[Federal Register Volume 80, Number 128 (Monday, July 6, 2015)]
[Proposed Rules]
[Pages 38419-38423]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16389]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R06-OAR-2008-0633; FRL-9929-06-Region 6]
Approval and Promulgation of Implementation Plans; Arkansas;
Interstate Transport State Implementation Plan To Address Pollution
Affecting Visibility
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
disapprove a revision to the Arkansas State Implementation Plan (SIP)
submitted by the State of Arkansas on September 16, 2009, for the
purpose of addressing the requirements of the Clean Air Act (CAA)
regarding interference with other states' programs for visibility
protection for the 2006
[[Page 38420]]
revised 24-hour fine particulate matter (PM2.5) National
Ambient Air Quality Standard (NAAQS). The EPA is proposing that the
Federal Implementation Plan (FIP) we proposed on April 8, 2015, to
address certain regional haze and visibility transport requirements for
the State of Arkansas also remedies the deficiency created by our
proposed disapproval of Arkansas' SIP submittal to address the
requirement regarding interference with other states' programs for
visibility protection for the 2006 PM2.5 NAAQS.
DATES: Comments must be received on or before August 5, 2015.
ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2008-0633, by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Email: [email protected].
Mail: Mr. Guy Donaldson, Chief, Air Planning Section (6PD-
L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200,
Dallas, Texas 75202-2733.
Mail or delivery: Mr. Guy Donaldson, Chief, Air Planning
Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733.
Instructions: Direct your comments to Docket No. EPA-R06-OAR-2008-
0633. Our policy is that all comments received will be included in the
public docket without change and may be made available online at
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 information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means we will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to us without going through www.regulations.gov your email
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, we recommend 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 we cannot read your
comment due to technical difficulties and cannot contact you for
clarification, we 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: The index to the docket for this action is available
electronically at www.regulations.gov and in hard copy at EPA Region 6,
1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the
docket are listed in the index, some information may be publicly
available only at the hard copy location (e.g., copyrighted material),
and some may not be publicly available at either location (e.g., CBI).
FOR FURTHER INFORMATION CONTACT: Ms. Dayana Medina, 214-665-7241;
[email protected]. To inspect the hard copy materials, please
schedule an appointment with Ms. Medina or Mr. Bill Deese at 214-665-
7253.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
I. Background
A. Interstate Transport and the 2006 PM2.5 NAAQS
In 2006, we revised the 24-hour PM2.5 NAAQS to 35 [mu]g/
m\3\ (October 17, 2006, 71 FR 6114). SIPs addressing the interstate
transport requirements of section 110(a)(2)(D)(i) of the CAA are due to
us within three years after the promulgation of a new or revised NAAQS
(or within such shorter period as we may prescribe).\1\ Section
110(a)(2)(D)(i) of the CAA identifies four distinct elements, sometimes
referred to as prongs, related to the evaluation of impacts of
interstate transport of air pollutants with respect to a new or revised
NAAQS. In this action for the State of Arkansas, we are addressing the
second element of section 110(a)(2)(D)(i)(II) with respect to the 2006
24-hour PM2.5 NAAQS. The second element of section
110(a)(2)(D)(i)(II) of the CAA (hereafter referred to as Prong 4)
requires that states have a SIP, or submit a SIP revision, containing
provisions prohibiting emissions from within a state from interfering
with measures required to be included in the implementation plan for
any other state under the provisions of Part C of the CAA protecting
visibility. Because of the impacts on visibility from the interstate
transport of pollutants, we interpret this ``good neighbor'' provision
in section 110 of the CAA as requiring states to include in their SIPs
measures to prohibit emissions that would interfere with the reasonable
progress goals set to protect Class I areas in other states. This is
consistent with the requirements in the regional haze program which
explicitly require each state to address its share of the emission
reductions needed to meet the reasonable progress goals for surrounding
Class I areas.\2\
---------------------------------------------------------------------------
\1\ CAA Section 110(a)(1).
\2\ 64 FR 35714, 35735 (July 1, 1999).
---------------------------------------------------------------------------
B. Arkansas' Interstate Visibility Transport Submittal for the 2006
PM2.5 NAAQS
On September 16, 2009, Arkansas submitted a SIP revision intended
to address the requirements of Prong 4 with respect to visibility
transport for the 2006 PM2.5 NAAQS. This submittal also
addressed other ``infrastructure'' elements specified in CAA section
110(a)(2), necessary to implement, maintain, and enforce the 2006
PM2.5 NAAQS. We previously acted on the portions of the
September 16, 2009 submittal that addressed these other infrastructure
elements specified in CAA Section 110(a)(2).\3\ Arkansas' September 16,
2009 SIP submittal that addresses transport for the 2006
PM2.5 NAAQS may be accessed through the www.regulations.gov
Web site (Docket No. EPA-R06-OAR-2008-0633). Arkansas indicated in the
submittal that it meets the required protection of visibility
provisions of CAA section 110(a)(2)(D)(i)(II) for the 2006
PM2.5 NAAQS.
