[Federal Register Volume 85, Number 63 (Wednesday, April 1, 2020)]
[Proposed Rules]
[Pages 18160-18173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06659]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2020-0057; FRL-10007-24-Region 1]


Air Plan Approval; Vermont; Infrastructure State Implementation 
Plan Requirements for the 2015 Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a State Implementation Plan (SIP) revision submitted by the 
State of Vermont. This revision addresses the infrastructure 
requirements of the Clean Air Act (CAA or Act)--including the 
interstate transport provisions--for the 2015 ozone National Ambient 
Air Quality Standards (NAAQS). The infrastructure requirements are 
designed to ensure that the structural components of each state's air-
quality management program, including provisions prohibiting emissions 
that will have certain adverse air-quality effects in other states, are 
adequate to meet the state's responsibilities under the CAA. EPA is 
also proposing to approve State of Vermont Executive Order (E.O.) 19-
17, Executive Code of Ethics, which Vermont submitted with its 
infrastructure submission for the 2015 ozone NAAQS to be added to the 
SIP. Because E.O. 19-17 supersedes and replaces E.O. 09-11, EPA is also 
proposing to remove E.O. 09-11 from the Vermont SIP. This action is 
being taken under the Clean Air Act.

DATES: Written comments must be received on or before May 1, 2020.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2020-0057 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, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, 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 https://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: Alison C. Simcox, Air Quality 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) 
918-1684, 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
    A. What is the scope of this rulemaking?
    B. What guidance is EPA using to evaluate these SIP submissions?

[[Page 18161]]

II. EPA's Evaluation of Vermont's Infrastructure SIP for the 2015 
Ozone Standard
    A. Section 110(a)(2)(A)--Emission Limits and Other Control 
Measures
    B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data 
System
    C. Section 110(a)(2)(C)--Program for Enforcement of Control 
Measures and for Construction or Modification of Stationary Sources
    D. Section 110(a)(2)(D)--Interstate Transport
    E. Section 110(a)(2)(E)--Adequate Resources
    F. Section 110(a)(2)(F)--Stationary Source Monitoring System
    G. Section 110(a)(2)(G)--Emergency Powers
    H. Section 110(a)(2)(H)--Future SIP Revisions
    I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan 
Revisions Under Part D
    J. Section 110(a)(2)(J)--Consultation With Government Officials; 
Public Notifications; Prevention of Significant Deterioration; 
Visibility Protection
    K. Section 110(a)(2)(K)--Air Quality Modeling/Data
    L. Section 110(a)(2)(L)--Permitting Fees
    M. Section 110(a)(2)(M)--Consultation/Participation by Affected 
Local Entities
    N. Vermont Executive Order Submitted for Incorporation Into the 
SIP
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background and Purpose

    On October 1, 2015, EPA promulgated a revision to the ozone NAAQS 
(2015 ozone NAAQS), lowering the level of both the primary and 
secondary standards to 0.070 parts per million (ppm).\1\ Section 
110(a)(1) of the CAA requires states to submit, within 3 years after 
promulgation of a new or revised standard, SIPs meeting the applicable 
requirements of section 110(a)(2).\2\ On November 19, 2019, the Vermont 
Air Quality and Climate Division (AQCD) of the Department of 
Environmental Conservation (DEC) submitted a revision to its State 
Implementation Plan (SIP). The SIP revision addresses the 
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)--
including the ``Good Neighbor'' or ``transport'' provisions--for the 
2015 ozone NAAQS.
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    \1\ National Ambient Air Quality Standards for Ozone, Final 
Rule, 80 FR 65292 (October 26, 2015). Although the level of the 
standard is specified in the units of ppm, ozone concentrations are 
also described in parts per billion (ppb). For example, 0.070 ppm is 
equivalent to 70 ppb.
    \2\ SIP revisions that are intended to meet the applicable 
requirements of section 110(a)(1) and (2) of the CAA are often 
referred to as infrastructure SIPs and the applicable elements under 
110(a)(2) are referred to as infrastructure requirements.
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A. What is the scope of this rulemaking?

    EPA is acting on the SIP submission from Vermont on the 
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for 
the 2015 ozone NAAQS (including the transport provisions).
    Whenever EPA promulgates a new or revised NAAQS, CAA section 
110(a)(1) requires states to make SIP submissions to provide for the 
implementation, maintenance, and enforcement of the NAAQS. This 
particular type of SIP submission is commonly referred to as an 
``infrastructure SIP.'' These submissions must meet the various 
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity 
in some of the language of CAA section 110(a)(2), EPA believes that it 
is appropriate to interpret these provisions in the specific context of 
acting on infrastructure SIP submissions. EPA has previously provided 
comprehensive guidance on the application of these provisions through a 
guidance document for infrastructure SIP submissions and through 
regional actions on infrastructure submissions.\3\ Unless otherwise 
noted below, we are following that existing approach in acting on this 
submission. In addition, in the context of acting on such 
infrastructure submissions, EPA evaluates the submitting state's SIP 
for compliance with statutory and regulatory requirements, not for the 
state's implementation of its SIP.\4\ EPA has other authority to 
address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.
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    \3\ EPA explains and elaborates on these ambiguities and its 
approach to address them in its September 13, 2013, Infrastructure 
SIP Guidance (available at https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf), as well as in numerous agency actions, including EPA's prior 
action on Vermont's infrastructure SIP to address the 2012 
PM2.5 NAAQS. See 83 FR 45194 (September 6, 2018).
    \4\ See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th 
Cir. 2018).
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B. What guidance is EPA using to evaluate Vermont's infrastructure SIP 
submission?

    EPA highlighted the statutory requirement to submit infrastructure 
SIPs within 3 years of promulgation of a new NAAQS in an October 2, 
2007, guidance document entitled ``Guidance on SIP Elements Required 
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 National Ambient Air Quality Standards'' (2007 
memorandum). EPA has issued additional guidance documents and 
memoranda, including a September 13, 2013, guidance document entitled 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' (2013 
memorandum). Additional guidance documents specifically addressing the 
interstate-transport (``good neighbor'') provisions of infrastructure 
SIPs (CAA Section 110(a)(2)(D)) are given under Section II.D. below.

II. EPA's Evaluation of Vermont's Infrastructure SIP for the 2015 Ozone 
Standard

    In this notice of proposed rulemaking, EPA is proposing action on 
Vermont's November 19, 2019, infrastructure SIP submission for the 2015 
ozone NAAQS, including the interstate transport provisions (CAA section 
110(a)(2)(D)(i)). In Vermont's submission, a detailed list of Vermont 
Laws and previously SIP-approved Air Quality Regulations show precisely 
how the various components of its EPA-approved SIP meet each of the 
requirements of section 110(a)(2) of the CAA for the 2015 ozone NAAQS. 
The following review evaluates the state's submission in light of 
section 110(a)(2) requirements and relevant EPA guidance. For the 
state's November 2019 submission, we provide an evaluation of the 
applicable Section 110(a)(2) elements, including the transport 
provisions.

A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures

    This section (also referred to in this action as an element) of the 
Act requires SIPs to include enforceable emission limits and other 
control measures, means or techniques, schedules for compliance, and 
other related matters. However, EPA has long interpreted emission 
limits and control measures for attaining the standards as being due 
when nonattainment planning requirements are due.\5\ In the context of 
an infrastructure SIP, EPA is not evaluating the existing SIP 
provisions for this purpose. Instead, EPA is only evaluating whether 
the state's SIP has basic structural provisions for the implementation 
of the NAAQS.
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    \5\ See, for example, EPA's final rule on ``National Ambient Air 
Quality Standards for Lead,'' 73 FR 66964, 67034 (November 12, 
2008).
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    In its November 2019 submittal for the 2015 ozone NAAQS, Vermont 
cites a number of provisions of Vermont Statutes Annotated (V.S.A.) in 
satisfaction of element A: 10 V.S.A. Sec.  554, ``Powers,'' authorizes 
the Secretary of the Vermont Agency of

[[Page 18162]]

Natural Resources \6\ (ANR) to ``[a]dopt, amend and repeal rules, 
implementing the provisions'' of Vermont's air pollution control laws 
set forth in 10 V.S.A. chapter 23. It also authorizes the Secretary to 
``conduct studies, investigations and research relating to air 
contamination and air pollution'' and to ``[d]etermine by appropriate 
means the degree of air contamination and air pollution in the state 
and the several parts thereof.'' EPA approved 10 V.S.A. Sec.  554 on 
June 27, 2017 (82 FR 29005). Vermont also cites 10 V.S.A. Sec.  556, 
``Permits for the construction or modification of air contaminant 
sources,'' which requires applicants to obtain permits for constructing 
or modifying air contaminant sources, and 10 V.S.A. Sec.  558, 
``Emission control requirements,'' which authorizes the Secretary ``to 
establish emission control requirements . . . necessary to prevent, 
abate, or control air pollution.'' In addition, Vermont cites 10 V.S.A. 
Sec.  579 ``Vehicle emissions labeling program for new motor vehicles'' 
for model year 2010 and later vehicles.
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    \6\ The Vermont Department of Environmental Conservation is one 
of three departments within the Vermont ANR.
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    Under Element A of the November 2019 submittal, the state also 
cites more than 20 Vermont Air Pollution Control Regulations (VT APCR) 
that it has adopted to control the emissions related to ozone and ozone 
precursors (nitrogen oxides (NOX) and volatile organic 
compounds (VOCs)). A few, with their EPA approval citation \7\ are 
listed here: Sec.  5-502--Major Stationary Sources and Major 
Modifications (81 FR 50342; August 1, 2016); Sec.  5-251--Control of 
Nitrogen Oxides Emissions (81 FR 50342; August 1, 2016); Sec.  5-
253.5--Stage I Vapor Recovery Controls at Gasoline Dispensing 
Facilities (81 FR 23164; April 20, 2016); 5-253.8--Industrial Adhesives 
(84 FR 65009; November 26, 2019); Sec.  5-253.17--Industrial Cleaning 
Solvents (84 FR 65009; November 26, 2019).
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    \7\ The citations reference the most recent EPA approval of the 
stated rule or of revisions to the rule.
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    EPA proposes that Vermont meets the infrastructure requirements of 
section 110(a)(2)(A) for the 2015 ozone NAAQS.

