[Federal Register Volume 86, Number 28 (Friday, February 12, 2021)]
[Rules and Regulations]
[Pages 9290-9294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02760]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2019-0616; FRL-10018-28-Region 6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving 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). The State's submission addresses structural SIP 
requirements 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 approving 
changes to certain existing State regulations to make them consistent 
with requirements for the 2015 O3 NAAQS.

DATES: This rule is effective on March 15, 2021.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-R06-OAR-2019-0616. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information is not publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Robert M. Todd, EPA Region 6 Office, 
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. Please call or email the contact listed above if 
you need alternative access to material indexed but not provided in the 
docket.

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

I. Background

    The background for this action is discussed in detail in our June 
30, 2020, proposal (85 FR 39128). In that document we proposed to 
approve elements of a SIP submission from the State of Arkansas for the 
2015 O3 NAAQS. Specifically, we proposed to approve the 
Arkansas i-SIP submission because it demonstrates compliance with CAA 
sections 110(a)(1) and 110(a)(2)(A) through (C) and (E) through (M), as 
applicable. We also proposed that Arkansas' i-SIP submission 
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). EPA intends to address 
the remaining portions of the October 4, 2019, infrastructure SIP 
submission, 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

[[Page 9291]]

4, in separate actions.\1\ We also proposed to approve changes to the 
State's Regulation 19 definition of ``National Ambient Air Quality 
Standards'' and Appendix B of the Regulation 19 to be consistent with 
the 2015 O3 NAAQS. We received comments on the proposed 
approval from one commenter (``Commenter''). The comments are posted 
and available through the regulations.gov website (Docket EPA-R06-OAR-
2019-0616). The comments and our responses follow.
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    \1\ Earlier this year we proposed to approve the Arkansas 
submittal for interstate transport prong 4 (visibility protection). 
See 85 FR 14847 (March 16, 2020).
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II. Response to Comments

