[Federal Register Volume 82, Number 22 (Friday, February 3, 2017)]
[Rules and Regulations]
[Pages 9155-9158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-02187]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2016-0588; FRL-9959-18-Region 8]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
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 Utah 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). 
The interstate transport requirements under the CAA consist of four 
elements: Significant contribution to nonattainment (prong 1) and 
interference with maintenance (prong 2) of the NAAQS in other states; 
and interference with measures required to be included in the plan for 
other states to prevent significant deterioration of air quality (prong 
3) or to protect visibility (prong 4). Specifically, the EPA is 
approving interstate transport prong 1 for the 2008 ozone NAAQS.

DATES: This final rule is effective on March 6, 2017.

ADDRESSES: The EPA has established a docket for this action under 
Docket Identification Number EPA-R08-OAR-2016-0588. All documents in 
the docket are listed on the http://www.regulations.gov index. Although 
listed in the index, some information may not be publicly available, 
e.g., Confidential Business Information or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
through http://www.regulations.gov or in hard copy at the Air Program, 
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, 
Denver, Colorado, 80202-1129. The EPA requests that you contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section to 
view the hard copy of the docket. You may view the hard copy of the 
docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal 
holidays.

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

I. Background

    On December 20, 2016, the EPA proposed to approve portions of 
Utah's January 31, 2013 submission and December 22, 2015 supplemental 
submission as meeting the prong 1 requirements of CAA section 
110(a)(2)(D)(i) for the 2008 ozone NAAQS. 81 FR 92755, December 20, 
2016. An explanation of the CAA requirements, a detailed analysis of 
the State's submittals, and the EPA's rationale for this proposed 
action were provided in the notice of proposed rulemaking, and will not 
be restated here. The public comment period for this proposed rule 
ended on January 10, 2017. The EPA received four comments on the 
proposal, which will be addressed in the ``Response to Comments'' 
section, below.

II. Response to Comments

    Comment: Commenter Sierra Club stated that the EPA should 
disapprove Utah's prong 1 submission for the 2008 ozone NAAQS. The 
commenter asserted that all three of the Denver area maintenance 
receptors to which Utah's projected contribution exceeded one percent 
of the NAAQS \1\ should instead be nonattainment receptors, but are not 
because the CSAPR Update modeling under-predicts the receptors' 2017 
ozone design values. The commenter based this assertion on a weight of 
evidence approach using ambient air monitoring data collected at these 
receptors. The commenter stated that such a weight of evidence approach 
was appropriate to determine this receptor should be nonattainment, and 
noted that the EPA had used a weight of evidence approach in its action 
on Arizona's transport SIP. The CSAPR Update modeling projected that 
the Douglas County, Colorado receptor (monitor site ID 80350004) would 
have a 2017 average design value of 75.5 ppb, with a maximum design 
value of 77.6 ppb, and that one Jefferson County, Colorado receptor 
(monitor site ID 80590006) would have a 2017 average design value of 
75.7 ppb, with a maximum design value of 78.2 ppb.\2\ The commenter 
first asserted that both average design values should indicate 
nonattainment rather than maintenance, referring to the EPA's basis for 
the maintenance categorizations as ``bad math.'' The commenter then 
stated that all three maintenance receptors will indeed be 
nonattainment for the 2015-2017 period. The commenter included the 4th 
highest daily maximum values, on which the 2008 ozone NAAQS is

[[Page 9156]]

based, for the years 2010 through 2016, which the EPA has replicated 
(with edits) in Table 1, below.
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    \1\ For details about these receptors, see EPA's final 
rulemaking disapproving prong 2 of Utah's 2008 ozone submittals, at 
81 FR 71992, October 19, 2016.
    \2\ See document EPA-R08-OAR-2016-0588-0002, ``Final CSAPR 
Update_Ozone Design Values & Contributions_All Sites,'' in the 
docket for this action.