B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System

    This section requires SIPs to provide for establishment and 
operation of appropriate devices, methods, systems, and procedures 
necessary to monitor, compile, and analyze ambient air quality data, 
and to make these data available to EPA upon request. Each year, states 
submit annual air monitoring network plans to EPA for review and 
approval. EPA's review of these annual monitoring plans includes our 
evaluation of whether the state: (i) Monitors air quality at 
appropriate locations throughout the state using EPA-approved Federal 
Reference Methods or Federal Equivalent Method monitors; (ii) submits 
data to EPA's Air Quality System (AQS) in a timely manner; and (iii) 
provides EPA Regional Offices with prior notification of any planned 
changes to monitoring sites or the network plan.
    State law authorizes the Secretary of ANR, or authorized 
representative, to ``conduct studies, investigations and research 
relating to air contamination and air pollution'' and to ``[d]etermine 
by appropriate means the degree of air contamination and air pollution 
in the state and the several parts thereof.'' See 10 V.S.A. Sec.  
554(8), (9). Vermont Department of Environmental Conservation (DEC), 
one of several departments within ANR, operates an air quality 
monitoring network, and EPA approved the state's 2019 Annual Air 
Monitoring Network Plan on August 15, 2019.\8\ Furthermore, Vermont 
populates EPA's Air Quality System (AQS) with air-quality monitoring 
data in a timely manner and provides EPA with prior notification when 
considering a change to its monitoring network or plan. EPA proposes 
that Vermont has met the infrastructure SIP requirements of section 
110(a)(2)(B) with respect to the 2015 ozone NAAQS.
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    \8\ See EPA approval letter located in the docket for this 
action.
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C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures 
and for Construction or Modification of Stationary Sources

    States are required to include a program providing for enforcement 
of all SIP measures and for the regulation of construction of new or 
modified stationary sources to meet new source review (NSR) 
requirements under prevention of significant deterioration (PSD) and 
nonattainment new source review (NNSR) programs. Part C of the CAA 
(sections 160-169B) addresses PSD, while part D of the CAA (sections 
171-193) addresses NNSR requirements.
    The evaluation of each state's submission addressing the 
infrastructure SIP requirements of section 110(a)(2)(C) covers the 
following: (i) Enforcement of SIP measures; (ii) PSD program for major 
sources and major modifications; and (iii) a permit program for minor 
sources and minor modifications.
Sub-Element 1: Enforcement of SIP Measures
    State law provides the Secretary of ANR with the authority to 
enforce air pollution control requirements, including SIP-approved 10 
V.S.A. Sec.  554, which authorizes the Secretary of ANR to ``[i]ssue 
orders as may be necessary to effectuate the purposes of [the state's 
air pollution control laws] and enforce the same by all appropriate 
administrative and judicial proceedings.'' In addition, Vermont's SIP-
approved regulations VT APCR Sec.  5-501, ``Review of Construction or 
Modification of Air Contaminant Sources,'' and VT APCR Sec.  5-502, 
``Major Stationary Sources and Major Modifications,'' establish 
requirements for permits to construct, modify or operate major air 
contaminant sources.
    EPA proposes that Vermont has met the enforcement of SIP measures 
requirements of section 110(a)(2)(C) with respect to the 2015 ozone 
NAAQS.
Sub-Element 2--PSD Program for Major Sources and Major Modifications
    PSD applies to new major sources or modifications made to major 
sources for pollutants where the area in which the source is located is 
in attainment of, or unclassifiable with regard to, the relevant NAAQS. 
EPA interprets the CAA as requiring each state to make an 
infrastructure SIP submission for a new or revised NAAQS demonstrating 
that the air agency has a complete PSD permitting program in place 
satisfying the current requirements for all regulated NSR pollutants. 
VT DEC's EPA-approved PSD rules, contained at VT APCR Subchapters I, 
IV, and V, contain provisions that address applicable requirements for 
all regulated NSR pollutants, including greenhouse gases (GHGs).
    In 2018, EPA evaluated Vermont's PSD permitting program in the 
context of an infrastructure SIP submission under CAA Sec.  
110(a)(2)(C) and determined that it satisfies the current requirements 
for all regulated NSR pollutants. See 83 FR 45194 (September 6, 2018). 
For a detailed analysis, see EPA's proposal in that rulemaking. See 83 
FR 30598 (June 29, 2018). No new or revised PSD permitting program 
requirements have become due since that time. Therefore, for the 
reasons provided in the June 29, 2018, notice, EPA proposes to approve 
Vermont's infrastructure SIP for the 2015 ozone NAAQS for the 
requirement in section 110(a)(2)(C) to include a PSD permitting program 
in the SIP that covers the requirements for all regulated NSR

[[Page 18163]]

pollutants as required by part C of the Act.
Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor 
Modifications
    To address the pre-construction regulation of the modification and 
construction of minor stationary sources and minor modifications of 
major stationary sources, an infrastructure SIP submission should 
identify the existing EPA-approved SIP provisions and/or include new 
provisions that govern the minor source pre-construction program that 
regulate emissions of the relevant NAAQS pollutants. On August 1, 2016, 
EPA approved revisions to Vermont's minor NSR program. See 81 FR 50342. 
Vermont and EPA rely on the existing minor NSR program to ensure that 
new and modified sources not captured by the major NSR permitting 
programs, VT APCR Sec.  5-502, do not interfere with attainment and 
maintenance of the 2015 ozone NAAQS.
    We are proposing to find that Vermont has met the requirement to 
have a SIP-approved minor new source review permit program as required 
under Section 110(a)(2)(C) for the 2015 ozone NAAQS.

D. Section 110(a)(2)(D)--Interstate Transport

    This section contains a comprehensive set of air-quality-management 
elements pertaining to the transport of air pollution with which states 
must comply. It covers the following five topics, categorized as sub-
elements: Sub-element 1, Significant contribution to nonattainment, and 
interference with maintenance of a NAAQS; Sub-element 2, PSD; Sub-
element 3, Visibility protection; Sub-element 4, Interstate pollution 
abatement; and Sub-element 5, International pollution abatement. Sub-
elements 1 through 3 above are found under section 110(a)(2)(D)(i) of 
the Act, and these items are further categorized into the four prongs 
discussed below. Sub-elements 4 and 5 are found under section 
110(a)(2)(D)(ii) of the Act and include provisions insuring compliance 
with sections 115 and 126 of the Act relating to interstate and 
international pollution abatement.
Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Significant Contribution to 
Nonattainment (Prong 1) and Interference With Maintenance of the NAAQS 
(Prong 2)
Background
    Section 110(a)(2)(D)(i), known as the ``good neighbor'' provision, 
generally requires SIPs to contain adequate provisions to prohibit in-
state emissions activities from having certain adverse air-quality 
effects on other states due to interstate transport of pollution. There 
are four so-called ``prongs'' within CAA section 110(a)(2)(D)(i): 
Section 110(a)(2)(D)(i)(I) contains prongs 1 and 2, while section 
110(a)(2)(D)(i)(II) includes prongs 3 and 4. This sub-element addresses 
the first two prongs.
    Under prongs 1 and 2 of the good neighbor provision, a SIP for a 
new or revised NAAQS must contain adequate provisions prohibiting any 
source or other type of emissions activity within the state from 
emitting air pollutants in amounts that will significantly contribute 
to nonattainment of the NAAQS in another state (prong 1) or from 
interfering with maintenance of the NAAQS in another state (prong 2). 
EPA and states must give independent significance to prong 1 and prong 
2 when evaluating downwind air-quality problems under section 
110(a)(2)(D)(i)(I).\9\
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    \9\ See North Carolina v. EPA, 531 F.3d 896, 909-911 (2008).
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    We note that EPA has addressed the interstate transport 
requirements of CAA section 110(a)(2)(D)(i)(I) with respect to prior 
ozone NAAQS in several regional regulatory actions, including the 
Cross-State Air Pollution Rule (CSAPR), which addressed interstate 
transport with respect to the 1997 ozone NAAQS as well as the 1997 and 
2006 fine particulate matter (PM2.5) standards, and the 
CSAPR Update for the 2008 ozone NAAQS (CSAPR Update).\10\ These actions 
only addressed interstate transport in the eastern United States \11\ 
and did not address the 2015 ozone NAAQS.
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    \10\ See 76 FR 48208 (August 8, 2011) (i.e., CSAPR); 81 FR 74504 
(October 26, 2016) (i.e., CSAPR Update).
    \11\ For purposes of CSAPR and the CSAPR Update action, the 
Western U.S. (or the West) was considered to consist of the 11 
western contiguous states of Arizona, California, Colorado, Idaho, 
Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming. 
The Eastern U.S. (or the East) was considered to consist of the 37 
states east of the 11 Western states.
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    Through the development and implementation of CSAPR, the CSAPR 
Update and previous regional rulemakings pursuant to the good neighbor 
provision,\12\ the EPA, working in partnership with states, developed 
the following four-step interstate transport framework to address the 
requirements of the good neighbor provision for the ozone NAAQS: \13\ 
(1) Identify downwind air quality problems; (2) identify upwind states 
that impact those downwind air quality problems sufficiently such that 
they are considered ``linked'' and therefore warrant further review and 
analysis; (3) identify the emissions reductions necessary (if any), 
considering cost and air quality factors, to prevent linked upwind 
states identified in step 2 from contributing significantly to 
nonattainment or interfering with maintenance of the NAAQS at the 
locations of the downwind air quality problems; and (4) adopt permanent 
and enforceable measures needed to achieve those emissions reductions.
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    \12\ Other regional rulemakings addressing ozone transport 
include the NOX SIP Call, 63 FR 57356 (October 27, 1998), 
and the Clean Air Interstate Rule (CAIR), 70 FR 25162 (May 12, 
2005).
    \13\ The four-step interstate framework has also been used to 
address requirements of the good neighbor provision for some 
previous particulate matter and ozone NAAQS, including in the 
Western United States. See, e.g., 83 FR 30380 (June 28, 2018); 83 FR 
5375, 5376-77 (February 7, 2018).
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    EPA has released several documents containing information relevant 
to evaluating interstate transport with respect to the 2015 ozone 
NAAQS. First, on January 6, 2017, EPA published a notice of data 
availability (NODA) with preliminary interstate ozone transport 
modeling with projected ozone design values for 2023, on which we 
requested comment.\14\ The year 2023 was used as the analytic year for 
this preliminary modeling because that year aligns with the expected 
attainment year for Moderate ozone nonattainment areas.\15\
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    \14\ See Notice of Availability of the EPA's Preliminary 
Interstate Ozone Transport Modeling Data for the 2015 Ozone National 
Ambient Air Quality Standard (NAAQS). 82 FR 1733 (January 6, 2017).
    \15\ 82 FR 1735 (January 6, 2017).
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    On October 27, 2017, we released a memorandum (2017 memorandum) 
containing updated modeling data for 2023, which incorporated changes 
made in response to comments on the NODA.\16\ Although the 2017 
memorandum also released data for a 2023 modeling year, we specifically 
stated that the modeling may be useful for states developing SIPs to 
address remaining good neighbor obligations for the 2008 ozone NAAQS, 
but did not address the 2015 ozone NAAQS. On March 27, 2018, we issued 
a memorandum (March 2018 memorandum) indicating the same 2023 modeling 
data released in the 2017 memorandum would also be useful for 
evaluating potential downwind air-quality problems with respect to the

