[Federal Register Volume 80, Number 220 (Monday, November 16, 2015)]
[Proposed Rules]
[Pages 70721-70727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28908]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2015-0710; FRL-9937-09-Region 7]


Approval of Air Quality State Implementation Plans (SIP); State 
of Nebraska; Infrastructure SIP Requirements for the 2008 Ozone 
National Ambient Air Quality Standard in Regards to Section 
110(a)(2)(D)(i)(I)--Prongs 1 and 2

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of a State Implementation Plan (SIP) submission from 
the State of Nebraska addressing the applicable requirements of Clean 
Air Act (CAA) section 110 for the 2008 National Ambient Air Quality 
Standards (NAAQS) for Ozone (O3). CAA section 110 requires 
that each state adopt and submit a SIP to support implementation, 
maintenance, and enforcement of each

[[Page 70722]]

new or revised NAAQS promulgated by EPA. These SIPs are commonly 
referred to as ``infrastructure'' SIPs. The infrastructure requirements 
are designed to ensure that the structural components of each state's 
air quality management program are adequate to meet the state's 
responsibilities under the CAA.
    Specifically, EPA is proposing to approve Nebraska's SIP as it 
relates to section 110 (a)(2)(D)(i)(I) prongs 1 and 2, for the 2008 
O3 NAAQS.

DATES: Comments must be received on or before December 16, 2015.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R07-
OAR-2015-0710, to http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
    Publicly available docket materials are available either 
electronically in www.regulations.gov or at the Environmental 
Protection Agency, Air Planning and Development Branch, 11201 Renner 
Boulevard, Lenexa, Kansas 66219. The Regional Office's official hours 
of business are Monday through Friday, 8:00 a.m. to 4:30 p.m., 
excluding legal holidays. The interested persons wanting to examine 
these documents should make an appointment with the office at least 24 
hours in advance.

FOR FURTHER INFORMATION CONTACT: Mr. Gregory Crable, Air Planning and 
Development Branch, U.S. Environmental Protection Agency, Region 7, 
11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-
7391; fax number: (913) 551-7065; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we refer to EPA. This section provides 
additional information by addressing the following questions:

I. What is a section 110(a)(1) and (2) infrastructure SIP?
II. What are the applicable elements under sections 110(a)(1) and 
(2)?
III. What is EPA's approach to the review of infrastructure SIP 
submissions?
IV. What is EPA's evaluation of how the state addressed the relevant 
elements of sections 110(a)(1) and (2)?
V. What action is EPA proposing?
VI. Statutory and Executive Order Review

I. What is a section 110(a)(1) and (2) infrastructure SIP?

    Section 110(a)(1) of the CAA requires, in part, that states make a 
SIP submission to EPA to implement, maintain and enforce each of the 
NAAQS promulgated by EPA after reasonable notice and public hearings. 
Section 110(a)(2) includes a list of specific elements that such 
infrastructure SIP submissions must address. SIPs meeting the 
requirements of sections 110(a)(1) and (2) are to be submitted by 
states within three years after promulgation of a new or revised NAAQS. 
These SIP submissions are commonly referred to as ``infrastructure'' 
SIPs.

II. What are the applicable elements under sections 110(a)(1) and (2)?

    On March 12, 2008, EPA promulgated a revised NAAQS for ozone based 
on 8-hour average concentrations. The level of the 2008 8-hour ozone 
NAAQS (hereafter the 2008 O3 NAAQS) was revised from 0.08 
parts per million (ppm) to 0.075 ppm (73 FR 16436).
    For the 2008 O3 NAAQS, states typically have met many of 
the basic program elements required in section 110(a)(2) through 
provisions adopted in earlier SIP submissions in connection with 
previous NAAQS. Nevertheless, pursuant to section 110(a)(1), states 
must review and revise, as appropriate, their existing SIPs to ensure 
that the SIPs are adequate to address the 2008 O3 NAAQS. To 
assist states in meeting this statutory requirement, EPA issued 
guidance on September 13, 2013 (2013 Guidance), addressing the 
infrastructure SIP elements required to be addressed under section 110 
(a)(1) and (2) for the 2008 O3 NAAQS.\1\ In a previous final 
rulemaking (80 FR 55266, September 15, 2015) EPA addressed elements (A 
through C), (D)(i)(II), and (E through M). As discussed in that notice, 
EPA planned to take separate action on section 110(a)(2)(D)(i)(I)--
prongs 1 and 2 on a timeline consistent with a deadline agreed to by 
the parties and entered by the court in Sierra Club v. McCarthy 4:14-
cv-05091-YGR (N.D. Cal. May 15, 2015). In this action, EPA proposes 
action that, if finalized, fulfills that commitment to take final 
action as to Nebraska's SIP submission addressing section 
110(a)(2)(D)(i)(I).
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    \1\ Stephen D. Page, Director, Air Quality Policy Division, 
Office of Air Quality Planning and Standards, ``Guidance on 
Infrastructure State Implementation Plan (SIP) Elements Under Clean 
Air Act Sections 110(a)(1) and 110(a)(2),'' Memorandum to EPA 
Regional Air Division Directors, Regions I-X, September 13, 2013.
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III. What is EPA's approach to the review of infrastructure SIP 
submissions?