                             Table 1--4th Highest Daily Max at Denver Area Receptors
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                                                                                   4th Max (ppb)
                                                                 -----------------------------------------------
                              Year                                  Monitor ID      Monitor ID      Monitor ID
                                                                     80350004        80590011        80590006
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2017............................................................            * 66            * 61            * 69
2016............................................................              78              83              79
2015............................................................              81              81              77
2014............................................................              74              76              77
2013............................................................              83              82              81
2012............................................................              79              77              79
2011............................................................              81              83              81
2010............................................................              78              74              76
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* Indicates a ``critical value'' required to attain NAAQS for 2015-2017.

    The commenter stated that the 2015-2017 monitored design values at 
the Denver receptors could only attain the NAAQS if the receptors 
recorded the 4th daily maximum values (``critical values'') listed in 
the 2017 row of Table 1, and notes that each of these values is below 
the smallest value since 2010. The commenter asserted that the previous 
seven years of monitoring data provide a weight of evidence analysis 
demonstrating that these receptors will be nonattainment for the 2015-
2017 design value period. The commenter also stated that Colorado's 
drill rig count for oil and gas extract had increased to 28 by the end 
of 2016, the highest level since November 2015. The commenter also 
stated that 2017 was likely to see increased oil and gas extraction and 
transportation activity in Colorado due to reduced oil production in 
other countries, and that this would increase NOX and VOC 
emissions. Finally, the commenter asserted that it is unsurprising that 
the CSAPR Update modeling analysis under-predicts the 2017 design 
values because it included 2009 monitoring data which was impacted by 
the Great Recession, during which time ozone levels decreased. The 
commenter therefore recommended that the EPA disapprove Utah's prong 1 
submittals for the 2008 ozone NAAQS.
    Response: First, the EPA does not agree that because the two Denver 
receptors (80350004 and 80590006) are projected to have average design 
values exceeding the NAAQS, that the EPA should label those receptors 
as nonattainment receptors. As explained in the EPA's 2016 CSAPR Update 
Final Air Quality Modeling Technical Support Document (2016 AQM TSD), 
``In determining compliance with the NAAQS, ozone design values are 
truncated to integer values. For example, a design value of 75.9 ppb is 
truncated to 75 ppb which is attainment. In this manner, design values 
at or above 76.0 ppb are considered to be violations of the NAAQS.'' 
\3\ This method is consistent with the method to demonstrate compliance 
with the 2008 ozone NAAQS. Therefore, design values of 75.5 or 75.7 are 
not considered a violation of the standard.
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    \3\ ``Air Quality Modeling Technical Support Document for the 
Final Cross State Air Pollution Rule Update.'' August 2016. This 
document was included in the docket for the proposed action.
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    The EPA agrees that recent monitoring data at these three sites 
suggest that these sites face a risk of not attaining the NAAQS in 
2017. However, that risk is uncertain as the future monitored 2017 
design value is unknown at this time. In light of this uncertainty and 
the statute's silence on how nonattainment and maintenance should be 
identified under the good neighbor provision, the EPA has developed a 
reasonable approach to identify downwind nonattainment and maintenance 
receptors. When evaluating air quality modeling for purposes of 
interstate transport, the EPA has routinely identified nonattainment 
receptors as those with monitors that are both projected to be unable 
to attain in an appropriate future year and that are measuring 
nonattainment based on current data--i.e., if the projected average 
design value in the future year does not exceed the standard, the EPA 
does not identify that receptor as a nonattainment receptor. See 81 FR 
74517 (CSAPR Update); 80 FR 75723 through 75724 (Proposed CSAPR 
Update); 76 FR 48227-28 (CSAPR); 70 FR 25243-33 (CAIR); see also North 
Carolina, 531 F.3d at 913 through 914 (affirming as reasonable the 
EPA's approach to defining nonattainment in CAIR). Given the EPA's 
modeling does not project that the receptors will be in nonattainment 
in 2017, even though it may currently be measuring nonattainment, it 
would be inconsistent with the EPA's past practice to identify that 
receptor as a nonattainment receptor.
    Moreover, the EPA does not agree that it should identify 
nonattainment receptors based on the formula proposed by the commenter 
because the data cited by the commenter does not conclusively prove 
that these monitors will be in nonattainment based on 2017 data.\4\ 
First, the commenter notes that it would be possible for the 2017 
design values to be sufficiently low such that the 3-year averages are 
attaining the NAAQS. Second, the CAA provides that should 2017 data 
yield a fourth highest 8-hour concentration of 75.9 ppb or below, the 
state can petition EPA for additional time to demonstrate attainment of 
the NAAQS. See CAA section 181(a)(5).
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    \4\ Although the commenter is correct that the EPA evaluated the 
weight of the evidence in the Arizona SIP submission, the EPA did 
not use the approach proposed by the commenter to average 
projections and monitored data in identifying potential receptors.
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    That said, the EPA agrees that the receptors may have problems 
maintaining the standard in 2017 and has therefore identified these 
sites as maintenance receptors. On October 19, 2016, the EPA finalized 
disapproval of Utah's SIP submission to address the maintenance prong 
for the 2008 ozone NAAQS. 81 FR 71991. As a result of this disapproval, 
the EPA and the State of Utah will need to evaluate what further 
emissions reductions may be required to ensure that the State's impact 
on downwind air quality is mitigated such that the State will not 
interfere with maintenance of the standard at these receptors.