---------------------------------------------------------------------------
\3\ 77 FR 50033 (August 20, 2012) and 78 FR 53269 (August 29,
2013).
---------------------------------------------------------------------------
II. EPA's Evaluation
A. EPA's Approach for Evaluating Interstate Visibility Transport
In three memos released in 2006, 2009, and 2013, we provided
guidance to the states regarding their obligations with respect to
Prong 4. In the 2006 memo, we informed states that they could satisfy
prong 4 for the 1997 8-hour ozone and PM2.5 NAAQS by making
a simple SIP submission confirming that it was not possible at the time
to assess whether there was any interference with measures in the SIPs
of other states designed to protect visibility until the states'
regional haze SIPs were submitted and approved.\4\ In the 2009 memo, we
recommended that a state could meet prong 4 requirements
[[Page 38421]]
through its Regional Haze SIP.\5\ EPA's rationale supporting this
recommendation was that the development of the regional haze SIPs was
intended to occur in a collaborative environment among the states, and
that through this process states would coordinate on emissions controls
to protect visibility on an interstate basis. The common understanding
was that, as a result of this collaborative environment, each state
would take action to achieve the emissions reductions relied upon by
other states in their reasonable progress demonstrations under the
regional haze rule. This interpretation is consistent with the
requirement in the regional haze rule that a state participating in a
regional planning process must include ``all measures needed to achieve
its apportionment of emission reduction obligations agreed upon through
that process.'' See 40 CFR 51.308(d)(3)(ii). Most recently, in the 2013
memo, we suggest ways prong 4 obligations can be satisfied with respect
to the 2008 ozone NAAQS, 2010 nitrogen dioxide (NO2) NAAQS,
2010 sulfur dioxide (SO2) NAAQS, and 2012 PM2.5
NAAQS infrastructure SIPs.\6\ There, we reiterated that states could
satisfy prong 4 by confirming that they had fully approved regional
haze SIPs.\7\ We reasoned that a fully approved regional haze SIP
necessarily would ensure that emissions from a state's sources were not
interfering with measures required to be included in other states' SIPs
to protect visibility.\8\ Alternatively, we explained that a state
could satisfy its prong 4 obligations by including in its
infrastructure SIP a demonstration that emissions within its
jurisdiction do not interfere with other states' plans to protect
visibility.\9\ We clarified that such a submission would need to
include measures to limit visibility-impairing pollutants and ensure
that the reductions were sufficient to comply with any mutually agreed
upon RPGs for downwind Class I areas.\10\
---------------------------------------------------------------------------
\4\ Office of Air Quality Planning & Standards, U.S. Envtl.
Protection Agency, Guidance for State Implementation Plan (SIP)
Submissions to Meet Current Outstanding Obligations Under Section
110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National
Ambient Air Quality Standards, at 9-10 (Aug. 15, 2006).
\5\ Office of Air Quality Planning & Standards, U.S. Envtl.
Protection Agency, Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),
at 5 (Sept. 25, 2009).
\6\ Office of Air Quality Planning & Standards, U.S. Envtl.
Protection Agency, Guidance on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and
110(a)(2) (Sept. 13, 2013).
\7\ Id. at 33.
\8\ Id.
\9\ Id. at 34.
\10\ Id.
---------------------------------------------------------------------------
B. Evaluation of Arkansas' Submittal
An approved regional haze SIP that fully meets the regional haze
requirements in 40 CFR 51.308 satisfies the requirement for visibility
protection as it ensures that emissions from the state will not
interfere with measures required to be included in other state SIPs to
protect visibility. Regional haze is visibility impairment that is
produced by a multitude of sources and activities which are located
across a broad geographic area and emit fine particles
(PM2.5) (e.g., sulfates, nitrates, organic carbon, elemental
carbon, and soil dust), and their precursors (e.g., SO2,
nitrogen oxides (NOX), and in some cases, ammonia
(NH3) and volatile organic compounds (VOC)). Fine particle
precursors react in the atmosphere to form fine particulate matter that
impairs visibility by scattering and absorbing light. Visibility
impairment reduces the clarity, color, and visible distance that one
can see. PM2.5 can also cause serious health effects and
mortality in humans and contributes to environmental effects such as
acid deposition and eutrophication.
