[Federal Register Volume 85, Number 126 (Tuesday, June 30, 2020)]
[Proposed Rules]
[Pages 39128-39135]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13427]



40 CFR Part 52

[EPA-R06-OAR-2019-0616; FRL-10010-57-Region 6]

Air Plan Approval; Arkansas; Infrastructure for the 2015 Ozone 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.


SUMMARY: Under the Federal Clean Air Act (CAA or Act), the 
Environmental Protection Agency (EPA) is proposing to approve elements 
of a State Implementation Plan (SIP) submission from the State of 
Arkansas (State) for the 2015 Ozone (O3) National Ambient 
Air Quality Standards (NAAQS). This submittal addresses how the 
existing SIP provides for implementation, maintenance, and enforcement 
of the 2015 O3 NAAQS (infrastructure SIP or i-SIP). The i-
SIP ensures that the Arkansas SIP is adequate to meet the state's 
responsibilities under the CAA for this NAAQS. We are also proposing to 
approve changes to the State's regulations to bring the State's rule up 
to date and consistent with the 2015 O3 NAAQS.

DATES: Written comments must be received on or before July 30, 2020.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2019-0616, at http://www.regulations.gov or via email

[[Page 39129]]

[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. EPA will generally not 
consider comments or comment contents located outside of the primary 
submission (i.e. on the web, cloud, or other file sharing system). For 
additional submission methods, please contact Robert M. Todd, (214) 
665-2156, [email protected]. 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.
    Docket: The docket index and publicly available docket materials 
for this action are available electronically at www.regulations.gov. 
While all documents in the docket are listed in the index, some 
information may not be publicly available due to file size or content 
(e.g., CBI).

Infrastructure & Ozone Section, 214-665-2156, [email protected]. Out 
of an abundance of caution for members of the public and our staff, the 
EPA Region 6 office may be closed to the public to reduce the risk of 
transmitting COVID-19. We encourage the public to submit comments via 
https://www.regulations.gov, as there will be a delay in processing 
mail and no courier or hand deliveries will be accepted. Please call or 
email the contact listed above if you need alternative access to 
material indexed but not provided in the docket.

SUPPLEMENTARY INFORMATION: In this document ``we,'' ``us,'' and ``our'' 
means the EPA.

I. Background

    Below is a short discussion of the background on the 2015 
O3 NAAQS and the SIP revisions addressed in this action. For 
more information, please see the Technical Support Document (TSD) in 
the docket for this action.\1\

    \1\ The TSD for this action can be accessed through 
www.regulations.gov (Docket No. EPA-R06-OAR-2019-0616).

    Following a periodic review of the 2008 NAAQS for O3, 
EPA revised the primary and secondary O3 NAAQS to 0.070 ppm 
(80 FR 65291, October 26, 2015).\2\ The primary NAAQS is designed to 
protect human health, and the secondary NAAQS is designed to protect 
the public welfare.\3\

    \2\ Additional information on the history of the NAAQS for ozone 
is available at https://www.epa.gov/ground-level-ozone-pollution/table-historical-ozone-national-ambient-air-quality-standards-naaqs.
    \3\ Information on ozone formation and health effects is 
available at https://www.epa.gov/ozonepollution.

    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 type of 
SIP submission is commonly referred to as an ``infrastructure SIP'' or 
``i-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 provided guidance on the 
application of infrastructure provisions in SIP submissions and applied 
such guidance in regional actions on infrastructure submissions.\4\ 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 facial compliance with 
statutory and regulatory requirements, not for the state's 
implementation of its SIP.\5\ The EPA has other CAA authority to 
address any issues concerning a state's implementation of the rules, 
regulations, consent orders, etc. that comprise its SIP.

    \4\ EPA explains and elaborates on these ambiguities and its 
approach to address them in its September 13, 2013, Infrastructure 
SIP Guidance (available at https://www.epa.gov/sites/production/files/2015-12/documents/guidance_on_infrastructure_sip_elements_multipollutant_final_sept_2013.pdf), as well as in numerous agency actions, including EPA's prior 
action on Louisiana's infrastructure SIP to address the 2006 
PM2.5, 2008 PB, 2008 O3, 2010 NO2, 
2010 SO2 and 2012 PM2.5 NAAQS (81 FR 68322 
(October 4, 2016)).
    \5\ See U.S. Court of Appeals for the Ninth Circuit decision in 
Montana Environmental Information Center v. EPA, No. 16-71933 (Aug. 
30, 2018).

    Each state must submit an i-SIP within three years after the 
promulgation of a new or revised NAAQS showing how it meets the 
elements of section 110(a)(2) of the CAA. This section of the CAA 
includes a list of specific elements necessary for a state's air 
quality program. On October 4, 2019, the Governor of Arkansas made one 
submission to address the 2015 NAAQS for O3.\6\ The 
submittal addressed CAA sections 110(a)(2)(A) through (M).

    \6\ Additional information, including the history of the 
priority pollutants, their levels, the forms of the standard and the 
determination of compliance; EPA's approach for reviewing the i-SIP 
submittal and EPA's evaluation; the statute and regulatory citations 
in the Arkansas SIP specific to the review of this i-SIP, applicable 
CAA and EPA regulatory citations, Federal Register citations for the 
Arkansas SIP approvals; Arkansas minor New Source Review program and 
EPA approval activities, and Arkansas' Prevention of Significant 
Deterioration program can be found in the TSD for this action.

