[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Proposed Rules]
[Pages 16358-16365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6870]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2008-0639; EPA-R01-OAR-2008-0641; EPA-R01-OAR-2008-00642;
EPA-R01-OAR-2008-0643; A-1-FRL-9285-5]
Approval and Promulgation of Air Quality Implementation Plans;
Connecticut, Maine, New Hampshire and Rhode Island; Infrastructure SIPs
for the 1997 Ozone Standard
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve submittals from the States of
Connecticut, Maine, New Hampshire and Rhode Island. These submittals
outline how each state's State Implementation Plan (SIP) meets the
requirements of section 110(a) of the Clean Air Act (CAA) for the 1997
8-hour ozone national ambient air quality standards (NAAQS). Section
110(a) of the CAA requires that each state adopt and submit a SIP for
the implementation, maintenance and enforcement of each NAAQS
promulgated by the EPA. This SIP is commonly referred to as an
infrastructure SIP. These actions are being taken under the Clean Air
Act.
DATES: Written comments must be received on or before April 22, 2011.
ADDRESSES: Submit your comments, identified by EPA-R01-OAR-2008-00639
for comments pertaining to our proposed action for Connecticut, EPA-
R01-OAR-2008-0641 for comments pertaining to our proposed action for
Maine, EPA-R01-OAR-2008-06432 for comments pertaining to our proposed
action for New Hampshire, or EPA-R01-OAR-2008-0643 for comments
pertaining to our proposed action for Rhode Island, by one of the
following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Fax: (617) 918-0047.
4. Mail: ``Docket Identification Number EPA-R01-OAR-2008-0639, EPA-
RO1-OAR-2008-0641, EPA-RO1-OAR-2008-642, or EPA-R01-OAR-2008-0643''
Anne Arnold, U.S. Environmental Protection Agency, EPA New England
Regional Office, 5 Post Office Square, Suite 100 (mail code: OEP05-2),
Boston, MA 02109-3912.
5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold,
Manager, Air Quality Planning Unit, Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
5 Post Office Square, Suite 100, Boston, MA 02109-3912. Such deliveries
are only accepted during the Regional Office's normal hours of
operation. The Regional Office's official hours of business are Monday
through Friday, 8:30 to 4:30, excluding legal holidays.
Instructions: Direct your comments to Docket ID Numbers: EPA-R01-
OAR-2008-0639 for comments pertaining to our proposed action for
Connecticut, EPA-RO1-OAR-2008-0641 for comments pertaining to our
proposed action for Maine, EPA-RO1-OAR-2008-0642 for comments
pertaining to our proposed action for New Hampshire or EPA-RO1-OAR-
2008-0643 for comments pertaining to our proposed action for Rhode
Island. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit through http://www.regulations.gov, or e-mail, information that you consider to be CBI
or otherwise protected. The http://www.regulations.gov website is an
``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or in hard copy at Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
5 Post Office Square, Suite 100, Boston, MA. EPA requests that if at
all possible, you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to schedule your inspection. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding legal holidays.
FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality
Planning Unit, U.S. Environmental Protection Agency, EPA New England
Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-
3912, telephone number (617) 918-1664, fax number (617) 918-0664, e-
mail [email protected].
In addition, copies of the state submittal and EPA's technical
support documents are also available for public inspection during
normal business hours, by appointment at the respective State Air
Agency: The Bureau of Air Management, Department of Environmental
Protection, State Office Building, 79 Elm Street, Hartford, CT 06106-
1630; the Bureau of Air Quality Control, Department of Environmental
Protection, First Floor of the Tyson Building, Augusta Mental Health
Institute Complex, Augusta, ME 04333-0017; Air Resources Division,
Department of Environmental Services,
[[Page 16359]]
6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095; and the Office of
Air Resources, Department of Environmental Management, 235 Promenade
Street, Providence, RI 02908-5767.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Organization of this document. The following outline is provided to
aid in locating information in this preamble.
I. What action is EPA taking?
II. What is the background for this action?
III. What is EPA's evaluation of the States' submittals?
A. Emission Limits and Other Control Measures
B. Ambient Air Quality Monitoring/Data System
C. Program for Enforcement of Control Measures
D. Interstate Transport
E. Adequate Resources
F. Stationary Source Monitoring System
G. Emergency Power
H. Future SIP Revisions
I. Nonattainment Area Plan Under Part D
J. Consultation With Government Officials; Public Notification;
PSD; and Visibility Protection
K. Air Quality Modeling/Data
L. Permitting Fees
M. Consultation/Participation by Affected Local Entities
IV. Proposed Action
V. Statutory and Executive Order Reviews
I. What action is EPA taking?
EPA is proposing to approve submittals from the States of
Connecticut, Maine, New Hampshire and Rhode Island as meeting the
Section 110(a) infrastructure requirements of the Clean Air Act for the
1997 ozone standard.
II. What is the background for this action?
On July 18, 1997, EPA promulgated a revised National Ambient Air
Quality Standard (NAAQS) for ozone based on 8-hour average ozone
concentrations. The 8-hour averaging period replaced the previous 1-
hour averaging period, and the level of the NAAQS was changed from 0.12
parts per million (ppm) to 0.08 ppm (see 62 FR 38856). The Clean Air
Act (CAA or Act) requires State Implementation Plans (SIPs) meeting the
requirements of sections 110(a)(1) and (2) be submitted by states
within 3 years after promulgation of a new or revised standard. 42
U.S.C. 7410(a)(1) and (2). Sections 110(a)(1) and (2) require states to
address basic SIP requirements, including emissions inventories,
monitoring, and modeling to assure attainment and maintenance of the
standards, so-called ``infrastructure'' requirements. States were
required to submit such SIPs for the 1997 standards to EPA no later
than June 2000. However, intervening litigation over the 1997 8-hour
ozone standards created uncertainty about how to proceed, and certain
States did not provide the required infrastructure SIP submission for
this newly promulgated standard.
