4) visibility
protection.
Under APC&EC Regulation 19, Chapter 9, Arkansas has incorporated by
reference the requirements in 40 CFR part 52 for PSD in their entirety,
with the exception of 40 CFR 52.21(b)(2)(iii)(a), 52.21(b)(49),
52.21(b)(50), 52.21(b)(55-58), 52.21(i) and 52.21(cc). These provisions
were approved by EPA as part of the federally-approved SIP. These
incorporated provisions also provide for protection of visibility in
Federal Class I areas. All new major sources and major modifications
are subject to a comprehensive EPA-approved PSD permitting program,
including GHG PSD permitting that was approved on April
[[Page 39133]]
2, 2013 (78 FR 19596) and PM2.5 PSD permitting approved on
March 4, 2015 (80 FR 11573). Chapter 9 of APC&EC Regulation 19
authorizes enforcement of regulations governing the prevention of
significant deterioration of air quality and regulations governing the
protection of visibility in mandatory Federal Class I areas. The
visibility sub-element of Element J is not being addressed because as
EPA stated in a September 13, 2013 ``Guidance on Infrastructure State
Implementation Plan Elements under CAA sections 110(a)(1) and
110(a)(2),'' we believe that there are no newly applicable visibility
protection obligations pursuant to Element J after the promulgation of
new or revised NAAQS.
(1) Consultation With Identified Official on Certain Actions: The
i-SIP needs to show that there is an established process for
consultation with general purpose local governments, designated
organization of elected officials of local governments, and any federal
land manager having authority over federal land to which the plan
applies, consistent with CAA section 121, which lists the specific
types of actions for which consultation is required. If the relevant
statute is self-executing such that there is no associated regulation
or other documents, then the statute would need to be included in the
SIP. If a regulation or other document meeting the CAA requirements
exists, then the regulation or other document would need to be included
in the SIP submission, and the authorizing statute should be referenced
but the statute is not required to be part of the EPA approved SIP.
Under the requirements of 40 CFR 51.240, the SIP would need to identify
organizations ``that will participate in developing, implementing, and
enforcing the plan and the responsibilities of such organizations.''
The plan should include any agreements or memoranda of understanding
among the organizations. The AWAPCA, as codified under Ark Code Ann.
section 8-1-203 provides that the APC&EC ``shall meet regularly in
publicly noticed open meetings to discuss and rule upon matters of
environmental concern'' prior to the adoption of any rule or regulation
implementing the substantive statutes charged to the ADEQ for
administration. In addition, Ark. Code Ann. section 8-4-311(a)(2)
provides that the ADEQ or its successor shall have the power and duty
``to advise, consult, and cooperate with other agencies of the state,
political subdivisions, industries, other states, the Federal
Government, and with affected groups in the furtherance of the purposes
of this chapter.'' Further, Regulation 19.904(D) provides that ADEQ
shall make determinations that a source may affect air quality or
visibility in a mandatory Class I federal area based on screening
criteria agreed upon by the ADEQ and the Federal Land Manager.\14\
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\14\ See 72 FR 18394 (April 12, 2007).
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(2) Public Notification: The i-SIP submission needs to demonstrate
that the air agency does regularly notify the public of instances or
areas in which the new or revised primary NAAQS was exceeded; it needs
to advise the public of health hazards associated with such exceedances
and of ways in which the public can participate in regulatory and other
efforts to improve air quality. Public notification begins with the air
quality forecasts, which advise the public of conditions capable of
exceeding the 8-hour ozone \15\ and PM2.5 NAAQS. The air
quality forecasts can be found on the ADEQ website: For 8- hour ozone
and PM2.5, the forecast includes two regions in the State.
Ozone forecasts are made daily during the ozone season for each of the
forecast areas.\16\ The ozone forecasts are made, in most cases, a day
in advance by 2:00 p.m. local time and are valid for the next day. When
the forecast indicates that ozone levels will be above the 8-hour ozone
standard, the ADEQ and the Arkansas Department of Health issue an Ozone
Health Advisory. In addition, the State implements an Ozone Action Day
(OAD) program \17\ and will issue an ozone alert in the afternoon on
the day before an elevated level of ozone is expected to occur.
Announcements for an OAD will be broadcast through television and other
news media, and to employers participating in the OAD program. The OAD
program includes examples of actions that can be implemented by
individuals and organizations to reduce ozone levels and exposure to
ozone. Also, through the Metroplan website, the public can subscribe to
an electronic information system that provides air quality forecast and
ozone alert information via email. Ozone data are posted on the ADEQ
website; current, regional hourly and regional 8-hour ozone data are
posted hourly (See https://www.adeq.state.ar.us/techsvs/air_chem_lab/ozone_monitors.aspx). Provisions regarding public availability of
emission data were also approved into the Arkansas SIP on April 12,
2007 (72 FR 18394).
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\15\ The ADEQ forecasts for 8-hour ozone are based on the 2015
ozone standard, which is 70 ppb.