    We are proposing that the Arkansas SIP meets the requirements in 
CAA section 110(a)(1) and parts of section 110(a)(2). Specifically, we 
are proposing to approve the Arkansas i-SIP as it demonstrates 
compliance with CAA sections 110(a)(1) and 110(a)(2)(A) through (C) and 
(E) through (M). We are also proposing that Arkansas' i-SIP 
demonstrates compliance with CAA section 110(a)(2)(D)(i)(II), 
Interference with Prevention of Significant Deterioration (often 
referred to as prong 3) and CAA section 110(a)(2)(D)(ii), Interstate 
Pollution Abatement (which refers to CAA section 126) and International 
Air Pollution (which refers to CAA section 115). The remaining portions 
of the October 4, 2019, submittal, addressing CAA section 
110(a)(2)(D)(i)(I), often referred to as interstate transport prongs 1 
and 2, and CAA section 110(a)(2)(D)(i)(II), often referred to as 
interstate transport prong 4, will be addressed in separate, subsequent 
actions.\7\ A copy of the State's submittal is provided in the docket 
for this proposed rulemaking.

    \7\ In an earlier action we proposed to approve the Arkansas 
submittal for interstate transport prong 4 (visibility protection). 
See 85 FR 14847 (March 16, 2020).

    Also, on September 27, 2019, after due opportunity for public 
notice and comment and following all the state's required 
administrative procedures the Arkansas Pollution Control and Ecology 
Commission (APC&EC) adopted changes to Regulation 19 (Regulations of 
the Arkansas Plan for Air Pollution Control). Regulation 19 changes 
were made to Chapter 2, Definitions and Appendix B, National Ambient 
Air Quality Standards List, that bring the state's rules up to date and 
consistent with the 2015 O3 NAAQS. These changes were 
included in the i-SIP submittal. We are proposing to approve these 
changes into the Arkansas SIP.

[[Page 39130]]

II. EPA's Evaluation of the Arkansas 2015 O3 NAAQS Submission

    Below is a summary of our evaluation of the October 4, 2019, 
Arkansas submittal for each element of CAA section 110(a)(2) that we 
are proposing to approve.\8\

    \8\ A detailed discussion of our evaluation can be found in the 
TSD for this action.

    (A). Emission limits and other control measures: The SIP must 
include enforceable emission limits and other control measures, means 
or techniques, as well as schedules and timetables for compliance, as 
may be appropriate to meet the applicable requirements of the Act and 
other related matters as needed to implement, maintain and enforce each 
of the NAAQS.\9\

    \9\ The specific nonattainment area plan requirements of section 
110(a)(2)(I) are subject to the timing requirements of section 172, 
not the timing requirement of section 110(a)(1). Thus, section 
110(a)(2)(A) does not require that states submit regulations or 
emissions limits specifically for attaining the 2015 Ozone NAAQS. 
Those SIP provisions are due as part of each state's attainment plan 
and will be addressed separately from the requirements of section 
110(a)(2)(A). 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.

    The State provided information to show that Arkansas' SIP contains 
enforceable emission limitations and other control measures 
requirements. The relevant provisions to address such requirements are 
included in the Arkansas Water and Air Pollution Control Act (AWAPCA), 
Arkansas Code Annotated (``Ark. Code Ann.'') section 8-4-101 et seq., 
and those provisions of the APC&EC Regulation 19, codified in 40 CFR 
52.170. The regulations in APC&EC Regulation 19 have been duly adopted 
by the State and where these provisions relate to CAA section 110 
requirements, SIP revisions have been submitted to and approved by EPA. 
The EPA-approved SIP revisions are codified at 40 CFR part 52, subpart 
E. Arkansas has an EPA-approved air permitting program for both major 
and minor facilities, which ensures that all applicable requirements 
are included in any applicable facility permit. A detailed list of the 
applicable authorities and regulations is provided in the TSD in the 
docket to this action. Arkansas' SIP contains enforceable emission 
limits and other control measures, which are also in the federally 
enforceable SIP.
    (B) Ambient air quality monitoring/data system: The SIP must 
provide for establishment and implementation of ambient air quality 
monitors, collection and analysis of ambient air quality data, and 
providing such data to EPA upon request.
    The SIP-approved APC&EC Regulation 19, Chapter 3 allows the 
Arkansas Department of Environmental Quality (ADEQ) to collect air 
monitoring data, quality-assure the results, and report the data. 
Arkansas' Statewide Air Quality Surveillance Network was approved by 
EPA on August 6, 1981 (46 FR 40005) and consists of stations that 
measure ambient concentrations of the six criteria pollutants. ADEQ 
maintains and operates a monitoring network to measure levels of ozone, 
as well as other pollutants, in accordance with EPA regulations 
specifying siting and monitoring requirements. All monitoring data is 
measured using EPA approved methods and subject to the EPA quality 
assurance requirements. ADEQ submits all required data to us, following 
the EPA regulations. The monitoring network was approved into the SIP 
and it undergoes annual review by EPA.\10\ In addition, ADEQ submits an 
assessment of its monitoring network every five years, as required by 
EPA rules. The most recent of these annual monitoring network 
assessments was submitted by ADEQ and approved by us on November 12, 
2019. The most recent of the five-year monitoring assessments was 
submitted by ADEQ and approved by us on July 22, 2016. The ADEQ website 
provides the monitor locations and posts past and current 
concentrations of criteria pollutants measured by the State's network 
of monitors.\11\