    EPA is acting upon the February 11, 2013, SIP submission from 
Nebraska that addresses the infrastructure requirements of CAA sections 
110(a)(1) and 110(a)(2) for the 2008 O3 NAAQS. The 
requirement for states to make a SIP submission of this type arises out 
of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must 
make SIP submissions ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof),'' and 
these SIP submissions are to provide for the ``implementation, 
maintenance, and enforcement'' of such NAAQS. The statute directly 
imposes on states the duty to make these SIP submissions, and the 
requirement to make the submissions is not conditioned upon EPA taking 
any action other than promulgating a new or revised NAAQS. Section 
110(a)(2) includes a list of specific elements that ``[e]ach such 
plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review permit program submissions to address 
the permit requirements of CAA, title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for

[[Page 70723]]

infrastructure SIP submissions, and section 110(a)(2) provides more 
details concerning the required contents of these submissions. The list 
of required elements provided in section 110(a)(2) contains a wide 
variety of disparate provisions, some of which pertain to required 
legal authority, some of which pertain to required substantive program 
provisions, and some of which pertain to requirements for both 
authority and substantive program provisions.\2\ EPA therefore believes 
that while the timing requirement in section 110(a)(1) is unambiguous, 
some of the other statutory provisions are ambiguous. In particular, 
EPA believes that the list of required elements for infrastructure SIP 
submissions provided in section 110(a)(2) contains ambiguities 
concerning what is required for inclusion in an infrastructure SIP 
submission.
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    \2\ For example: Section 110(a)(2)(E)(i) provides that states 
must provide assurances that they have adequate legal authority 
under state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a SIP-approved program to address 
certain sources as required by part C of title I of the CAA; and 
section 110(a)(2)(G) provides that states must have legal authority 
to address emergencies as well as contingency plans that are 
triggered in the event of such emergencies.
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    The following examples of ambiguities illustrate the need for EPA 
to interpret some section 110(a)(1) and section 110(a)(2) requirements 
with respect to infrastructure SIP submissions for a given new or 
revised NAAQS. One example of ambiguity is that section 110(a)(2) 
requires that ``each'' SIP submission must meet the list of 
requirements therein, while EPA has long noted that this literal 
reading of the statute is internally inconsistent and would create a 
conflict with the nonattainment provisions in part D of title I of the 
Act, which specifically address nonattainment SIP requirements.\3\ 
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and 
part D addresses when attainment plan SIP submissions to address 
nonattainment area requirements are due. For example, section 172(b) 
requires EPA to establish a schedule for submission of such plans for 
certain pollutants when the Administrator promulgates the designation 
of an area as nonattainment, and section 107(d)(1)(B) allows up to two 
years, or in some cases three years, for such designations to be 
promulgated.\4\ This ambiguity illustrates that rather than apply all 
the stated requirements of section 110(a)(2) in a strict literal sense, 
EPA must determine which provisions of section 110(a)(2) are applicable 
for a particular infrastructure SIP submission.
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    \3\ See, e.g., ``Rule To Reduce Interstate Transport of Fine 
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions 
to Acid Rain Program; Revisions to the NOX SIP Call; 
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining 
relationship between timing requirement of section 110(a)(2)(D) 
versus section 110(a)(2)(I)).
    \4\ EPA notes that this ambiguity within section 110(a)(2) is 
heightened by the fact that various subparts of part D set specific 
dates for submission of certain types of SIP submissions in 
designated nonattainment areas for various pollutants. Note, e.g., 
that section 182(a)(1) provides specific dates for submission of 
emissions inventories for the ozone NAAQS. Some of these specific 
dates are necessarily later than three years after promulgation of 
the new or revised NAAQS.
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    Another example of ambiguity within sections 110(a)(1) and 
110(a)(2) with respect to infrastructure SIPs pertains to whether 
