[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Proposed Rules]
[Pages 92755-92758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30462]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2016-0588; FRL-9957-02-Region 8]


Approval and Promulgation of State Implementation Plans; 
Interstate Transport for Utah

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing action 
on a portion of a January 31, 2013 submission and a December 22, 2015 
supplemental submission from the State of Utah that are intended to 
demonstrate that the State Implementation Plan (SIP) meets certain 
interstate transport requirements of the Clean Air Act (Act or CAA) for 
the 2008 ozone National Ambient Air Quality Standards (NAAQS). 
Specifically, the EPA is proposing to approve interstate transport 
prong 1 for the 2008 ozone NAAQS.

DATES: Comments must be received on or before January 10, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R08-
OAR-2016-0588 at 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.

FOR FURTHER INFORMATION CONTACT: Adam Clark, Air Program, U.S. 
Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 
Wynkoop Street, Denver, Colorado 80202-1129. (303) 312-7104, 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. General Information

    What should I consider as I prepare my comments for EPA?
    1. Submitting Confidential Business Information (CBI). Do not 
submit CBI to the EPA through http://www.regulations.gov or email. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information on a disk or CD ROM that you mail to the EPA, 
mark the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register volume, 
date, and page number);
     Follow directions and organize your comments;
     Explain why you agree or disagree;
     Suggest alternatives and substitute language for your 
requested changes;
     Describe any assumptions and provide any technical 
information and/or data that you used;
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced;
     Provide specific examples to illustrate your concerns, and 
suggest alternatives;
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats; and
     Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    On March 12, 2008, the EPA revised the levels of the primary and 
secondary 8-hour ozone standards to 0.075 parts per million (ppm). 73 
FR 16436 (March 27, 2008). Pursuant to section 110(a)(1) of the CAA, 
states are required to submit SIPs meeting the applicable requirements 
of section 110(a)(2) within three years after promulgation of a new or 
revised NAAQS or within such shorter period as the EPA may prescribe. 
Section 110(a)(2) requires states to address structural SIP elements 
such as requirements for monitoring, basic program requirements, and 
legal authority that are designed to provide for implementation, 
maintenance, and enforcement of the NAAQS. The SIP submission required 
by these provisions is referred to as the ``infrastructure'' SIP. 
Section 110(a) imposes the obligation upon states to make a SIP 
submission to the EPA for a new or revised NAAQS, but the contents of 
individual state

[[Page 92756]]

submissions may vary depending upon the facts and circumstances.
    CAA Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions 
prohibiting any source or other type of emissions activity in one state 
from emitting any air pollutant in amounts that will contribute 
significantly to nonattainment, or interfere with maintenance, of the 
NAAQS in another state. The two provisions of this section are referred 
to as prong 1 (significant contribution to nonattainment) and prong 2 
(interfere with maintenance). Section 110(a)(2)(D)(i)(II) requires SIPs 
to contain adequate provisions to prohibit emissions that will 
interfere with measures required to be included in the applicable 
implementation plan for any other state under part C to prevent 
significant deterioration of air quality (prong 3) or to protect 
visibility (prong 4).
    In this action, the EPA is only addressing prong 1 of CAA section 
110(a)(2)(D)(i) with regard to the 2008 ozone NAAQS. The EPA proposed 
action on prongs 1, 2 and 4 for this NAAQS on May 10, 2016. 81 FR 
28807. In that action, we proposed to disapprove prongs 1 and 2 of 
Utah's SIP for the 2008 ozone NAAQS based a number of deficiencies in 
the SIP submission and in light of on the results of EPA modeling which 
initially indicated that emissions from Utah sources contribute to two 
nonattainment receptors in the Denver, Colorado area. Id. at 28810. As 
described below, the EPA has updated its air quality modeling, and now 
indicates that Utah sources do not contribute to any nonattainment 
receptors in the U.S. Details regarding this modeling information, and 
its impact on this proposed action, are discussed in the following 
section. The EPA finalized disapproval of Utah's SIP submission with 
respect to prongs 2 and 4 in a final action published October 19, 2016. 
81 FR 71991.

