[Federal Register Volume 84, Number 157 (Wednesday, August 14, 2019)]
[Rules and Regulations]
[Pages 40266-40269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17125]



40 CFR Part 52

[EPA-R09-OAR-2018-0806; FRL-9998-04-Region 9]

Air Quality State Implementation Plans; Approval and 
Promulgations; Hawaii; Infrastructure SIP

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is approving a state 
implementation plan (SIP) submission from the State of Hawaii regarding 
certain Clean Air Act (CAA or ``Act'') requirements related to 
interstate transport for the 2008 ozone national ambient air quality 
standards (NAAQS). The interstate transport requirements consist of 
several elements; this approval pertains only to provisions requiring 
that SIPs prohibit sources or other types of emissions activity in one 
state from emitting any air pollutant in amounts that will contribute 
significantly to nonattainment and interference with maintenance of the 
2008 ozone NAAQS in other states. The

[[Page 40267]]

EPA is approving Hawaii's August 6, 2015 SIP submittal on the basis 
that it addresses two requirements of CAA section 110(a)(2)(D)(i)(I), 
which we refer to as prong 1 (significant contribution to nonattainment 
of the NAAQS in any other state) and prong 2 (interference with 
maintenance of the NAAQS in any other state). The EPA refers to SIP 
revisions addressing the requirements of section 110(a)(2)(D)(i)(I) as 
``good neighbor SIPs'' or ``interstate transport SIPs.''

DATES: This rule is effective on September 13, 2019.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R09-OAR-2018-0806. 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, i.e., 
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 at https://www.regulations.gov, or please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for additional availability information.

2), EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415) 
947-4192, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. Background Information
II. Public Comment
III. Final Action
IV. Statutory and Executive Order Reviews

I. Background Information

    On February 28, 2019, the EPA published a notice of proposed 
rulemaking (NPRM) proposing to approve the Hawaii Department of 
Health's (DOH) August 6, 2015 submittal addressing two requirements of 
CAA section 110(a)(2)(D)(i)(I).\1\ A detailed discussion of Hawaii's 
good neighbor SIP and the EPA's rationale for approving the SIP 
revision is provided in the NPRM and will not be restated here.

    \1\ 84 FR 6736.

II. Public Comment

    The EPA's proposed action provided a 30-day public comment period 
that ended on April 1, 2019. During the comment period, we received one 
comment. We summarize the comment below and provide our response.
    Comment 1: The commenter states that the EPA's preamble for its 
proposed action summarizes trajectory analyses submitted by Hawaii and 
that the EPA concludes that ``[a] very small fraction of emissions 
arrives in the continental United States (U.S.) more than two days 
after release and a slightly larger fraction arrives five days after 
release.'' The commenter states that it is unclear whether this factual 
assertion was made by the state or whether it is the EPA's own 
conclusion. The commenter goes on to assert that it is not possible to 
conclude from wind trajectories what fraction of emissions from Hawaii 
reach the continental U.S. The commenter concludes by stating that the 
EPA cannot base its approval of the good neighbor SIP on this factual 
assertion, as it is not supported by the cited evidence.
    Response 1: This statement is the EPA's own conclusion. We agree 
with the commenter that it is not possible to precisely quantify the 
fraction of emissions from Hawaii that reaches the continental U.S. 
based on the trajectory analysis submitted by Hawaii. This analysis 
establishes the time to transport emissions to the continental U.S., 
but does not address the deposition, chemical transformation, and 
dispersion that would occur during transport. Quantifying these factors 
would require modeling, which, as explained in our proposal, we do not 
believe is necessary for an isolated state such as Hawaii. However, 
based on the time and distance of transport, as well as the fact that a 
certain degree of deposition, chemical transformation, and dispersion 
would necessarily occur over such time and distance, we believe it is 
reasonable to conclude that the fraction of emissions from Hawaii that 
would reach the continental U.S. would be relatively small. The 
commenter has provided no evidence to contradict this conclusion.
    Furthermore, this conclusion was only one factor in the overall 
weight of evidence analysis that we used to assess Hawaii's interstate 
transport obligations with respect to the 2008 ozone NAAQS. Another key 
factor was that Hawaii's total emissions of ozone precursors are 
significantly lower than emissions of these pollutants from several 
continental states, including Colorado.\2\ Based on modeling, the EPA 
has found that Colorado's emissions do not contribute significantly to 
nonattainment in downwind states.\3\ Given that emissions from Colorado 
are over five times greater than those from Hawaii, and Colorado is 
more than 2,000 miles closer to nonattainment receptors than Hawaii, it 
is unlikely that Hawaii's emissions significantly contribute to 

    \2\ 84 FR 6736, 6738.
    \3\ 80 FR 72937 (November 23, 2015) (proposed rule); 81 FR 7706 
(February 16, 2016) (final rule).

