[Federal Register Volume 83, Number 64 (Tuesday, April 3, 2018)]
[Rules and Regulations]
[Pages 14175-14179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-06655]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0701; FRL-9976-30--Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; Interstate Transport Requirements for the 2010 1-
Hour Sulfur Dioxide Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) revision submitted by the District of 
Columbia (the District). This revision pertains to the infrastructure 
requirement for interstate transport of pollution with respect to the 
2010 1-hour sulfur dioxide (SO2) national ambient air 
quality standards (NAAQS). EPA is approving this revision in accordance 
with the requirements of the Clean Air Act (CAA).

DATES: This final rule is effective on May 3, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0701. All documents in the docket are listed on 
the https://www.regulations.gov website. Although listed in the index, 
some information is not publicly available, e.g., confidential business 
information (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 through 
https://www.regulations.gov, or please contact the person identified in 
the For Further Information Contact section for additional availability 
information.

FOR FURTHER INFORMATION CONTACT: Joseph Schulingkamp, (215) 814-2021, 
or by email at [email protected].

SUPPLEMENTARY INFORMATION: On July 17, 2014, the District of Columbia 
(the District) through the District Department of Energy and the 
Environment (DDOEE) submitted a SIP revision addressing the 
infrastructure requirements under section 110(a)(2) of the CAA for the 
2010 1-hour SO2 NAAQS.

[[Page 14176]]

I. Background

A. General

    On June 2, 2010, the EPA strengthened the SO2 primary 
standards, establishing a new 1-hour primary standard at the level of 
75 parts per billion (ppb), based on the 3-year average of the annual 
99th percentile of 1-hour daily maximum concentrations (hereafter ``the 
2010 1-hour SO2 NAAQS''). At the same time, the EPA also 
revoked the previous 24-hour and annual primary SO2 
standards. See 75 FR 35520 (June 22, 2010). See 40 CFR 50.11. The 
previous SO2 air quality standards were set in 1971, 
including a 24-hour average primary standard at 140 ppb and an annual 
average primary standard at 30 ppb. See 36 FR 8186 (April 30, 1971).
    SO2 is one of a group of highly reactive gases known as 
``oxides of sulfur.'' Nationally, the largest sources of SO2 
emissions are fossil fuel combustion at power plants and other 
industrial facilities. Smaller sources of SO2 emissions 
include industrial processes such as extracting metal from ore, and the 
burning of high sulfur containing fuels by locomotives, large ships, 
and non-road equipment. SO2 is linked with a number of 
adverse effects on the respiratory system.

B. EPA's Infrastructure Requirements

    Pursuant to section 110(a)(1) of the CAA, states are required to 
submit a SIP revision to address 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 EPA may prescribe. Section 
110(a)(2) requires states to address basic SIP elements to assure 
attainment and maintenance of the NAAQS--such as requirements for 
monitoring, basic program requirements, and legal authority. Section 
110(a) imposes the obligation upon states to make a SIP submission to 
EPA for a new or revised NAAQS, but the contents of that submission may 
vary depending upon the facts and circumstances of each NAAQS and what 
is in each state's existing SIP. In particular, the data and analytical 
tools available at the time the state develops and submits the SIP 
revision for a new or revised NAAQS affect the content of the 
submission. The content of such SIP submission may also vary depending 
upon what provisions the state's existing SIP already contains.
    Specifically, section 110(a)(1) provides the procedural and timing 
requirements for SIP submissions. Section 110(a)(2) lists specific 
elements that states must meet for infrastructure SIP requirements 
related to a newly established or revised NAAQS such as requirements 
for monitoring, basic program requirements, and legal authority that 
are designed to assure attainment and maintenance of the NAAQS.

C. Interstate Pollution Transport Requirements

    Section 110(a)(2)(D)(i)(I) of the CAA requires a state's SIP to 
address any emissions activity in one state that contributes 
significantly to nonattainment, or interferes with maintenance, of the 
NAAQS in any downwind state. The EPA sometimes refers to these 
requirements as prong 1 (significant contribution to nonattainment) and 
prong 2 (interference with maintenance), or jointly as the ``good 
neighbor'' provision of the CAA. Further information can 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-
2014-0701.