III. State Submissions and EPA's Assessment

    The Utah Department of Environmental Quality (Department or UDEQ) 
submitted a certification of Utah's infrastructure SIP for the 2008 
ozone NAAQS on January 31, 2013, and a supplement regarding CAA section 
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS on December 22, 
2015.\1\
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    \1\ The 110(a)(2)(D)(i)(I) 2008 ozone supplement was submitted 
as part of Utah's infrastructure SIP certification for the 2012 
PM2.5 NAAQS.
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    These infrastructure certifications addressed all of the 
infrastructure elements including section 110(a)(2)(D)(i), referred to 
as infrastructure element (D).\2\ In this action, we are only 
addressing element (D) prong 1 from the 2008 ozone certification and 
the December 22, 2015 supplement which addressed prong 1 for the 2008 
ozone NAAQS. All other infrastructure elements from these 
certifications have been addressed in separate actions.
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    \2\ For discussion of other infrastructure elements, see EPA's 
``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and (2),'' September 
13, 2013.
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    In its January 31, 2013, 2008 ozone infrastructure submittal, UDEQ 
addressed 110(a)(2)(D)(i)(I) prongs 1 and 2 by citing EPA Administrator 
Gina McCarthy's November 19, 2012 memo \3\ which outlined the EPA's 
intention to abide by the decision of the United States Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit) in EME 
Homer City Generation, L.P. v. E.P.A., 696 F.3d 7 (D.C. Cir. 2012). The 
EME Homer City decision addressed the Cross-State Air Pollution Rule 
(CSAPR) promulgated by the EPA to address the interstate transport 
requirements under section 110(a)(2)(D)(i)(I) with respect to the 1997 
ozone NAAQS, the 1997 fine particulate matter (PM2.5) NAAQS, 
and the 2006 PM2.5 NAAQS. Among other things, the D.C. 
Circuit held that states did not have an obligation to submit SIPs 
addressing section 110(a)(2)(D)(i)(I) interstate transport requirements 
as to any NAAQS until the EPA first quantified each state's emissions 
reduction obligation. Id. at 30 through 31. In its submittal, the 
Department noted that the EPA had not quantified Utah's transport 
obligation as to the 2008 ozone NAAQS and that Utah's infrastructure 
SIP was therefore adequate with regard to prongs 1 and 2 of CAA section 
110(a)(2)(D)(i)(I).
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    \3\ Memo from Gina McCarthy to Air Division Directors, Regions 
1-10 re: Next Steps for Pending Redesignation Requests and State 
Implementation Plan Actions Affected by the Recent Court Decision 
Vacating the 2011 Cross-State Air Pollution Rule (Nov. 19, 2012).
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    Subsequent to the UDEQ submission, on April 29, 2014, the U.S. 
Supreme Court reversed and remanded the D.C. Circuit's EME Homer City 
decision on CSAPR and held, among other things, that under the plain 
language of the CAA, states must submit SIPs addressing interstate 
transport requirements of CAA section 110(a)(2)(D)(i)(I) within three 
years of the promulgation of a new or revised NAAQS, regardless of 
whether the EPA first provides guidance, technical data or rulemaking 
to quantify the state's obligation. EPA v. EME Homer City Generation, 
L.P., 134 S. Ct. 1584, 1601 (2014). UDEQ therefore additionally 
addressed 110(a)(2)(D)(i) prongs 1 and 2 for the 2008 ozone NAAQS as 
part of its December 22, 2015 infrastructure submittal that otherwise 
addressed the 2012 PM2.5 NAAQS. As stated, the EPA is 
proposing action on both the January 31, 2013 and December 22, 2015 
certifications with regard to prong 1 for the 2008 ozone NAAQS.
    In its December 22, 2015 infrastructure submittal, UDEQ 
acknowledged the changed legal landscape, and asserted that emissions 
from the State did not significantly contribute to nonattainment or 
interfere with maintenance of the 2008 ozone NAAQS in any other state. 
The Department cited air quality modeling assessing interstate 
transport of ozone that was released by the EPA on August 4, 2015, (see 
Notice of Availability of the Environmental Protection Agency's Updated 
Ozone Transport Modeling Data for the 2008 Ozone NAAQS, 80 FR 46271), 
and explained that it did not consider the modeled contribution levels 
to nonattainment and maintenance receptors in the Denver, Colorado area 
and in southern California to be significant.
    In the December 22, 2015 supplement, UDEQ cited various SIP-
approved area source rules which it asserts will result in additional 
reductions in ozone precursor emissions as further evidence that 
emissions from the State do not contribute significantly to 
nonattainment of the 2008 ozone NAAQS in any other state. The 
Department listed several VOC emissions limitations on various 
industries submitted as part of the State's greater PM2.5 
control strategy, which were recently approved by the EPA.\4\ UDEQ also 
pointed to a rule prohibiting the sale of water heaters that do not 
comply with low NOx emission rates which will go into effect on 
November 1, 2017. UDEQ insisted that because NOx and VOC are precursors 
to ozone, these emission limitations would further reduce ozone 
transport to downwind nonattainment and maintenance receptors below the 
levels which Utah claimed were already insignificant. UDEQ did not 
quantify or explain how these limitations would significantly reduce 
Utah ozone emissions, or how those reductions might impact downwind 
transport. UDEQ also cited the general west to east wind direction in 
the western U.S. as