Section 110(a) imposes the obligation upon States to make a SIP
submission to EPA for a new or revised NAAQS, but the contents of that
submission may vary depending upon the facts and circumstances. In
particular, the data and analytical tools available at the time the
State develops and submits the SIP for a new or revised NAAQS affects
the content of the submission. The contents of such SIP submissions may
also vary depending upon what provisions the State's existing SIP
already contains. In the case of the 1997 8-hour ozone NAAQS, States
typically have met the basic program elements required in section
110(a)(2) through earlier SIP submissions in connection with previous
ozone standards.
On October 2, 2007, EPA issued a guidance document entitled,
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2)
for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality
Standards.'' This guidance noted that to the extent an existing SIP
already meets the section 110(a)(2) requirements, states need only to
certify that fact via a letter to EPA.
The States of Connecticut, Maine, New Hampshire, and Rhode Island
each submitted such certification letters to EPA on December 28, 2007,
January 3, 2008, December 14, 2007 and December 14, 2007, respectively.
All four submittals were deemed complete, effective April 28, 2008.
(See 73 FR 16205; March 27, 2008.)
III. What is EPA's evaluation of the States' submittals?
EPA has reviewed the December 2007 submittal from Connecticut, the
January 2008 submittal from Maine, the December 2007 submittal from New
Hampshire, and the December 2007 submittal from Rhode Island. The
Agency has determined that each state's SIP meets the section 110(a)(2)
infrastructure requirements of the CAA and is consistent with the
relevant EPA guidance. Each state's submittal and EPA's evaluation of
that submittal are detailed in the following technical support
documents (TSDs) which are available in the docket for these actions
and at the EPA New England Regional Office referenced in the ADDRESSES
section: (1) ``Technical Support Document (TSD) for the Connecticut
Submittal to Fulfill the Requirements for 1997 8-hour Ozone National
Ambient Air Quality Standard Infrastructure Portion of the Clean Air
Act Under Section 110(a)(2),'' dated March 9, 2011; (2)``Technical
Support Document (TSD) for the Maine Submittal to Fulfill the
Requirements for 1997 8-hour Ozone National Ambient Air Quality
Standard Infrastructure Portion of the Clean Air Act Under Section
110(a)(2),'' dated March 10, 2011; (3) ``Technical Support Document
(TSD) for the New Hampshire Submittal to Fulfill the Requirements for
1997 8-hour Ozone National Ambient Air Quality Standard Infrastructure
Portion of the Clean Air Act Under Section 110(a)(2),'' dated March 10,
2011; and (4) ``Technical Support Document (TSD) for the Rhode Island
Submittal to Fulfill the Requirements for 1997 8-hour Ozone National
Ambient Air Quality Standard Infrastructure Portion of the Clean Air
Act Under Section 110(a)(2),'' dated March 9, 2011.
In their submittals each state references items in their state
specific laws, statutes, regulations and SIPs that address the elements
detailed in section 110(a)(2) of the CAA. These elements and the
corresponding subsection of the CAA are as follows:
Emission limits and other control measures (110(a)(2)(A));
Ambient air quality monitoring/data system (110(a)(2)(B));
Program for enforcement of control measures (110(a)(2)(C));
Interstate Transport (110(a)(2)(D)(ii));
Adequate resources (110(a)(2)(E));
Stationary source monitoring system (110(a)(2)(F));
Emergency power (110(a)(2)(G));
Future SIP revisions (110(a)(2)(H));
Consultation with government officials (110(a)(2)(J));
Public notification (110(a)(2)(J));
Prevention of significant deterioration (110(a)(2)(J));
Air quality modeling data (110(a)(2)(K));
Permitting fees (110(a)(2)(L)); and
Consultation/participation by affected local entities
(110(a)(2)(M)).
In its submittal, Connecticut references the Connecticut Air
Quality SIP, the Connecticut General Statues (CGS) and the Regulations
of the Connecticut State Air Agency (RCSA). In its submittal, Maine
references the Maine Air Quality SIP, the Code of Maine Regulations
(CMR) and the Maine Revised Statutes Annotated (MRSA). In its
submittal, New Hampshire references the New Hampshire Air Quality SIP,
the New Hampshire Revised Statutes Annotated (RSA) as well as the New
[[Page 16360]]
Hampshire Rules Governing the Control of Air Pollution, and NH Admin.
Rules Env-A 100 et seq. In its submittal, Rhode Island references the
Rhode Island Air Quality SIP, the Rhode Island Air Pollution Control
Regulations (RIAPCR) and the Rhode Island General Laws (RIGL).
The discussion below summarizes how each state meets each relevant
CAA infrastructure requirement outlined above.
A. Emission Limits and Other Control Measures
Section 110(a)(2)(A) requires SIPs to include enforceable emission
limits and other control measures, means or techniques, schedules for
compliance and other related matters. Each state's infrastructure
submittal includes a list of regulations that have been previously
adopted by the state and approved by EPA which include specific
emission limits and the framework for implementation of these limits.
The specific details of each state's submittal and EPA analysis of the
submittal for this element is stated in the TSD for each state. Also, a
table containing each regulation and the citation of EPA's approval of
this regulation is included in the Appendix of each state's TSD.