[[Page 9157]]

    The weight of evidence analysis in our action on the Arizona SIP 
determined the nature of the projected receptor's interstate transport 
problem as to the magnitude of ozone attributable to interstate 
transport from all upwind states collectively contributing to the air 
quality problem, not to the identification of that receptor. In the EPA 
action on the Arizona SIP, Arizona was the only state that contributed 
greater than the one percent threshold to the projected 2017 levels of 
the 2008 ozone NAAQS at the El Centro receptor. The EPA's assessment 
concluded that emissions reductions from Arizona are not necessary to 
address interstate transport because the total collective upwind state 
ozone contribution to these receptors is relatively low compared to the 
air quality problems typically addressed by the good neighbor 
provision. As discussed previously, the EPA similarly evaluated 
collective contribution to the Douglas County, Colorado monitor and 
finds the collective contribution of transported pollution to be 
substantial. Furthermore, in our action on the Arizona SIP we did not 
deviate from our past practice in identifying nonattainment and 
maintenance receptors in the way that commenter suggests we should do 
here.
    The EPA does not agree that its projections are unreliable because 
the 2009 data are affected by the ``Great Recession.'' In determining 
our 2009-2013 base period average design values, the data from 2009 are 
only weighted once, whereas, data in 2011 which has higher ozone is 
weighted 3 times in the calculations. In addition, our emissions data 
are projected from 2011 to 2017 and, thus, the effects of the recession 
on 2009 emissions have very little influence on our 2017 projected 
emissions. In this respect, the air quality and emissions in 2009 have 
only a very limited influence on the projected design values. As 
described in the EPA's air quality modeling guidance for ozone 
attainment demonstrations, the use of 5[hyphen]year weighted average 
design values, as applied here, is intended to focus the base period 
air quality on the year of base case emissions, 2011 for this analysis, 
and to smooth out, to some extent, the effects of inter[hyphen]annual 
variability in ozone concentrations.\5\ Thus, the EPA continues to 
believe that including ambient data from 2009 is appropriate for 
projecting future year ozone concentrations as part of the final rule.
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    \5\ Modeling Guidance for Demonstrating Attainment of Air 
Quality Goals for Ozone, PM2.5, and Regional Haze 
available in the docket and at: http://www.epa.gov/ttn/scram/guidance/guide/Draft_O3-PM-RH_Modeling_Guidance-2014.pdf.
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    Finally, the EPA does not find that the commenter's assumptions 
about an increase in oil and gas extraction and transportation 
activities in Colorado sufficient to project an increase in such 
emissions. For instance, the number of drill rigs noted by the 
commenter (28) at the end of 2016 is actually much lower than the level 
at the end of 2014 (69).\6\ The EPA is not here making assertions about 
oil and gas production activities in Colorado, but rather explaining 
why we find the commenter's assumptions about a likely increase in such 
activity based on a drill rig count to be insufficient. Further, the 
commenter does not provide a source for the assumption regarding 
increased Colorado oil and gas production based on changes to the 
worldwide oil market. For these reasons, the EPA does not find that oil 
and gas activities will necessarily increase in Colorado in 2017 based 
on the comments received.
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    \6\ http://insights.energentgroup.com/weekly-rig-counts-in-colorado.
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    Comment: Commenter Sierra Club asserted that the EPA's analysis of 
Utah's 2008 ozone submittals ignores wintertime ozone levels. The 
commenter asserted that the EPA relies on the CSAPR Update analysis for 
its Utah ozone transport analysis, and that the CSAPR Update analysis 
