[Federal Register Volume 84, Number 147 (Wednesday, July 31, 2019)]
[Proposed Rules]
[Pages 37187-37193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16271]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R01-OAR-2019-0352; FRL-9997-35-Region 1]
Air Plan Approval and Air Quality Designation; New Hampshire;
Redesignation of the Central New Hampshire Sulfur Dioxide Nonattainment
Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve the maintenance plan and redesignation request submitted by the
State of New Hampshire for the Central New Hampshire nonattainment area
for the 2010 1-hour sulfur dioxide (SO2) national ambient
air quality standard (NAAQS). This nonattainment area consists of
portions of Hillsborough County, Merrimack County, and Rockingham
County, New Hampshire. The primary emission source in the nonattainment
area is now subject to federally-enforceable emission control
standards, and air quality in the area now meets the 2010
SO2 NAAQS. This action is being taken under the Clean Air
Act.
DATES: Written comments must be received on or before August 30, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2019-0352 at https://www.regulations.gov, or via email to
[email protected]. For comments submitted at Regulations.gov, follow
the online instructions for submitting comments. Once submitted,
comments cannot be edited or removed from Regulations.gov. For either
manner of submission, 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. 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, please contact the person
identified in the For Further Information Contact section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit http://www.epa.gov/dockets/commenting-epa-dockets. Publicly
available docket materials are available at https://www.regulations.gov
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional
Office, Air and Radiation Division, 5 Post Office Square--Suite 100,
Boston, MA. EPA requests that if at all possible, you contact the
contact listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
legal holidays.
FOR FURTHER INFORMATION CONTACT: Leiran Biton, Air Permits, Toxics, and
Indoor Programs Branch, U.S. Environmental Protection Agency, EPA
Region 1, 5 Post Office Square--Suite 100, (Mail code 05-2), Boston, MA
02109-3912, tel. (617) 918-1267, email [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background and Purpose
II. Redesignation Requirements
III. Determination of Attainment
IV. New Hampshire's Approved State Implementation Plan
V. Permanent and Enforceable Emission Reductions
VI. Requirements for the Area Under Section 110 and Part D
VII. Maintenance Plan
VIII. Proposed Action
IX. Statutory and Executive Order Reviews
I. Background and Purpose
On June 2, 2010 (75 FR 35520, June 22, 2010), EPA promulgated a new
1-hour primary SO2 NAAQS of 75 parts per billion (ppb),
which is met at an ambient air quality monitoring site when the 3-year
average of the annual 99th percentile of daily maximum 1-hour
concentrations does not exceed 75 ppb, as determined in accordance with
appendix T of 40 CFR part 50. On August 5, 2013 (78 FR 47191), EPA
designated a first set of 29 areas of the country as nonattainment for
the 2010 SO2 NAAQS, including the Central New Hampshire
nonattainment area within the State of New Hampshire. These ``round
one'' area designations were effective October 4, 2013. In that action,
the Central New Hampshire area was designated nonattainment for the
SO2 NAAQS based on data collected at the Pembroke, New
Hampshire ambient air quality monitoring station in calendar years 2009
through 2011. The Central New Hampshire nonattainment area is comprised
of 14 municipalities in portions of three different counties in New
Hampshire. These cities and towns, and the counties in which they are
located, are listed in Table 1. All other areas in the State were
designated as attainment/unclassifiable for the 2010 SO2
NAAQS in the ``round 3'' area designations on January 9, 2018. The
Central New Hampshire nonattainment area contains the electric
generating source Merrimack Station, currently owned and operated by
GSP Merrimack
[[Page 37188]]
LLC and formerly by Public Service of New Hampshire (PSNH) d/b/a
Eversource Energy, in Bow, New Hampshire, to which the State attributed
about 90% of SO2 emissions contributing to the nonattainment
designation.
Table 1--List of Counties and Municipalities Included Within the Central New Hampshire Nonattainment Area
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County Municipality
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Hillsborough County (part)................................ Goffstown Town.
Merrimack County (part)................................... Allenstown Town, Bow Town, Chichester Town,
Dunbarton Town, Epsom Town, Hooksett Town, Loudon
Town, Pembroke Town, Pittsfield Town, City of
Concord.
Rockingham County (part).................................. Candia Town, Deerfield Town, Northwood Town.