EPA does not consider SIP requirements triggered by the
nonattainment area mandates in part D of Title I of the CAA to be
governed by the submission deadline of section 110(a)(1). Nevertheless,
Connecticut, Maine, New Hampshire, and Rhode Island have included some
SIP provisions originally submitted in response to part D in its
submission documenting its compliance with the infrastructure
requirements of section 110(a)(2). These states have over time
continually updated the elements of their SIPs addressing the ozone
NAAQS, and the provisions reviewed here are a weave of SIP revisions
submitted in response to the infrastructure requirements of section
110(a)(2) and the nonattainment requirements of part D.
For the purposes of this action, EPA is reviewing any rules
originally submitted in response to part D solely for the purposes of
determining whether they support a finding that the state has met the
basic infrastructure requirements under section 110(a)(2). For example,
in response to the requirement to have enforceable emission limits
under section 110(a)(2)(A), Connecticut, Maine, New Hampshire, and
Rhode Island cited to several rules that were submitted to meet the
Reasonably Available Control Technology (RACT) requirement of part D.
EPA is here approving those rules as meeting the requirement to have
enforceable emission limits on ozone precursors; any judgment about
whether those emission limits discharge the state's obligation to
impose RACT under part D was or will be made separately, in an action
reviewing those rules pursuant to the requirements of part D.
Also, in this action, EPA is not proposing to approve or disapprove
any existing state provisions with regard to excess emissions during
startup, shutdown, or malfunction (SSM) of operations at a facility.
EPA believes that a number of states may have SSM provisions that are
contrary to the CAA and existing EPA guidance,\1\ and the Agency plans
to address such state regulations in the future. In the meantime, EPA
encourages any state having a deficient SSM provision to take steps to
correct it as soon as possible.
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\1\ Memorandum to EPA Air Division Directors, from Steven
Herman, Assistant Administrator for Enforcement and Compliance
Assurance, and Robert Perciasepe, Assistant Administrator for Air
and Radiation, ``State Implementation Plans (SIPs): Policy Regarding
Excess Emissions During Malfunctions, Startup, and Shutdown''
(August 11, 1999).
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In addition, in this action, EPA is not proposing to approve or
disapprove any existing state rules with regard to director's
discretion or variance provisions. EPA believes that a number of states
may have such provisions that are contrary to the CAA and existing EPA
guidance (52 FR 45109, November 24, 1987), and the Agency plans to take
action in the future to address such state regulations. In the
meantime, EPA encourages any state having a director's discretion or
variance provision that is contrary to the CAA and EPA guidance to take
steps to correct the deficiency as soon as possible.
The Connecticut submittal cites 16 specific rules the state adopted
to control the emissions of volatile organic compounds (VOCs) and
oxides of nitrogen (NOX). In addition the State of
Connecticut has also adopted the California-Low Emission Vehicle
standard for automobiles.
The Maine submittal cites over 20 specific rules the state adopted
to control the emissions of VOCs and NOX.
The New Hampshire submittal cites a general overview of the RSA,
Chapters: Env-A 300, 600, 700, 1200, and 3200 of their air quality
regulations, and five specific rules for the control the emissions of
VOCs and NOX. In addition, they also cite several rules for
the control of control the emissions of VOCs and NOX from
automobiles.
The Rhode Island submittal cites 15 specific rules the state
adopted to control the emissions of VOCs and NOX.
Connecticut, Maine, New Hampshire and Rhode Island all meet the
requirements for Section 110(a)(2)(A) for the 1997 8-hour ozone
standard.
B. Ambient Air Quality Monitoring/Data System
Section 110(a)(2)(B) requires SIPs to include provisions to provide
for establishment and operation of ambient air quality monitors,
collecting and analyzing ambient air quality data, and making these
data available to EPA upon request. Connecticut, Maine, New Hampshire
and Rhode Island all operate ambient air quality monitors and submit
the data collected to EPA. All four states have submitted annual air
monitoring network plans which have been approved by EPA as follows:
Connecticut (submitted on August 16, 2010, approved by EPA on August
31, 2010); Maine (submitted on June 30, 2010, approved by EPA on July
7, 2010); New Hampshire (submitted on September 7, 2010, approved by
EPA on October 13, 2010); and Rhode Island (submitted on July 12, 2010,
approved by EPA on July 13, 2010).
Connecticut, Maine, New Hampshire and Rhode Island all meet the
requirements for Section 110(a)(2)(B) for the 1997 8-hour ozone
standard.
C. Program for Enforcement of Control Measures
Section 110(a)(2)(C) requires states to include a program providing
for enforcement of all SIP measures and the regulation of construction
of new or modified stationary sources, including a program to meet
Prevention of Significant Deterioration (PSD) and nonattainment New
Source Review (NSR) requirements.
In this action, EPA is not evaluating nonattainment-related
provisions, such as the 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 because these
submittals are required beyond the date (3 years from NAAQS
promulgation) that section 110 infrastructure submittals are required.
Also, in this action, EPA is not proposing to approve or disapprove
any state rules with regard to the NSR Reform requirements. EPA will
act on SIP submittals that are made for purposes of addressing NSR
Reform through a separate rulemaking process.