[[Page 92757]]

further evidence that Utah emissions are unlikely to significantly 
impact ozone pollution in southern California.
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    \4\ For more detail, see EPA's final action on these area source 
rules at 81 FR 9343, February 25, 2016, and the associated docket at 
EPA-R08-OAR-2014-0369.
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    The EPA developed technical information and a related analysis to 
assist states with meeting section 110(a)(2)(D)(i)(I) requirements for 
the 2008 ozone NAAQS and used this technical analysis to support the 
recently finalized Cross-State Air Pollution Rule Update for the 2008 
Ozone NAAQS (``CSAPR Update'').\5\ As explained below, this analysis 
supports the conclusions of UDEQ's analysis for prong 1.
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    \5\ 81 FR 74504 (Oct. 26, 2016).
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    In the technical analysis supporting the CSAPR Update, the EPA used 
detailed air quality analyses to determine where projected 
nonattainment or maintenance areas would be and whether emissions from 
an eastern state contribute to downwind air quality problems at those 
projected nonattainment or maintenance receptors.\6\ Specifically, the 
EPA determined whether the state's contributing emissions were at or 
above a specific threshold (i.e., one percent of the ozone NAAQS). If a 
state's contribution did not exceed the one percent threshold, the 
state was not considered ``linked'' to identified downwind 
nonattainment and maintenance receptors and was therefore not 
considered to significantly contribute to nonattainment or interfere 
with maintenance of the standard in those downwind areas. If a state's 
contribution was equal to or exceeded the one percent threshold, that 
state was considered ``linked'' to the downwind nonattainment or 
maintenance receptor(s) and the state's emissions were further 
evaluated, taking into account both air quality and cost 
considerations, to determine what, if any, emissions reductions might 
be necessary to address the state's obligation pursuant to CAA section 
110(a)(2)(D)(i)(I).
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    \6\ For purposes of the CSAPR Update, ``eastern'' states refer 
to all contiguous states east of the Rocky Mountains, specifically 
not including: Montana, Wyoming, Colorado and New Mexico.
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    As discussed in the final CSAPR Update, the air quality modeling 
contained in the EPA's technical analysis (1) identified locations in 
the U.S. where the EPA anticipates nonattainment or maintenance issues 
in 2017 for the 2008 ozone NAAQS (these are identified as nonattainment 
and maintenance receptors), and (2) quantified the projected 
contributions from emissions from upwind states to downwind ozone 
concentrations at the receptors in 2017. 81 FR 74526. 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 8-hour ozone NAAQS in 2017. The EPA used 
nationwide state-level ozone source apportionment modeling (the 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 U.S. and 
adjacent portions of Canada and Mexico. Id. at 81 FR 74526 through 
74527. The updated modeling data released to support the final CSAPR 
Update are the most up-to-date information the EPA has developed to 
inform our analysis of upwind state linkages to downwind air quality 
problems for the 2008 ozone NAAQS.\7\ See ``Air Quality Modeling Final 
Rule Technical Support Document for the Final CSAPR Update'' in the 
docket for this action for more details regarding the EPA's modeling 
analysis.
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    \7\ The updated modeling results for the final CSAPR Update can 
be found in the docket for this action.
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    Consistent with the framework established in the original CSAPR 
rulemaking, the EPA's technical analysis in support of the CSAPR Update 
applied a threshold of one percent of the 2008 ozone NAAQS of 75 ppb 
(0.75 ppb) to identify linkages between upwind states and the downwind 
nonattainment and maintenance receptors. See CSAPR Update at 81 FR 
74518 through 74519. The EPA considered eastern states whose 
contributions to a specific receptor meet or exceed the threshold 
``linked'' to that receptor and we analyzed these states further to 
determine if emissions reductions might be required from each state to 
address the downwind air quality problem. The EPA determined that one 
percent was an appropriate threshold to use in this analysis 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 the CSAPR Update 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. The EPA's analysis 
further showed that the application of a lower threshold would result 
in relatively modest increases in the overall percentage of ozone 
transport pollution captured, while the use of higher thresholds would 
result in a relatively large reduction in the overall percentage of 
ozone pollution transport captured relative to the levels captured at 
one percent at the majority of the receptors. Id.; See also Air Quality 
Modeling Final Rule Technical Support Document for the Final CSAPR 
Update, Appendix F, Analysis of Contribution Thresholds. This approach 
is consistent with the use of a one percent threshold to identify those 
states ``linked'' to air quality problems with respect to the 1997 
ozone NAAQS in the original CSAPR rulemaking, wherein the EPA noted 
that there are adverse health impacts associated with ambient ozone 
even at low levels. 76 FR 48208, 48236 through 48237 (August 8, 2011).
    As to western states, the EPA noted in the CSAPR Update that there 
may be geographically specific factors to consider in evaluating 
interstate transport, and given the near-term 2017 implementation 
timeframe, the EPA focused the final CSAPR Update on eastern states. 
See CSAPR Update at 81 FR 74523. Consistent with our statements in the 
CSAPR Update, the EPA intends to address western states, like Utah, on 
a case-by-case basis.
    In spite of deficiencies with Utah's technical analysis described 
above, the EPA's technical analysis in support of the CSAPR Update 
indicates that Utah does not contribute above the one percent threshold 
to any nonattainment receptors.\8\ Utah's largest modeled contribution 
to a nonattainment receptor is .32 ppb, below half of the one percent 
threshold, at a receptor in Fresno County, California. Id. The EPA is 
not necessarily determining that one percent of the NAAQS is always an 
appropriate threshold for identifying interstate transport linkages for 
all states in the west. In this instance, the State's low modeled level 
of contribution to any receptors identified in the EPA's technical 
analysis supports Utah's conclusion that the State does not contribute 
significantly to nonattainment of the 2008 ozone NAAQS in any other 
state. Thus, the EPA is proposing to approve Utah's SIP