states must meet all of the infrastructure SIP requirements in a single 
SIP submission, and whether EPA must act upon such SIP submission in a 
single action. Although section 110(a)(1) directs states to submit ``a 
plan'' to meet these requirements, EPA interprets the CAA to allow 
states to make multiple SIP submissions separately addressing 
infrastructure SIP elements for the same NAAQS. If states elect to make 
such multiple SIP submissions to meet the infrastructure SIP 
requirements, EPA can elect to act on such submissions either 
individually or in a larger combined action.\5\ Similarly, EPA 
interprets the CAA to allow it to take action on the individual parts 
of one larger, comprehensive infrastructure SIP submission for a given 
NAAQS without concurrent action on the entire submission. For example, 
EPA has sometimes elected to act at different times on various elements 
and sub-elements of the same infrastructure SIP submission.\6\
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    \5\ See, e.g., ``Approval and Promulgation of Implementation 
Plans; New Mexico; Revisions to the New Source Review (NSR) State 
Implementation Plan (SIP); Prevention of Significant Deterioration 
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR 
4339 (January 22, 2013) (EPA's final action approving the structural 
PSD elements of the New Mexico SIP submitted by the State separately 
to meet the requirements of EPA's 2008 PM2.5 NSR rule), 
and ``Approval and Promulgation of Air Quality Implementation Plans; 
New Mexico; Infrastructure and Interstate Transport Requirements for 
the 2006 PM2.5 NAAQS,'' (78 FR 4337) (January 22, 2013) 
(EPA's final action on the infrastructure SIP for the 2006 
PM2.5 NAAQS).
    \6\ On December 14, 2007, the State of Tennessee, through the 
Tennessee Department of Environment and Conservation, made a SIP 
revision to EPA demonstrating that the State meets the requirements 
of sections 110(a)(1) and (2). EPA proposed action for 
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 
3213) and took final action on March 14, 2012 (77 FR 14976). On 
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA 
took separate proposed and final actions on all other section 
110(a)(2) infrastructure SIP elements of Tennessee's December 14, 
2007, submittal.
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    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise 
with respect to infrastructure SIP submission requirements for 
different NAAQS. Thus, EPA notes that not every element of section 
110(a)(2) would be relevant, or as relevant, or relevant in the same 
way, for each new or revised NAAQS. The states' attendant 
infrastructure SIP submissions for each NAAQS therefore could be 
different. For example, the monitoring requirements that a state might 
need to meet in its infrastructure SIP submission for purposes of 
section 110(a)(2)(B) could be very different for different pollutants, 
for example, because the content and scope of a state's infrastructure 
SIP submission to meet this element might be very different for an 
entirely new NAAQS than for a minor revision to an existing NAAQS.\7\
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    \7\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    EPA notes that interpretation of section 110(a)(2) is also 
necessary when EPA reviews other types of SIP submissions required 
under the CAA. Therefore, as with infrastructure SIP submissions, EPA 
also has to identify and interpret the relevant elements of section 
110(a)(2) that logically apply to these other types of SIP submissions. 
For example, section 172(c)(7) requires that attainment plan SIP 
submissions required by part D have to meet the ``applicable 
requirements'' of section 110(a)(2). Thus, for example, attainment plan 
SIP submissions must meet the requirements of section 110(a)(2)(A) 
regarding enforceable emission limits and control measures and section 
110(a)(2)(E)(i) regarding air agency resources and authority. By 
contrast, it is clear that attainment plan SIP submissions required by 
part D would not need to meet the portion of section 110(a)(2)(C) that 
pertains to the PSD program required in part C of title I of the CAA, 
because PSD does not apply to a pollutant for which an area is 
designated nonattainment and thus subject to part D planning 
requirements. As this example illustrates, each type of SIP submission 
may implicate some elements of section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language 
of section 110(a)(1) and section 110(a)(2), EPA believes that it is 
appropriate to interpret the ambiguous portions of section 110(a)(1) 
and section 110(a)(2) in the context of acting on a particular SIP 
submission. In other words, EPA assumes that Congress could not have

[[Page 70724]]