EPA has determined that Connecticut's, Maine's, New Hampshire's,
and Rhode Island's minor NSR programs adopted pursuant to
[[Page 16361]]
section 110(a)(2)(C) of the Act regulate ozone precursor emissions. EPA
is concerned that certain provisions of some states' minor NSR programs
adopted pursuant to section 110(a)(2)(C) of the Act might not meet all
the requirements found in EPA's regulations implementing that
provision. See 40 CFR 51.160-51.164. EPA previously approved all four
states minor NSR programs into the SIP, and there was at the time no
objection to the provisions of these programs. For Connecticut, 58 FR
10987 (Feb. 23, 1993); for Maine, 45 FR 6786 (Jan. 30, 1980); for New
Hampshire, 51 FR 10863 (March 15, 1983); and for Rhode Island, 48 FR
29690, (June 28, 1983). Since then, the states and EPA have relied on
the existing state minor NSR programs to assure that new and modified
sources not captured by the major NSR permitting programs do not
interfere with attainment and maintenance of the NAAQS.
Therefore, in this action, EPA is proposing to approve
Connecticut's, Maine's, New Hampshire's, and Rhode Island's
infrastructure SIP for the 1997 ozone NAAQS with respect to the general
requirement in section 110(a)(2)(C) to include a program in the SIP
that regulates the modification and construction of any stationary
source as necessary to assure that the NAAQS are achieved. EPA is not
proposing to approve or disapprove the state's existing minor NSR
program itself to the extent that it is inconsistent with EPA's
regulations governing this program. EPA believes that a number of
states may have minor NSR provisions that are contrary to the existing
EPA regulations for this program. EPA intends to work with states to
reconcile state minor NSR programs with EPA's regulatory provisions for
the program. The statutory requirements of section 110(a)(2)(C) provide
for considerable flexibility in designing minor NSR programs, and EPA
believes it may be time to revisit the regulatory requirements for this
program to give the states an appropriate level of flexibility to
design a program that meets their particular air quality concerns,
while assuring reasonable consistency across the country in protecting
the NAAQS with respect to new and modified minor sources.
As further discussed in the TSDs, and each states's respective
submittal, each state cites specific sections of their rules and
regulations that show how the state meets the requirements for this
element.
The Connecticut submittal cites several sections of the CGS (see
CGS Sections 22a-171, 22a-174, 22a-175, 22a-176 and 22a-178)) and
several regulations of the RCSA (see RSCA 22a-174-3a and RSCA 22a-174-
12), including a program to meet minor source NSR and PSD requirements.
Connecticut's 110 submittal meets the requirements of CAA Section
110(a)(2)(C), with the following exception which is currently being
addressed. EPA previously noted that Connecticut's PSD program had a
deficiency because the state did not have the authority to implement
the PSD permitting program with respect to greenhouse gas (GHG)
emissions. (See 75 FR 77698; December 13, 2010.) Connecticut proposed
rule revisions to address this deficiency and EPA proposed approval of
those revisions through parallel processing procedures on January 6,
2011 (76 FR 752). On February 9, 2011, Connecticut submitted a final
SIP revision addressing this deficiency. Final approval of
Connecticut's GHG SIP revision is expected prior to final approval of
Connecticut's section 110 infrastructure submittal. Therefore, EPA is
proposing to fully approve this element for Connecticut.
The Maine submittal cites 38 MRSA Sec. 347-A and C, Sec. 348, and
Sec. 349 which provides the Maine DEP with civil and criminal
enforcement authorities, including the authority to assess penalties.
In addition Maine cites, CMR Chapter 100 Definitions and Regulations
and CMR Chapter 115 Emission License Regulation, which contains the
regulations for minor source NSR and PSD programs. Maine's submittal
meets the requirements of CAA section 110(a)(2)(C). EPA previously
noted that there was a deficiency in Maine's PSD program because the
state does not have adequate resources to implement the PSD permitting
program with respect to GHG emissions. (See 75 FR 82536, December 30,
2010). Maine DEP has adopted revisions to its program to address this
deficiency, but has not yet submitted these rules to EPA. In that same
December 30, 2010 action, EPA issued a SIP error correction withdrawing
EPA's approval of Maine's PSD program to the extent it applies to
increases in GHG emissions below the thresholds in EPA's tailoring rule
revisions to the federal PSD program in the so-called ``narrowing
rule.'' Ibid. On March 10, 2011, Maine submitted a letter to EPA
stating that in evaluating its section 110 infrastructure submittal,
EPA should consider the state's PSD program as currently approved in
the SIP and as corrected by EPA's December 30, 2010 narrowing rule.
Therefore, EPA is proposing to fully approve this element for Maine for
the purposes of meeting the infrastructure requirements of section
110(a)(2)(C). EPA will address how the state's newly adopted PSD rules
implement GHG requirements in a separate action.
The New Hampshire submittal cites the RSA and ENV-A (see RSA 125-
C:4, 125-C:11, and 125-C:15, and ENV-A 618 and ENVA-619), including a
program for the minor source NSR and PSD programs. New Hampshire's
submittal meets the requirements of CAA section 110(a)(2)(C). EPA
previously noted that there was a deficiency in New Hampshire's PSD
program because the state does not have adequate resources to implement
the PSD permitting program with respect to GHG emissions. 75 FR 82536
(December 30, 2010). New Hampshire submitted a SIP revision to its
program to address this deficiency on February 7, 2011. EPA is
reviewing this submittal. On March 8, 2011, New Hampshire submitted a
letter to EPA stating that in evaluating its section 110 infrastructure
submittal, EPA should consider the revised rules. Therefore, EPA is
proposing to fully approve this element for New Hampshire for the
purposes of meeting the infrastructure requirements of section
110(a)(2)(C). EPA will address how the state's newly adopted PSD rules
implement GHG requirements in a separate action.