\16\ Ozone is a gas composed of three oxygen atoms. Ground level
ozone is generally not emitted directly from a vehicle's exhaust or
an industrial smokestack but is created by a chemical reaction
between NOX and VOCs in the presence of sunlight and high
ambient temperatures. Thus, ozone is known primarily as a summertime
air pollutant. For Arkansas, the ozone season runs from March 1
through November 31 (see 40 CFR 58, APPENDIX D, Table D-3). The
Arkansas air quality control regions are defined at 45 FR 6571
(January 29, 1980).
\17\ The 2 forecast areas for 8-hour ozone and PM2.5
are Little Rock and Springdale. See https://www.adeq.state.ar.us/techsvs/air_chem_lab/ozone_monitors.aspx and https://www.adeq.state.ar.us/techsvs/air_chem_lab/pm_monitors.aspx.
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(3) PSD: CAA section 110(a)(2)(J) requires Arkansas to meet the
applicable requirements of Part C, PSD. The state has a comprehensive
EPA approved PSD permitting program, including GHG PSD permitting, in
the Arkansas SIP. The PSD requirements for this sub-element are much
the same as those addressed earlier under CAA section 110(a)(2)(C),
Program for enforcement of control measures.
(4) Visibility Protection: The ADEQ SIP requirements relating to
visibility protection are not affected when EPA establishes or revises
a NAAQS. Therefore, EPA believes that there are no new visibility
protection requirements due to the revision of the NAAQS, and
consequently there are no newly applicable visibility protection
obligations.
(K) Air quality and modeling/data: The SIP must provide for
performing air quality modeling, as prescribed by EPA, to predict the
effects on ambient air quality of any emissions of any NAAQS pollutant,
and for submission of such data to EPA upon request.
APC&EC Regulation 19, Chapter 3, requires that ADEQ conduct ambient
air monitoring and computer modeling of regulated air pollutant
emissions in any area that can reasonably be expected to be in excess
of the NAAQS and to review the ambient air impacts of any new or
modified source of federally regulated air emission that is the subject
of the requirements of the SIP. See APC&EC Regulation 19.302(A) and
(B). Under APC&EC Regulation 19.302(B), all computer modeling shall be
performed using EPA-approved models and using averaging times
commensurate with averaging times stated in the NAAQS. ADEQ has the
ability to submit data related to air quality modeling to the EPA under
Ark. Code Ann. section 8-4-311(a)(2) which gives ADEQ the power to
advise, consult, and cooperate with the Federal Government. Modeling
and emissions reductions measures have been submitted by Arkansas and
approved into the SIP. For example, we reference the air modeling and
emissions reductions data submitted within the Crittenden County
Economic Development Zone SIP revisions, as
[[Page 39134]]
well as the demonstration of maintenance of the 2008 8-hour ozone
standard in Crittenden County. 81 FR 24030 (April 25, 2016). The
measures in these SIPs were approved by EPA and adopted into the SIP.
The ADEQ has the power and duty, to conduct air quality research
and assessments, including the causes, effects, prevention, control and
abatement of air pollution. Past modeling and emissions reductions
measures have been submitted by the State and approved into the SIP.
Additionally, ADEQ can perform modeling for primary and secondary NAAQS
on a case-by-case permit basis consistent with their SIP approved PSD
rules and with EPA guidance.
(L) Permitting Fees: The SIP must require each major stationary
source to pay permitting fees to the permitting authority, as a
condition of any permit required under the CAA, to cover the cost of
reviewing and acting upon any application for such a permit, and, if
the permit is issued, the costs of implementing and enforcing the terms
of the permit. The fee requirement applies until a fee program
established by the state pursuant to Title V of the CAA, relating to
operating permits, is approved by EPA.
Arkansas' statutes give ADEQ the authority to establish permit fees
and adjust them as necessary. APC&EC Regulation No 26, Chapter 11 meets
the CAA requirements for Title V permitting fee programs and Regulation
No. 9, Chapter 5 contains the air permit fees applicable to non-part 70
permits and general permits.\18\ The ADEQ has adequate authority to
hire and compensate employees; accept and administer grants or other
funds; establish an emissions fee schedule for sources in order to fund
the reasonable costs of administering various air pollution control
programs; and authorizes the collection of additional fees necessary to
cover reasonable costs associated with processing air permit
applications and the costs of implementing and enforcing the terms and
provisions of the permits. The state has in place fee programs for
major and minor sources of air pollution, as well as an area source
operating fee program that covers other sources in the state.
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\18\ Last approved by EPA at 83 FR 6471, February 14, 2018.
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(M) Consultation/participation by affected local entities: The SIP
must provide for consultation and participation by local political
subdivisions affected by the SIP.
See the earlier discussions for CAA sections 110(a)(2)(J), sub-
elements (1) and (2) for a description of the SIP's public
participation process, the authority to advise and consult, and the PSD
SIP's public participation requirements. Ark. Code. Ann. section 8-1-
203 provides that the APC&EC shall meet regularly in publicly noticed
open meetings to discuss and rule upon matters of environmental concern
prior to the adoption of any rule or regulation implementing the
substantive statutes charged to the ADEQ for administration.