    Comment: The commenter states that EPA should not approve the 
state's infrastructure SIP submission because it is ``inconsistent with 
federal laws.''
    Response: EPA disagrees with this comment. The commenter does not 
identify the specific requirements that the state has not met, nor do 
they explain the basis for this concern. As explained in the proposal 
for this action, and in this final action, EPA has evaluated the 
state's infrastructure SIP submission for compliance with the statutory 
requirements of CAA section 110(a)(1) and (2), as applicable, and in 
light of the agency's 2013 guidance for infrastructure SIP 
submissions.\2\ This is the federal law and guidance that is relevant 
in the context of a state's infrastructure SIP submission. The agency 
has concluded in this action that the state has met the infrastructure 
SIP requirements for the 2015 O3 NAAQS.
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    \2\ ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' 
Memorandum from Stephen D. Page, September 13, 2013.
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    Comment: The commenter asserts that EPA must make sure the State is 
implementing its SIP.
    Response: In acting on infrastructure SIP submissions, EPA is 
required to evaluate the submitting state's SIP for compliance with 
statutory and regulatory structural SIP requirements, not for the 
state's implementation of its SIP. See Montana Envtl. Info. Ctr. v. 
Thomas, 902 F.3d 971 (9th Cir. 2018). To the extent there were any 
concerns with respect to the state's implementation of the 2015 
O3 NAAQS, EPA has other authorities to address such 
concerns. For example, the CAA provides the EPA the authorities to 
issue a SIP call, under section 110(k)(5) to correct SIP inadequacies; 
to make a finding of failure to implement and impose appropriate 
sanctions against the state, under sections 110(m) and 179(a)(4) of the 
Act, if the EPA finds the state fails to implement any requirement of 
an approved SIP; and to take measures to address specific permit 
deficiencies pursuant to the EPA's case-by-case permitting oversight 
and enforcement authorities under sections 165(a)(2) and 167 of the 
Act. The appropriateness of employing these authorities depends on the 
nature and extent of the implementation problems at issue.
    Also, the commenter did not provide an example of which part of the 
SIP the ADEQ is not currently implementing. As discussed in our 
proposal, ADEQ maintains an adequate monitoring program, has a 
permitting program, adopts rules as necessary, conducts inspections, 
investigations and takes enforcement actions when appropriate. EPA 
performs oversight of the air program through the annual air monitoring 
network plan review, midyear and end of year reviews on the Section 103 
and 105 grants programs, and enforcement framework reviews of the 
state's enforcement programs. EPA also maintains on-going 
communications with the state, providing input on implementation 
issues, and sharing guidance and information through regular conference 
calls. A lack of adequate funding for the ADEQ's operation would impact 
implementation of programs we regularly discuss and review with the 
state. Such concerns have not been noted by the EPA.
    Comment: The commenter questioned EPA's approval of the 
infrastructure SIP because EPA must review ``the finances'' of the 
state agency implementing the SIP to ``ensure the financial health of 
the agency.''
    Response: EPA agrees that in order to address the requirements of 
section 110(a)(2)(E)(i), states must establish that they have adequate 
funding to implement their SIP. Accordingly, EPA did evaluate this 
element. In its infrastructure SIP submission, the state indicated it 
has met the requirements of the CAA. Section 110(a)(2)(E) requires that 
the state provide for adequate personnel, funding, and legal authority 
to carry out its SIP. Ark. Code Ann. Sec.  8-1-103(1)(A), Sec.  8-1-
103(3) and Sec.  8-1-103(5) grants ADEQ the authority to establish, and 
collect fees for issuance, annual review, and modification of air 
permits. Regulation No. 9, Fee Regulation, Chapter 5, contains the air 
permit fees applicable to non-part 70 permits, part 70 permits, and 
general permits. Ark. Code Ann. Sec.  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 to perform by law, 
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.
    Moreover, the State receives federal grants under CAA sections 103 
and 105 to assist it in carrying out the SIP. Section 103 funding 
supports specific, non-recurring projects within the air program and 
thus, the amount of funding can vary widely from year to year. Section 
105 supports the foundation of the State's air quality program, 
including the air monitoring network and annual air quality program 
activities. Section 105 funding levels are relatively consistent, 
varying not more than about 10% from year to year. Section 105 funds 
require a 40% match from the State, while section 103 funds do not 
require a match. During the upcoming fiscal year (FY2021), ADEQ will 
receive $1,139,737 in section 105 grant funding. For FY2020/2021 ADEQ 
will receive $1,137,068 in section 103 grant funding. This federal 
funding supplements the state's air program implementation funding 
mechanisms.
    As explained in the proposal, EPA has concluded that ADEQ has 
adequate personnel, funding, and authority through these provisions in 
order to carry out the state's implementation plan.
    Comment: The commenter supported concerns about the adequacy of the 
State agency's funding with statements attributed to the State's 
Governor.
    Response: The commenter did not provide enough information for the 
EPA to be able to verify the quote or its context. The EPA of course 
agrees with the statements attributed to the Governor that state 
agencies need adequate funding to protect public health and the 
environment. Regardless, even taken at face value the EPA does not 
believe that the statement establishes that the State in fact has 
inadequate resources for the purposes of implementing the State's SIP. 
As previously explained, the EPA has considered the resources of the 
State as established in the infrastructure SIP submission and considers 
them adequate at this time.
    Comment: The commenter further asserted that the EPA should 
disapprove the State's infrastructure SIP for the 2015 O3 
NAAQS based on concerns about the impacts that the COVID-19 pandemic 
will have on the State's finances and staff for implementing the SIP.

[[Page 9292]]

    Response: The EPA acknowledges the commenter's concern that the 
ongoing COVID-19 pandemic may have negative impacts on the State 
maintaining adequate resources to meet its SIP obligations. As 
discussed above, EPA has concluded that Arkansas has provided 
assurances in the infrastructure SIP submission for the 2015 
O3 NAAQS that it has adequate personnel and funding to carry 
out its SIP obligations at this time. For these reasons, EPA does not 
agree that it must disapprove the infrastructure SIP submission. If the 
adequacy of Arkansas' resources to carry out its SIP is substantially 
affected in the future, EPA has the statutory authority to address this 
issue through means other than disapproving the infrastructure SIP 
submission at this time.

III. Final Action

    We are approving portions of the October 25, 2018, Arkansas i-SIP 
submittal for the 2015 O3 NAAQS as detailed in Table 1 of 
this final action. The agency will take action on those portions of the 
submission addressing 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 in separate, 
future actions.