The Rhode Island submittal cites sections 23-23-10, 23-23-11 and
23-23-14 of the RIGL, which provide DEM with civil and criminal
enforcement authorities, including the authority to assess penalties.
In addition, RI APCR No. 9 Air Pollution Control Permits, which has
been approved into the RI SIP, includes the requirements to implement
the PSD permitting program and includes the minor source NSR
provisions. Rhode Island's submittal meets the requirements of CAA
section 110(a)(2)(C). EPA previously noted that there was a deficiency
in Rhode Island's PSD program, because the state does not have adequate
resources to implement the PSD permitting program with respect to GHG
emissions. 75 FR 82536 (Dec. 30, 2010). Rhode Island DEM submitted a
SIP revision to its program to address this deficiency on January 18,
2011. On March 3, 2011, Rhode Island submitted a letter to EPA stating
that in evaluating its section 110 infrastructure submittal, EPA should
consider the revised rules. Therefore, EPA is proposing to fully
approve this element for Rhode Island for the purposes of meeting the
infrastructure requirements of section 110(a)(2)(C). EPA will address
how the state's newly adopted PSD rules implement GHG requirements in a
separate action.
[[Page 16362]]
D. Interstate Transport
Section 110(a)(2)(D)(i) of the CAA requires SIPs to include
provisions prohibiting any source or other type of emissions activity
in one state from contributing significantly to nonattainment, or
interfering with maintenance of the NAAQS in another state, or from
interfering with measures required to prevent significant deterioration
of air quality or to protect visibility in another state. This action
does not address the requirements of 110(a)(2)(D)(i), which have been
addressed by a separate finding issued by EPA on April 25, 2005 (70 FR
21147).
Section 110(a)(2)(D)(ii) of the CAA requires SIPs to include
provisions insuring compliance with the applicable requirements of
sections 126 and 115 (relating to interstate and international
pollution abatement). Specifically, section 126(a) requires new or
modified major sources to notify neighboring states of potential
impacts from the source
Connecticut's PSD regulations provide for notice to most of the
parties consistent with the requirements in the EPA PSD program,
although there is no specific mandate that affected states receive
notice. Connecticut in fact issues extensive notice of its draft
permits, and neighboring states consistently get copied on those
drafts. Connecticut has no pending obligations under section 115 or
126(b) of the Act. The CT DEP procedures meet the requirements of CAA
Section 110(a)(2)(D)(ii).
Maine is required to give notice of draft PSD permits that meet the
requirements in our regulations. Maine's SIP-approved Chapter 115
requires the state to provide a ``copy of the public notification and a
copy of the draft order to the U.S. Environmental Protection Agency,
Region I, the chief executives of the municipality and county where the
source proposes to locate, any comprehensive land use planning agency,
and any State, Federal Land Manager, or Indian Governing Body whose
lands may be affected by emissions from the source or modification.''
Maine also has no pending obligations under section 115 or 126(b) of
the Act. Maine's SIP meets the requirements of CAA section
110(a)(2)(D)(ii).
New Hampshire is required to give notice of draft PSD permits that
meet the requirements in our regulations. New Hampshire specifically
defers to 40 CFR part 52 for the process by which PSD permits are
issued. Env-A 205.03. 40 CFR part 52 effectively incorporates the
requirements of 40 CFR Part 124--which include affected state notice.
40 CFR 124.10(c)(1)(iii), (vii) & (x). New Hampshire has no pending
obligations under section 115 or 126(b) of the Act. New Hampshire SIP
meets the requirements of CAA section 110(a)(2)(D)(ii).
Rhode Island's Air Pollution Control Regulation No. 9, ``Air
Pollution Control Permits,'' which has been approved into the RI SIP
provides for notice to nearby States. (See 9.12.3.) Rhode Island has no
pending obligations under section 115 or 126(b) of the Act. Rhode
Island's SIP meets the requirements of CAA section 110(a)(2)(D)(ii).
E. Adequate Resources
Section 110(a)(2)(E) requires states to provide for adequate
personnel, funding, and legal authority under state law to carry out
its SIP and related issues.
As further explained in each state's TSD and respective submittal,
each state cites specific sections of their rules and regulations that
show how the state meets the requirements for this element.
Connecticut cites its state law (see CGS Section 22a-171) and its
SIP, Chapter 11, Parts A-E which describe the (A) existing
organizations, (B) manpower, (C) funding, (D) physical resources and
(E) local agencies. It states, in part, ``The Department of
Environmental Protection will secure appropriations sufficient, in
conjunction with federal assistance, to maintain the projected state
funding levels.''
Maine cites its state law (see 38 MRSA Sec. 341-A. 38 MRSA Sec.
341-D 38 MRSA Sec. 342 and 38 MRSA Sec. 581) and its original 1972
SIP Chapter 8, documenting the existence of adequate resources. For FY
2007 (the year cited in its submittal), the Maine Bureau of Air Quality
had a staff of 59, and a budget of $5.5 million.
New Hampshire cites the RSA 125 C:6, which authorizes the NHDES
Commissioner to enforce the state's air laws, establish a permit
program, accept and administer grants, and exercise all incidental
powers necessary to carry out the law, and RSA 125 C:12, which
authorizes the Commissioner to collect fees to recover the costs of
reviewing and acting upon permit applications. In addition New
Hampshire cites its original 1972 SIP which describes the (A) existing
organizations; (B) manpower; (C) funding; and (D) physical resources.