    \10\ A copy of the 2019 Annual Air Monitoring Network Plan and 
our approval letter, as well as the most recent five-year assessment 
and approval letter, are included in the docket for this proposed 
    \11\ https://www.adeq.state.ar.us/techsvs/air_chem_lab/ozone_monitors.aspx?desktop_version=y

    (C) Program for enforcement of control measures: The SIP must 
include the following three elements: (1) A program providing for 
enforcement of the measures in CAA section 110(a)(2)(A); (2) a minor 
new source review (NSR) program for the regulation of new and modified 
minor stationary sources and minor modifications of new major 
stationary sources as necessary to protect the applicable NAAQS; and 
(3) a major stationary source permit program to meet the prevention of 
significant deterioration (PSD) permitting requirements of the CAA (for 
areas designated as attainment or unclassifiable for the NAAQS in 
question). Each of these elements is described in more detail in the 
TSD for this action.
    (1) Enforcement of SIP measures: The state must provide a program 
for enforcement of the necessary control measures described in 
subparagraph (A).
    As discussed previously, the AWAPCA provides the ADEQ with 
authority to enforce the State's environmental quality rules. The ADEQ 
established rules governing emissions of the NAAQS and their precursors 
throughout the state, and these rules are in the federally-enforceable 
SIP. The rules in Regulation 19, Chapters 1, 3-5, 7-10, 13 and 14; 
Regulation 26, Chapters 3 and Regulation 31, Chapters 1, 3, 4 and 8 
include allowable rates, compliance, control plan requirements, 
monitoring and testing requirements, recordkeeping and reporting 
requirements, and control schedules. These rules set the boundaries 
beyond which regulated entities in Arkansas can expect enforcement 
    To meet the CAA requirement for having a program for the regulation 
of the modification and construction of any stationary source within 
the areas covered by the plan as necessary to assure that national 
ambient air quality standards are achieved--including a permit program 
as required by Parts C and D--generally, the State is required to have 
SIP-approved PSD, Nonattainment, and Minor NSR permitting programs 
adequate to implement the 2015 O3 NAAQS. As explained in 
section I above and footnote 5, we are not evaluating nonattainment-
related provisions--such as the Nonattainment NSR program required by 
part D in section 110(a)(2)(C) and measures for attainment required by 
section 110(a)(2)(I), as part of the infrastructure SIPs for these 
NAAQS--because these submittals are required beyond the date (3 years 
from NAAQS promulgation) that CAA section 110 infrastructure submittals 
are required.
    (2) Minor New Source Review (NSR). The SIP is required to include 
measures to regulate construction and modification of minor stationary 
sources and minor modifications to major stationary sources to protect 
the NAAQS. The Arkansas minor NSR permitting requirements are approved 
as part of the SIP.\12\ Arkansas' minor

[[Page 39131]]

source permitting requirements are contained at APC&EC Regulation 19, 
Chapter 4 and revisions to the rule were previously approved by EPA at 
72 FR 18394 (April 12, 2007) and 83 FR 30553 (June 29, 2018). The SIP 
continues to require preconstruction permits for minor sources and 
minor modifications.

    \12\ EPA is not proposing in this action to approve or 
disapprove the existing Arkansas minor NSR program to the extent 
that it may be inconsistent with EPA's regulations governing this 
program. EPA has maintained that the CAA does not require that new 
infrastructure SIP submissions correct any defects in existing EPA-
approved provisions of minor NSR programs for EPA to approve the 
infrastructure SIP for element C, program for enforcement of control 
measures (e.g., 76 FR 41076-41079). The statutory requirements of 
section 110(a)(2)(C) of the Act provide for considerable flexibility 
in designing minor NSR programs. See the TSD for more information.