   Table 1--Final Action on Arkansas Infrastructure and Transport SIP
                   Submittals for the 2015 Ozone NAAQS
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                                                              Proposed
                          Element                              action
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(A): Emission limits and other control measures...........            A
(B): Ambient air quality monitoring and data system.......            A
(C)(i): Enforcement of SIP measures.......................            A
(C)(ii): PSD program for major sources and major                      A
 modifications............................................
(C)(iii): Permitting program for minor sources and minor              A
 modifications............................................
(D)(i)(I): Contribute to nonattainment/interfere with                SA
 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 Pollution Abatement.            A
(E)(i): Adequate resources................................            A
(E)(ii): State boards.....................................            A
(E)(iii): Necessary assurances with respect to local                  A
 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 affected local                 A
 entities.................................................
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Key to Table 1:
A: Approved,
+: Not germane to infrastructure SIPs.
SA: EPA is acting on this infrastructure requirement in a separate
  rulemaking action.

    Based upon our review of the State's infrastructure SIP submission 
for the 2015 O3 NAAQS and relevant statutory and regulatory 
authorities and provisions referenced in this submission or referenced 
in the EPA-approved Arkansas SIP, EPA finds that the state has 
established that it has met the infrastructure SIP requirements of CAA 
sections 110(a)(1) and (2), as applicable, except as noted in Table 1 
of this final action.
    We are also approving the submitted changes to the state's 
Regulation 19 Definitions and Appendix B that reference the 2015 
O3 NAAQS.

IV. Incorporation by Reference

    In this document, EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of a revision to 
Regulation 19, Chapter 2, Definitions and Appendix B, Regulations of 
the Arkansas Plan of Implementation for Air Pollution control. EPA has 
made, and will continue to make, these materials generally available 
through www.regulations.gov and at the EPA Region 6 Office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section of this preamble for more information). Therefore, these 
materials have been approved by the EPA for inclusion in the SIP, have 
been incorporated by reference by the EPA into that plan, are fully 
federally enforceable under sections 110 and 113 of the CAA as of the 
effective date of the final rulemaking of the EPA's approval, and will 
be incorporated by reference in the next update to the SIP compilation.

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, the EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735,

[[Page 9293]]

October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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, described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, 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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 13, 2021. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone.

    Dated: February 5, 2021.
David Gray,
Acting Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart E--Arkansas

0
2. Amend Sec.  52.170 by:
0
a. In paragraph (c) in the table titled ``EPA-Approved Regulations in 
the Arkansas SIP'':
0
i. Revising the entry for Regulation 19, Chapter 2 (Definitions) and
0
ii. Revising the entry for Regulation 19, Appendix B (National Ambient 
Air Quality Standards List).
0
b. In paragraph (e), in the table titled ``EPA-Approved Non-regulatory 
Provisions and Quasi-Regulatory Measures in the Arkansas SIP'' adding 
an entry at the end for ``Infrastructure for the 2015 O3 
NAAQS''.
    The revisions and additions read as follows:


Sec.  52.170  Identification of plan.

* * * * *
    (c) * * *

                                  EPA-Approved Regulations in the Arkansas SIP
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                                                        State approval/
          State citation              Title/subject        submittal     EPA approval date       Explanation
                                                             date
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         Regulation No. 19: Regulations of the Arkansas Plan of Implementation for Air Pollution Control
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                                                  * * * * * * *
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                                             Chapter 2: Definitions
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Chapter 2........................  Definitions........       9/27/2019  2/12/2021, [Insert
                                                                         Federal Register
                                                                         citation].
 
                                                  * * * * * * *
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                             Appendix B: National Ambient Air Quality Standards List
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Appendix B.......................  National Ambient          9/27/2019  2/12/2021, [Insert   ...................
                                    Air Quality                          Federal Register
                                    Standards List.                      citation].
 
                                                  * * * * * * *
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[[Page 9294]]

 
                                                  * * * * * * *
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    (e) * * *

            EPA-Approved Non-Regulatory Provisions and Quasi-Regulatory Measures in the Arkansas SIP
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                                        Applicable           State
         Control measures             geographic or       submittal/     EPA approval date       Explanation
                                    nonattainment area  effective date
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                                                  * * * * * * *
Infrastructure for the 2015 O3     Statewide..........       9/27/2019  2/12/2021, [Insert   Approval for
 NAAQS.                                                                  Federal Register     110(a)(2)(A), (B),
                                                                         citation].           (C), (D)(i)
                                                                                              (portion
                                                                                              pertaining to
                                                                                              PSD), (D)(ii),
                                                                                              (E), (F), (G),
                                                                                              (H), (J), (K), (L)
                                                                                              and (M).
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[FR Doc. 2021-02760 Filed 2-11-21; 8:45 am]
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