Rhode Island cites Sec. 23-23-5 of the RIGL which provides the
Director of DEM with the legal authority to enforce air pollution
control requirement, and Sec. 23-23-5 of the RIGL which provides for
the assessment of operating permit fees from air emissions sources,
allows for DEM to assess preconstruction permit fees and establishes a
general revenue reserve account within the general fund to finance the
state clean air programs. In addition, RI DEM referred to its
regulations implementing its operating permit program pursuant to 40
CFR part 70. RI APCR No. 28, ``Operating Permit Fees,'' requires major
sources to pay annual operating permit fees. Finally, Section III of
the 1972 RI SIP specifies the RI DEM's legal authority to implement SIP
measures and Section VII of the 1972 SIP describes the resources and
manpower estimates for the RI DEM.
As discussed above, EPA has previously determined that Maine, New
Hampshire, and Rhode Island would not have adequate resources to
implement the PSD permitting program with respect to GHG emissions
without adopting rules to limit the number of GHG sources that require
PSD permits. A complete discussion of this issue is provided above in
Section III.C. of this rule. All three state environmental agencies
adopted programs to address this deficiency. Therefore, EPA is
proposing to fully approve this element.
Connecticut, Maine, New Hampshire and Rhode Island all meet the
requirements for Section 110(a)(2)(E) for the 1997 8-hour ozone
standard.
F. Stationary Source Monitoring System
Section 110(a)(2)(F) of the CAA requires states to establish a
system to monitor emissions from stationary sources and to submit
periodic emission reports. Connecticut's, Maine's, New Hampshire's, and
Rhode Island's infrastructure submittals reference the specific
regulations that were previously adopted by the state and approved by
EPA which require sources to monitor emissions and submit reports. The
specific rules, along with a citation to EPA's approval of each rule,
is included in the TSD for each state. For example, Rhode Island's
submittal references the following: (1) APCR No. 9, ``Air Pollution
Control Permits,'' which requires emissions testing of permitted
processes within 60 days of full operation and specifies that
preconstruction permits issued contain an emissions testing section;
(2) APCR No. 14, ``Record Keeping and Reporting,'' which requires
emission sources to report annually emissions and other data to RI DEM;
and (3) APCR No. 27, ``Control of Nitrogen Oxide Emissions,'' which
requires annual emissions testing of subject sources and includes
specifications for continuous emissions monitors. As detailed in the
TSD's, similar rules and regulations
[[Page 16363]]
have been adopted by Connecticut, Maine, and New Hampshire.
Connecticut, Maine, New Hampshire, and Rhode Island all meet the
requirements for Section 110(a)(2)(F) for the 1997 8-hour ozone
standard.
G. Emergency Power
Section 110(a)(2)(G) of the CAA requires states to provide for
authority to address activities causing imminent and substantial
endangerment to public health, including contingency plans to implement
the emergency episode provisions in their SIPs. Connecticut's, Maine's,
New Hampshire's, and Rhode Island's infrastructure submittals reference
the specific state legislation that gives each state authority to order
a source to cease operations if it is determined that emissions from
the source pose an immediate danger to public health or safety. In
addition, Connecticut, Maine, and Rhode Island have adopted emergency
episode regulations, consistent with the requirements of 40 CFR part
51, subpart H, sections 51.150 through 51.153, which have been
previously approved by EPA. (See TSDs for state regulation and EPA
approval citations.)
New Hampshire has broad statutory authority (see RSA 125-C:9
Authority of the Commissioner in Cases of Emergency) to address
activities causing imminent and substantial endangerment to public
health; however, New Hampshire does not have regulations that
specifically address all the 40 CFR part 51 subpart H requirements. But
New Hampshire, as a matter of practice, does the following in response
to elevated ozone levels. Through the EPA AIRNOW and EPA ENVIROFLASH
systems, the New Hampshire DES posts on the internet forecasted ozone
levels statewide for each day. Notices are sent out to ENVIROFLASH
participants when levels are forecast to exceed the current 8-hour
ozone standard. In addition, when levels are expected to exceed the
ozone standard in New Hampshire, the media are alerted, through a press
release, and the National Weather Service is alerted to issue an Air
Quality Advisory through the normal National Weather Service weather
alert system. This is similar to the notification and communication
requirements of 40 CFR 151.152. Therefore, EPA is proposing to fully
approve this element for New Hampshire.
Connecticut, Maine, New Hampshire and Rhode Island all meet the
requirements for Section 110(a)(2)(G) for the 1997 8-hour ozone
standard.
H. Future SIP Revisions
Section 110(a)(2)(H) of the CAA requires states to have the
authority to revise their SIPs in response to changes in the NAAQS,
availability of improved methods for attaining NAAQS, or in response to
an EPA finding that the SIP is substantially inadequate. Connecticut's
infrastructure submittal references the SIP and CGS which requires the
SIP to be a dynamic and not static document that is to be revised as
necessary. Maine's infrastructure submittal references the MRSA, which
requires, the adoption, amendment or repeal of reasonable rules and
emergency rules necessary for the interpretation, implementation and
enforcement of any provision of law that the environmental department
is charged with administering. New Hampshire's infrastructure submittal
references, RSA 125-C:6 Powers and Duties of the Commissioner, which
requires the commissioner to develop ``a comprehensive program and
provide services for the study, prevention and abatement of air
pollution.'' Rhode Island's infrastructure submittal references, Sec.
23-23-5 of the RIGL, which allows the Director of RI DEM to ``make,
issue, and amend rules and regulations * * * for the prevention,
control, abatement, and limitation of air pollution.'' In addition, it
should be noted that all four states have made numerous SIP revisions
for both the previous 1-hour ozone standard and the 1997 8-hour ozone
NAAQS.