In the September 16, 2009 infrastructure SIP submittal for the 2006
PM2.5 NAAQS, Arkansas indicated that it meets the required
protection of visibility provisions of section 110(a)(2)(D)(i) of the
CAA but did not explain how it meets this requirement. We are proposing
to find that Arkansas' SIP does not fully ensure that emissions from
sources in Arkansas do not interfere with other states' visibility
programs as required under the Prong 4 provision because the SIP does
not demonstrate how the requirement is satisfied. Furthermore, we
previously found the Arkansas Regional Haze SIP to be deficient and
partially disapproved it. In our final rule published on March 12,
2012, we partially approved and partially disapproved the SIP revision
submitted by Arkansas in 2008 to address the regional haze requirements
(Arkansas Regional Haze SIP).\11\ This action included a disapproval of
a large portion of Arkansas' best available retrofit technology (BART)
determinations for its subject to BART sources, as we concluded these
BART determinations did not meet the requirements of the CAA and our
regional haze regulations. As a result, the corresponding emissions
reductions from Arkansas sources that other states had relied upon in
their regional haze SIPs would not take place. Therefore, we are
proposing to disapprove the portion of Arkansas' September 16, 2009 SIP
submittal that addresses the requirements of section
110(a)(2)(D)(i)(II) with respect to visibility transport for the 2006
PM2.5 NAAQS.
---------------------------------------------------------------------------
\11\ 77 FR 14604.
---------------------------------------------------------------------------
Under section 110(c) of the Act, whenever we disapprove a mandatory
SIP submission in whole or in part, we are required to promulgate a FIP
within 2 years unless we approve a SIP revision correcting the
deficiencies before promulgating a FIP. Specifically, CAA section
110(c) provides that the Administrator shall promulgate a FIP within 2
years after the Administrator disapproves a state implementation plan
submission ``unless the State corrects the deficiency, and the
Administrator approves the plan or plan revision, before the
Administrator promulgates such Federal implementation plan.'' The term
``Federal implementation plan'' is defined in section 302(y) of the CAA
in pertinent part as a plan promulgated by the Administrator to correct
an inadequacy in a SIP. Thus, upon finalizing our proposed disapproval
of Arkansas' SIP submittal addressing the requirements of section
110(a)(2)(D)(i)(II) with respect to visibility transport for the 2006
PM2.5 NAAQS, we would have an obligation to promulgate a FIP
for Arkansas, unless we first approve a SIP revision that corrects the
deficiencies in the disapproved SIP submittal.
Our April 8, 2015 proposed FIP corrects the disapproved portions of
the Arkansas Regional Haze SIP. The disapproved portions included a
majority of the State's BART determinations, the State's reasonable
progress analysis and reasonable progress goals, and a portion of the
State's long term strategies for its Class I areas.\12\ Our proposed
FIP addresses BART requirements for nine units at six facilities,
proposes a reasonable progress analysis and controls for two units at
one power plant under the reasonable progress requirements, and
proposes revised reasonable progress goals and long-term strategies for
Arkansas' two Class I areas. Our proposed Regional Haze FIP together
with the already approved portions of the Arkansas Regional Haze SIP
address all regional haze requirements for Arkansas and would ensure
that the emissions reductions from Arkansas sources that other states
relied upon in their regional haze SIPs are achieved. As such, there
would be adequate provisions prohibiting any source or other type of
emissions activity within Arkansas from emitting any air pollutant in
amounts
[[Page 38422]]
which would interfere with measures required to be included in the
applicable implementation plan for any other state to protect
visibility.
---------------------------------------------------------------------------
\12\ 77 FR 14604.
---------------------------------------------------------------------------
III. Proposed Action
We are proposing to disapprove a portion of a SIP submittal that
was submitted by Arkansas on September 16, 2009. The portion of the SIP
submittal we are proposing to disapprove addresses the CAA provisions
for prohibiting air pollutant emissions from interfering with measures
required to protect visibility in any other state for the 2006 24-hour
PM2.5 NAAQS. We are proposing to find that the requirements
of CAA section 110(a)(2)(D)(i)(II) with respect to visibility transport
for the 2006 PM2.5 NAAQS will be satisfied by the
combination of the emission control measures in the Regional Haze FIP
we proposed on April 8, 2015, and the already approved portions of the
Arkansas Regional Haze SIP. We are proposing to determine that the
Regional Haze FIP we proposed for Arkansas on April 8, 2015, will
satisfy our FIP obligation for interstate transport of air pollution
and visibility protection for the 2006 24-hour PM2.5 NAAQS.