Additionally, the state noted that pursuant to APC&EC Regulation 8,
Arkansas will continue to provide for consultation and participation
from those affected by the SIP. Under APC&EC Regulation 8, those
organizations affected by the SIP will be able to participate in
developing the SIP via comments and potential public hearings. ADEQ is
the sole state-level enforcer and implementer of the SIP. See APC&EC
Regulation 8.205 Public Notice of Permit Application; APC&EC
Regulation. 8.206 Request for Public Hearing on Application for Permit;
APC&EC Regulation 8.207 Public Notice of Draft Permitting Decision;
APC&EC Regulation. 8.208 Public Comment on Draft Permitting Decision;
APC&EC Regulation 8.209 Public Hearings; APC&EC Regulation 8.405 Public
Notice of Notices of Violations and Consent Administrative Orders;
APC&EC Regulation 8.801 Public Notice of Rulemaking.
ADEQ participates in the Central State Air Resources Agencies,
which is an organization of states, tribes, federal agencies and other
interested parties concerned with air quality. The interactions and
public participation on rule and plan development are consistent with
the requirements of CAA section 110(a)(2)(M).
Modifications to Regulation 19, Definitions and Regulation 19, Appendix
B
As part of the state's implementation of the 2015 O3
NAAQS, the State modified their Regulation 19 definition of ``National
Ambient Air Quality Standards'' to include the 2015 O3
NAAQS. The State also made the same change to the table entitled
``Appendix B: National Ambient Air Quality Standard List'' of
Regulation 19. The APC&EC adopted these changes on September 27, 2019
and submitted them for inclusion into the state SIP along with the 2015
O3 i-SIP elements. We find these changes are appropriate and
will enable the State to implement the 2015 O3 NAAQS. We are
proposing to approve the changes to Regulation 19, Definitions, and the
change to Regulation 19, Appendix B, into the Arkansas SIP.
III. Proposed Action
EPA is proposing to approve portions of the October 25, 2018,
Arkansas i-SIP submittal for the 2015 ozone NAAQS as detailed in Table
1, below. The portions of the submittal dealing with CAA section
110(a)(2)(D)(i)(I), prongs 1 and 2, Significant Contribution to
Nonattainment and Interference with Maintenance in other States, and
CAA section 110(a)(2)(D)(i)(II), prong 4, Interference with Visibility
Protection in other States will be addressed in separate, future
actions.
Table 1--Proposed Action on Arkansas Infrastructure and Transport SIP
Submittals for the 2015 Ozone NAAQS
------------------------------------------------------------------------
Element Proposed action
------------------------------------------------------------------------
(A): Emission limits and other control A
measures.
(B): Ambient air quality monitoring and data A
system.
(C)(i): Enforcement of SIP measures........... A
(C)(ii): PSD program for major sources and A
major modifications.
(C)(iii): Permitting program for minor sources A
and minor modifications.
(D)(i)(I): Contribute to nonattainment/ SA
interfere with maintenance of NAAQS (prongs 1
and 2).
(D)(i)(II): PSD (prong 3)..................... A
(D)(i)(II): Visibility Protection (prong 4)... SA
(D)(ii): Interstate and International A
Pollution Abatement.
[[Page 39135]]
(E)(i): Adequate resources.................... A
(E)(ii): State boards......................... A
(E)(iii): Necessary assurances with respect to A
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)(i): Consultation with government officials A
(J)(ii): Public notification.................. A
(J)(iii): PSD................................. A
(J)(iv): Visibility protection................ +
(K): Air quality modeling and data............ A
(L): Permitting fees.......................... A
(M): Consultation and participation by A
affected local entities.
------------------------------------------------------------------------
Key to Table 1:
A: Proposing to Approve.
+: Not germane to infrastructure SIPs.
SA: EPA is acting on this infrastructure requirement in a separate
rulemaking action.
Based upon review of the State's infrastructure SIP submission and
relevant statutory and regulatory authorities and provisions referenced
in this submission or referenced in the EPA-approved Arkansas SIP, EPA
believes that Arkansas has the infrastructure in place to address all
applicable required elements of CAA sections 110(a)(1) and (2), except
as noted above, to ensure that the 2015 O3 NAAQS is
implemented in the State.
We are also proposing to approve the submitted changes to
Regulation 19 Definitions and Appendix B that reference the 2015 ozone
NAAQS.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely proposes to approve state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted 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 CAA; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
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 proposed
rule does not have tribal implications and will not impose substantial
direct costs on tribal governments or preempt tribal law as specified
by Executive Order 13175 (65 FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Ozone.
Authority: 42 U.S.C. 7401 et seq.
Dated: June 16, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020-13427 Filed 6-29-20; 8:45 am]
BILLING CODE 6560-50-P