intended that each and every SIP submission, regardless of the NAAQS in 
question or the history of SIP development for the relevant pollutant, 
would meet each of the requirements, or meet each of them in the same 
way. Therefore, EPA has adopted an approach under which it reviews 
infrastructure SIP submissions against the list of elements in section 
110(a)(2), but only to the extent each element applies for that 
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make 
recommendations to states for infrastructure SIPs, in some cases 
conveying needed interpretations on newly arising issues and in some 
cases conveying interpretations that have already been developed and 
applied to individual SIP submissions for particular elements.\8\ EPA 
most recently issued guidance for infrastructure SIPs on September 13, 
2013 (2013 Guidance).\9\ EPA developed the 2013 Guidance document to 
provide states with up-to-date guidance for infrastructure SIPs for any 
new or revised NAAQS. Within the 2013 guidance, EPA describes the duty 
of states to make infrastructure SIP submissions to meet basic 
structural SIP requirements within three years of promulgation of a new 
or revised NAAQS. EPA also made recommendations about many specific 
subsections of section 110(a)(2) that are relevant in the context of 
infrastructure SIP submissions.\10\ The guidance also discusses the 
substantively important issues that are germane to certain subsections 
of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) 
and 110(a)(2) such that infrastructure SIP submissions need to address 
certain issues and need not address others. Accordingly, EPA reviews 
each infrastructure SIP submission for compliance with the applicable 
statutory provisions of section 110(a)(2), as appropriate.
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    \8\ EPA notes, however, that nothing in the CAA requires EPA to 
provide guidance or to promulgate regulations for infrastructure SIP 
submissions. The CAA directly applies to states and requires the 
submission of infrastructure SIP submissions, regardless of whether 
or not EPA provides guidance or regulations pertaining to such 
submissions. EPA elects to issue such guidance in order to assist 
states, as appropriate.
    \9\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013.
    \10\ EPA's September 13, 2013, guidance did not make 
recommendations with respect to infrastructure SIP submissions to 
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly 
after the U.S. Supreme Court agreed to review the D.C. Circuit 
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had 
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light 
of the uncertainty created by this litigation (which culminated in 
the Supreme Court's April 29, 2014 decision at 134 SCt. 1584), EPA 
elected not to provide additional guidance on the requirements of 
section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither 
binding nor required by statute, whether EPA elects to provide 
guidance on a particular section has no impact on a state's CAA 
obligations.
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    As an example, section 110(a)(2)(E)(ii) is a required element of 
section 110(a)(2) for infrastructure SIP submissions. Under this 
element, a state must meet the substantive requirements of section 128, 
which pertain to state boards that approve permits or enforcement 
orders and heads of executive agencies with similar powers. Thus, EPA 
reviews infrastructure SIP submissions to ensure that the state's SIP 
appropriately addresses the requirements of section 110(a)(2)(E)(ii) 
and section 128. The 2013 Guidance explains EPA's interpretation that 
there may be a variety of ways by which states can appropriately 
address these substantive statutory requirements, depending on the 
structure of an individual state's permitting or enforcement program 
(e.g., whether permits and enforcement orders are approved by a multi-
member board or by a head of an executive agency). However they are 
addressed by the state, the substantive requirements of section 128 are 
necessarily included in EPA's evaluation of infrastructure SIP 
submissions because section 110(a)(2)(E)(ii) explicitly requires that 
the state satisfy the provisions of section 128.
    As another example, EPA's review of infrastructure SIP submissions 
with respect to the PSD program requirements in sections 110(a)(2)(C), 
(D)(i)(II), and (J) focuses upon the structural PSD program 
requirements contained in part C and EPA's PSD regulations. Structural 
PSD program requirements include provisions necessary for the PSD 
program to address all regulated sources and New Source Review (NSR) 
pollutants, including greenhouse gases (GHGs). By contrast, structural 
PSD program requirements do not include provisions that are not 
required under EPA's regulations at 40 CFR 51.166 but are merely 
available as an option for the state, such as the option to provide 
grandfathering of complete permit applications with respect to the 2012 
PM2.5 NAAQS. Accordingly, the latter optional provisions are 
types of provisions EPA considers irrelevant in the context of an 
infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a 
state's infrastructure SIP submission focuses on assuring that the 
state's SIP meets basic structural requirements. For example, section 
110(a)(2)(C) includes, inter alia, the requirement that states have a 
program to regulate minor new sources. Thus, EPA evaluates whether the 
state has an EPA-approved minor NSR program and whether the program 
addresses the pollutants relevant to that NAAQS. In the context of 
acting on an infrastructure SIP submission, however, EPA does not think 
it is necessary to conduct a review of each and every provision of a 
state's existing minor source program (i.e., already in the existing 
SIP) for compliance with the requirements of the CAA and EPA's 
regulations that pertain to such programs.
    With respect to certain other issues, EPA does not believe that an 
action on a state's infrastructure SIP submission is necessarily the 
appropriate type of action in which to address possible deficiencies in 
a state's existing SIP. These issues include: (i) Existing provisions 
related to excess emissions from sources during periods of startup, 
shutdown, or malfunction that may be contrary to the CAA and EPA's 
policies addressing such excess emissions (``SSM''); (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that may be contrary to the CAA because they purport to 
allow revisions to SIP-approved emissions limits while limiting public 
process or not requiring further approval by EPA; and (iii) existing 
provisions for PSD programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Thus, EPA believes it may approve an infrastructure SIP 
submission without scrutinizing the totality of the existing SIP for 
such potentially deficient provisions and may approve the submission 
even if it is aware of such existing provisions.\11\ It is important to 
note that EPA's approval of a state's infrastructure SIP submission 
should not be construed as explicit or implicit re-approval of any 
existing potentially deficient provisions that relate to the three 
specific issues just described.
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    \11\ By contrast, EPA notes that if a state were to include a 
new provision in an infrastructure SIP submission that contained a 
legal deficiency, such as a new exemption for excess emissions 
during SSM events, then EPA would need to evaluate that provision 
for compliance against the rubric of applicable CAA requirements in 
the context of the action on the infrastructure SIP.
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    EPA's approach to review of infrastructure SIP submissions is to 
identify the CAA requirements that are