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as meeting the 110(a)(2)(D)(i) prong 1 requirement for the 2008 ozone 
NAAQS. This proposed action supersedes the EPA's May 10, 2016 proposed 
disapproval of prong 1 of the Utah SIP for the 2008 ozone NAAQS. See 81 
FR 28807.
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    \8\ Please see the spreadsheet titled ``Final CSAPR Update--
Ozone Design Values & Contributions,'' in the docket for this 
action.
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IV. Proposed Action

    The EPA is proposing to approve the section 110(a)(2)(D)(i)(I) 
prong 1 portion of Utah's January 31, 2013 submittal and the December 
22, 2015 submittal with respect to the 2008 ozone NAAQS. The EPA is 
soliciting public comments on this proposed action and will consider 
public comments received during the comment period.

V. 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, the EPA's role is to approve state actions, 
provided that they meet the criteria of the Clean Air Act. Accordingly, 
this proposed action merely proposes approval of state law as meeting 
federal requirements; this proposed action does not propose 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 Orders 
12866 (58 FR 51735, Oct. 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     Does not provide the 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 the 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).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: December 12, 2016.
Richard D. Buhl,
Acting Regional Administrator, Region 8.
[FR Doc. 2016-30462 Filed 12-19-16; 8:45 am]
 BILLING CODE 6560-50-P