[[Page 18164]]

2015 ozone NAAQS (step 1 of the four-step framework).
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    \16\ See Information on the Interstate Transport State 
Implementation Plan Submissions for the 2008 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I), October 27, 2017, available in the docket for 
this action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
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    The March 2018 memorandum included newly available contribution-
modeling results to assist states in evaluating their impact on 
potential downwind air-quality problems (step 2 of the four-step 
framework) in their efforts to develop good neighbor SIPs for the 2015 
ozone NAAQS to address their interstate transport obligations.\17\ EPA 
subsequently issued two more memoranda in August and October 2018, 
providing guidance to states developing good neighbor SIPs for the 2015 
ozone NAAQS concerning, respectively, potential contribution thresholds 
that may be appropriate to apply in step 2 and considerations for 
identifying downwind areas that may have problems maintaining the 
standard (under prong 2 of the good neighbor provision) at step 1 of 
the framework.\18\
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    \17\ See Information on the Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards under Clean Air Act Section 
110(a)(2)(D)(i)(I), March 27, 2018, available in the docket for this 
action or at https://www.epa.gov/interstate-air-pollution-transport/interstate-air-pollution-transport-memos-and-notices.
    \18\ See Analysis of Contribution Thresholds for Use in Clean 
Air Act Section 110(a)(2)(D)(i)(I) Interstate Transport State 
Implementation Plan Submissions for the 2015 Ozone National Ambient 
Air Quality Standards, August 31, 2018) (``August 2018 
memorandum''), and Considerations for Identifying Maintenance 
Receptors for Use in Clean Air Act Section 110(a)(2)(D)(i)(I) 
Interstate Transport State Implementation Plan Submissions for the 
2015 Ozone National Ambient Air Quality Standards, October 19, 2018, 
available in the docket for this action or at https://www.epa.gov/airmarkets/memo-and-supplemental-information-regarding-interstate-transport-sips-2015-ozone-naaqs.
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    The March 2018 memorandum describes the process and results of the 
updated photochemical and source-apportionment modeling used to project 
ambient ozone concentrations for the year 2023 and the state-by-state 
impacts on those concentrations. The March 2018 memorandum also 
explains that the selection of the 2023 analytic year aligns with the 
2015 ozone NAAQS attainment year for Moderate nonattainment areas. As 
described in the 2017 and March 2018 memoranda, EPA used the 
Comprehensive Air Quality Model with Extensions (CAMx version 6.40) to 
model average and maximum design values in 2023 to identify potential 
nonattainment and maintenance receptors (i.e., monitoring sites that 
are projected to have problems attaining or maintaining the 2015 ozone 
NAAQS).
    The March 2018 memorandum presents design values calculated in two 
ways: first, following the EPA's historic ``3 x 3'' approach \19\ to 
evaluating all sites, and second, following a modified approach for 
coastal monitoring sites in which ``overwater'' modeling data were not 
included in the calculation of future-year design values (referred to 
as the ``no water'' approach).
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    \19\ See March 2018 memorandum, p. 4.
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    For purposes of identifying potential nonattainment and maintenance 
receptors in 2023, EPA applied the same approach used in the CSAPR 
Update, wherein EPA considered a combination of monitoring data and 
modeling projections to identify monitoring sites that are projected to 
have problems attaining or maintaining the NAAQS. Specifically, EPA 
identified nonattainment receptors as those monitoring sites with 
measured values \20\ exceeding the NAAQS that also have projected 
(i.e., in 2023) average design values exceeding the NAAQS. EPA 
identified maintenance receptors as those monitoring sites with 
projected maximum design values exceeding the NAAQS. This included 
sites with measured values below the NAAQS, but with projected average 
and maximum design values exceeding the NAAQS, and monitoring sites 
with projected average design values below the NAAQS, but with 
projected maximum design values exceeding the NAAQS. EPA included the 
design values and monitoring data for all monitoring sites projected to 
be potential nonattainment or maintenance receptors based on the 
updated 2023 modeling in Attachment B to the March 2018 memorandum.
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    \20\ EPA used 2016 ozone design values, based on 2014-2016 
measured data, which were the most current data at the time of the 
analysis. See attachment B of the March 2018 memorandum, p. B-1.
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    After identifying potential downwind nonattainment and maintenance 
receptors, EPA performed nationwide, state-level ozone source-
apportionment modeling to estimate the expected impact from each state 
to each nonattainment and maintenance receptor.\21\ EPA included 
contribution information resulting from the source-apportionment 
modeling in Attachment C to the March 2018 memorandum. For more 
information on the modeling and analysis, please see the 2017 and March 
2018 memoranda, the NODA for the preliminary interstate transport 
assessment, and the supporting technical documents included in the 
docket for this action.
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    \21\ As discussed in the March 2018 memorandum, EPA performed 
source-apportionment model runs for a modeling domain that covers 
the 48 contiguous United States and the District of Columbia, and 
adjacent portions of Canada and Mexico.
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    In the CSAPR and the CSAPR Update, the EPA used a threshold of one 
percent of the NAAQS to determine whether a given upwind state was 
``linked'' at step 2 of the four-step framework and would, therefore, 
contribute to downwind nonattainment and maintenance sites identified 
in step 1. If a state's impact did not equal or exceed the one-percent 
threshold, the upwind state was not ``linked'' to a downwind air 
quality problem, and the EPA, therefore, concluded the state will not 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS in the downwind states. However, if a state's impact 
equaled or exceeded the one-percent threshold, the state's emissions 
were further evaluated in step 3, taking into account both air-quality 
and cost considerations, to determine what, if any, emissions 
reductions might be necessary to address the good neighbor provision.
    As noted previously, on August 31, 2018, the EPA issued a 
memorandum (the August 2018 memorandum) providing guidance concerning 
potential contribution thresholds that may be appropriate to apply with 
respect to the 2015 ozone NAAQS in step 2. Consistent with the process 
for selecting the one-percent threshold in CSAPR and the CSAPR Update, 
the memorandum included analytical information regarding the degree to 
which potential air-quality thresholds would capture the collective 
amount of upwind contribution from upwind states to downwind receptors 
for the 2015 ozone NAAQS. The August 2018 memorandum indicated that, 
based on the EPA's analysis of its most recent modeling data, the 
amount of upwind collective contribution captured using a 1 parts per 
billion (ppb) threshold is generally comparable, overall, to the amount 
captured using a threshold equivalent to one percent of the 2015 ozone 
NAAQS. Accordingly, the EPA indicated that it may be reasonable and 
appropriate for states to use a 1 ppb contribution threshold, as an 
alternative to the one-percent threshold, at step 2 of the four-step 
framework in developing their SIP revisions addressing the good 
neighbor provision for the 2015 ozone NAAQS.\22\
---------------------------------------------------------------------------

    \22\ See August 2018 memorandum, p. 4.
---------------------------------------------------------------------------

    While the March 2018 memorandum presented information regarding the 
EPA's latest analysis of ozone transport following the approaches the 
EPA has taken in prior regional rulemaking actions, the EPA has not 
made any final

[[Page 18165]]

determinations regarding how states should identify downwind receptors 
with respect to the 2015 ozone NAAQS at step 1 of the four-step 
framework. Rather, the EPA noted that states have flexibility in 
developing their own SIPs to follow different analytical approaches 
than the EPA's, so long as their chosen approach has an adequate 
technical justification and is consistent with the requirements of the 
CAA.
Vermont's Submission for Prongs 1 and 2
    On November 19, 2019, Vermont submitted a SIP revision addressing 
the CAA section 110(a)(2)(D)(i)(I) interstate transport requirements 
for the 2015 ozone NAAQS. This ``good neighbor SIP'' was included as an 
enclosure in the state's infrastructure SIP for the same NAAQS.
    Vermont relied on the results of the EPA's modeling for the 2015 
ozone NAAQS contained in the March 2018 memorandum to identify downwind 
nonattainment and maintenance receptors that may be impacted by 
emissions from sources in Vermont. These results indicate Vermont's 
greatest impact on any potential downwind nonattainment or maintenance 
receptor would be 0.07 ppb. Vermont compared these values to a 
screening threshold of 0.70 ppb, representing one percent of the 2015 
ozone NAAQS. Because Vermont's impacts to neighboring states are 
projected to be less than 0.70 ppb, Vermont concluded that emissions 
from sources within the state will not significantly contribute to 
nonattainment or interfere with maintenance of the 2015 ozone NAAQS in 
any other state.
    Vermont also reviewed ozone concentrations and trends measured at 
the state's three ambient air-quality monitors and noted that no 
concentrations at these monitors has exceeded the 2015 ozone NAAQS 
since 2010. Vermont also looked at EPA's projected emissions of ozone 
precursors performed in support of the CSAPR Update. This modeling 
included annual total NOx and VOC emissions by state for the years 2011 
through 2017 and projected emissions for 2023.\23\ For Vermont, 
emissions of ozone precursors have decreased for the period 2011-2017 
and are projected to be lower in 2023 than in 2017.
---------------------------------------------------------------------------