    (3) PSD permit program for major stationary sources. The Arkansas 
PSD portion of the SIP covers all NSR regulated pollutants including 
the requirements for the 2015 O3 NAAQS. See the TSD to this 
proposal for a full history on the state's PSD permitting program.
    (D) Interstate and international transport: The requirements for 
interstate transport of O3 emissions are that the SIP 
contain adequate provisions prohibiting Arkansas emissions which will 
(1) Contribute significantly to nonattainment of the NAAQS, (2) 
interfere with maintenance of the NAAQS, (3) interfere with measures 
required to prevent significant deterioration or (4) interfere with 
measures to protect visibility (CAA section 110(a)(2)(D)(i)) in other 
states. As noted earlier, EPA often refers to these four requirements 
within CAA section 110(a)(2)(D)(i) as prongs or sub-elements. We are 
not evaluating prongs 1, 2, and 4 in this rulemaking action, but will 
address them in separate actions. However, we are proposing to approve 
prong 3 of CAA section 110(a)(2)(D)(i), because the Arkansas has a SIP-
approved PSD permitting program that regulates all NSR pollutants, and 
thus, prevents interference with measures required to prevent 
significant deterioration in other states.
    Section 110(a)(2)(D)(ii) of the CAA requires SIPs to include 
adequate provisions to ensure compliance with sections 115 and 126 of 
the Act, relating to international and interstate pollution abatement. 
Section 115 of the Act addresses endangerment of public health or 
welfare in foreign countries from pollution emitted in the United 
States. There are no final findings by the EPA that Arkansas air 
emissions affect other countries. Section 126(a) of the Act requires 
new or modified sources to notify neighboring states of potential 
impacts from such sources. The Arkansas SIP requires that each major 
proposed new or modified source provide such notification. The State 
also has no pending obligations under CAA section 126. See the TSD for 
more detail.
    (E) Adequate authority, resources, implementation, and oversight: 
The SIP must provide for the following: (1) Necessary assurances that 
the state (and other entities within the state responsible for 
implementing the SIP) will have adequate personnel, funding, and 
authority under state or local law to implement the SIP, and that there 
are no legal impediments to such implementation; (2) requirements 
relating to state boards; and (3) necessary assurances that the state 
has responsibility for ensuring adequate implementation of any plan 
provision for which it relies on local governments or other entities to 
carry out that portion of the plan. As discussed in previously in the 
discussion of elements (A) and (E), the requirement that there is 
adequate authority to implement and enforce the SIP and that there are 
no legal impediments are addressed. The i-SIP submission for the 2015 
O3 NAAQS describes the SIP regulations governing the various 
functions of personnel within the ADEQ, including the administrative, 
technical support, planning, enforcement, and permitting functions of 
the program. With respect to necessary assurances, and the requirement 
to address funding, Arkansas has authority to establish and collect 
fees for operation of the state's permitting programs. Ark. Code Ann. 
section 8-1-103(1)(A) grants APC&EC the authority to establish, by 
regulation, reasonable fees for initial issuance, annual review, and 
modification of permits. Under Ark. Code Ann. section 8-1-103(3), ADEQ 
is authorized to collect the fees established by APC&EC and shall deny 
the issuance of an initial permit, a renewal permit, or a modification 
permit if and when a facility fails or refuses to pay the fees after 
reasonable notice. APC&EC Regulation 9, Fee Regulation, Chapter 5 Air 
Permit Fees, contains the air permit fees applicable to non-part 70 
permits, part 70 permits and general permits. More specific information 
on permitting fees is provided in the TSD.
    With respect to authority and personnel, Ark. Code Ann. section 8-
1-202(b)(2)(D) states that the Director of ADEQ's duties include the 
day-to-day administration of all activities that the Department is 
empowered by law to perform, including, but not limited to, the 
employment and supervision of such technical, legal, and administrative 
staff, within approved appropriations, as is necessary to carry out the 
responsibilities vested with ADEQ. The AWAPCA provides the ADEQ 
adequate authority, in part ``to administer and enforce all laws and 
regulations relating to pollution of the air.'' Ark. Code Ann. section 
8-4-311(7). APC&EC Regulation 19.301 gives ADEQ the responsibility of 
meeting all applicable regulations and requirements contained in the 
CAA, as amended, if any area of the state is determined to be in 
violation of the NAAQS. APC&EC Regulation 19.410 gives ADEQ the 
authority to revoke, suspend, or modify any permit for cause. For 
further details, please refer to the TSD.
    CAA section 110(a)(2)(E)(ii) requires that the State's SIP comply 
with CAA section 128, which requires: (1) That the majority of the 
members of the state body that approves permits or enforcement orders 
do not derive any significant portions of their income from entities 
subject to permitting or enforcement orders under the CAA; and (2) any 
potential conflicts of interest by such body be adequately disclosed. 
In 1982, the EPA approved the State's SIP submittal to demonstrate 
compliance of the SIP with Section 128 of the CAA. 47 FR 19136 (May 4, 
1982). The submittal cited AWAPCA section 82-1901 as demonstrating 
compliance with CAA section 128(a)(1) and cited Arkansas Code of Ethics 
Law Act 570 of 1979, Section 3: Use of Public Office to Obtain Special 
Privilege Prohibited: Section 4: Use and Disclosure of Information--
Acquired by Reason of Office Activities Requiring Disclosure; Section 
5: Requirement to File Statement and Section 6: Statements Period 
Retained Public Access Signature Required.
    Under APC&EC Regulation 8.202, the Director or the Director's 
delegate shall issue all permits with nothing in APC&EC Regulation 8 
being construed to authorize APC&EC to issue a permit, including the 
power to reverse or affirm a permitting decision by the Director. Under 
Ark. Code Ann. section 21-8-1001, no member of a state board or 
commission or board member of an entity receiving state funds shall 
participate in, vote on, influence or attempt to influence an official 
decision if the member has pecuniary interest in the matter under 
consideration by the board, commission, or entity. In addition, no 
member of a state board or commission or board member of an entity 
receiving state funds shall participate in any discussion or vote on a 
rule or regulation that exclusively benefits the member. As required by 
the CAA, the SIP stipulates that any board or body, which approves 
permits or enforcement orders, must 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 or who appear before the board on issues related to 
the CAA. The members of the board or body, or the head of an agency 
with similar powers, are required to adequately disclose any potential

