[Federal Register Volume 80, Number 233 (Friday, December 4, 2015)]
[Proposed Rules]
[Pages 75845-75847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30685]



40 CFR Part 52

[EPA-R03-OAR-2015-0750; FRL- 9939-65-Region 3]

Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; Interstate Pollution Transport Requirements for 
the 2010 Nitrogen Dioxide Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
District of Columbia (the District). This revision pertains to the 
infrastructure requirement for interstate transport pollution with 
respect to the 2010 nitrogen dioxide (NO2) National Ambient 
Air Quality Standards (NAAQS). This action is being taken under the 
Clean Air Act (CAA).

DATES: Written comments must be received on or before January 4, 2016.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2015-0750 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. Email: [email protected].
    C. Mail: EPA-R03-OAR-2015-0750 Cristina Fernandez, Associate 
Director, Office of Air Program Planning, Mailcode 3AP30, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2015-0750. EPA's 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 EPA 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 EPA 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, 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

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of encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
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 in www.regulations.gov or may be viewed during 
normal business hours at the Air Protection Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. Copies of the State submittal are 
available at the District of Columbia Department of Energy and 
Environment, Air Quality Division, 1200 1st Street NE., 5th floor, 
Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Emlyn Velez-Rosa, (215) 814-2038, or 
by email at [email protected].

SUPPLEMENTARY INFORMATION: On June 6, 2014, the District Department of 
Energy and the Environment (DDOEE) submitted a SIP revision addressing 
the infrastructure requirements for the 2010 NO2 NAAQS.

I. Background

A. General

    Whenever new or revised NAAQS are promulgated, the CAA requires 
states to submit a plan for the implementation, maintenance, and 
enforcement of such NAAQS. The plan is required to address basic 
program elements, including, but not limited to, regulatory structure, 
monitoring, modeling, legal authority, and adequate resources necessary 
to assure attainment and maintenance of the standards. These elements 
are referred to as infrastructure requirements.
    On February 9, 2010 (75 FR 6474), EPA established a new 1-hour 
primary NAAQS for NO2 at a level of 100 parts per billion 
(ppb), based on a 3-year average of the 98th percentile of the yearly 
distribution of 1-hour daily maximum concentrations. See 40 CFR 50.11. 
NO2 is a subset, and often considered an indicator, of the 
broader pollutant nitrogen oxides (NOX). On February 17, 2012 (77 FR 
9532), EPA published its final designations for the 2010 NO2 
NAAQS, based upon 2008-2010 design values. In this rulemaking, EPA 
determined that no area in the country was violating the standard, 
designating all the areas of the country as unclassifiable/attainment. 
The 2008-2010 design values reflect conditions at the time throughout 
the country well below the 2010 NO2 NAAQS, including the 
District and nearby states.

B. EPA's Infrastructure Requirements

    Pursuant to section 110(a)(1), states must make infrastructure 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).'' 
Infrastructure SIP submissions should 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's 
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.
    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. EPA most 
recently issued guidance for infrastructure SIPs on September 13, 2013 
(2013 Infrastructure Guidance).\1\ EPA developed this document to 
provide states with up-to-date guidance for infrastructure SIPs for any 
new or revised NAAQS. Within this 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. The guidance also discusses the substantively 
important issues that are germane to certain subsections of section 
110(a)(2).\2\ EPA interprets section 110(a)(1) and (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.

    \1\ ``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. This guidance 
is available online at http://www.epa.gov/oar/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.
    \2\ On September 25, 2009, EPA issued ``Guidance on SIP Elements 
Required Under Sections 110(a)(l) and (2) for the 2006 24-Hour Fine 
Particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS),'' Memorandum from William T. Hartnett, Director, Air 
Quality Policy Division. This guidance provided that each state's 
SIP submission for the 2006 24-hour PM2.5 NAAQS must 
discuss whether emissions from the state significantly contribute to 
nonattainment of the NAAQS or interference with maintenance of the 
NAAQS in any other state and must address any such impact. This 
guidance is available online at http://www.epa.gov/ttn/caaa/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf.

    Additionally, EPA has provided in previous rulemaking actions a 
detailed discussion of the Agency's approach in reviewing 
infrastructure SIPs, including the Agency's longstanding interpretation 
of requirements for section 110(a)(1) and (2), the interpretation that 
the CAA allows states to make multiple SIP submissions separately 
addressing infrastructure SIP elements in section 110(a)(2) for a 
specific NAAQS, and the interpretation that EPA has the ability to act 
on separate elements of 110(a)(2) for a NAAQS in separate rulemaking 

    \3\ See 80 FR 2865 (January 21, 2015) (EPA's rulemaking action 
proposing approval of portions of the District's infrastructure SIP 
submissions for the 2008 ozone NAAQS and the 2010 NO2 and 
sulfur dioxide (SO2) NAAQS).