    \23\ https://www.epa.gov/air-emissions-modeling/2011-version-63-platform.
---------------------------------------------------------------------------

    Vermont's November 2019 Good Neighbor submission also lists and 
discusses Vermont's regulations for controlling emissions of ozone 
precursors, and its regional emissions-control strategies, including 
those it has implemented as a member of the Ozone Transport Commission.
EPA's Evaluation of Vermont's Submission
    The EPA is proposing to rely on the 2023 modeling data identifying 
downwind receptors and upwind state contributions, as released in the 
March 2018 memorandum, to evaluate Vermont's good neighbor obligation 
with respect to the 2015 ozone NAAQS. On September 13, 2019, the United 
States Court of Appeals for the District of Columbia Circuit (D.C. 
Circuit) issued its decision in Wisconsin v. EPA addressing legal 
challenges to the CSAPR Update, in which the EPA partially addressed 
certain upwind states' good neighbor obligations for the 2008 ozone 
NAAQS. 938 F.3d 303. While the court generally upheld the rule as to 
most of the challenges raised in the litigation, the court remanded the 
CSAPR Update to the extent it failed to require upwind states to 
eliminate their significant contributions in accordance with the 
attainment dates found in CAA section 181 by which downwind states must 
come into compliance with the NAAQS. Id. at 313. In light of the 
court's decision, the EPA is providing further explanation regarding 
why it proposes to find that it is appropriate and consistent with the 
statute--as well as the legal precedent--to use the 2023 analytic year 
for assessing good neighbor obligations for the 2015 ozone NAAQS.
    The EPA believes that 2023 is an appropriate year for analysis of 
good neighbor obligations for the 2015 ozone NAAQS because the 2023 
ozone season is the last relevant ozone season during which achieved 
emissions reductions in linked upwind states could assist downwind 
states with meeting the August 2, 2024, Moderate area attainment date 
for the 2015 ozone NAAQS. The EPA recognizes that the attainment date 
for nonattainment areas classified as Marginal for the 2015 ozone NAAQS 
is August 2, 2021, which currently applies in several downwind 
nonattainment areas evaluated in the EPA's modeling.\24\ However, as 
explained below, the EPA does not believe that either the statute or 
applicable case law requires the evaluation of good neighbor 
obligations in a future year aligned with the attainment date for 
nonattainment areas classified as Marginal.
---------------------------------------------------------------------------

    \24\ The Marginal area attainment date is not applicable for 
nonattainment areas already classified as Moderate or higher, such 
as the New York Metropolitan Area. For the status of all 
nonattainment areas under the 2015 ozone NAAQS, see U.S. EPA, 8-Hour 
Ozone (2015) Designated Area/State Information, https://www3.epa.gov/airquality/greenbook/jbtc.html (last updated Sept. 30, 
2019).
---------------------------------------------------------------------------

    The good neighbor provision instructs the EPA and states to apply 
its requirements ``consistent with the provisions of'' title I of the 
CAA. CAA section 110(a)(2)(D)(i); see also North Carolina v. EPA, 531 
F.3d 896, 911-12 (D.C. Circuit 2008). This consistency instruction 
follows the requirement that plans ``contain adequate provisions 
prohibiting'' certain emissions in the good neighbor provision. As the 
D.C. Circuit held in North Carolina, and more recently in Wisconsin, 
the good neighbor provision must be applied in a manner consistent with 
the designation and planning requirements in title I that apply in 
downwind states and, in particular, the timeframe within which downwind 
states are required to implement specific emissions control measures in 
nonattainment areas and submit plans demonstrating how those areas will 
attain, relative to the applicable attainment dates. See North 
Carolina, 896 F.3d at 912 (holding that the good neighbor provision's 
reference to title I requires consideration of both procedural and 
substantive provisions in title I); Wisconsin, 938 F.3d at 313-18.
    While the EPA recognizes, as the court held in North Carolina and 
Wisconsin, that upwind emissions-reduction obligations, therefore, must 
generally be aligned with downwind receptors' attainment dates, unique 
features of the statutory requirements associated with the Marginal 
area planning requirements and attainment date under CAA section 182 
lead the EPA to conclude that it is more reasonable and appropriate to 
require the alignment of upwind good neighbor obligations with later 
attainment dates applicable for Moderate or higher classifications. 
Under the Clean Air Act, states with areas designated nonattainment are 
generally required to submit, as part of their state implementation 
plan, an ``attainment demonstration'' that shows, usually through air-
quality modeling, how an area will attain the NAAQS by the applicable 
attainment date. See CAA section 172(c)(1).\25\ Such plans must also 
include, among other things, the adoption of all ``reasonably 
available''

[[Page 18166]]

control measures on existing sources, a demonstration of ``reasonable 
further progress'' toward attainment, and contingency measures, which 
are specific controls that will take effect if the area fails to attain 
by its attainment date or fails to make reasonable further progress 
toward attainment. See, e.g., CAA section 172(c)(1); 172(c)(2); 
172(c)(9).
---------------------------------------------------------------------------

    \25\ Part D of title I of the Clean Air Act provides the plan 
requirements for all nonattainment areas. Subpart 1, which includes 
section 172(c), applies to all nonattainment areas. Congress 
provided in subparts 2-5 additional requirements specific to the 
various NAAQS pollutants that nonattainment areas must meet.
---------------------------------------------------------------------------

    Ozone nonattainment areas classified as Marginal are excepted from 
these general requirements under the CAA--unlike other areas designated 
nonattainment under the Act (including for other NAAQS pollutants), 
Marginal ozone nonattainment areas are specifically exempted from 
submitting an attainment demonstration and are not required to 
implement any specific emissions controls at existing sources in order 
to meet the planning requirements applicable to such areas. See CAA 
section 182(a): ``The requirements of this subsection shall apply in 
lieu of any requirement that the State submit a demonstration that the 
applicable implementation plan provides for attainment of the ozone 
standard by the applicable attainment date in any Marginal Area.'' \26\ 
Marginal ozone nonattainment areas are also exempted from demonstrating 
reasonable further progress towards attainment and submitting 
contingency measures. See CAA section 182(a), which does not include a 
reasonable further progress requirement and specifically notes that 
``Section [172(c)(9)] of this title (relating to contingency measures) 
shall not apply to Marginal Areas.''
---------------------------------------------------------------------------

    \26\ States with Marginal nonattainment areas are required to 
implement new source review permitting for new and modified sources, 
but the purpose of those requirements is to ensure that potential 
emissions increases do not interfere with progress towards 
attainment, as opposed to reducing existing emissions. Moreover, EPA 
acknowledges that states within ozone transport regions must 
implement certain emission control measures at existing sources in 
accordance with CAA section 184, but those requirements apply 
regardless of the applicable area designation or classification.
---------------------------------------------------------------------------

    Existing regulations--either local, state, or federal--are 
typically part of the reason why ``additional'' local controls are not 
needed to bring Marginal nonattainment areas into attainment. As 
described in EPA's record for its final rule defining area 
classifications for the 2015 ozone NAAQS and establishing associated 
attainment dates, history has shown that most areas classified as 
Marginal for prior ozone standards attained the respective standards by 
the Marginal area attainment date (i.e., without being re-classified to 
a Moderate designation). See 83 FR 10376.
    As part of a historical lookback, EPA calculated that by the 
relevant attainment date for areas classified as Marginal, 85 percent 
of such areas attained the 1979 1-hour ozone NAAQS, and 64 percent 
attained the 2008 ozone NAAQS. See Response to Comments, section 
A.2.4.\27\ Based on these historical data, EPA expects that many areas 
classified Marginal for the 2015 ozone NAAQS will also attain by the 
relevant attainment date as a result of emissions reductions that are 
already expected to occur through implementation of existing local, 
state, and federal emissions reduction programs. To the extent states 
have concerns about meeting their attainment date for a Marginal area, 
the CAA under section 181(b)(3) provides authority for them to 
voluntarily request a higher classification for individual areas, if 
needed.
---------------------------------------------------------------------------

    \27\ Available at https://www.regulations.gov/document?D=EPA-HQ-OAR-2016-0202-0122.
---------------------------------------------------------------------------