[[Page 39132]]

conflicts of interest. While the ADEQ has no board or commission, the 
ADEQ submitted a letter dated January 19, 2012, that clarified that the 
Director of the ADEQ is considered the ``the head of an executive 
agency with similar powers,'' and must meet the requirement to 
adequately disclose any potential conflicts of interest. The 
requirements of CAA section 110(a)(2)(E)(iii) concerning local 
governments or other entities, are not applicable to Arkansas because 
it does not rely on local agencies for specific SIP implementation.
    (F) Stationary source monitoring system: The SIP must provide for 
the establishment of a system to monitor emissions from stationary 
sources and to submit periodic emission reports. It must 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 SIP 
shall also require periodic reports on the nature and amounts of 
emissions and emissions-related data from such sources and require that 
the state correlate the source reports with emission limitations or 
standards established under the CAA. These reports must be made 
available for public inspection at reasonable times.
    The relevant regulatory requirements have been codified in APC&E 
Regulation 19, Regulations of the Arkansas Plan of Implementation for 
Air Pollution Control, Chapter 7 (pertaining to sampling and testing). 
Provisions in APC&EC Chapter 7, Regulation 19.705 provide for the 
reporting of emissions inventories in a format established by the ADEQ 
on a schedule set forth in that section. In addition, APC&EC Regulation 
19.705 requires the submission of emission statements as required by 
the CAA. Area, mobile, and non-road data are required to be reported on 
a three-year cycle.
    Enforceable emission limitations and other control measures are 
covered in the Arkansas Water and Air Pollution Control Act and those 
provisions of Ark. Code Ann. sections 8-4-310 and 8-4-311. Elements of 
the program for enforcement are found in the monitoring, recordkeeping 
and reporting requirements for sources in these control measures as 
well as individual SIP permits.
    More detail and links to Arkansas' emissions data are provided in 
the TSD for this action.
    (G) Emergency authority: The SIP must provide for authority to 
address activities causing imminent and substantial endangerment to 
public health or welfare or the environment and to include contingency 
plans to implement such authorities as necessary.
    Ark. Code Ann. section 8-1-202(b)(2)(C) empowers the ADEQ to issue 
orders under circumstances that reasonably require emergency measures 
to be taken to protect the environment or the public health and safety. 
APC&EC Regulation 8.502 requires ADEQ to publish a Notice of Emergency 
Order in a newspaper covering the affected area, or in a newspaper of 
statewide circulation. The notice must contain a description of the 
action, ADEQ's authority for taking the action and other information 
appropriate to ensure the public is informed about the action. Ark. 
Code Ann. section 8-4-202(e)(1) empowers APC&EC to declare an emergency 
and implement emergency rules, regulations, suspensions, or moratoria 
on categories or types of permits if APC&EC determines that imminent 
peril to the public health, safety, or welfare requires immediate 
change in the rules or immediate suspension or moratorium on categories 
or types of permits. APC&EC Regulation 8, Administrative Procedures, 
Regulation 8.807 authorizes the Commission to waive or reduce the 
notice requirements in cases involving emergency rulemaking. No 
emergency rule shall be effective for more than 180 days.
    (H) Future SIP revisions: States must have the authority to revise 
their SIPs in response to changes in the NAAQS, availability of 
improved methods for attaining the NAAQS, or in response to an EPA 
finding that the SIP is substantially inadequate to attain the NAAQS.
    The AWAPCA, Section 82-1935(1), empowers the APC&EC to ``formulate 
and promulgate, amend, repeal, and enforce rules and regulations 
implementing or effectuating the powers and duties of the Commission [. 
. .] to control air pollution''. Therefore, Arkansas has the authority 
to revise its SIP as may be necessary to take into account revisions of 
primary or secondary NAAQS, or the availability of improved or more 
expeditious methods of attaining such standards. Furthermore, Arkansas 
also has the authority under the AWAPCA provisions to revise its SIP in 
the event the EPA (pursuant to the Act) finds the SIP to be 
substantially inadequate to attain the NAAQS. APC&EC Regulation 19, 
Regulations of the Arkansas Plan of Implementation for Air Pollution 
Control, Chapter 1, provides a clear delineation of those regulations 
that are promulgated by APC&EC in satisfaction of certain requirements 
of the CAA. Ark. Code Ann. section 8-4-311(a)(7) empowers ADEQ to 
administer and enforce all laws and regulations relating to pollution 
of the air. Ark. Code Ann. section 8-4-202(d)(4)(A)(ii) authorizes 
APC&EC to refer to the Code of Federal Regulations for any APC&EC 
standard or regulation that is identical to a regulation promulgated by 
the EPA. The APC&EC's Regulation 19, Regulations of the Arkansas Plan 
of Implementation for Air Pollution Control, Chapter 1, demonstrates 
that those regulations that are promulgated by the Commission satisfy 
the requirements of this provision of the CAA.
    (I) Nonattainment areas: CAA section 110(a)(2)(I) requires that in 
the case of a plan or plan revision for areas designated as 
nonattainment, states must meet applicable requirements of part D of 
the CAA, relating to SIP requirements for designated nonattainment 
areas. EPA does not expect infrastructure SIP submissions to address 
CAA section 110(a)(2)(I). The specific SIP submissions for designated 
nonattainment areas, as required under CAA title I, part D, are subject 
to different submission schedules than those for section 110 
infrastructure elements. Instead, EPA will act on any part D 
nonattainment plan SIP submissions through a separate rulemaking 
process governed by the requirements for nonattainment areas, as 
described in part D.\13\

    \13\ Arkansas does not presently have any designated ozone 
nonattainment areas.