Connecticut, Maine, New Hampshire and Rhode Island all meet the
requirements for Section 110(a)(2)(H) for the 1997 8-hour ozone
standard.
I. Nonattainment Area Plan Under Part D
Section 110(a)(2)(I) of the CAA requires that each such plan shall
``in the case of a plan or plan revision for an area designated as a
nonattainment area, meet the applicable requirements of part D of this
subchapter (relating to nonattainment areas).'' EPA is not evaluating
nonattainment-related provisions, such as the 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 because these
submittals are required beyond the date (3 years from NAAQS
promulgation) that section 110 infrastructure submittals are required.
J. Consultation With Government Officials; Public Notification; PSD;
and Visibility Protection
Section 110(a)(2)(J) of the CAA requires states to provide a
process for consultation with local governments and Federal Land
Managers carrying out NAAQS implementation requirements pursuant to
Section 121 relating to consultation.
Connecticut's infrastructure submittal references CGS Section 22a-
171, Duties of Commissioner of Environmental Protection, which requires
the commissioner to ``advise and consult with agencies of the United
States, agencies of the state, political subdivisions and industries
and any other affected groups in furtherance of the purposes of this
chapter.'' In addition Connecticut has a State Implementation Plan
Revision Advisory Committee (SIPRAC) which was established in 1972, and
generally meets each month in Hartford. The meeting notices are posted
on the CT DEP Web site and the agenda is also available on the Web
site. The SIPRAC committee discusses relevant air quality issues, such
as air quality permits, state and national regulation revisions and SIP
changes.
Maine's infrastructure submittal references the MRSA and CMR.
Specifically 06-096 CMR Chapter 115 Major and Minor Source Air Emission
License Regulations, Section 4A(d) establishes consultation
requirements with Federal Land Managers for NSR and PSD, which
requires, ``The applicant and/or the Department shall notify and
provide a copy of the application to all Federal Land Managers listed
in Chapter 100 of the Department's regulations, and the Indian
governing body of any reservation located within 50 km of any Major
Modification or new Major source on or before the date the applicant
provides Notice of Intent to File to the public, and provide at least a
thirty (30) days public comment period.''
New Hampshire's infrastructure submittal references state laws and
regulations, specifically, RSA 125-C:6 Powers and Duties of the
Commissioner, which requires: Consulting, and cooperating with the
cities and towns and other agencies of the state, federal government,
interstate agencies, and other affected agencies or groups in matters
relating to air quality; encouraging local units to promote cooperation
by the people, political subdivisions, industries, and others in
preventing and controlling air pollution and coordinating and
regulating the air pollution control programs of political
[[Page 16364]]
subdivisions of the state and entering agreements with said
subdivisions to plan or implement programs for the control and
abatement of air pollution.
Rhode Island's submittal references Sec. 23-23-5 of the RIGL which
specifies that the RI DEM Director shall ``advise and consult with
agencies of the United States, agencies of the state, political
subdivisions and industries and any other affected groups in
furtherance of the purposes of this chapter.''
Section 110(a)(2)(J) of the CAA further requires states to notify
the public if NAAQS are exceeded in an area and to enhance public
awareness of measures that can be taken to prevent exceedances.
Connecticut, Maine, New Hampshire, and Rhode Island are all state
partners participating in EPA's AIRNOW and EnviroFlash Air Quality
Alert programs. See http://www.airnow.gov. Through this program, states
provide near real-time air quality data, as well as next day forecasts,
to the public. Individuals and organizations may also sign up to
receive e-mail alerts when poor air quality is predicted in their area.
Section 110(a)(2)(J) of the CAA also requires states to meet
applicable requirements of Part C related to prevention of significant
deterioration and visibility protection. With regard to the applicable
requirements for visibility protection, EPA recognizes that states are
subject to visibility and regional haze program requirements under part
C of the Act (which includes CAA sections 169A and 169B). In the event
of the establishment of a new NAAQS, however, the visibility and
regional haze program requirements under part C do not change. Thus, we
find that there are no applicable visibility requirements under section
110(a)(2)(J) when a new NAAQS becomes effective. We are, however,
evaluating the infrastructure submittals with respect to the applicable
PSD program requirements under 110(a)(2)(C). A complete discussion of
this issue is provided above in Section III.C. of this rule.
Connecticut, Maine, New Hampshire and Rhode Island all meet the
requirements for Section 110(a)(2)(J) for the 1997 8-hour ozone
standard.
K. Air Quality Modeling/Data
Section 110(a)(2)(K) of the CAA requires that SIPs provide for
performing air quality modeling for predicting effects on air quality
of emissions from any NAAQS pollutant and submission of such data to
EPA upon request.
As further explained in each state's TSD, all four states reference
the relative portions of their laws, regulations and SIPs that require
modeling from new or modified sources of air pollution, and the general
authority for the state to conduct air quality analyses. Connecticut,
New Hampshire and Rhode Island have submitted 8-hour ozone attainment
demonstrations to EPA as required under the CAA for ozone nonattainment
areas classified moderate and above. Maine was not required to submit
an 8-hour ozone attainment demonstration, because the nonattainment
areas in Maine were not classified as moderate or higher. In addition,
all four states are members of and participate in the ozone attainment
demonstration modeling efforts conducted by the Ozone Transport
Commission.
Connecticut, Maine, New Hampshire and Rhode Island all meet the
requirements for Section 110(a)(2)(K) for the 1997 8-hour ozone
standard.