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By April 4, 2015, New Hampshire was required to submit a
nonattainment plan State Implementation Plan (SIP) that meets the
requirements of sections 172(c) and 191-192 of the CAA, and that would
provide for attainment of the NAAQS as expeditiously as practicable,
but no later than October 4, 2018. On March 18, 2016 (81 FR 14736), EPA
found for a number of areas, including the Central New Hampshire area,
that the states in which those areas are located had failed to submit
the required SO2 nonattainment plan by the submittal
deadline. In response to the requirement for SO2
nonattainment plan submittals, New Hampshire submitted a nonattainment
area plan and attainment demonstration for the Central New Hampshire
nonattainment area on January 31, 2017.
New Hampshire's submittal included new SO2 emissions
limits and associated control technology efficiency requirements for
Merrimack Station. In 2011, Merrimack Station installed and began
operation of a flue gas desulfurization (FGD) scrubber system that is
efficient in removing SO2 from the exhaust gas stream. On
September 1, 2016, the State established permit conditions that include
stringent emissions limits and prohibit operation of either of
Merrimack Station's two coal-fired boilers when the FGD scrubber system
is not operating except as necessary to prevent severe damage to
equipment or potential injury to facility personnel.
On June 5, 2018, EPA found that the emissions limits established by
New Hampshire for Merrimack Station and submitted to EPA on January 31,
2017 provide for attainment of the NAAQS, and EPA approved the limits
and associated conditions into the New Hampshire SIP (83 FR 25922).
Emissions from Merrimack Station have declined considerably in
recent years. In 2010, Merrimack Station emitted 33,248 tons of
SO2. Based on data the State presented from the 2014
National Emissions Inventory (NEI), the total point, area, and mobile
source SO2 emissions in the entire Central New Hampshire
nonattainment area in 2014 were 1,481 tons per year (tpy), with 1,044
tons (70.5%) emitted from Merrimack Station. In 2016, SO2
emissions reported for Merrimack Station were 228 tons. Because of the
significant, permanent, and enforceable reduction in SO2
emissions affecting the nonattainment area, the (then) proposed
approval of the State's nonattainment area plan and attainment
demonstration, and the fact that the Pembroke SO2 monitor's
three-year SO2 design value (DV) \1\ was below the
SO2 NAAQS for 2012-2014 and 2014-2016, New Hampshire
submitted a redesignation request in 2018.
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\1\ The DV is a statistic computed according to the data
handling procedures of the NAAQS (in 40 CFR part 50 appendix T)
that, by comparison to the level of the NAAQS, indicates whether the
area is violating the NAAQS. For SO2, the DV is the
three-year average of the annual 99th percentile of one-hour daily
maximum concentrations.
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On March 16, 2018, the New Hampshire Department of Environmental
Services (NHDES) submitted its request to EPA to redesignate the
Central New Hampshire nonattainment area to attainment. The title of
the submittal is ``1-Hour Sulfur Dioxide (2010 Standard) Redesignation
Request and Maintenance Plan for the Central New Hampshire
Nonattainment Area'' (New Hampshire's March 16, 2018 submittal). For
the reasons set forth in this document, EPA is proposing to approve New
Hampshire's request to redesignate the area to attainment.
II. Redesignation Requirements
Under CAA section 107(d)(3)(E), there are five criteria which must
be met before a nonattainment area may be redesignated to attainment.
1. EPA has determined that the relevant NAAQS has been attained in
the area.
2. The applicable implementation plan has been fully approved by
EPA under section 110(k).
3. EPA has determined that improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from the
SIP, Federal regulations, and other permanent and enforceable
reductions.
4. EPA has fully approved a maintenance plan, including a
contingency plan, for the area under section 175A of the CAA.
5. The State has met all applicable requirements for the area under
section 110 and part D.
Sections III (Determination of Attainment), IV (New Hampshire's
Approved State Implementation Plan), V (Permanent and Enforceable
Emission Reductions), VI (Requirements for the Area Under Section 110
and Part D) and VII (Maintenance Plan) of this notice describe how New
Hampshire meets each of these criteria for the Central New Hampshire
nonattainment area.