    (J) Consultation with government officials, public notification, 
PSD and visibility protection: The SIP must meet the following three 
CAA requirements: (1) Section 121, relating to interagency consultation 
regarding certain CAA requirements; (2) section 127, relating to public 
notification of NAAQS exceedances and related issues; (3) prevention of 
significant deterioration of air quality; and (4) visibility 
    Under APC&EC Regulation 19, Chapter 9, Arkansas has incorporated by 
reference the requirements in 40 CFR part 52 for PSD in their entirety, 
with the exception of 40 CFR 52.21(b)(2)(iii)(a), 52.21(b)(49), 
52.21(b)(50), 52.21(b)(55-58), 52.21(i) and 52.21(cc). These provisions 
were approved by EPA as part of the federally-approved SIP. These 
incorporated provisions also provide for protection of visibility in 
Federal Class I areas. All new major sources and major modifications 
are subject to a comprehensive EPA-approved PSD permitting program, 
including GHG PSD permitting that was approved on April

[[Page 39133]]

2, 2013 (78 FR 19596) and PM2.5 PSD permitting approved on 
March 4, 2015 (80 FR 11573). Chapter 9 of APC&EC Regulation 19 
authorizes enforcement of regulations governing the prevention of 
significant deterioration of air quality and regulations governing the 
protection of visibility in mandatory Federal Class I areas. The 
visibility sub-element of Element J is not being addressed because as 
EPA stated in a September 13, 2013 ``Guidance on Infrastructure State 
Implementation Plan Elements under CAA sections 110(a)(1) and 
110(a)(2),'' we believe that there are no newly applicable visibility 
protection obligations pursuant to Element J after the promulgation of 
new or revised NAAQS.
    (1) Consultation With Identified Official on Certain Actions: The 
i-SIP needs to show that there is an established process for 
consultation with general purpose local governments, designated 
organization of elected officials of local governments, and any federal 
land manager having authority over federal land to which the plan 
applies, consistent with CAA section 121, which lists the specific 
types of actions for which consultation is required. If the relevant 
statute is self-executing such that there is no associated regulation 
or other documents, then the statute would need to be included in the 
SIP. If a regulation or other document meeting the CAA requirements 
exists, then the regulation or other document would need to be included 
in the SIP submission, and the authorizing statute should be referenced 
but the statute is not required to be part of the EPA approved SIP. 
Under the requirements of 40 CFR 51.240, the SIP would need to identify 
organizations ``that will participate in developing, implementing, and 
enforcing the plan and the responsibilities of such organizations.'' 
The plan should include any agreements or memoranda of understanding 
among the organizations. The AWAPCA, as codified under Ark Code Ann. 
section 8-1-203 provides that the APC&EC ``shall meet regularly in 
publicly noticed open meetings to discuss and rule upon matters of 
environmental concern'' prior to the adoption of any rule or regulation 
implementing the substantive statutes charged to the ADEQ for 
administration. In addition, Ark. Code Ann. section 8-4-311(a)(2) 
provides that the ADEQ or its successor shall have the power and duty 
``to advise, consult, and cooperate with other agencies of the state, 
political subdivisions, industries, other states, the Federal 
Government, and with affected groups in the furtherance of the purposes 
of this chapter.'' Further, Regulation 19.904(D) provides that ADEQ 
shall make determinations that a source may affect air quality or 
visibility in a mandatory Class I federal area based on screening 
criteria agreed upon by the ADEQ and the Federal Land Manager.\14\

    \14\ See 72 FR 18394 (April 12, 2007).

    (2) Public Notification: The i-SIP submission needs to demonstrate 
that the air agency does regularly notify the public of instances or 
areas in which the new or revised primary NAAQS was exceeded; it needs 
to advise the public of health hazards associated with such exceedances 
and of ways in which the public can participate in regulatory and other 
efforts to improve air quality. Public notification begins with the air 
quality forecasts, which advise the public of conditions capable of 
exceeding the 8-hour ozone \15\ and PM2.5 NAAQS. The air 
quality forecasts can be found on the ADEQ website: For 8- hour ozone 
and PM2.5, the forecast includes two regions in the State. 
Ozone forecasts are made daily during the ozone season for each of the 
forecast areas.\16\ The ozone forecasts are made, in most cases, a day 
in advance by 2:00 p.m. local time and are valid for the next day. When 
the forecast indicates that ozone levels will be above the 8-hour ozone 
standard, the ADEQ and the Arkansas Department of Health issue an Ozone 
Health Advisory. In addition, the State implements an Ozone Action Day 
(OAD) program \17\ and will issue an ozone alert in the afternoon on 
the day before an elevated level of ozone is expected to occur. 
Announcements for an OAD will be broadcast through television and other 
news media, and to employers participating in the OAD program. The OAD 
program includes examples of actions that can be implemented by 
individuals and organizations to reduce ozone levels and exposure to 
ozone. Also, through the Metroplan website, the public can subscribe to 
an electronic information system that provides air quality forecast and 
ozone alert information via email. Ozone data are posted on the ADEQ 
website; current, regional hourly and regional 8-hour ozone data are 
posted hourly (See http://www.adeq.state.ar.us/techsvs/air_chem_lab/ozone_monitors.aspx). Provisions regarding public availability of 
emission data were also approved into the Arkansas SIP on April 12, 
2007 (72 FR 18394).