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logically applicable to that submission. EPA believes that this 
approach to the review of a particular infrastructure SIP submission is 
appropriate, because it would not be reasonable to read the general 
requirements of section 110(a)(1) and the list of elements in section 
110(a)(2) as requiring review of each and every provision of a state's 
existing SIP against all requirements in the CAA and EPA regulations 
merely for purposes of assuring that the state in question has the 
basic structural elements for a functioning SIP for a new or revised 
NAAQS. Because SIPs have grown by accretion over the decades as 
statutory and regulatory requirements under the CAA have evolved, they 
may include some outmoded provisions and historical artifacts. These 
provisions, while not fully up to date, nevertheless may not pose a 
significant problem for the purposes of ``implementation, maintenance, 
and enforcement'' of a new or revised NAAQS when EPA evaluates adequacy 
of the infrastructure SIP submission. EPA believes that a better 
approach is for states and EPA to focus attention on those elements of 
section 110(a)(2) of the CAA most likely to warrant a specific SIP 
revision due to the promulgation of a new or revised NAAQS or other 
factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with 
respect to carbon monoxide than other NAAQS pollutants to meet the 
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon 
monoxide does not affect visibility. As a result, an infrastructure SIP 
submission for any future new or revised NAAQS for carbon monoxide need 
only state this fact in order to address the visibility prong of 
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to 
infrastructure SIP requirements is based on a reasonable reading of 
sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow EPA to take appropriately 
tailored action, depending upon the nature and severity of the alleged 
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP 
call'' whenever the Agency determines that a state's SIP is 
substantially inadequate to attain or maintain the NAAQS, to mitigate 
interstate transport, or to otherwise comply with the CAA.\12\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\13\ Significantly, EPA's 
determination that an action on a state's infrastructure SIP submission 
is not the appropriate time and place to address all potential existing 
SIP deficiencies does not preclude EPA's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action to 
correct those deficiencies at a later time. For example, although it 
may not be appropriate to require a state to eliminate all existing 
inappropriate director's discretion provisions in the course of acting 
on an infrastructure SIP submission, EPA believes that section 
110(a)(2)(A) may be among the statutory bases that EPA relies upon in 
the course of addressing such deficiency in a subsequent action.\14\
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    \12\ For example, EPA issued a SIP call to Utah to address 
specific existing SIP deficiencies related to the treatment of 
excess emissions during SSM events. See ``Finding of Substantial 
Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \13\ EPA has used this authority to correct errors in past 
actions on SIP submissions related to PSD programs. See ``Limitation 
of Approval of Prevention of Significant Deterioration Provisions 
Concerning Greenhouse Gas Emitting-Sources in State Implementation 
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has 
previously used its authority under CAA section 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 
34641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \14\ See, e.g., EPA's disapproval of a SIP submission from 
Colorado on the grounds that it would have included a director's 
discretion provision inconsistent with CAA requirements, including 
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 
2010) (proposed disapproval of director's discretion provisions); 76 
FR 4540 (January 26, 2011) (final disapproval of such provisions).
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IV. What is EPA's evaluation of how the state addressed the relevant 
elements of sections 110(a)(1) and (2)?