    Areas that are classified as Moderate typically have more 
pronounced air-quality problems than Marginal areas or have been unable 
to attain the NAAQS under the minimal requirements that apply to 
Marginal areas. See CAA sections 181(a)(1) (classifying areas based on 
the degree of nonattainment relative to the NAAQS), and 181(b)(2) 
(providing for reclassification to the next highest designation upon 
failure to attain the standard by the attainment date). Thus, unlike 
Marginal areas, the statute explicitly requires a state with an ozone 
nonattainment area classified as Moderate or higher to develop an 
attainment plan demonstrating how the state will address the more 
significant air-quality problem, which generally requires the 
application of various control measures to existing sources of 
emissions located in the nonattainment area. See generally CAA sections 
172(c) and 182(b)-(e).
    Given that downwind states are not required to demonstrate 
attainment by the attainment date or impose additional controls on 
existing sources in a Marginal nonattainment area, EPA believes that it 
would be inconsistent to interpret the good neighbor provision as 
requiring EPA to evaluate the necessity for upwind state emissions 
reductions based on air quality modeled in a future year aligned with 
the Marginal area attainment date. Rather, EPA believes it is more 
appropriate and consistent with the nonattainment planning provisions 
in title I to evaluate downwind air quality and upwind state 
contributions, and, therefore, the necessity for upwind state emissions 
reductions, in a year aligned with an area classification in connection 
with which downwind states are also required to demonstrate attainment 
and implement controls on existing sources--i.e., with the Moderate 
area attainment date, rather than the Marginal area date. With respect 
to the 2015 ozone NAAQS, the Moderate area attainment date will be in 
the summer of 2024, and the last full year of monitored ozone-season 
data that will inform attainment demonstrations is, therefore, 2023.
    The EPA's interpretation of the good neighbor requirements in 
relation to the Marginal area attainment date is consistent with the 
Wisconsin opinion. For the reasons explained below, the court's holding 
does not contradict the EPA's view that 2023 is an appropriate analytic 
year in evaluating good neighbor SIPs for the 2015 ozone NAAQS. The 
court in Wisconsin was concerned that allowing upwind emission 
reductions to be implemented after the applicable attainment date would 
require downwind states to obtain more emissions reductions than the 
Act requires of them, to make up for the absence of sufficient 
emissions reductions from upwind states. See 938 F.3d at 316. As 
discussed previously, however, this equitable concern only arises for 
nonattainment areas classified as Moderate or higher for which downwind 
states are required by the CAA to develop attainment plans securing 
reductions from existing sources and demonstrating how such areas will 
attain by the attainment date. See, e.g., CAA section 182(b)(1) & (2) 
(establishing ``reasonable further progress'' and ``reasonably 
available control technology'' requirements for Moderate nonattainment 
areas). Ozone nonattainment areas classified as Marginal are not 
required to meet these same planning requirements, and thus the 
equitable concerns raised by the Wisconsin court do not arise with 
respect to downwind areas subject to the Marginal area attainment date.
    The distinction between planning obligations for Marginal 
nonattainment areas and higher classifications was not before the court 
in Wisconsin. Rather, the court was considering whether the EPA, in 
implementing its obligation to promulgate federal implementation plans 
under CAA section 110(c), was required to fully resolve good neighbor 
obligations by the 2018 Moderate area attainment date for the 2008 
ozone NAAQS. See 938 F.3d at 312-13. Although the court noted that 
petitioners had not ``forfeited'' an argument with respect to the 
Marginal area attainment date, see id. at 314, the court did not 
address whether its holding with respect to the 2018

[[Page 18167]]

Moderate area date would have applied with equal force to the Marginal 
area attainment date because that date had already passed. Thus, the 
court did not have the opportunity to consider these differential 
planning obligations in reaching its decision regarding the EPA's 
obligations relative to the then-applicable 2018 Moderate area 
attainment date, because such considerations were not applicable to the 
case before the court.\28\ For the reasons discussed here, the 
equitable concerns supporting the Wisconsin court's holding as to 
upwind state obligations relative to the Moderate area attainment date 
also support the EPA's interpretation of the good neighbor provision 
relative to the Marginal area attainment date. Thus, EPA proposes to 
conclude that its reliance on an evaluation of air quality in the 2023 
analytical year for purposes of assessing good neighbor obligations 
with respect to the 2015 ozone NAAQS is based on a reasonable 
interpretation of the CAA and legal precedent.
---------------------------------------------------------------------------

    \28\ The D.C. Circuit, in a short judgment, subsequently vacated 
and remanded the EPA's action purporting to fully resolve good 
neighbor obligations for certain states for the 2008 ozone NAAQS, 
referred to as the CSAPR Close-Out, 83 FR 65878 (Dec. 21, 2018). New 
York v. EPA, No. 19-1019 (Oct. 1, 2019). That result necessarily 
followed from the Wisconsin decision, because as the EPA conceded, 
the Close-Out ``relied upon the same statutory interpretation of the 
Good Neighbor Provision'' rejected in Wisconsin. Id. slip op. at 3. 
In the Close-Out, the EPA had analyzed the year 2023, which was two 
years after the Serious area attainment date for the 2008 ozone 
NAAQS and not aligned with any attainment date for that NAAQS. Id. 
at 2. In New York, as in Wisconsin, the court was not faced with 
addressing specific issues associated with the unique planning 
requirements associated with the Marginal area attainment date.
---------------------------------------------------------------------------

    As previously discussed, the March 2018 memorandum identifies 
potential downwind nonattainment and maintenance receptors, using the 
definitions applied in the CSAPR Update and using both the ``3 x 3'' 
and the ``no water'' approaches to calculating future year design 
values. The March 2018 memorandum identifies 57 potential nonattainment 
and maintenance receptors in the West in Arizona (2), California (49), 
and Colorado (6).\29\ The March 2018 memorandum also provides 
contribution data regarding the impact of other states on the potential 
receptors.
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    \29\ The number of receptors in the identified western states is 
57, irrespective of whether the ``3 x 3'' or ``no water'' approach 
is used. Further, although the EPA has indicated that states may 
have flexibilities to apply a different analytic approach to 
evaluating interstate transport, including identifying downwind air 
quality problems, because the EPA is also concluding in this 
proposed action that Vermont will have an insignificant impact on 
any potential receptors identified in its analysis, Vermont need not 
definitively determine whether the identified monitoring sites 
should be treated as receptors for the 2015 ozone standard.
---------------------------------------------------------------------------

    For purposes of evaluating Vermont's 2015 ozone NAAQS interstate 
transport SIP submission, given that the state contributes less than 
one percent to downwind nonattainment and maintenance sites, it is 
reasonable to conclude that the state's impact will not significantly 
contribute to nonattainment or interfere with maintenance of the NAAQS 
in any other state. This is consistent with our October 13, 2016, 
action on Vermont's SIP with respect to the 2008 ozone NAAQS (81 FR 
70631) and with the EPA's approach to both the 1997 and 2008 ozone 
NAAQS in CSAPR and the CSAPR Update. EPA notes, nonetheless, that 
consistent with the August 2018 memorandum, it may be reasonable and 
appropriate for states to use a 1 ppb contribution threshold, as an 
alternative to a one-percent threshold, at step 2 of the four-step 
framework in developing their SIP revisions addressing the good 
neighbor provision for the 2015 ozone NAAQS. However, for the reasons 
discussed below, it is unnecessary for EPA to determine whether it may 
be appropriate to apply a 1 ppb threshold for purposes of this action.
    The EPA's updated 2023 modeling discussed in the March 2018 
memorandum indicates that Vermont's largest impact on any potential 
downwind nonattainment and maintenance receptor is 0.07 ppb.\30\ This 
value is less than 0.70 ppb (one percent of the 2015 ozone NAAQS),\31\ 
and demonstrates that emissions from Vermont are not linked to any 2023 
downwind potential nonattainment and maintenance receptors identified 
in the March 2018 memorandum. Accordingly, we propose to conclude that 
emissions from Vermont will not contribute to any potential receptors, 
and, thus, the state will not significantly contribute to nonattainment 
or interfere with maintenance of the NAAQS in any other state.
---------------------------------------------------------------------------

    \30\ The EPA's analysis indicates that Vermont will have a 0.07 
ppb impact at the potential nonattainment receptor in Queens, NY 
(Site ID 360810124), which has a 2023 projected average design value 
of 70.2 ppb, a 2023 projected maximum design value of 72.0 ppb, and 
had a 2014-2016 design value of 69 ppb. The EPA's analysis further 
indicates that Vermont will have a 0.02 ppb impact at a potential 
nonattainment receptor in Suffolk, NY (Site ID 361030002), which has 
a projected 2023 average design value of 74.0 ppb, a 2023 projected 
maximum design value of 75.5 ppb, and had a 2014-2016 design value 
of 72 ppb. In addition, Vermont will have a 0.02 ppb impact at a 
potential nonattainment receptor in New Haven, CT (Site ID 
90099002), which has a projected 2023 average design value of 69.9 
ppb, a 2023 projected maximum design value of 72.6 ppb, and had a 
2014-2016 design value of 76 ppb. See the March 2018 memorandum, 
attachment C.
    \31\ Because none of Vermont's impacts equal or exceed 0.70 ppb, 
they necessarily also do not equal or exceed the 1 ppb contribution 
threshold discussed in the August 2018 memorandum.
---------------------------------------------------------------------------

Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
    To prevent significant deterioration of air quality, this sub-
element requires SIPs to include provisions that prohibit any source or 
other type of emissions activity in one state from interfering with 
measures that are required in any other state's SIP under Part C of the 
CAA. As explained in the 2013 memorandum, a state may meet this 
requirement with respect to in-state sources and pollutants that are 
subject to PSD permitting through a comprehensive PSD permitting 
program that applies to all regulated NSR pollutants and that satisfies 
the requirements of EPA's PSD implementation rules. As discussed above 
under element C, Vermont has such a PSD permitting program. For in-
state sources not subject to PSD, this requirement can be satisfied 
through a fully-approved nonattainment new source review (NNSR) program 
with respect to any previous NAAQS. EPA's latest approval of some 
revisions to Vermont's NNSR regulations was on August 1, 2016. See 81 
FR 50342. Therefore, we are proposing to approve this sub-element for 
the 2015 ozone NAAQS.
Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection 
(Prong 4)
    With regard to applicable requirements for visibility protection of 
section 110(a)(2)(D)(i)(II), states are subject to visibility and 
regional haze program requirements under part C of the CAA (which 
includes sections 169A and 169B). The 2009 memorandum, 2011 memorandum, 
and 2013 memorandum recommend that these requirements can be satisfied 
by an approved SIP addressing reasonably attributable visibility 
impairment, if required, or an approved SIP addressing regional haze. A 
fully approved regional haze SIP meeting the requirements of 40 CFR 
51.308 will include all measures needed to achieve the state's 
apportionment of emission reduction obligations agreed upon through a 
regional planning process and will therefore ensure that emissions from 
sources under the air agency's jurisdiction are not interfering with 
measures required to be included in other air agencies' plans to 
protect visibility. EPA approved Vermont's Regional Haze SIP on May 22, 
2012. See

[[Page 18168]]