III. Determination of Attainment
As stated in the April 23, 2014 ``Guidance for 1-Hour
SO2 Nonattainment Area SIP Submissions,'' (EPA's April 23,
2014 Guidance) for SO2, there are two components needed to
support an attainment determination: (1) A review of representative air
quality monitoring data, and (2) a further analysis, generally
requiring air quality modeling, to demonstrate that the entire area is
attaining the applicable standard, based on current actual emissions or
the fully implemented control strategy. New Hampshire has addressed
both components, as described in the two following sections III.A and
III.B.
A. Air Quality Monitoring Data
The first requirement for redesignation is to demonstrate that the
standard has been attained in the area. Under EPA regulations at 40 CFR
50.17, the SO2 standard is met at an ambient air quality
monitoring site when the three-year average of the annual 99th
percentile of one-hour daily maximum concentrations is less than or
equal to 75 ppb, as determined in accordance with appendix T of 40 CFR
part 50 at all relevant monitoring sites in the subject area. EPA has
reviewed the
[[Page 37189]]
ambient air monitoring data for the Central New Hampshire nonattainment
area. The Central New Hampshire nonattainment area has two
SO2 monitoring sites: One located in Concord at Hazen Drive
(Site ID #33-013-1007) \2\ and one in Pembroke (Site ID #33-013-1006).
The annual 99th percentile daily maximum SO2 concentrations
were higher at the Pembroke monitor than the Concord monitor for all
years reviewed by EPA (2012 through 2017). In New Hampshire's March 16,
2018 submittal, the State demonstrated that the vast majority of
monitored exceedances at the Pembroke monitor during the 2009-2011
period occurred when wind directions were from Merrimack Station and
toward the monitor. EPA's review of monitored air quality includes
ambient data collected in the 2012-2014 period through the 2014-2016
period, as well as data collected in the 2015-2017 period, which were
the most recent quality-assured data available at the time of EPA's
review. All data considered are complete, quality-assured, certified,
and recorded in EPA's Air Quality System (AQS) database.
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\2\ The Concord monitor ceased collection of SO2
monitoring data at the end of 2016 due to low concentrations
measured at that location.
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Table 2 shows the three-year DVs for the periods between 2012 and
2017 for the Central New Hampshire nonattainment area. For 2012, the
last year during which emissions from Merrimack Station bypassed the
FGD system (a practice that is no longer permitted except as necessary
to prevent severe damage to equipment or potential injury to facility
personnel under the State's September 1, 2016 permit), the 99th
percentile monitored daily maximum value at the Pembroke monitor was
26.9 ppb. For 2017, the first full year during which Merrimack Station
was no longer permitted to operate unless its FGD system was operating,
the 99th percentile daily maximum value at the Pembroke monitor was
16.4 ppb. Within the Central New Hampshire nonattainment area, the
maximum monitored three-year average DV for 2012-2014 was 23 ppb (31.7%
of the NAAQS), and the three-year average DV for 2015-2017 was 15 ppb
(20.0% of the NAAQS). Both values are low and show attainment with the
SO2 standard. Therefore, the SO2 monitors in the
Central New Hampshire area clearly show attainment. New Hampshire plans
to continue monitoring for SO2 at the Pembroke location.
Preliminary data for 2018 (January 1 through September 30) indicate a
99th percentile monitored daily maximum value of 11.9 ppb at the
Pembroke monitor, indicating that the area is continuing to attain the
SO2 standard.
Table 2--Monitoring Data for the Central New Hampshire Nonattainment Area for 2012 Through 2017
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Annual 99th percentile value (ppb) Design value (ppb)
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Site Name/ID No. 2017 2015-2017
2012 2013 2014 2015 2016 a 2012-2014 2013-2015 2014-2016 a
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Concord/33-013-1007............................................... 7.7 8.6 9.5 7.2 4.9 N/A 9 8 7 N/A \b\
\b\
Pembroke/33-013-1006.............................................. 26.9 17.0 26.0 16.9 16.4 12.1 23 20 20 15
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\a\ Data from EPA's ``Air Quality Design Values'' website at https://www.epa.gov/air-trends/air-quality-design-values, accessed on July 18, 2019.
\b\ The Concord monitor ceased collection of SO2 monitoring data at the end of 2016.