We will not finalize our proposal that the Regional Haze FIP addresses
our FIP obligation unless and until, we finalize our action on the
Regional Haze FIP.
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 act on state law as meeting
Federal requirements and does not impose additional requirements beyond
those imposed by state law.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action is not a ``significant regulatory action''
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to review under Executive Orders 12866 and
13563 (76 FR 3821, January 21, 2011).
B. Paperwork Reduction Act
This proposed action does not impose an information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq., because this proposed SIP disapproval under section 110
and subchapter I, part D of the CAA will not in-and-of itself create
any new information collection burdens but simply disapproves certain
State requirements for inclusion into the SIP. Burden is defined at 5
CFR 1320.3(b).
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. For purposes of assessing the impacts of today's rule on
small entities, small entity is defined as: (1) A small business as
defined by the Small Business Administration's (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not have a significant
impact on a substantial number of small entities. This rule does not
impose any requirements or create impacts on small entities. This
proposed SIP disapproval under section 110 and subchapter I, part D of
the CAA will not in-and-of itself create any new requirements but
simply disapproves certain State requirements for inclusion into the
SIP. Accordingly, it affords no opportunity for EPA to fashion for
small entities less burdensome compliance or reporting requirements or
timetables or exemptions from all or part of the rule. The fact that
the CAA prescribes that various consequences (e.g., higher offset
requirements) may or will flow from this disapproval does not mean that
EPA either can or must conduct a regulatory flexibility analysis for
this action. Therefore, this action will not have a significant
economic impact on a substantial number of small entities.
We continue to be interested in the potential impacts of this
proposed rule on small entities and welcome comments on issues related
to such impacts.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private
sector. EPA has determined that the proposed disapproval action does
not include a Federal mandate that may result in estimated costs of
$100 million or more to either State, local, or tribal governments in
the aggregate, or to the private sector. This action proposes to
disapprove pre-existing requirements under State or local law, and
imposes no new requirements. Accordingly, no additional costs to State,
local, or tribal governments, or to the private sector, result from
this action.
E. Executive Order 13132, Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed action does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132, because it merely disapproves
certain State requirements for inclusion into the SIP and does not
alter the relationship or the distribution of power and
responsibilities established in the CAA. Thus, Executive Order 13132
does not apply to this action.
F. Executive Order 13175, Coordination With Indian Tribal Governments
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, this proposed
action 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).
[[Page 38423]]
G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
proposed action is not subject to Executive Order 13045 because it is
not an economically significant regulatory action based on health or
safety risks subject to Executive Order 13045 (62 FR 19885, April 23,
1997). This proposed SIP disapproval under section 110 and subchapter
I, part D of the CAA will not in-and-of itself create any new
regulations but simply disapproves certain State requirements for
inclusion into the SIP.
H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution or Use
This proposed action is not subject to Executive Order 13211 (66 FR
28355, May 22, 2001) because it is not a significant regulatory action
under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. NTTAA directs EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
The EPA believes that this proposed action is not subject to
requirements of Section 12(d) of NTTAA because application of those
requirements would be inconsistent with the CAA.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA lacks the discretionary authority to address environmental
justice in this proposed action. In reviewing SIP submissions, EPA's
role is to approve or disapprove state choices, based on the criteria
of the CAA. Accordingly, this action merely proposes to disapprove
certain State requirements for inclusion into the SIP under section 110
and subchapter I, part D of the CAA and will not in-and-of itself
create any new requirements. Accordingly, it 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.
K. Statutory Authority
The statutory authority for this action is provided by section 110
of the CAA, as amended (42 U.S.C. 7410).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping requirements, Sulfur dioxides,
Visibility, Interstate transport of pollution, Regional haze, Best
available control technology.
Dated: June 18, 2015.
Ron Curry,
Regional Administrator, Region 6.
Title 40, chapter I, of the Code of Federal Regulations is proposed
to be amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Amend Sec. 52.173 by adding paragraphs (c) and (d) to read as
follows:
Subpart E--Arkansas
Sec. 52.173 Visibility Protection
* * * * *
(c) The portion of the SIP addressing noninterference with measures
required to protect visibility in any other state are disapproved for
the 2006 24-hour PM2.5 NAAQS.
(d) The deficiencies in the portion of the SIP pertaining to
adequate provisions to prohibit emissions in Arkansas from interfering
with measures required to protect visibility in any other state for the
2006 24-hour PM2.5 NAAQS, submitted on September 16, 2009,
are remedied by Section 52.173(c).
[FR Doc. 2015-16389 Filed 7-2-15; 8:45 am]
BILLING CODE 6560-50-P