77 FR 30212. Accordingly, EPA proposes that Vermont meets the 
visibility protection requirements of 110(a)(2)(D)(i)(II) for the 2015 
ozone NAAQS.
Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution Abatement
    This sub-element requires that each SIP contain provisions 
requiring compliance with requirements of section 126 relating to 
interstate pollution abatement. Section 126(a) requires new or modified 
sources to notify neighboring states of potential impacts from the 
source. The statute does not specify the method by which the source 
should provide the notification. States with SIP-approved PSD programs 
must have a provision requiring such notification by new or modified 
sources.
    On August 1, 2016 (81 FR 50342), EPA approved revisions to VT APCR 
Sec.  5-501, which includes a provision that requires VT ANR to provide 
notice of a draft PSD permit to, among other entities, any state whose 
lands may be affected by emissions from the source. VT APCR Sec.  5-
501(7)(c). Vermont's public notice requirements are consistent with the 
Federal PSD program's public notice requirements for affected states 
under 40 CFR 51.166(q). Therefore, we propose to approve Vermont's 
compliance with the infrastructure SIP requirements of section 126(a) 
for the 2015 ozone NAAQS. Vermont has no obligations under any other 
provision of section 126, and no source or sources within the state are 
the subject of an active finding under section 126 of the CAA with 
respect to the 2015 ozone NAAQS.
Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution 
Abatement
    This sub-element also requires each SIP to contain provisions 
requiring compliance with the applicable requirements of section 115 
relating to international pollution abatement. Section 115 authorizes 
the Administrator to require a state to revise its SIP to alleviate 
international transport into another country where the Administrator 
has made a finding with respect to emissions of the particular NAAQS 
pollutant and its precursors, if applicable. There are no final 
findings under section 115 of the CAA against Vermont with respect to 
the 2015 ozone NAAQS. Therefore, EPA is proposing that Vermont has met 
the applicable infrastructure SIP requirements of section 
110(a)(2)(D)(ii) related to section 115 of the CAA for the 2015 ozone 
NAAQS.

E. Section 110(a)(2)(E)--Adequate Resources

    Section 110(a)(2)(E)(i) requires each SIP to provide assurances 
that the state will have adequate personnel, funding, and legal 
authority under state law to carry out its SIP. In addition, section 
110(a)(2)(E)(ii) requires each state to comply with the requirements 
for state boards in CAA section 128. Finally, section 110(a)(2)(E)(iii) 
requires that, where a state relies upon local or regional governments 
or agencies for the implementation of its SIP provisions, the state 
retain responsibility for ensuring implementation of SIP obligations 
with respect to relevant NAAQS. Section 110(a)(2)(E)(iii), however, 
does not apply to this action because Vermont does not rely upon local 
or regional governments or agencies for the implementation of its SIP 
provisions.
Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under 
State Law To Carry Out its SIP, and Related Issues
    Vermont, through its infrastructure SIP submittal, has documented 
that its air agency has the requisite authority and resources to carry 
out its SIP obligations. Vermont cites 10 V.S.A. Sec.  553, which 
designates ANR as the air pollution control agency of the state, and 10 
V.S.A. Sec.  554, which provides the Secretary of ANR with the power to 
``[a]dopt, amend and repeal rules, implementing the provisions'' of 10 
V.S.A. Chapter 23, Air Pollution Control, and to ``[a]ppoint and employ 
personnel and consultants as may be necessary for the administration 
of'' 10 V.S.A. Chapter 23. Section 554 also authorizes the Secretary of 
ANR to ``[a]ccept, receive and administer grants or other funds or 
gifts from public and private agencies, including the federal 
government, for the purposes of carrying out any of the functions of'' 
10 V.S.A. Chapter 23. Additionally, 3 V.S.A. Sec.  2822 provides the 
Secretary of ANR with the authority to assess air permit and 
registration fees, which fund state air programs. In addition to 
Federal funding and permit and registration fees, Vermont notes that 
the Vermont DEC Air Quality and Climate Division (AQCD) receives state 
funding to implement its air programs.\32\
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    \32\ VT ANR's authority to carry out the provisions of the SIP 
identified in 40 CFR 51.230 is discussed in the sections of this 
document assessing elements A, C, F, and G, as applicable.
---------------------------------------------------------------------------

    EPA proposes that Vermont meets the infrastructure SIP requirements 
of this portion of section 110(a)(2)(E) for the 2015 ozone NAAQS.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
    Section 110(a)(2)(E)(ii) requires each SIP to contain provisions 
that comply with the state board requirements of section 128 of the 
CAA. That provision contains two explicit requirements: (1) That any 
board or body which approves permits or enforcement orders under this 
chapter shall have at least a majority of members who represent the 
public interest and do not derive any significant portion of their 
income from persons subject to permits and enforcement orders under 
this chapter, and (2) that any potential conflicts of interest by 
members of such board or body or the head of an executive agency with 
similar powers be adequately disclosed. Section 128 further provides 
that a state may adopt more stringent conflicts of interest 
requirements and requires EPA to approve any such requirements 
submitted as part of a SIP.
    In Vermont, no board or body approves permits or enforcement 
orders; these are approved by the Secretary of Vermont ANR. Thus, with 
respect to this sub-element, Vermont is subject only to the 
requirements of paragraph (a)(2) of section 128 of the CAA (regarding 
conflicts of interest).
    Vermont's November 19, 2019, infrastructure SIP included State of 
Vermont Executive Order (E.O.) 19-17, Executive Code of Ethics, and 
requested that we approve it into the SIP and remove E.O. 09-11, which 
E.O. 19-17 supersedes and replaces. EPA originally approved E.O. 09-11 
into the SIP on June 27, 2017. See 82 FR 29005.
    The submitted Order, E.O. 19-17, prohibits all Vermont executive 
branch appointees (including the ANR Secretary) from taking ``any 
action in any matter in which he or she has either a Conflict of 
Interest or the appearance of a Conflict of Interest, until the 
Conflict is resolved.'' \33\ The Order also

[[Page 18169]]

prohibits a full-time appointee from being ``the owner of, or 
financially interested, directly or indirectly, in any Private Entity 
or private interest subject to the supervision of his or her respective 
Public Body, except as a policy holder in an insurance company or a 
depositor in a bank.'' \34\ Additionally, the Order requires an 
appointee to ``take all reasonable steps to avoid any action or 
circumstances, including acts or circumstances which may not be 
specifically prohibited by th[e] Code [of Ethics], which might result 
in (1) [u]ndermining his or her independence or impartiality or action; 
(2) [t]aking official action based on unfair considerations; (3) 
[g]iving preferential treatment to any private interest or Private 
Entity based on unfair considerations; (4) [g]iving preferential 
treatment to any family member or member of the Appointee's household; 
(5) [u]sing public office for the advancement of personal interest; (6) 
[u]sing public office to secure special privileges or exemptions; (7) 
[a]dversely affecting the confidence of the public in the integrity of 
State government; or (8) undermining the climate of civility and 
respect required for every open, democratic government to thrive.''
---------------------------------------------------------------------------

    \33\ The Order defines ``Conflict of Interest'' as ``a 
significant interest of an Appointee or such an interest, known to 
the Appointee, of a member of his or her immediate family or 
household, or of a business associate, in the outcome of a 
particular matter pending before the Appointee or his or her Public 
Body. `Conflict of Interest' does not include any interest that (i) 
is no greater than that of other persons generally affected by the 
outcome of a matter (such as a policyholder in an insurance company 
or a depositor in a bank), or (ii) has been disclosed to the 
Secretary and found not to be significant.'' ``Appearance of a 
Conflict of Interest'' is defined in the Order as ``the impression 
that a reasonable person might have, after full disclosure of the 
facts, that an Appointee's judgment might be significantly 
influenced by outside interests, even though there may be no actual 
Conflict of Interest.''
    \34\ The Order defines ``a direct or indirect financial 
interest'' to exclude ``any insignificant interest held individually 
or by a member of the Appointee's immediate household or by a 
business associate'' and ``any interest which is no greater than 
that of other persons who might be generally affected by the 
Supervision of the Appointee's Public Body.''
---------------------------------------------------------------------------

    The Order also includes specific disclosure requirements. Every 
appointee earning $30,000 or more per year, which includes the ANR 
Secretary, must file annually with the Vermont Secretary of Civil and 
Military Affairs an ``Ethics Questionnaire'' identifying ``significant 
personal interests'' that ``might conflict with the best interests of 
the state.'' Agency Secretaries must also disclose certain additional 
financial and contractual interests to the State Ethics Commission 
biennially. EPA proposes to find that E.O. 19-17 satisfies the CAA 
Sec.  128 requirement applicable to Vermont that potential conflicts of 
interest by the head of an executive agency that approves permits or 
enforcement orders under the CAA be ``adequately disclosed.'' 
Consequently, EPA proposes to approve E.O. 19-17 into the Vermont SIP 
and, concurrently, to remove E.O. 09-11 from the Vermont SIP.
    EPA proposes that Vermont meets the infrastructure SIP requirements 
of this portion of section 110(a)(2)(E) for the 2015 ozone NAAQS.