L. Permitting Fees
Section 110(a)(2)(L) of the CAA requires SIPs to require each major
stationary source to pay permitting fees to cover the cost of
reviewing, approving, implementing and enforcing a permit until such
fee requirements are superseded by EPA's approval of a title V
operating permit program with a fee program consistent with the Act.
None of these states' title V operating permit programs is formally
approved into the state's SIP. However, the operating permit program is
a legal mechanism the state can use to ensure that it has sufficient
resources to support the air program, consistent with the requirements
of section 110(a)(2)(L).
EPA's full approval of Connecticut's title V program became
effective on May 31, 2002. Before EPA can grant full approval, a state
must demonstrate the ability to collect adequate fees. Connecticut's
title V program included a demonstration the state will collect a fee
from title V sources above the presumptive minimum in accordance with
40 CFR 70.9(b)(2)(i). Connecticut collects sufficient fees to
administer the title V permit program.
EPA's full approval of Maine's title V program became effective on
December 17, 2001. Before EPA can grant full approval, the state must
demonstrate the ability to collect adequate fees. On October 23, 1995,
Maine submitted a detailed fee demonstration in accordance with 40 CFR
70.9. The detailed fee demonstration was part of EPA's full approval.
Maine collects adequate fees for Title V sources. The statute also
allows the state to collect fees from new Title V sources, which meets
the requirements of section 110(a)(2)(L).
EPA's full approval of New Hampshire's title V program became
effective on November 23, 2001. Before EPA can grant full approval, a
state must demonstrate the ability to collect adequate fees. New
Hampshire's title V program included a demonstration the state will
collect a fee from title V sources above the presumptive minimum in
accordance with 40 CFR 70.9(b)(2)(i). New Hampshire collects sufficient
fees to administer the title V permit program.
EPA's full approval of Rhode Island's title V program became
effective on November 30, 2001. Before EPA can grant full approval, a
state must demonstrate the ability to collect adequate fees. Rhode
Island's title V program included a demonstration the state will
collect a fee from title V sources above the presumptive minimum in
accordance with 40 CFR 70.9(b)(2)(i). Rhode Island collects sufficient
fees to administer the title V permit program.
Connecticut, Maine, New Hampshire and Rhode Island all meet the
requirements for Section 110(a)(2)(L) for the 1997 8-hour ozone
standard.
M. Consultation/Participation by Affected Local Entities
Section 110(a)(2)(M) of the CAA requires states to provide for
consultation and participation in SIP development by local political
subdivisions affected by the SIP. The Connecticut infrastructure
submittal references state law (see CGS Section 4-168) and Chapter 12
of the original 1972 Connecticut SIP, which require consultation and
coordination with local entities. In addition, the Connecticut State
Implementation Plan Revision Advisory Committee (SIPRAC) established in
1972 generally meets each month in Hartford. The meeting notices are
posted on the Connecticut DEP Web site and the agenda is also available
on the Web site. SIPRAC discusses relevant air pollution issues and
regulations with all interested parties, including EPA. Maine's
infrastructure submittal references state law (see 5 MRSA Chapter 375,
Subchapter 2 and 38 MRSA Sec. 597) and Chapter 9 of the original 1972
SIP, which requires consultation and coordination with local entities.
New Hampshire's infrastructure submittal references state regulations
(see RSA 125-C:6 Powers and Duties of the Commissioner), which requires
consultation and coordination with local entities. Rhode Island's
infrastructure submittal references
[[Page 16365]]
section 23-23-5 of the RIGL which provides for the RI DEM Director ``to
advise, consult, and cooperate with the cities and towns and other
agencies of the State, Federal government, and other states and
interstate agencies * * *''
Connecticut, Maine, New Hampshire and Rhode Island all meet the
requirements for Section 110(a)(2)(M) for the 1997 8-hour ozone
standard.
IV. Proposed Action
EPA is proposing to find that the current SIPs for the States of
Connecticut, Maine, New Hampshire and Rhode Island meet the
infrastructure elements and the corresponding subsection of the CAA
listed below for the 1997 8-hour ozone standard:
Emission limits and other control measures (110(a)(2)(A));
Ambient air quality monitoring/data system (110(a)(2)(B));
Program for enforcement of control measures (110(a)(2)(C));
Interstate Transport (110(a)(2)(D)(ii));
Adequate resources (110(a)(2)(E));
Stationary source monitoring system (110(a)(2)(F));
Emergency power (110(a)(2)(G));
Future SIP revisions (110(a)(2)(H));
Consultation with government officials (110(a)(2)(J));
Public notification (110(a)(2)(J));
Prevention of significant deterioration (110(a)(2)(J));
Air quality modeling data (110(a)(2)(K));
Permitting fees (110(a)(2)(L)); and
Consultation/participation by affected local entities
(110(a)(2)(M)).
EPA is soliciting public comments on the issues discussed in this
proposal or on other relevant matters. These comments will be
considered before EPA takes final action. Interested parties may
participate in the Federal rulemaking procedure by submitting written
comments to the EPA New England Regional Office listed in the ADDRESSES
section of this Federal Register, or by submitting comments
electronically, by mail, or through hand delivery/courier following the
directions in the ADDRESSES section of this Federal Register.
Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this action and if that provision may be
severed from the remainder of the action, EPA may adopt as final those
provisions that are not the subject of an adverse comment. In addition,
EPA may take final action on one or more of these state's submittals
separately, depending on the circumstances involved with each state's
submittal.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely approves state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by state law. For that reason, this proposed action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: March 15, 2011.
Ira W. Leighton,
Acting Regional Administrator, EPA New England.
[FR Doc. 2011-6870 Filed 3-22-11; 8:45 am]
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