    \15\ The ADEQ forecasts for 8-hour ozone are based on the 2015 
ozone standard, which is 70 ppb.
    \16\ Ozone is a gas composed of three oxygen atoms. Ground level 
ozone is generally not emitted directly from a vehicle's exhaust or 
an industrial smokestack but is created by a chemical reaction 
between NOX and VOCs in the presence of sunlight and high 
ambient temperatures. Thus, ozone is known primarily as a summertime 
air pollutant. For Arkansas, the ozone season runs from March 1 
through November 31 (see 40 CFR 58, APPENDIX D, Table D-3). The 
Arkansas air quality control regions are defined at 45 FR 6571 
(January 29, 1980).
    \17\ The 2 forecast areas for 8-hour ozone and PM2.5 
are Little Rock and Springdale. See https://www.adeq.state.ar.us/techsvs/air_chem_lab/ozone_monitors.aspx and https://www.adeq.state.ar.us/techsvs/air_chem_lab/pm_monitors.aspx.

    (3) PSD: CAA section 110(a)(2)(J) requires Arkansas to meet the 
applicable requirements of Part C, PSD. The state has a comprehensive 
EPA approved PSD permitting program, including GHG PSD permitting, in 
the Arkansas SIP. The PSD requirements for this sub-element are much 
the same as those addressed earlier under CAA section 110(a)(2)(C), 
Program for enforcement of control measures.
    (4) Visibility Protection: The ADEQ SIP requirements relating to 
visibility protection are not affected when EPA establishes or revises 
a NAAQS. Therefore, EPA believes that there are no new visibility 
protection requirements due to the revision of the NAAQS, and 
consequently there are no newly applicable visibility protection 
    (K) Air quality and modeling/data: The SIP must provide for 
performing air quality modeling, as prescribed by EPA, to predict the 
effects on ambient air quality of any emissions of any NAAQS pollutant, 
and for submission of such data to EPA upon request.
    APC&EC Regulation 19, Chapter 3, requires that ADEQ conduct ambient 
air monitoring and computer modeling of regulated air pollutant 
emissions in any area that can reasonably be expected to be in excess 
of the NAAQS and to review the ambient air impacts of any new or 
modified source of federally regulated air emission that is the subject 
of the requirements of the SIP. See APC&EC Regulation 19.302(A) and 
(B). Under APC&EC Regulation 19.302(B), all computer modeling shall be 
performed using EPA-approved models and using averaging times 
commensurate with averaging times stated in the NAAQS. ADEQ has the 
ability to submit data related to air quality modeling to the EPA under 
Ark. Code Ann. section 8-4-311(a)(2) which gives ADEQ the power to 
advise, consult, and cooperate with the Federal Government. Modeling 
and emissions reductions measures have been submitted by Arkansas and 
approved into the SIP. For example, we reference the air modeling and 
emissions reductions data submitted within the Crittenden County 
Economic Development Zone SIP revisions, as

[[Page 39134]]

well as the demonstration of maintenance of the 2008 8-hour ozone 
standard in Crittenden County. 81 FR 24030 (April 25, 2016). The 
measures in these SIPs were approved by EPA and adopted into the SIP.
    The ADEQ has the power and duty, to conduct air quality research 
and assessments, including the causes, effects, prevention, control and 
abatement of air pollution. Past modeling and emissions reductions 
measures have been submitted by the State and approved into the SIP. 
Additionally, ADEQ can perform modeling for primary and secondary NAAQS 
on a case-by-case permit basis consistent with their SIP approved PSD 
rules and with EPA guidance.
    (L) Permitting Fees: The SIP must require each major stationary 
source to pay permitting fees to the permitting authority, as a 
condition of any permit required under the CAA, to cover the cost of 
reviewing and acting upon any application for such a permit, and, if 
the permit is issued, the costs of implementing and enforcing the terms 
of the permit. The fee requirement applies until a fee program 
established by the state pursuant to Title V of the CAA, relating to 
operating permits, is approved by EPA.
    Arkansas' statutes give ADEQ the authority to establish permit fees 
and adjust them as necessary. APC&EC Regulation No 26, Chapter 11 meets 
the CAA requirements for Title V permitting fee programs and Regulation 
No. 9, Chapter 5 contains the air permit fees applicable to non-part 70 
permits and general permits.\18\ The ADEQ has adequate authority to 
hire and compensate employees; accept and administer grants or other 
funds; establish an emissions fee schedule for sources in order to fund 
the reasonable costs of administering various air pollution control 
programs; and authorizes the collection of additional fees necessary to 
cover reasonable costs associated with processing air permit 
applications and the costs of implementing and enforcing the terms and 
provisions of the permits. The state has in place fee programs for 
major and minor sources of air pollution, as well as an area source 
operating fee program that covers other sources in the state.