B. Air Quality Modeling Data
Regarding the second component of the attainment determination,
i.e., air quality modeling, EPA stated in its April 23, 2014 Guidance
that a previously submitted modeled attainment demonstration would
suffice, along with evidence that the control strategy in the SIP has
been fully implemented, to show attainment for a nonattainment area. In
New Hampshire's March 16, 2018 submittal, the State provides details
about the SO2 modeled attainment demonstration that the
State submitted to EPA on January 31, 2017 with its SO2
nonattainment area plan. As previously stated, EPA approved the State's
nonattainment area plan and attainment demonstration on June 5, 2018
(83 FR 25922). The control strategy for the nonattainment area consists
of emission limits on Merrimack Station's SO2 emission
units. Specifically, the emission limits for Merrimack Station are 7-
boiler operating day rolling averages that New Hampshire established as
being comparably stringent, using a method described in EPA's April 23,
2014 Guidance, to a 1-hour emission limit for which the attainment
demonstration was performed. Therefore, since the emission limits have
been fully implemented at Merrimack Station and are being complied
with, as discussed in section V of this notice, then New Hampshire's
attainment demonstration is a sufficient basis to show attainment for
the Central New Hampshire nonattainment area.
In its approved attainment demonstration, New Hampshire conducted
air dispersion modeling using EPA's AERMOD modeling system in a manner
consistent with the requirements and recommendations specified in
appendix W to 40 CFR part 55, known as the Guideline on Air Quality
Models (the Guideline). This modeling established the 1-hour ``critical
emission value'' of 0.54 lb/million British thermal units (mmBtu) for
emissions from Merrimack Station to attain the 1-hour SO2
NAAQS. The State established for Merrimack Station a 7-boiler operating
day emissions limit of 0.39 lb/MMBtu, determined to be comparably
stringent to the critical emissions value using a method consistent
with recommendations contained in appendix C to EPA's April 23, 2014
Guidance. Details of New Hampshire's attainment demonstration are
provided in EPA's proposal (82 FR 45242, September 28, 2017) and final
action (83 FR 25922, June 5, 2018) for the approval of New Hampshire's
nonattainment area plan and attainment demonstration.
In summary, the monitored data show attainment in the Central New
Hampshire nonattainment area for all three-year periods between 2012
and 2017, inclusive. New Hampshire has demonstrated, through an
analysis of hourly wind directions correlated with the monitored
exceedances at the Pembroke monitor for the 2009-2011 period, that
Merrimack Station was responsible for the violation in the area. New
Hampshire established through its
[[Page 37190]]
attainment demonstration, air dispersion modeling that Merrimack
Station will not cause a violation of the NAAQS in the area in the
future. Therefore, EPA agrees that the Central New Hampshire
nonattainment area is currently attaining the SO2 NAAQS.
IV. New Hampshire's Approved State Implementation Plan
As described in EPA's April 23, 2014 Guidance, for EPA to
redesignate a nonattainment area to attainment, there must be a fully
approved SIP under section 110(k) of the CAA for the area with respect
to the NAAQS, without any current disapproval, finding of failure to
submit or failure to implement the SIP, or partial, conditional, or
limited approval.
EPA has determined that New Hampshire has a fully approved SIP with
respect to section 110(k). On July 8, 2016, EPA approved New
Hampshire's infrastructure SIP for the 2010 1-hour SO2 NAAQS
(81 FR 44542), except for an aspect of the SIP related to notification
of neighboring states, which EPA conditionally approved, and the
interstate transport provisions, which were not included in New
Hampshire's SIP submittal. On May 25, 2017, EPA converted the
conditional approval to a full approval based on a proposed amendment
to the New Hampshire SIP (82 FR 24057). On December 17, 2018, EPA
approved the State's interstate transport provisions (83 FR 64470). As
stated previously, New Hampshire's nonattainment area plan for the area
was approved on June 5, 2018 (83 FR 25922). There are no elements of
the State's SIP that are subject to disapproval, finding of failure to
submit, or partial, conditional, or limited approval, with respect to
the 2010 1-hour SO2 NAAQS. Therefore, the State has a fully
approved SIP under section 110(k) of the CAA and satisfies all
applicable requirements for the 2010 1-hour SO2 NAAQS.