    EPA Region 7 received Nebraska's infrastructure SIP submission for 
the 2008 O3 standard on February 11, 2013. The SIP 
submission became complete as a matter of law on August 11, 2013. EPA 
has reviewed Nebraska's infrastructure SIP submission and the 
applicable statutory and regulatory authorities and provisions 
referenced in those submissions or referenced in Nebraska's SIP. EPA 
has previously approved sections 110(a)(2)(A), (B), (C), (D)(i)(II)--
prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M); did not 
propose any action on section 110(a)(2)(I)-- Nonattainment Area Plan or 
Plan Revisions under part D; and disapproved 110(a)(2)(D)(i)(II)--prong 
4, as it relates to the protection of visibility (80 FR 55266, 
September 15, 2015). EPA also stated that it would take action on 
section 110(a)(2)(D)(i)(I)--prongs 1 and 2 at a later time (80 FR 
35290). A discussion of that action follows.
    On March 12, 2008, the EPA revised the levels of the primary and 
secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 
0.075 ppm (73 FR 16436). The CAA requires states to submit, within 
three years after promulgation of a new or revised standard, SIPs 
meeting the applicable ``infrastructure'' elements of sections 
110(a)(1) and (2). One of these applicable infrastructure elements, CAA 
section 110(a)(2)(D)(i), requires SIPs to contain ``good neighbor'' 
provisions to prohibit certain adverse air quality effects on 
neighboring states due to interstate transport of pollution. There are 
four sub-elements (or prongs) within CAA section 110(a)(2)(D)(i). This 
action addresses the first two sub-elements of the good neighbor 
provisions, at CAA section 110(a)(2)(D)(i)(I). These sub-elements 
require that each SIP for a new or revised standard contain adequate 
provisions to prohibit any source or other type of emissions activity 
within the state from emitting air pollutants that will ``contribute 
significantly to nonattainment'' or ``interfere with maintenance'' of 
the applicable air quality standard in any other state. We note that 
the EPA has addressed the interstate transport requirements of CAA 
section 110(a)(2)(D)(i)(I) for the eastern portion of the United States 
in several past regulatory actions.\15\ We most recently promulgated 
the Cross-State Air Pollution Rule (CSAPR), which addressed CAA section 
110(a)(2)(D)(i)(I) in the eastern portion of the United States.\16\ 
CSAPR addressed multiple national ambient air quality standards, but 
did not address the 2008 8-hour ozone standard.\17\
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    \15\ NOX SIP Call, 63 FR 57371 (October 27, 1998); 
Clean Air Interstate Rule (CAIR), 70 FR 25172 (May 12, 2005); Cross-
State Air Pollution Rule (CSAPR), 76 FR 48208 (August 8, 2011).
    \16\ 76 FR 48208.
    \17\ CSAPR addressed the 1997 8-hour ozone, and the 1997 and 
2006 fine particulate matter NAAQS.
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    In CSAPR, the EPA used detailed air quality analyses to determine 
whether an eastern state's contribution to downwind air quality 
problems was at or above specific thresholds. If a state's contribution 
did not exceed the specified air quality screening threshold, the state 
was not considered ``linked'' to identified downwind nonattainment and 
maintenance receptors and was therefore not considered to significantly 
contribute or interfere with maintenance of the standard in those 
downwind areas. If a state exceeded that threshold, the state's

[[Page 70726]]