    Comment 2: The commenter notes that the preamble to the EPA's 
proposed rule states that Hawaii's emissions are declining. The 
commenter asserts that the approval of a good neighbor SIP with respect 
to Prong 1 must be based on the effects that emissions from the upwind 
state are having on other states at this time, not on the effect of 
lower emissions projected to prevail in the future. The commenter 
states that the EPA's reference to future levels of emissions should 
not be part of the EPA's rationale for approving the SIP with respect 
to the Prong 1 requirement. The commenter acknowledges that the fact 
that future emissions are expected to be less than current emissions 
can be considered in evaluating whether the SIP satisfies Prong 2. The 
commenter requests that the EPA more logically state its rationale for 
approval of the SIP.
    Response 2: The commenter is incorrect that an approval of a good 
neighbor SIP with respect to Prong 1 must be based solely on the 
effects emissions from the upwind state are having on other states at 
this time. Prong 1 requires SIPs to include adequate provisions 
prohibiting emission ``which will contribute significantly to 
nonattainment'' in another state.\4\ The EPA has interpreted this 
phrase to refer to ``sources that presently and at some point in the 
future `will' contribute to nonattainment'' and the D.C. Circuit Court 
has upheld this interpretation as reasonable in North Carolina v. EPA 
(``North Carolina'').\5\

    \4\ CAA section 110(a)(2)(D)(i)(I).
    \5\ North Carolina v. EPA, 531 F.3d 896, 914 (D.C. Cir. 2008).

    Consistent with this interpretation, the EPA has routinely approved 
interstate transport SIPs that rely on future year modeling.\6\ In 
particular, as

[[Page 40268]]

noted in the preamble to the proposed action, the EPA's historical 
approach to addressing interstate transport under the good neighbor 
provision has been to evaluate states' obligations to address downwind 
contributions using a multistep process. This process involves 
identifying downwind air quality problems; identifying upwind states 
that impact those downwind air quality problems sufficiently such that 
they are considered ``linked'' and therefore warrant further review and 
analysis; identifying the emissions reductions necessary (if any), 
considering cost and air quality factors to prevent the linked upwind 
states from contributing significantly to nonattainment or interfering 
with maintenance of the NAAQS at the locations of the downwind air 
quality problems; and adopting permanent and enforceable measures 
needed to achieve those emissions reductions.

    \6\ See, e.g., 83 FR 65093 (Final approval of California's 
interstate transport SIP for ozone, fine particulate matter, and 
sulfur dioxide); Cf. 76 FR 48208 (Cross-State Air Pollution Rule 
(CSAPR), promulgating federal implementation plans (FIPs) addressing 
good neighbor obligations for ozone and fine particulate matter); 81 
FR 74504 (CSAPR Update, promulgating FIPs addressing good neighbor 
obligations for ozone).

    When the EPA identified downwind air quality problems as part of 
the 2016 Cross-State Air Pollution Rule (CSAPR) Update, we used air 
quality modeling projections for the (then) future analytic year of 
2017,\7\ consistent with the North Carolina decision.\8\ The EPA also 
used a 2017 compliance deadline to ensure that the emissions reductions 
achieved through implementing the CSAPR Update would be made prior to 
the July 20, 2018 moderate attainment deadline,\9\ again in conformance 
with North Carolina.\10\

    \7\ 81 FR 74504, 74516. See 84 FR 6736 for additional details on 
the CSAPR Update.
    \8\ 531 F.3d 914.
    \9\ 81 FR 74504, 74516.
    \10\ 531 F.3d 911-12 (holding that the EPA must coordinate 
interstate transport compliance deadlines with downwind attainment 