V. Permanent and Enforceable Emission Reductions
New Hampshire established stringent emissions limits and associated
requirements for Merrimack Station on September 1, 2016 in its permit,
TP-0189, for Merrimack Station. These emission limits were achieved
through optimized operation of Merrimack Station's FGD system to more
efficiently control SO2 emissions. EPA incorporated those
permit conditions from TP-0189 into the SIP in the approval of New
Hampshire's nonattainment area plan. SO2 emissions from
Merrimack Station decreased by 21,388 tons (greater than 95%) in 2012,
the first full year of FGD operation at the facility, from the previous
year. In 2016, the facility emitted 228 tons of SO2, about
1% of its emissions in 2011.
According to EPA's review of more recent annual emissions
information from the Air Markets Program Data (AMPD) tool website for
the facility, Merrimack Station emitted 431.2 tons of SO2 in
2018,\3\ which is about 2% of its emissions in 2011.
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\3\ Annual emissions data from EPA's AMPD tool, available at
https://ampd.epa.gov/ampd/.
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In addition, EPA has reviewed emissions data from Merrimack Station
to assess whether the State's federally-enforceable permit conditions
are effective in controlling emissions from the facility. Specifically,
EPA reviewed AMPD emissions data using EPA's Field Audit Checklist Tool
(FACT) \4\ for the period between September 1, 2016, when the State's
7-day emissions limit became effective, and March 31, 2019, which is
the most recent date for which emissions data are currently available.
EPA's review indicates that Merrimack Station's emissions have not
exceeded the SIP-approved SO2 emissions limit. Furthermore,
hourly emissions from Merrimack Station have been generally well below
both the 1-hour critical emissions limit, which the State demonstrated
to be comparably stringent to the permitted 7-day limit. Emissions from
Merrimack Station were only above the critical emissions value for four
individual hours since September 1, 2016, specifically: Twice in 2016,
once in 2017, and once in 2018. A spreadsheet of these data and EPA's
analysis is provided in the public docket. This operating pattern is
consistent with EPA's expectation, as stated in EPA's approval of the
State's nonattainment area plan, that ``the source is presumed
occasionally to emit more than the critical emission value but on
average, and presumably at most times, to emit well below the critical
emission value'' (83 FR 25922, June 5, 2018). In summary, EPA's review
of emissions information for Merrimack Station indicates that the
facility has not exceeded its 7-day SO2 emissions limit
contained in the TP-0189 permit, and the facility has rarely exceeded
the 1-hour critical emissions value, as anticipated by EPA. EPA
therefore concludes that the emissions limits incorporated into the New
Hampshire SIP for Merrimack Station are being complied with.
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\4\ Field Audit Checklist Tool (FACT) version 1.2.0.1, available
for download at: www.epa.gov/airmarkets/field-audit-checklist-tool-fact. FACT provides users with metadata beyond the information
available using the AMPD website.
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VI. Requirements for the Area Under Section 110 and Part D
New Hampshire has submitted information demonstrating that it meets
the requirements for the area under section 110 and part D of the CAA.
In demonstrating that it has met all requirements for section 110 and
part D of the CAA for the 2010 SO2 NAAQS, New Hampshire
cited its Air Pollution Control statutes at Chapter 125-C of the New
Hampshire Revised Statutes Annotated (RSA), and its Rules Governing the
Control of Air Pollution in the New Hampshire Code of Administrative
Rules at Env-A 100 through 4800, of which some (but not all) have been
approved into the State's SIP. As stated earlier in section IV, EPA has
approved New Hampshire's entire infrastructure SIP for SO2
in three separate actions. This prior infrastructure SIP approval
confirms that New Hampshire's SIP meets the requirements of CAA section
110(a)(1) and 110(a)(2) to contain the basic program elements, such as
an active enforcement program and permitting program.
Section 191 of the CAA required New Hampshire to submit a part D
nonattainment SIP for the Central New Hampshire nonattainment area by
April 4, 2015. EPA issued a finding of failure to submit the required
SO2 nonattainment plan by the submittal deadline for a
number of areas, including the Central New Hampshire nonattainment area
(81 FR 14736). New Hampshire submitted a plan for the Central New
Hampshire nonattainment area on January 31, 2017, and EPA approved that
plan on June 5, 2018 (83 FR 25922). Therefore, the State has met its
obligations to establish a plan for the nonattainment area under
section 191 of the CAA.
Part D includes general requirements, in subpart 1, and more
specific requirements applicable to SO2, in subpart 5, for
nonattainment areas. For purposes of evaluating this redesignation
request, the applicable section 172 SIP requirements for the Central
New Hampshire area are contained in sections 172(c)(1)-(9). A thorough
discussion of the requirements contained in section 172 can be found in
the General Preamble for Implementation of Title I (57 FR 13498, 13564,
April 16, 1992).