    \18\ Last approved by EPA at 83 FR 6471, February 14, 2018.

    (M) Consultation/participation by affected local entities: The SIP 
must provide for consultation and participation by local political 
subdivisions affected by the SIP.
    See the earlier discussions for CAA sections 110(a)(2)(J), sub-
elements (1) and (2) for a description of the SIP's public 
participation process, the authority to advise and consult, and the PSD 
SIP's public participation requirements. Ark. Code. Ann. section 8-1-
203 provides that the APC&EC shall meet regularly in publicly noticed 
open meetings to discuss and rule upon matters of environmental concern 
prior to the adoption of any rule or regulation implementing the 
substantive statutes charged to the ADEQ for administration.
    Additionally, the state noted that pursuant to APC&EC Regulation 8, 
Arkansas will continue to provide for consultation and participation 
from those affected by the SIP. Under APC&EC Regulation 8, those 
organizations affected by the SIP will be able to participate in 
developing the SIP via comments and potential public hearings. ADEQ is 
the sole state-level enforcer and implementer of the SIP. See APC&EC 
Regulation 8.205 Public Notice of Permit Application; APC&EC 
Regulation. 8.206 Request for Public Hearing on Application for Permit; 
APC&EC Regulation 8.207 Public Notice of Draft Permitting Decision; 
APC&EC Regulation. 8.208 Public Comment on Draft Permitting Decision; 
APC&EC Regulation 8.209 Public Hearings; APC&EC Regulation 8.405 Public 
Notice of Notices of Violations and Consent Administrative Orders; 
APC&EC Regulation 8.801 Public Notice of Rulemaking.
    ADEQ participates in the Central State Air Resources Agencies, 
which is an organization of states, tribes, federal agencies and other 
interested parties concerned with air quality. The interactions and 
public participation on rule and plan development are consistent with 
the requirements of CAA section 110(a)(2)(M).

Modifications to Regulation 19, Definitions and Regulation 19, Appendix 

    As part of the state's implementation of the 2015 O3 
NAAQS, the State modified their Regulation 19 definition of ``National 
Ambient Air Quality Standards'' to include the 2015 O3 
NAAQS. The State also made the same change to the table entitled 
``Appendix B: National Ambient Air Quality Standard List'' of 
Regulation 19. The APC&EC adopted these changes on September 27, 2019 
and submitted them for inclusion into the state SIP along with the 2015 
O3 i-SIP elements. We find these changes are appropriate and 
will enable the State to implement the 2015 O3 NAAQS. We are 
proposing to approve the changes to Regulation 19, Definitions, and the 
change to Regulation 19, Appendix B, into the Arkansas SIP.

III. Proposed Action

    EPA is proposing to approve portions of the October 25, 2018, 
Arkansas i-SIP submittal for the 2015 ozone NAAQS as detailed in Table 
1, below. The portions of the submittal dealing with CAA section 
110(a)(2)(D)(i)(I), prongs 1 and 2, Significant Contribution to 
Nonattainment and Interference with Maintenance in other States, and 
CAA section 110(a)(2)(D)(i)(II), prong 4, Interference with Visibility 
Protection in other States will be addressed in separate, future 

  Table 1--Proposed Action on Arkansas Infrastructure and Transport SIP
                   Submittals for the 2015 Ozone NAAQS
                    Element                         Proposed  action
(A): Emission limits and other control          A
(B): Ambient air quality monitoring and data    A
(C)(i): Enforcement of SIP measures...........  A
(C)(ii): PSD program for major sources and      A
 major modifications.
(C)(iii): Permitting program for minor sources  A
 and minor modifications.
(D)(i)(I): Contribute to nonattainment/         SA
 interfere with maintenance of NAAQS (prongs 1
 and 2).
(D)(i)(II): PSD (prong 3).....................  A
(D)(i)(II): Visibility Protection (prong 4)...  SA
(D)(ii): Interstate and International           A
 Pollution Abatement.

[[Page 39135]]

(E)(i): Adequate resources....................  A
(E)(ii): State boards.........................  A
(E)(iii): Necessary assurances with respect to  A
 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)(i): Consultation with government officials  A
(J)(ii): Public notification..................  A
(J)(iii): PSD.................................  A
(J)(iv): Visibility protection................  +
(K): Air quality modeling and data............  A
(L): Permitting fees..........................  A
(M): Consultation and participation by          A
 affected local entities.
Key to Table 1:
A: Proposing to Approve.
+: Not germane to infrastructure SIPs.
SA: EPA is acting on this infrastructure requirement in a separate
  rulemaking action.

    Based upon review of the State's infrastructure SIP submission and 
relevant statutory and regulatory authorities and provisions referenced 
in this submission or referenced in the EPA-approved Arkansas SIP, EPA 
believes that Arkansas has the infrastructure in place to address all 
applicable required elements of CAA sections 110(a)(1) and (2), except 
as noted above, to ensure that the 2015 O3 NAAQS is 
implemented in the State.
    We are also proposing to approve the submitted changes to 
Regulation 19 Definitions and Appendix B that reference the 2015 ozone 

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted under 
Executive Order 12866;
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10,1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

    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 proposed 
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, Incorporation by 
reference, Ozone.

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

    Dated: June 16, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020-13427 Filed 6-29-20; 8:45 am]