emissions were further evaluated, taking into account both air quality 
and cost considerations, to determine what, if any, emissions 
reductions might be necessary. For the reasons stated below, we believe 
it is appropriate to use the same approach we used in CSAPR to 
establish an air quality screening threshold for the evaluation of 
interstate transport requirements for the 2008 ozone standard.
    In CSAPR, the EPA proposed an air quality screening threshold of 
one percent of the applicable NAAQS and requested comment on whether 
one percent was appropriate.\18\ The EPA evaluated the comments 
received and ultimately determined that one percent was an 
appropriately low threshold because there were important, even if 
relatively small, contributions to identified nonattainment and 
maintenance receptors from multiple upwind states. In response to 
commenters who advocated a higher or lower threshold than one percent, 
the EPA compiled the contribution modeling results for CSAPR to analyze 
the impact of different possible thresholds for the eastern United 
States. The EPA's analysis showed that the one-percent threshold 
captures a high percentage of the total pollution transport affecting 
downwind states, while the use of higher thresholds would exclude 
increasingly larger percentages of total transport. For example, at a 
five percent threshold, the majority of interstate pollution transport 
affecting downwind receptors would be excluded.\19\ In addition, the 
EPA determined that it was important to use a relatively lower one-
percent threshold because there are adverse health impacts associated 
with ambient ozone even at low levels.\20\ The EPA also determined that 
a lower threshold such as 0.5 percent would result in relatively modest 
increases in the overall percentages of fine particulate matter and 
ozone pollution transport captured relative to the amounts captured at 
the one-percent level. The EPA determined that a ``0.5 percent 
threshold could lead to emission reduction responsibilities in 
additional states that individually have a very small impact on those 
receptors--an indicator that emission controls in those states are 
likely to have a smaller air quality impact at the downwind receptor. 
We are not convinced that selecting a threshold below one percent is 
necessary or desirable.'' \21\
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    \18\ CSAPR proposal, 75 FR 45210, 45237 (August 2, 2010).
    \19\ See also Air Quality Modeling Final Rule Technical Support 
Document, Appendix F, Analysis of Contribution Thresholds, Docket ID 
#EPA-HQ-OAR-2009-0491-4140.
    \20\ CSAPR, 76 FR 48208, 48236-37 (August 8, 2011).
    \21\ Id.
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    In the final CSAPR, the EPA determined that one percent was a 
reasonable choice considering the combined downwind impact of multiple 
upwind states in the eastern United States, the health effects of low 
levels of fine particulate matter and ozone pollution, and the EPA's 
previous use of a one-percent threshold in CAIR. The EPA used a single 
``bright line'' air quality threshold equal to one percent of the 1997 
8-hour ozone standard, or 0.08 ppm.\22\ The projected contribution from 
each state was averaged over multiple days with projected high modeled 
ozone, and then compared to the one-percent threshold. We concluded 
that this approach for setting and applying the air quality threshold 
for ozone was appropriate because it provided a robust metric, was 
consistent with the approach for fine particulate matter used in CSAPR, 
and because it took into account, and would be applicable to, any 
future ozone standards below 0.08 ppm.\23\
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    \22\ Id.
    \23\ Id.
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    On August 4, 2015, the EPA issued a Notice of Data Availability 
(NODA) containing air quality modeling data that applies the CSAPR 
approach to contribution projections for the year 2017 for the 2008 8-
hour ozone NAAQS.\24\ The moderate area attainment date for the 2008 
ozone standard is July 11, 2018. In order to demonstrate attainment by 
this attainment deadline, states will use 2015 through 2017 ambient 
ozone data. Therefore, 2017 is an appropriate future year to model for 
the purpose of examining interstate transport for the 2008 ozone NAAQS. 
The EPA used photochemical air quality modeling to project ozone 
concentrations at air quality monitoring sites to 2017 and estimated 
state-by-state ozone contributions to those 2017 concentrations. This 
modeling used the Comprehensive Air Quality Model with Extensions (CAMx 
version 6.11) to model the 2011 base year, and the 2017 future base 
case emissions scenarios to identify projected nonattainment and 
maintenance sites with respect to the 2008 ozone NAAQS in 2017. The EPA 
used nationwide state-level ozone source apportionment modeling (CAMx 
Ozone Source Apportionment Technology/Anthropogenic Precursor 
Culpability Analysis technique) to quantify the contribution of 2017 
base case NOX and VOC emissions from all sources in each 
state to the 2017 projected receptors. The air quality model runs were 
performed for a modeling domain that covers the 48 contiguous United 
States and adjacent portions of Canada and Mexico. The NODA and the 
supporting technical support documents have been included in the docket 
for this SIP action.
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    \24\ See 80 FR 46271 (August 4, 2015) (Notice of Availability of 
the Environmental protection Agency's Updated Ozone Transport 
Modeling Data for the 2008 Ozone National Ambient Air Quality 
Standard (NAAQS)).
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    The modeling data released in the NODA on July 23, 2015, is the 
most up-to-date information the EPA has developed to inform our 
analysis of upwind state linkages to downwind air quality problems. For 
purposes of evaluating Nebraska's interstate transport SIP with respect 
to the 2008 8-hour ozone standard, the EPA is proposing that states 
whose contributions are less than one percent to downwind nonattainment 
and maintenance receptors are considered non-significant. The modeling 
indicates that Nebraska's largest contribution to any projected 
downwind nonattainment site is 0.51 ppb and Nebraska's largest 
contribution to any projected downwind maintenance-only site is 0.36 
ppb. 80 FR 46271.\25\ These values are below the one percent screening 
threshold of 0.75 ppb, and therefore there are no identified linkages 
between Nebraska and 2017 downwind projected nonattainment and 
maintenance sites. Note that the EPA has not done an assessment to 
determine the applicability for the use of the one percent screening 
threshold for western states that contribute above the one percent 
threshold. There may be additional considerations that may impact 
regulatory decisions regarding ``potential'' linkages in the West 
identified by the modeling.
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    \25\ Largest Ozone Contributions From Each State to Downwind 
2017 Projected Nonattainment and to 2017 Projected Maintenance-only 
sites, specific to the state of Nebraska are found in Table 3 at 80 
FR 46277.
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    The State of Nebraska submitted a SIP on February 11, 2013. The SIP 
states that Nebraska does not contribute significantly to nonattainment 
in, or interfere with maintenance by, any other state with regards to 
the 2008 O3 NAAQS. To support this conclusion, Nebraska 
cited modeling that EPA conducted for purposes of evaluating upwind 
contributions to downwind air quality in the CSAPR rulemaking. See 76 
FR 48244 (Federal Implementation Plans: Interstate Transport of Fine 
Particulate Matter and Ozone and Correction of SIP Approvals; Final 
Rule). Nebraska noted EPA's statement in that action, that states 
``which