Section 172(c)(1) requires nonattainment area SIPs to provide for
the implementation of all reasonably available control measures (RACM)
as expeditiously as practicable and to provide for attainment of the
NAAQS. EPA's longstanding interpretation of the
[[Page 37191]]
nonattainment planning requirements of section 172 is that once an area
is attaining the NAAQS, those requirements are not applicable for
purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be
approved into the SIP before EPA can redesignate the area. In the 1992
General Preamble for Implementation of Title I, EPA set forth its
interpretation of applicable requirements for purposes of evaluating
redesignation requests when an area is attaining a standard (57 FR
13498, 13564, April 16, 1992). EPA noted that the requirements for
reasonable further progress (RFP) and other measures designed to
provide for attainment do not apply in evaluating redesignation
requests because those nonattainment planning requirements ``have no
meaning'' for an area that has already attained the standard. EPA's
understanding of section 172 also forms the basis of its Clean Data
Policy, which was articulated for SO2 in EPA's April 23,
2014 Guidance and it suspends a State's obligation to submit most of
the attainment planning requirements that would otherwise apply,
including an attainment demonstration and planning SIPs to provide for
RFP, RACM, and contingency measures under section 172(c)(9). Courts
have upheld EPA's interpretation of section 172(c)(1) for ``reasonably
available'' control measures and control technology as meaning only
those controls that advance attainment, which precludes the need to
require additional measures where an area is already attaining. NRDC v.
EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d
155, 162 (D.C. Cir. 2002); Sierra Club v. EPA, 314 F.3d 735, 744 (5th
Cir. 2002); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004).\5\
Therefore, because the Central New Hampshire nonattainment area has
attained the SO2 standard, no additional measures are needed
to provide for attainment, and section 172(c)(1) requirements for an
attainment demonstration and RACM are not part of the ``applicable
implementation plan'' required to have been approved prior to
redesignation per CAA section 107(d)(3)(E)(ii). In any case, in the
context of implemented measures (especially the installation of the FGD
at Merrimack Station, and establishment and incorporation into the SIP
of the conditions of TP-0189), EPA believes that New Hampshire has
satisfied the reasonably available control measures/reasonably
available control techniques (RACM/RACT) requirement for this area.
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\5\ Although the Court of Appeals for the Sixth Circuit has
issued a contrary opinion in the context of redesignations for ozone
and PM2.5, EPA believes that these opinions, interpreting
the applicability of the ozone and PM2.5 RACM/RACT
requirements for redesignations for those pollutants, do not address
the applicability of the RACM/RACT requirement for SO2.
See Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015).
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The other section 172 requirements that are designed to help an
area achieve attainment are the section 172(c)(2) requirement that
nonattainment plans contain provisions promoting reasonable further
progress, the requirement to submit the section 172(c)(9) contingency
measures, and the section 172(c)(6) requirement for the SIP to contain
control measures necessary to provide for attainment of the NAAQS.
These are also not required to be approved as part of the ``applicable
implementation plan'' for purposes of satisfying CAA section
107(d)(3)(E)(ii).
Section 172(c)(3) requires submission and approval of a
comprehensive, accurate, and current inventory of actual emissions. In
New Hampshire's March 16, 2018 submittal, as part of its maintenance
plan for the area, the State submitted an attainment inventory of the
SO2 emissions from sources in the nonattainment area. New
Hampshire chose 2011 for its base year emissions inventory, as
comprehensive emissions data was available and updated that year. The
State provided emissions inventories for 2014, the most recent year
with quality assured actual emissions for the area, and the 2018
interim year and project emissions for the 2028 maintenance year.\6\
EPA considers these inventories, which are summarized in Table 3, to
satisfy the requirement of section 172(c)(3). Merrimack Station, the
only electric generating unit (EGU) in the Central New Hampshire
nonattainment area, remains the largest source of SO2 in the
area, and emissions from Merrimack Station have declined substantially
as discussed previously. For 2011 and 2014, the emissions inventories
were based on the NEI for the respective years.