F. Section 110(a)(2)(F)--Stationary Source Monitoring System

    States must establish a system to monitor emissions from stationary 
sources and submit periodic emissions reports. Each plan shall also 
require the installation, maintenance, and replacement of equipment, 
and the implementation of other necessary steps, by owners or operators 
of stationary sources to monitor emissions from such sources. The state 
plan shall also require periodic reports on the nature and amounts of 
emissions and emissions-related data from such sources, and correlation 
of such reports by each state agency with any emission limitations or 
standards. Lastly, the reports shall be available at reasonable times 
for public inspection.
    Vermont's infrastructure submittal references existing state 
regulations previously approved by EPA that require sources to monitor 
emissions and submit reports. In particular, VT APCR Sec.  5-405, 
Required Air Monitoring, provides that ANR ``may require the owner or 
operator of any air contaminant source to install, use and maintain 
such monitoring equipment and records, establish and maintain such 
records, and make such periodic emission reports as [ANR] shall 
prescribe.'' See 45 FR 10775 (February 19, 1980). Moreover, section 5-
402, Written Reports When Requested, authorizes ANR to ``require 
written reports from the person operating or responsible for any 
proposed or existing air contaminant source, which reports shall 
contain,'' among other things, information concerning the ``nature and 
amount and time periods or durations of emissions and such other 
information as may be relevant to the air pollution potential of the 
source. These reports shall also include the results of such source 
testing as may be required under Section 5-404 herein.'' See 81 FR 
50342 (August 1, 2016).
    Section 5-404, Methods for Sampling and Testing of Sources 
authorizes ANR to ``require the owner or operator of [a] source to 
conduct tests to determine the quantity of particulate and/or gaseous 
matter being emitted'' and requires a source to allow access, should 
ANR have reason to believe that emission limits are being violated by 
the source, and allows ANR ``to conduct tests of [its] own to determine 
compliance.'' See 45 FR 10775 (February 19, 1980). In addition, 
operators of sources that emit more than five tons of any and all air 
contaminants per year are required to register the source with the 
Secretary of ANR and to submit emissions data annually, pursuant to 
Sec.  5-802, Requirement for Registration, and Sec.  5-803, 
Registration Procedure. See 60 FR 2524 (January 10, 1995).
    Vermont also certifies that nothing in its SIP would preclude the 
use, including the exclusive use, of any credible evidence or 
information, relevant to whether a source would have been in compliance 
with applicable requirements if the appropriate performance or 
compliance test or procedure had been performed. See 40 CFR 51.212(c).
    Vermont provides for correlation by VT DEC of emissions reports by 
sources with applicable emission limitations or standards, as required 
by CAA Sec.  110(a)(2)(F)(iii). Vermont receives emissions data through 
its annual registration program. Currently, VT DEC analyzes a portion 
of these data manually to correlate a facility's reported data with 
permit conditions, including hours of operation, fuel usage, and annual 
emissions limits for both criteria emissions and hazardous air 
contaminant emissions. VT DEC reports that it has finished the process 
of setting up an integrated electronic database that merges all air 
contaminant source information across permitting, compliance and 
registration programs, so that information concerning permit 
conditions, annual emissions data, and compliance data are accessible 
in one location for a particular air contaminant source. VT DEC further 
reports that it is working on a database function that would 
automatically correlate emissions data with permit conditions and other 
applicable standards electronically to enable VT DEC to complete 
correlation more efficiently and accurately.
    Regarding the section 110(a)(2)(F) requirement that the SIP ensure 
that the public has availability to emission reports, Vermont certified 
in its November 19, 2019, submittal for the 2015 ozone NAAQS that the 
Vermont Public Records Act, 1 V.S.A. Sec. Sec.  315-320, provides for 
the free and open examination of public records, including emissions 
reports. Furthermore, 10 V.S.A. Sec.  563 specifically provides that 
the ANR ``Secretary shall not withhold emissions data and emission 
monitoring data from public inspection or review'' and ``shall keep 
confidential any record or other information furnished to or obtained 
by the Secretary concerning an air contaminant source, other than 
emissions data and emission monitoring data, that qualifies as a trade 
secret pursuant to 1 V.S.A. Sec.  317(c)(9).'' (emphasis added). EPA 
approved section 563 into the Vermont SIP on June 27, 2017. See 82 FR 
29005.

[[Page 18170]]

    Consequently, EPA proposes that Vermont meets the infrastructure 
SIP requirements of section 110(a)(2)(F) for the 2015 ozone NAAQS.

G. Section 110(a)(2)(G)--Emergency Powers

    This section requires that a plan provide for state authority 
analogous to that provided to the EPA Administrator in section 303 of 
the CAA, and adequate contingency plans to implement such authority. 
Section 303 of the CAA provides authority to the EPA Administrator to 
seek a court order to restrain any source from causing or contributing 
to emissions that present an ``imminent and substantial endangerment to 
public health or welfare, or the environment.'' Section 303 further 
authorizes the Administrator to issue ``such orders as may be necessary 
to protect public health or welfare or the environment'' in the event 
that ``it is not practicable to assure prompt protection . . . by 
commencement of such civil action.''
    On June 27, 2017, EPA approved a Vermont SIP revision addressing 
the requirement that the plan provide for state authority comparable to 
that in section 303 of the CAA. See 82 FR 29005. For a detailed 
analysis explaining how Vermont meets this requirement, see EPA's 
notice of proposed rulemaking for that action. See 82 FR 15671, 15679 
(March 30, 2017). For the reasons provided in the March 2017 notice, we 
are proposing to approve the state's submittal for this requirement of 
Section 110(a)(2)(G) with respect to the 2015 ozone NAAQS.
    Section 110(a)(2)(G) also requires that Vermont have an approved 
contingency plan for any Air Quality Control Region (AQCR) within the 
state that is classified as Priority I, IA, or II for certain 
pollutants. See 40 CFR 51.150, 51.152(c). In general, contingency plans 
for Priority I, IA, and II areas must meet the applicable requirements 
of 40 CFR part 51, subpart H (40 CFR 51.150 through 51.153) 
(``Prevention of Air Pollution Emergency Episodes'') for the relevant 
NAAQS, if the NAAQS is covered by those regulations. Both AQCRs in 
Vermont are classified as Priority III for ozone, 40 CFR 52.2371, and, 
therefore, Vermont does not need to submit a contingency plan to 
implement its emergency episode authority.\35\ Although not expected, 
if ozone conditions were to change, Vermont does have general 
authority, as noted previously (i.e., 10 V.S.A. Sec.  560 and 10 V.S.A. 
Sec.  8009), to order a source to cease operations if it is determined 
that emissions from the source pose an imminent danger to human health 
or safety or an immediate threat of substantial harm to the 
environment.
---------------------------------------------------------------------------

    \35\ Classification of regions in Vermont is available at 
https://www.ecfr.gov/cgi-bin/text-idx?SID=73d43a45cf13909292d606aad27c9cc6&mc=true&node=se40.5.52_12371&rgn=div8 and ozone monitor values for individual monitoring sites 
throughout Vermont are available at www.epa.gov/outdoor-air-quality-data/monitor-values-report.
---------------------------------------------------------------------------

    In addition, as stated in Vermont's infrastructure SIP submittal 
under the discussion of public notification (Element J), Vermont posts 
near real-time air quality data, air quality predictions and a record 
of historical data on the VT DEC website and, when forecast or measured 
ozone concentrations exceed the level of the 2015 ozone NAAQS, 
distributes air quality alerts by email to many parties, including the 
media and the National Weather Service. Alerts include information 
about the health implications of elevated pollutant levels and list 
actions to reduce emissions and to reduce the public's exposure. In 
addition, daily forecasted ozone levels are also made available on the 
internet through the EPA AirNow and EnviroFlash systems. Information 
regarding these two systems is available on EPA's website at 
www.airnow.gov. Notices are sent out to EnviroFlash participants when 
levels are forecast to exceed the current ozone standard.
    EPA proposes that Vermont meets the applicable infrastructure SIP 
requirements for section 110(a)(2)(G) with respect to contingency plans 
for the 2015 ozone NAAQS.

H. Section 110(a)(2)(H)--Future SIP Revisions

    This section requires that a state's SIP provide for revision from 
time to time as may be necessary to take account of changes in the 
NAAQS or availability of improved methods for attaining the NAAQS and 
whenever EPA finds that the SIP is substantially inadequate. To address 
this requirement, Vermont's infrastructure submittal references 10 
V.S.A. Sec.  554, which provides the Secretary of Vermont ANR with the 
power to ``[p]repare and develop a comprehensive plan or plans for the 
prevention, abatement and control of air pollution in this state'' and 
to ``[a]dopt, amend and repeal rules, implementing the provisions'' of 
Vermont's air pollution control laws set forth in 10 V.S.A. chapter 23. 
EPA approved 10 V.S.A. Sec.  554 into the SIP on June 27, 2017. See 82 
FR 29005. EPA proposes that Vermont meets the infrastructure SIP 
requirements of CAA section 110(a)(2)(H) with respect to the 2015 ozone 
NAAQS.

I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions 
Under Part D

    Section 110(a)(2)(I) provides that each plan or plan revision for 
an area designated as a nonattainment area shall meet the applicable 
requirements of part D of the CAA. EPA interprets section 110(a)(2)(I) 
to be inapplicable to the infrastructure SIP process because specific 
SIP submissions for designated nonattainment areas, as required under 
part D, are subject to a different submission schedule under subparts 2 
through 5 of part D, extending as far as 10 years following area 
designations for some elements, whereas infrastructure SIP submissions 
are due within three years after adoption or revision of a NAAQS. 
Accordingly, EPA takes action on part D attainment plans through 
separate processes.

J. Section 110(a)(2)(J)--Consultation With Government Officials; Public 
Notifications; Prevention of Significant Deterioration; Visibility 
Protection

    Section 110(a)(2)(J) of the CAA requires that each SIP ``meet the 
applicable requirements of section 121 of this title (relating to 
consultation), section 127 of this title (relating to public 
notification), and part C of this subchapter (relating to PSD of air 
quality and visibility protection).'' The evaluation of the submission 
from Vermont with respect to these requirements is described below.
Sub-Element 1: Consultation With Government Officials
    Pursuant to CAA section 121, a state must provide a satisfactory 
process for consultation with local governments and Federal Land 
Managers (FLMs) in carrying out its NAAQS implementation requirements.
    Vermont's 10 V.S.A. Sec.  554 specifies that the Secretary of 
Vermont ANR shall have the power to ``[a]dvise, consult, contract and 
cooperate with other agencies of the state, local governments, 
industries, other states, interstate or interlocal agencies, and the 
federal government, and with interested persons or groups.'' EPA 
approved 10 V.S.A. Sec.  554 into the SIP on June 27, 2017. See 82 FR 
29005. In addition, VT APCR Sec.  5-501(7)(c) requires VT ANR to 
provide notice to local governments and federal land managers of a 
determination by ANR to issue a draft PSD permit for a major stationary 
source or major modification. On August 1, 2016, EPA approved VT APCR 
Sec.  5-501(7)(c) into Vermont's SIP. See 81 FR

[[Page 18171]]