II. Summary of SIP Revision and EPA Analysis

    On July 17, 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 1-hour SO2 NAAQS, 
including section 110(a)(2)(D)(i)(I). On April 13, 2015 (80 FR 19538), 
the EPA approved the District's infrastructure SIP submittal for the 
2010 1-hour SO2 NAAQS for all applicable elements of section 
110(a)(2) with the exception of 110(a)(2)(D)(i)(I).\1\ This rulemaking 
action is addressing the portions of the District's infrastructure 
submittal for the 2010 1-hour SO2 NAAQS that pertain to 
transport requirements.\2\ On October 18, 2017 (82 FR 48472 and 82 FR 
48439), EPA simultaneously published a notice of proposed rulemaking 
(NPR) and a direct final rule (DFR) for the District approving the SIP 
revision. EPA received four comments on the rulemaking and withdrew the 
DFR prior to the effective date of December 18, 2017.
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    \1\ In the April 13, 2015 action, the EPA also approved the 
District's infrastructure SIPs for the 2008 ozone and 2010 
NO2 NAAQS, with the exception of the transport elements 
in 110(a)(2)(D)(i)(I).
    \2\ For the EPA's explanation of its ability to act on discrete 
elements of section 110(a)(2), see 80 FR 2865 (Approval and 
Promulgation of Air Quality Implementation Plans; District of 
Columbia; Infrastructure Requirements for the 2008 Ozone, 2010 
Nitrogen Dioxide, and 2010 Sulfur Dioxide National Ambient Air 
Quality Standards; Approval of Air Pollution Emergency Episode Plan 
(January 21, 2015)).
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    The portion of the District's July 17, 2014 SIP submittal 
addressing interstate transport (for section 110(a)(2)(D)(i)(I)) 
includes an emissions inventory and air quality data that concludes 
that the District does not have sources that can contribute with 
respect to the 2010 1-hour SO2 NAAQS to nonattainment in, or 
interfere with maintenance in, any other state. The submittal also 
included currently available air quality monitoring data which alleged 
that SO2 levels continue to be well below the 2010 1-hour 
SO2 NAAQS in the District and in any areas surrounding or 
bordering the District. EPA has reviewed current monitoring data for 
SO2 and finds monitor data within the District, and in areas 
surrounding the District, continue to show no nonattainment issues with 
regards to the SO2 NAAQS.
    Additionally, the District described in its submittal several 
existing SIP-approved measures and other federally enforceable source-
specific measures, including measures pursuant to permitting 
requirements under the CAA, that apply to SO2 sources within 
the District. The District alleges with these measures, SO2 
emissions within the District are minimal. The EPA finds that the 
District's existing SIP provisions, as identified in the July 17, 2014 
SIP submittal, are adequate to prevent the District's emission sources 
from significantly contributing to nonattainment or interfering with 
maintenance in another state with respect to the 2010 1-hour 
SO2 NAAQS. In light of these measures, the EPA does not 
expect SO2 emissions in the District to increase 
significantly, and therefore does not expect monitors in the District 
and nearby states to have difficulty continuing to attain or maintain 
attainment of the NAAQS. A detailed summary of EPA's review and 
rationale for approval of this SIP revision as meeting CAA section 
110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS may be 
found in the TSD for this rulemaking action, which is available online 
at www.regulations.gov, Docket number EPA-R03-OAR-2014-0701.

III. Response to Comments

    During the comment period, EPA received four anonymous comments on 
the rulemaking. Of the comments, one comment was generally supportive 
of EPA's action and thus no response is required. A second comment 
generally discussed CAA section 112 and hazardous air pollutant (HAP) 
standards but provided no specific information related to this 
rulemaking action, which was taken under section 110(a)(2)(D)(i)(I). 
EPA believes this