throws out wintertime ozone data.\7\ The commenter stated that it is 
inappropriate for EPA to exclude the wintertime ozone data because the 
EPA has elsewhere acknowledged that wintertime ozone is an important 
issue in Utah and neighboring states. To support this point, the 
commenter cited the EPA's revision to the 2008 ozone NAAQS, which 
states that ``Elevated levels of winter-time O3 have also been measured 
in some western states where precursor emissions can interact with 
sunlight off the snow cover under very shallow, stable boundary layer 
conditions.'' 80 FR 65416, October 26, 2015. The commenter also cited 
the ozone NAAQS revision to show that the ozone seasons for both 
Colorado and Utah are year-round, and that EPA must therefore include 
an evaluation of wintertime ozone before it can approve any ozone 
transport provisions for Utah. 80 FR 65419 through 65420, October 26, 
2015.
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    \7\ Id. The commenter specifically cited the following language 
from the document: ``In addition, there are 7 sites in 3 counties in 
the West that were excluded from this file because the ambient 
design values at these sites were dominated by wintertime ozone 
episodes and not summer season conditions that are the focus of this 
transport assessment.''
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    Response: As stated in the CSAPR Update Final, ``Ozone levels are 
generally higher during the summer months.'' 81 FR 74513, October 26, 
2016. The 2016 AQM TSD states that ``High winter ozone concentrations 
that have been observed in certain parts of the Western U.S. are 
believed to result from the combination of strong wintertime 
inversions, large NOX and VOC emissions from nearby oil and 
gas operations, increased UV intensity due to reflection off of snow 
surfaces and potentially still uncharacterized sources of free 
radicals.'' 2016 AQM TSD at 14. Thus, high winter-time ozone episodes 
are due to a build-up of local emissions combined with local stagnation 
meteorological conditions rather than interstate transport. The EPA 
therefore disagrees that it must evaluate wintertime ozone before 
approving Utah's SIP as to the prong 1 requirements of section 
110(a)(2)(D)(i)(I).
    Comment: Several citizen commenters expressed frustration about the 
air quality in the Salt Lake City and greater Wasatch Front area of 
Utah. These commenters offered various solutions to improving air 
quality in the region.
    Response: The EPA appreciates the recommendations provided by the 
commenters. The EPA will not address the recommendations specifically, 
as they are not directly connected to the impact of Utah emissions in 
other states, which this rulemaking (and CAA section 110(a)(2)(D)(i)) 
address.

III. Final Action

    The EPA is approving 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.

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, the EPA's role is to approve state actions, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves some state law provisions as meeting federal 
requirements; this action does not impose additional requirements 
beyond those imposed by state law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735,

[[Page 9158]]

October 4, 1993) 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 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).
    In addition, the SIP does not 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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 4, 2017. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See CAA section 307(b)(2).)

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: January 17, 2017.
Debra H. Thomas,
Acting Regional Administrator, Region 8.

    40 CFR part 52 is 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.

Subpart TT--Utah

0
2. In Sec.  52.2354, add paragraph (c) to read as follows:


Sec.  52.2354   Interstate transport.

* * * * *
    (c) Addition to the Utah State Implementation Plan regarding the 
2008 ozone Standard for CAA section 110(a)(2)(D)(i)(I) prong 1 
submitted to EPA on January 31, 2013 and supplemented on December 22, 
2015.

[FR Doc. 2017-02187 Filed 2-2-17; 8:45 am]
 BILLING CODE 6560-50-P