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\6\ At least one interim year inventory is used to demonstrate
that emissions in the area are not expected to exceed the attainment
year inventory in the interim between the base year and the last
year of the maintenance plan. The demonstration, by means of an
interim year inventory, that the area will maintain the standard
throughout the maintenance period is derived from CAA section 175A,
which states that maintenance in the area is to be provided ``for at
least ten years after the redesignation,'' and not just in the final
year. Thus, a maintenance plan includes at least one interim year
inventory to establish that, during the period that maintenance is
projected, emissions will remain at or below the level of the
attainment year inventory.
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Note that New Hampshire's projected inventory for the 2028
maintenance year, accounting for Merrimack Station's continued
operation under the conditions established in TP-0189, show overall
emissions in the nonattainment area about 19,046 tons lower than those
from 2011. This large reduction is expected to be sufficient to
maintain the SO2 standard. EPA is proposing to approve the
2014 emissions inventory, submitted by New Hampshire along with the
redesignation request, as meeting the section 172(c)(3) emissions
inventory requirement.
Table 3--SO2 Emissions Inventories in Tons Per Year for the Central New Hampshire Nonattainment Area a
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On-road Non-road
Year EGU point Non-EGU point Area sources mobile mobile Total
sources sources sources sources emissions
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2011.................................................... 22,393 115 451 15 1 22,975
2014.................................................... 1,044 63 359 14 1 1,481
2018 \b\................................................ \c\ 1,927 90 425 5 1 \c\ 2,473
2028 \b\................................................ 3,443 127 353 5 1 3,929
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\a\ New Hampshire's emissions inventory provided emissions for each of the three partial counties in the nonattainment area. This table provides only
the area-wide emissions totals for each inventory year.
\b\ New Hampshire projected emissions for 2018 and 2028.
\c\ According to EPA's AMPD, actual emissions for Merrimack Station, the only EGU in the Central New Hampshire nonattainment area, were 431.2 tons in
2018.
[[Page 37192]]
Section 172(c)(4) requires the identification and quantification of
allowable emissions for major new and modified stationary sources to be
allowed in an area, and section 172(c)(5) requires source permits for
the construction and operation of new and modified major stationary
sources anywhere in the nonattainment area. EPA has determined that,
since PSD requirements will apply to new and modified major stationary
sources after redesignation, areas being redesignated need not comply
with the requirement that an NSR program be approved prior to
redesignation, provided that the area demonstrates maintenance of the
NAAQS without part D NSR. A more detailed rationale for this view is
described in a memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation, dated October 14, 1994, entitled ``Part D New
Source Review Requirements for Areas Requesting Redesignation to
Attainment.'' New Hampshire has demonstrated that the Central New
Hampshire nonattainment area will be able to maintain the NAAQS without
part D NSR in effect, and therefore New Hampshire does not need to have
a fully approved part D NSR program prior to approval of the
redesignation request. After redesignation, major new or modifying
stationary sources would be subject to the State's Env-A 619 Prevention
of Significant Deterioration rules and would no longer be subject to
the State's part D NSR rules. Furthermore, EPA notes that New Hampshire
does have a fully approved part D NSR program contained in its Env-A
618 Nonattainment New Source Review rules. New Hampshire's Env-A 618
and 619 rules were approved by EPA into the State's SIP on September
25, 2015 (80 FR 57722).
Section 172(c)(7) requires the SIP to meet the applicable
provisions of section 110(a)(2). As noted previously, EPA has already
approved a SIP for New Hampshire that meets the requirements of section
110(a)(2) applicable for purposes of redesignation.
Section 176(c) of the CAA requires States to establish criteria and
procedures to ensure that federally supported or funded projects
conform to the air quality planning goals in the applicable SIP. The
requirement to determine conformity applies to transportation plans,
programs, and projects that are developed, funded, or approved under
title 23 of the United States Code (U.S.C.) and the Federal Transit Act
(transportation conformity) as well as to all other federally supported
or funded projects (general conformity). State transportation
conformity SIP revisions must be consistent with Federal conformity
regulations relating to consultation, enforcement, and enforceability
that EPA promulgated pursuant to its authority under the CAA. On
December 9, 2011, New Hampshire submitted documentation establishing
transportation conformity procedures in its SIP. EPA approved these
procedures on November 29, 2013 (78 FR 71504). Moreover, EPA interprets
the conformity SIP requirements as not applying for purposes of
evaluating a redesignation request under section 107(d) because, like
other requirements listed above, state conformity rules are still
required after redesignation and Federal conformity rules apply where
state rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th
Cir. 2001) (upholding this interpretation); see also 60 FR 62748
(December 7, 1995) (redesignation of Tampa, Florida).