[[Page 70727]]

contribute 0.8 ppb or more to 8-hour ozone nonattainment or maintenance 
in another state are identified as states with contributions to 
downwind attainment and maintenance sites large enough to warrant 
further analysis.'' Nebraska noted that 0.8 ppb cutoff equates to a one 
percent threshold, which was the threshold EPA used in that rulemaking 
for the previous 1997 ozone NAAQS. According to Nebraska, the rule 
stands for the proposition that ``states whose contributions are below 
these thresholds do not significantly contribute or interfere with 
maintenance of the relevant NAAQS.'' Nebraska noted that, pursuant to 
the modeling discussed in that rule (76 FR 48245), Nebraska's largest 
downwind contribution to any identified nonattainment or maintenance 
receptors for ozone was 0.2 ppb. Nebraska concluded that because this 
modeling contribution represents far less than one percent of the 2008 
ozone NAAQS at issue here, it ``does not have any obligations'' to 
reduce emissions to address interstate transport as to that standard.
    The EPA notes that the modeling Nebraska relies upon was conducted 
by EPA in 2011, for purposes of evaluating upwind state contributions 
and downwind air quality problems as to a prior, less-stringent ozone 
NAAQS, and that the modeling evaluated a 2012 compliance year. 
Accordingly, the fact that this modeling showed downwind contribution 
less than one percent of the 2008 ozone NAAQS is not necessarily 
dispositive of Nebraska's obligations under section 
110(a)(2)(D)(i)(I).\26\ However, as discussed above, the EPA has 
conducted more updated modeling subsequent to the state's SIP 
submission that confirms the underlying conclusion of our 2011 
modeling, and of Nebraska's SIP submission.
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    \26\ Nebraska's SIP submission appears to rely on EPA's 2011 air 
quality modeling because at that time, the D.C. Circuit's decision 
in EME Homer City Generation, L.P. v. EPA held that EPA must first 
quantify each state's transport obligation before states had an 
obligation to make a SIP submission. See 696 F.3d 7 (D.C. Cir. 
2012). Accordingly, Nebraska cites a November 19, 2012, memorandum 
from Assistant Administrator Gina McCarthy, which describes the D.C. 
Circuit's holding that ``a SIP cannot be deemed deficient for 
failing to meet the good neighbor obligation before the EPA 
quantifies that obligation.'' See Memo at 2, available at http://www3.epa.gov/airtransport/pdfs/CSAPR_Memo_to_Regions.pdf. The 
memorandum also communicated the Agency's intentions to ``act in 
accordance with the [D.C. Circuit] decision during the pendency of 
the appeal,'' id., but on appeal the Supreme Court reversed that 
holding. See EPA v. EME Homer City Gen., 134 S. Ct. 1584, 1609-10 
(2014).
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    Based on the modeling data and the information and analysis 
provided in Nebraska's SIP, EPA is proposing to approve Nebraska's 
interstate transport SIP for purposes of meeting the CAA section 
110(a)(2)(D)(i)(I) requirements as to the 2008 ozone standard. The 
EPA's modeling confirms the results of the State's analysis: Nebraska 
does not significantly contribute to nonattainment or interfere with 
maintenance of the 2008 ozone standard in any other state.

V. What action is EPA proposing?

    Based upon review of the state's infrastructure SIP submission for 
the 2008 O3 NAAQS, with respect to the requirements of 
section 110(a)(2)(D(i)(I)--prongs 1 and 2, and relevant statutory and 
regulatory authorities and provisions referenced in these submissions 
or referenced in Nebraska's SIP, EPA is proposing to approve this 
element of the February 11, 2013 SIP submission.
    We are hereby soliciting comment on this proposed action. Final 
rulemaking will occur after consideration of any comments.

VI. Statutory and Executive Order Review

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA 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 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'' 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).
     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 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).

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, Ozone, Reporting and 
recordkeeping requirements.

    Dated: November 2, 2015.
Mark Hague,
Regional Administrator, Region 7.
[FR Doc. 2015-28908 Filed 11-13-15; 8:45 am]
BILLING CODE 6560-50-P