C. Interstate Pollution Transport Requirements

    Section 110(a)(2)(D)(i)(I) of the CAA requires state SIPs to 
address any emissions activity in one state that contributes 
significantly to nonattainment, or interferes with maintenance, of the 
NAAQS in any downwind state. EPA sometimes refers to these requirements 
as prong 1 (significant contribution to nonattainment) and prong 2 
(interference with maintenance), or conjointly as the ``good neighbor'' 
provision of the CAA. Specifically, section 110(a)(2)(D)(i)(I) requires 
the elimination of upwind state emissions that significantly contribute 
to nonattainment or interference with maintenance of the NAAQS in 
another state.

II. Summary of SIP Revisions

    On June 6, 2014, the District through DDOEE submitted a revision to 
its SIP to satisfy the infrastructure requirements of section 110(a)(2) 
of the CAA for the 2010 NO2 NAAQS, including section 
110(a)(2)(D)(i)(I), pertaining to interstate transport requirements. On 
April 13, 2015 (80 FR 19538), EPA approved the District's 
infrastructure SIP submittal for the 2010 NO2 NAAQS for all 
applicable elements

[[Page 75847]]

of section 110(a)(2) with the exception of 110(a)(2)(D)(i)(I).\4\ This 
rulemaking action is addressing the portions of the District's 
infrastructure submittal for the 2010 NO2 NAAQS that pertain 
to transport requirements.\5\

    \4\ In this final rulemaking action, EPA also approved the 
District's infrastructure SIPs for the 2008 ozone and 2010 
SO2 NAAQS with the exception of the transport elements in 
    \5\ For EPA's explanation of its ability to act on discrete 
elements of section 110(a)(2), see EPA's proposed rulemaking action 
regarding approval of portions of the District's infrastructure SIP 
submissions for the 2008 ozone NAAQS and the 2010 NO2 and 
SO2 NAAQS; 80 FR 2865 (January 21, 2015).

    The District's June 6, 2014 transport submittal includes emissions 
inventory and air quality data that concludes that the District does 
not have sources that can contribute to nonattainment in, or interfere 
with maintenance by, any other state with respect to the 2010 
NO2 NAAQS. Currently available air quality monitoring data 
included in the submittal confirms that NO2 levels continue 
to be well below the 2010 NO2 NAAQS in the District and in 
any areas surrounding or bordering the District.\6\ Additionally, the 
District describes existing SIP-approved measures and other Federally-
enforceable source-specific measures, pursuant to permitting 
requirements under the CAA, that apply to NOX sources within 
the District. EPA finds that the District's existing SIP provisions, as 
identified in the submittal, are adequate to prevent its emission 
sources from significantly contributing to nonattainment or interfering 
with maintenance in another state with respect to the 2010 
NO2 NAAQS. In light of these measures, EPA does not expect 
NOX emissions in the District to increase significantly, and 
therefore does not expect monitors in the District and nearby states, 
all currently measuring NO2 concentrations well below the 
2010 NO2 NAAQS, to have difficulty continuing to attain or 
maintaining attainment of the NAAQS. A detailed summary of EPA's review 
and rationale for proposing approval of this SIP revision as meeting 
section 110(a)(2)(D)(i)(I) of the CAA for the 2010 NO2 ozone 
NAAQS may be found in the Technical Support Document (TSD) for this 
rulemaking action, which is available online at www.regulations.gov, 
Docket number EPA-R03-OAR-2015-0750.

    \6\ The District's June 6, 2014 submittal included recent air 
quality monitoring data for the states surrounding or bordering the 
District within a 50 kilometer radius, which are Maryland and 
Virginia. The 50 kilometers radius is the standard distance for 
modeling analysis in EPA's Guideline on Air Quality Models (Appendix 
W to 40 CFR part 51).

III. Proposed Action

    EPA is proposing to approve the portions of the District's June 6, 
2014 SIP revision addressing interstate transport for the 2010 
NO2 NAAQS for purposes of meeting section 110(a)(2)(D)(i)(I) 
requirements with respect to this NAAQS. EPA is soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action.

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 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'' 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 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).
    In addition, this proposed rule, addressing the District's 
interstate transport requirements under the CAA for the 2010 
NO2 NAAQS, 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide.

    Authority:  42 U.S.C. 7401 et seq.

    Dated: November 23, 2015.
Shawn M. Garvin,
Regional Administrator, Region III.
[FR Doc. 2015-30685 Filed 12-3-15; 8:45 am]