[[Page 14177]]

comment was not germane to this rulemaking action, and thus no further 
response is provided. The remaining comments relevant to this action 
are summarized below with EPA's response.
    Comment #1: The commenter stated that EPA could not approve the 
District's plan because no dispersion modeling was performed and EPA 
must perform dispersion modeling, including modeling for mobile 
sources, because, ``it's not unlikely for DC to contribute to [nearby] 
states as DC is so small [transport is] inevitable.'' The commenter 
also raised concerns that EPA did not evaluate mobile source 
SO2 emissions and SO2 emissions from combustion 
of residential heating oil in EPA's transport evaluation.
    Response #1: EPA disagrees with the commenter's assertion that 
dispersion modeling is needed, including modeling for mobile sources 
before EPA can approve a SIP submittal as meeting interstate transport 
requirements in CAA section 110(a)(2)(D); there is no requirement in 
this CAA provision that even suggests that dispersion modeling is 
needed for determining whether or not a state significantly contributes 
to a neighboring state's attainment with a specific NAAQS or interferes 
with another state maintaining a NAAQS. EPA has previously found that a 
weight of evidence (WOE) approach is sufficient to determine whether or 
not a state significantly contributes to another state.\3\ EPA believes 
the WOE evaluation provided in EPA's TSD is adequate to determine 
potential contribution from the District to other neighboring states; 
the analysis includes (1) an evaluation of the District's sources and 
trends, (2) a selection of a spatial scale in which EPA would evaluate 
potential contribution, (3) a review of monitored SO2 data 
and control measures, and (4) an analysis of the information presented 
in the other three factors. Using these factors, EPA believes the 
District does not significantly contribute to any neighboring states' 
nonattainment or interfere with their ability to maintain the 2010 
SO2 NAAQS. Further, as to the commenter's claim that it is 
not unlikely for the District to contribute to nearby states due to its 
size, EPA notes that the commenter did not provide any justification to 
substantiate this claim.
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    \3\ See, e.g., Air Quality State Implementation Plans; Approvals 
and Promulgations: Utah; Interstate Transport of Pollution for the 
2006 PM2.5 NAAQS; May 20, 2013 (78 FR 29314); Final Rule 
78 FR 48615 (August 9, 2013); Approval and Promulgation of 
Implementation Plans; State of California; Interstate Transport of 
Pollution; Significant Contribution to Nonattainment and 
Interference With Maintenance Requirements, Proposed Rule 76 FR 
146516 (March 17, 2011), Final Rule 76 FR 34872 (June 15, 2011); 
Approval and Promulgations of State Implementation Plans; State of 
Colorado; Interstate Transport of Pollution for the 2006 24-Hour 
PM2.5 NAAQS, Proposed Rule, 80 FR 27121 (May 12, 2015), 
Final Rule 80 FR 47862 (August 10, 2015).
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    In addition, EPA disagrees with the assertion that EPA did not 
address contribution from SO2 emissions from mobile source 
or residential heating oil in the TSD. Mobile source contribution was 
discussed in Step 3 of the analysis in the TSD and is controlled in the 
District with a high enhanced inspection and maintenance (I/M) program 
which is within the District's approved SIP, EPA's Heavy-duty Highway 
Rule, EPA's Tier 1 Motor Vehicle Emission Standards, and EPA's Tier 2 
Vehicle and Gasoline Sulfur Program, all of which are expected to 
reduce SO2 emissions from the mobile source sector. 
Residential heating oil contribution was also discussed in Step 3 and 
is controlled by the District's 20 DCMR sections 801 and 803 which 
restrict the sulfur content of all commercially available residential 
fuel oil and completely ban the use of heavier fuel oils (numbers 5 and 
6). The District's regulations of fuel oil are also contained in the 
District's federally enforceable SIP.
    The controls described for both mobile sources and residential 
heating oil further supplement the low emissions profile of the 
District as discussed in the TSD and support EPA's assertion that the 
District's SO2 emissions do not significantly contribute to 
nonattainment in, or interfere with the maintenance of, another state 
with regards to the 2010 SO2 NAAQS.
    Comment #2: The second commenter stated that EPA did not address a 
March 28, 2017 Executive Order regarding the promotion of energy 
independence and economic growth. The commenter also similarly raised 
the issue of addressing interstate transport originating from mobile 
sources. The commenter concluded by saying EPA should repeal this rule 
until the effects of this rule are understood on the energy sector and 
the economy as a whole.
    Response #2: As to the issue regarding mobile sources, EPA 
addressed this issue in Response #1. As to the March 28, 2017 Executive 
Order (E.O.),\4\ EPA disagrees that this rulemaking should be 
``repealed'' because EPA did not address the E.O. The E.O. in question 
pertains to reviewing existing regulations, order, guidance documents, 
policies, and any other similar agency actions (collectively, agency 
action) that potentially burden the development or use of domestically 
produced energy resources, with particular attention to oil, natural 
gas, coal, and nuclear energy. First, EPA does not believe this E.O. 
applies to this rulemaking action because, to the extent this 
rulemaking is considered an agency action under the E.O., this action 
was not an existing agency action as of March 28, 2017, the date the 
E.O. was signed. Second, assuming arguendo, that this rulemaking action 
is considered an agency action under the E.O., this rulemaking action 
does not create a burden as that term is defined in the E.O. As defined 
in the E.O., the term ``burden'' means, ``to unnecessarily obstruct, 
delay, curtail, or otherwise impose significant cost on the siting, 
permitting, production, utilization, transmission, or delivery of 
energy resources.'' This rulemaking action does not affect the siting, 
permitting, production, utilization, transmission, or delivery of 
energy resources as this action merely approves the District's 
submission as meeting various CAA requirements, thus any required 
review under this E.O. is not applicable. Third, EPA does not believe 
this E.O. applies to our regulatory action to approve the District's 
SIP submittal whereby we are approving that the District has a SIP to 
address interstate transport of emissions such that sources do not 
significantly contribute to nonattainment or interfere with maintenance 
in another state. If a SIP submittal from a state has everything 
required in the list contained in CAA section 110(a)(2) including 
required emission limitations, then CAA section 110(k)(3) requires that 
EPA must or ``shall'' approve the SIP submission. Thus, considering the 
plain language of the CAA in section 110(k)(3), EPA cannot consider 
disapproving or requiring changes to a state's SIP submittal based on a 
particular E.O. or statutory reviews. As explained in the TSD, EPA 
finds the District's SIP meets requirements in section 110(a)(2)(D). 
Thus, EPA shall approve the SIP submission.
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    \4\ Based on the comment, EPA assumes the E.O. in question is 
E.O. 13738, Promoting Energy Independence and Economic Growth, 
signed March 28, 2017.
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IV. Final Action