Based on the preceding discussion, EPA is proposing to find that
New Hampshire has satisfied all applicable requirements for purposes of
redesignation of the Central New Hampshire nonattainment area under
section 110 and part D of title I of the CAA.
VII. Maintenance Plan
CAA section 175A sets forth the elements of a maintenance plan for
areas seeking redesignation from nonattainment to attainment. Under
section 175A, the plan must demonstrate continued attainment of the
applicable NAAQS for at least ten years after the nonattainment area is
redesignated to attainment. Eight years after the redesignation, the
State must submit a revised maintenance plan demonstrating that
attainment will continue to be maintained for the ten years following
the initial ten-year period. To address the possibility of future NAAQS
violations, the maintenance plan must contain contingency measures as
EPA deems necessary to assure prompt correction of any future one-hour
SO2 violations. Specifically, the maintenance plan should
address five requirements: The attainment emissions inventory,
maintenance demonstration, monitoring, verification of continued
attainment, and a contingency plan.
New Hampshire's March 16, 2018 redesignation request contains its
maintenance plan, which New Hampshire has committed to review eight
years after redesignation. New Hampshire submitted an attainment
emission inventory which addresses current emissions and projections of
future emissions for point, area, and mobile sources. Total
SO2 emissions in the nonattainment area were 22,975 tons in
the base year, 2011; 1,481 tons in the attainment year, 2014; 2,473
tons in the projected interim year, 2018; and 3,929 tons in the
projected maintenance year, 2028. See Table 3. EPA notes that actual
emissions for the interim year 2018 were considerably lower than the
State's projected emissions, indicating that the State's methods for
projecting an inventory may overestimate emissions in the area, which
lends additional confidence in the continued future attainment of the
area. Furthermore, the State indicated in its redesignation request
that the projected emissions from all sources in the Central New
Hampshire nonattainment area in 2028 are still lower than emissions
permitted under TP-0189 for Merrimack Station alone, which have been
modeled to show attainment.
New Hampshire has committed to continue to operate and maintain an
appropriate air quality monitoring network to verify the area's
attainment status, in accordance with the requirements of 40 CFR part
58. These data will be used to verify continued attainment.
New Hampshire has the authority to adopt, implement and enforce any
subsequent emissions control measures deemed necessary to correct any
future SO2 violations. Regarding contingency measures to
implement in the case of a future violation of the SO2
standard, New Hampshire has committed to use its enforcement authority
to promptly and aggressively address permit deviations from sources in
the Central New Hampshire area, and in particular from Merrimack
Station.
EPA proposes to find that New Hampshire's maintenance plan
adequately addresses the five basic components necessary to maintain
the SO2 standard in the New Hampshire nonattainment area.
VIII. Proposed Action
In accordance with New Hampshire's March 16, 2018 request, EPA is
proposing to redesignate the Central New Hampshire nonattainment area
from nonattainment to attainment for the 2010 1-hour primary
SO2 NAAQS. New Hampshire has demonstrated that the area is
attaining the SO2 standard, and that the improvement in air
quality is due to the permanent and enforceable permit conditions
established for the main SO2 source in the nonattainment
area. EPA is also proposing to approve the maintenance plan that New
Hampshire submitted to ensure that the area will continue to maintain
the SO2 standard. EPA is soliciting public
[[Page 37193]]
comments on the issues discussed in this notice or on other relevant
matters. These comments will be considered before taking final action.
Interested parties may participate in the Federal rulemaking procedure
by submitting written comments to this proposed rule by following the
instructions listed in the ADDRESSES section of this Federal Register.
IX. Statutory and Executive Order Reviews
Under the Clean Air Act, 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, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed 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 Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not expected to be an Executive Order 13771 regulatory
action because this action is not significant 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 Clean Air Act; 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, 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).
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Reporting and recordkeeping
requirements, Sulfur oxides.
40 CFR Part 81
Environmental protection, Air pollution control, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: July 25, 2019.
Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
[FR Doc. 2019-16271 Filed 7-30-19; 8:45 am]
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