    Because Hawaii was not part of the EPA's air quality modeling 
analysis for the CSAPR Update, the EPA used a weight of evidence 
analysis to assess Hawaii's interstate transport obligations with 
respect to the 2008 ozone NAAQS. This approach included reviewing 
Hawaii's recent emissions history that showed emissions have decreased 
over time and are substantially lower than emissions from California, 
Arizona, Colorado, and Texas, as shown in Table 1 of our proposed 
rule,\11\ and reviewing Hawaii's transport patterns using trajectory 
analysis. We then compared the emissions data and the distance between 
Hawaii and receptors in the continental U.S. with the much higher 
emissions levels and much smaller distances between upwind and downwind 
states with known, modeled linkages in the continental U.S. In other 
words, our analysis considered both the absolute level of recent 
emissions from Hawaii and the downward trend in these emissions. Based 
on this analysis, the EPA concludes that emissions from Hawaii will not 
significantly contribute to nonattainment or interfere with maintenance 
of the 2008 ozone NAAQS in any other state. Our approval of Hawaii's 
interstate transport SIP is based on this determination.

    \11\ 84 FR 6736, 6738.

III. Final Action

    For the reasons described in our responses to comments, the 
comments received do not alter our proposed determination that 
emissions from Hawaii will not significantly contribute to 
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in 
any other state. Therefore, the EPA is approving Hawaii's 2008 ozone 
transport SIP, submitted by Hawaii DOH on August 6, 2015, as meeting 
the applicable requirements of CAA section 110(a)(2)(D)(i)(I) as a 
revision to the Hawaii SIP.

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 choices, 
provided that they meet the criteria of the Act. 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 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 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 is not approved to apply on any Indian 
reservation land or in any other area where the EPA or an Indian tribe 
has demonstrated that a tribe has jurisdiction. In those areas of 
Indian country, the rule does not have tribal implications and will not 
impose substantial direct costs on tribal governments or preempt tribal 
law as specified by Executive Order 13175 (65 FR 67249, November 9, 
    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. The 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 Clean Air Act, 
petitions for judicial review of this action must be filed in the 
United States Court of Appeals for the appropriate circuit by October 
15, 2019. 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

[[Page 40269]]

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, Infrastructure SIP, Interstate transport, Nitrogen oxides, 
Ozone, Volatile organic compounds.

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

    Dated: July 30, 2019.
Deborah Jordan,
Acting Regional Administrator, EPA Region IX.
    Chapter I, title 40 of the Code of Federal Regulations is amended 
as follows:


1. The authority citation for Part 52 continues to read as follows:

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

Subpart M--Hawaii

2. In Sec.  52.620, amend the table in paragraph (e) by adding an entry 
for ``Hawaii State Implementation Plan Revision to Address CAA Section 
110(a)(2)(D)(i)(l) for the 2008 Ozone National Ambient Air Quality 
Standard, excluding Attachment 3'' after the entry for ``Hawaii State 
Implementation Plan Revision, National Ambient Air Quality Standards 
for 2008 Ozone and 2010 Nitrogen Dioxide, Clean Air Act Section 
110(a)(1) & (2), excluding attachment 3, and appendices A, B, and C.''
    The revisions and additions read as follows:

Sec.  52.620  Identification of plan.

* * * * *
    (e) * * *

                   EPA Approved Hawaii Nonregulatory Provisions and Quasi-Regulatory Measures
      Name of SIP provision           geographic or          State       EPA approval date       Explanation
                                    nonattainment area  submittal date
                                                  * * * * * * *
      State of Hawaii Air Pollution Control Implementation Plans for Nitrogen Dioxide, Ozone, PM, and Lead
                                                  * * * * * * *
Hawaii State Implementation Plan   Statewide..........        8/6/2015  [Insert Federal      Approved SIP
 Revision to Address CAA Section                                         Register page        revision excludes
 110(a)(2)(D)(i)(l) for the 2008                                         number where the     Attachment 3
 Ozone National Ambient Air                                              document begins, 8/  (``Summary of
 Quality Standard, excluding                                             14/19.               Public
 Attachment 3.                                                                                Participation
                                                  * * * * * * *

[FR Doc. 2019-17125 Filed 8-13-19; 8:45 am]