    EPA is approving the portions of the District's July 17, 2014 SIP 
revision addressing interstate transport for the 2010 1-hour 
SO2 NAAQS as these portions meet the requirements in section 
110(a)(2)(D)(i)(I) of the CAA.

[[Page 14178]]

V. Statutory and Executive Order Reviews

A. General Requirements

    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 action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     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 rule 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.

B. Submission to Congress and the Comptroller General

    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).

C. Petitions for Judicial Review

    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 June 4, 2018. 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, addressing the District's interstate transport for 
the 2010 1-hour SO2 NAAQS, may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Sulfur oxides.

    Dated: March 16, 2018.
Cecil Rodrigues,
Acting Regional Administrator, Region III.

    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 J--District of Columbia

0
2. In Sec.  52.470, the table in paragraph (e) is amended by adding a 
second entry for ``Section 110(a)(2) Infrastructure Requirements for 
the 2010 SO2 NAAQS'' before the entry for ``Emergency Air 
Pollution Plan'' to read as follows:


Sec.  52.470   Identification of plan.

* * * * *
    (e) * * *

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  Name of non-regulatory SIP      Applicable  geographic         State                             Additional
           revision                        area             submittal date  EPA approval date     explanation
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                                                  * * * * * * *
Section 110(a)(2)               District-wide.............         7/18/14  4/3/18, [Insert    This action
 Infrastructure Requirements                                                 Federal Register   addresses CAA
 for the 2010 SO2 NAAQS.                                                     citation].         section.
                                                                                               110(a)(2)(D)(i)(I
                                                                                                ) for the 2010
                                                                                                SO2 NAAQS.
 
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[FR Doc. 2018-06655 Filed 4-2-18; 8:45 am]
 BILLING CODE 6560-50-P