50342. Therefore, EPA proposes that Vermont meets the infrastructure 
SIP requirements of this portion of section 110(a)(2)(J) for the 2015 
ozone NAAQS.
Sub-Element 2: Public Notification
    Pursuant to CAA section 127, states must notify the public if NAAQS 
are exceeded in an area, advise the public of health hazards associated 
with exceedances, and enhance public awareness of measures that can be 
taken to prevent exceedances and of ways in which the public can 
participate in regulatory and other efforts to improve air quality.
    Vermont's 10 V.S.A. Sec.  554 authorizes the Secretary of Vermont 
ANR to ``[c]ollect and disseminate information and conduct educational 
and training programs relating to air contamination and air 
pollution.'' In addition, the VT DEC Air Quality and Climate Division 
website includes near real-time air quality data, and a record of 
historical data. Air quality forecasts are distributed daily via email 
to interested parties. Air quality alerts are sent by email to a large 
number of affected parties, including the media. Alerts include 
information about the health implications of elevated pollutant levels 
and list actions to reduce emissions and to reduce the public's 
exposure. Also, Air Quality Data Summaries of the year's air quality 
monitoring results are issued annually and posted on the VT DEC Air 
Quality and Climate Division website. Vermont is also an active partner 
in EPA's AirNow and EnviroFlash air quality alert programs.
    EPA proposes that Vermont meets the infrastructure SIP requirements 
of this portion of section 110(a)(2)(J) for the 2015 ozone NAAQS.
Sub-Element 3: PSD
    EPA has already discussed Vermont's PSD program in the context of 
infrastructure SIPs in the paragraphs addressing section 110(a)(2)(C) 
and 110(a)(2)(D)(i)(II) and determined that it satisfies the 
requirements of EPA's PSD implementation rules. Therefore, the SIP also 
satisfies the PSD sub-element of section 110(a)(2)(J) for the 2015 
ozone NAAQS.
Sub-Element 4: Visibility Protection
    With regard to the applicable requirements for visibility 
protection, states are subject to visibility and regional haze program 
requirements under part C of the CAA (which includes sections 169A and 
169B). In the event of the establishment of a new NAAQS, however, the 
visibility and regional haze program requirements under part C do not 
change. Thus, as noted in EPA's 2013 memorandum, we find that there is 
no new visibility obligation ``triggered'' under section 110(a)(2)(J) 
when a new NAAQS becomes effective. In other words, the visibility 
protection requirements of section 110(a)(2)(J) are not germane to 
infrastructure SIPs for the 2015 ozone NAAQS.
    Based on the above analysis, EPA proposes that Vermont meets the 
infrastructure SIP requirements of sub-elements 1-3 of section 
110(a)(2)(J) for the 2015 ozone NAAQS. We are not proposing action on 
sub-element 4 because, as noted above, it is not germane to 
infrastructure SIPs.

K. Section 110(a)(2)(K)--Air Quality Modeling/Data

    Section 110(a)(2)(K) of the Act requires that a SIP provide for the 
performance of such air quality modeling as the EPA Administrator may 
prescribe for the purpose of predicting the effect on ambient air 
quality of any emissions of any air pollutant for which EPA has 
established a NAAQS, and the submission, upon request, of data related 
to such air quality modeling. EPA has published modeling guidelines at 
40 CFR part 51, Appendix W, for predicting the effects of emissions of 
criteria pollutants on ambient air quality. EPA also recommends in the 
2013 memorandum that, to meet section 110(a)(2)(K), a state submit or 
reference the statutory or regulatory provisions that provide the air 
agency with the authority to conduct such air quality modeling and to 
provide such modeling data to EPA upon request.
    In its submittal, Vermont cites to VT APCR Sec.  5-406, Required 
Air Modeling, which authorizes ``[t]he Air Pollution Control Officer 
[to] require the owner or operator of any proposed air contaminant 
source . . . to conduct . . . air quality modeling and to submit an air 
quality impact evaluation to demonstrate that operation of the proposed 
source . . . will not directly or indirectly result in a violation of 
any ambient air quality standard, interfere with the attainment of any 
ambient air quality standard, or violate any applicable prevention of 
significant deterioration increment . . . .'' Vermont reviews the 
potential impact of such sources consistent with EPA's ``Guidelines on 
Air Quality Models'' at 40 CFR part 51, appendix W. See VT APCR Sec.  
5-406(2). Vermont also cites to VT APCR Sec.  5-502, Major Stationary 
Sources and Major Modifications, which requires the submittal of an air 
quality impact evaluation or air quality modeling to ANR to demonstrate 
impacts of new and modified major sources, in accordance with VT APCR 
Sec.  5-406. The modeling data are sent to EPA along with the draft 
major permit. As a result, the SIP provides for such air quality 
modeling as the Administrator has prescribed and for the submission, 
upon request, of data related to such modeling.
    The state also collaborates with the Ozone Transport Commission 
(OTC) and the Mid-Atlantic Regional Air Management Association and EPA 
in order to perform large-scale urban air shed modeling for ozone and 
PM, if necessary. EPA proposes that Vermont meets the infrastructure 
SIP requirements of section 110(a)(2)(K) for the 2015 ozone NAAQS.

L. Section 110(a)(2)(L)--Permitting Fees

    This section requires SIPs to mandate that each major stationary 
source pay permitting fees to cover the costs of reviewing, approving, 
implementing, and enforcing a permit.
    Vermont state law requires application fees for construction or 
modification permits for major stationary sources, 10 V.S.A. Sec.  556; 
VT APCR Sec.  5-504, and sets forth fee amounts, 3 V.S.A. Sec.  
2822(j)(1)(A)(ii)(I). State law also requires major stationary sources 
to pay annual registration renewal fees. Id. Sec.  2822(j)(1)(B); VT 
APCR Sec. Sec.  5-802, 5-806. Moreover, EPA fully approved Vermont's 
Title V permit program, see VT APCR subchapter X, on November 29, 2001. 
See 66 FR 59535; see also 40 CFR part 70, appendix A. To gain this 
approval, Vermont demonstrated that the annual fees required of Title V 
sources (which includes major stationary sources) under State law are 
sufficient to cover the costs of reviewing, approving, implementing, 
and enforcing the permits. See 61 FR 26145 (May 24, 1996).
    Therefore, EPA proposes that Vermont meets the infrastructure SIP 
requirements of section 110(a)(2)(L) for the 2015 ozone NAAQS.

M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local 
Entities

    To satisfy Element M, states must provide for consultation with, 
and participation by, local political subdivisions affected by the SIP. 
Vermont's infrastructure submittal references 10 V.S.A. Sec.  554, 
which was approved into the VT SIP on June 27, 2017. See 82 FR 29005. 
This statute authorizes the Secretary of Vermont ANR to ``[a]dvise, 
consult, contract and cooperate with other agencies of the state, local 
governments, industries, other states, interstate or interlocal 
agencies, and the federal government,

[[Page 18172]]

and with interested persons or groups.'' In addition, VT APCR Sec.  5-
501(7) provides for notification to local officials and agencies about 
the opportunity for participating in permitting determinations for the 
construction or modification of major sources. EPA proposes that 
Vermont meets the infrastructure SIP requirements of section 
110(a)(2)(M) with respect to the 2015 ozone NAAQS.

N. Vermont Executive Order Submitted for Incorporation Into the SIP

    Vermont's November 19, 2019, infrastructure SIP submittal for the 
2015 ozone NAAQS included State of Vermont Executive Order (E.O.) 19-
17, Executive Code of Ethics. As requested by Vermont, EPA is proposing 
to approve E.O. 19-17 into the Vermont SIP and, because E.O. 19-17 
supersedes and replaces E.O. 09-11, to remove E.O. 09-11 from the 
Vermont SIP.

III. Proposed Action.

    EPA is proposing to approve the elements of the infrastructure SIP 
submitted by Vermont on November 19, 2019, for the 2015 ozone NAAQS. 
Specifically, EPA's proposed action regarding each infrastructure SIP 
requirement is contained in Table 1 below.

 Table 1--Proposed Action on Vermont's Infrastructure SIP Submittal for
                          the 2015 Ozone NAAQS
------------------------------------------------------------------------
                  Element                            2015 Ozone
------------------------------------------------------------------------
(A): Emission limits and other control      A
 measures.
(B): Ambient air quality monitoring and     A
 data system.
(C)1: Enforcement of SIP measures.........  A
(C)2: PSD program for major sources and     A
 major modifications.
(C)3: PSD program for minor sources and     A
 minor modifications.
(D)1: Contribute to nonattainment/          A
 interfere with maintenance of NAAQS.
(D)2: PSD.................................  A
(D)3: Visibility Protection...............  A
(D)4: Interstate Pollution Abatement......  A
(D)5: International Pollution Abatement...  A
(E)1: Adequate resources..................  A
(E)2: State boards........................  A
(E)3: Necessary assurances with respect to  NA
 local agencies.
(F): Stationary source monitoring system..  A
(G): Emergency power......................  A
(H): Future SIP revisions.................  A
(I): Nonattainment area plan or plan        +
 revisions under part D.
(J)1: Consultation with government          A
 officials.
(J)2: Public notification.................  A
(J)3: PSD.................................  A
(J)4: Visibility protection...............  +
(K): Air quality modeling and data........  A
(L): Permitting fees......................  A
(M): Consultation and participation by      A
 affected local entities.
------------------------------------------------------------------------

    In the above table, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A......................................  Approve
NA.....................................  Not applicable
+......................................  Not germane to infrastructure
                                          SIPs
------------------------------------------------------------------------

    In addition, EPA is proposing to approve, and incorporate into the 
Vermont SIP, the following Executive Order, which was included for 
approval in Vermont's infrastructure SIP submittal:
    State of Vermont Executive Order No. 19-17, Executive Code of 
Ethics, effective December 4, 2017.
    EPA is also proposing to remove State of Vermont Executive Order 
No. 09-11, Executive Code of Ethics, which has been superseded and 
replaced by Executive Order No. 19-17.
    EPA is soliciting public 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.

IV. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference the Vermont executive order regarding the State's executive 
code of ethics discussed in Section II of this preamble. EPA has made, 
and will continue to make, these documents generally available through 
https://www.regulations.gov and at the EPA Region 1 Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information).

V. 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).

[[Page 18173]]

    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 in 40 CFR Part 52

    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: March 24, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.
[FR Doc. 2020-06659 Filed 3-31-20; 8:45 am]
BILLING CODE 6560-50-P