[Federal Register Volume 87, Number 100 (Tuesday, May 24, 2022)]
[Proposed Rules]
[Pages 31462-31470]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-10819]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2018-0689; FRL-9654-01-R5]
Air Plan Approval; Minnesota; Approval of Infrastructure SIP
Requirements for the 2015 Ozone NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of a State Implementation Plan (SIP) submission from
Minnesota regarding the infrastructure requirements of section 110 of
the Clean Air Act (CAA) 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 are adequate to meet the state's responsibilities
under the CAA.
DATES: Comments must be received on or before June 23, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2018-0689 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
[[Page 31463]]
Regulations.gov. For either manner of submission, EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, please contact the person
identified in the FOR FURTHER INFORMATION CONTACT section. For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www2.epa.gov/docketgs/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Olivia Davidson, Physical Scientist,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-0266,
[email protected]. The EPA Region 5 office is open from 8:30 a.m.
to 4:30 p.m., Monday through Friday, excluding Federal holidays and
facility closures due to COVID-19.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. What is the background of this SIP submission?
II. What is EPA's analysis of this SIP submission?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of this SIP submission?
In this rulemaking, EPA is proposing to approve most elements of an
October 1, 2018, submission from the Minnesota Pollution Control Agency
(MPCA) intended to address all applicable infrastructure requirements
for the 2015 ozone NAAQS. EPA will take action in a separate future
rulemaking on the portion of the submission pertaining to the
interstate transport \1\ and visibility interference requirements of
section 110(a)(2)(D)(i)(I) and (II) with respect to the 2015 ozone
NAAQS.
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\1\ EPA proposed disapproval of Minnesota's SIP revision
submitted October 1, 2018 to address section 110(a)(2)(D)(i)(I) on
February 22, 2022 (87 FR 9398).
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Whenever EPA promulgates a new or revised NAAQS, 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.''
These submissions must meet the various requirements of section
110(a)(2), as applicable. Due to ambiguity in some of the language of
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 our September 13, 2013
Infrastructure SIP Guidance and through regional actions on
infrastructure submissions (EPA's 2013 Guidance).\2\ 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.\3\ 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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\2\ EPA explains and elaborates on these ambiguities and its
approach to address them in our 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 Minnesota's infrastructure SIP to address the 2008 ozone,
2010 nitrogen dioxide (NO2), 2010 sulfur dioxide
(SO2), and 2012 fine particulate matter
(PM2.5) NAAQS (80 FR 63436 (October 20, 2015)).
\3\ See Montana Environmental Information Center v. EPA, 902
F.3d 971 (9th Cir. 2018).
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II. What is EPA's analysis of this SIP submission?
Pursuant to section 110(a), states must provide reasonable notice
and opportunity for public hearing for all infrastructure SIP
submissions. On July 9, 2018, MPCA opened a 30-day comment period and
provided the opportunity for public hearing. No comments were received.
Minnesota provided a detailed synopsis of how various components of
its SIP meet each of the applicable requirements in section 110(a)(2)
for the 2015 ozone NAAQS, as applicable. The following review evaluates
the state's submission.
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section requires SIPs to include enforceable emission limits
and other control measures, means or techniques, schedules for
compliance, and other related matters. EPA has long interpreted
emission limits and control measures for attaining the standards as
being due when nonattainment planning requirements are due.\4\ 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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\4\ See, e.g., EPA's final rule on ``National Ambient Air
Quality Standards for Lead.'' 73 FR 66964 at 67034.
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Minnesota Statute (Minn. Stat.) 116.07 gives MPCA the authority to
``adopt, amend and rescind rules and standards having the force of law
relating to any purpose . . . for the prevention, abatement, or control
of air pollution.'' Also from Minn. Stat. 116.07, MPCA has the
authority to ``issue, continue in effect or deny permits, under such
conditions as it may prescribe for the prevention of pollution, for the
emission of air contaminants,'' and for other purposes.
EPA's 2013 Guidance states that to satisfy section 110(a)(2)(A)
requirements, ``an air agency's submission should identify existing
EPA-approved SIP provisions or new SIP provisions that the air agency
has adopted and submitted for EPA approval that limit emissions of
pollutants relevant to the subject NAAQS, including precursors of the
relevant NAAQS pollutant where applicable.'' EPA's 2013 Guidance at 18.
Minn. Stat. chapter 116 gives MPCA the authority to develop and
implement rules, including controls and emission limits to maintain new
standards. While Minnesota does not have any nonattainment or
maintenance areas for 2015 ozone NAAQS, MPCA identified existing
controls and emission limits in Minnesota Rules (Minn. R.) that support
compliance with and attainment of the 2015 ozone NAAQS. These
regulations include controls and emission limits for volatile organic
compounds (VOC) and nitrogen oxides (NOX), which are
precursors to ozone. NOX emissions are limited by Minn. R.
7011.0500 to 7011.0553 as well as 7011.1700 to 7011.1730. VOC emissions
are limited by the National Emission Standards for Hazardous Air
Pollutants, which are incorporated by reference into
[[Page 31464]]
Minnesota's state rules at Minn. R. 7011.7000.
In this rulemaking, EPA is not proposing to incorporate into
Minnesota's SIP any new provisions in Minnesota's state rules that have
not been previously approved by EPA. EPA is also not proposing to
approve or disapprove any existing state provisions or rules related to
start-up, shutdown or malfunction or director's discretion in the
context of section 110(a)(2)(A). EPA proposes that Minnesota has met
the infrastructure SIP requirements of section 110(a)(2)(A) with
respect to the 2015 ozone NAAQS.
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to provide for establishing and
operating ambient air quality monitors, collecting and analyzing
ambient air quality data, and, upon request, to make these data
available to EPA. EPA's 2013 Guidance states that submission of annual
monitoring network plans consistent with EPA's ambient air monitoring
regulations at 40 CFR 58.10 is one way of satisfying requirements to
provide EPA information regarding air quality monitoring activities.
EPA's review of a state's annual monitoring plan includes EPA's
determination that 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 in a timely manner; and (iii) provides EPA
Regional Offices with prior notification of any planned changes to
monitoring sites or the network plan.
In accordance with 40 CFR part 53 and 40 CFR part 58, MPCA
continues to operate an air monitoring network that is used to
determine compliance with the NAAQS. MPCA`s submittal references its
2019 Annual Air Monitoring Network Plan, approved by EPA on September
18, 2018, which included a new appendix D describing Minnesota's
Photochemical Assessment Monitoring Station Network Implementation Plan
in order to comply with the new 2015 ozone NAAQS. Additionally, EPA
approved MPCA's 2020 and 2021 Network Plans on August 23, 2019, and
September 15, 2020, respectively. EPA proposes that Minnesota has met
the infrastructure SIP requirements of section 110(a)(2)(B) with
respect to the 2015 ozone NAAQS.
C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures;
Minor NSR; PSD
This section requires SIPs to set forth a program providing for
enforcement of all SIP measures, and the regulation of construction of
new and modified stationary sources to meet New Source Review (NSR)
requirements under Prevention of Significant Deterioration (PSD) and
Nonattainment NSR (NNSR) programs. Part C of the CAA (sections 160-
169B) addresses PSD, while part D of the CAA (sections 171-193)
addresses NNSR requirements. EPA's 2013 Guidance states that the NNSR
requirements of section 110(a)(2)(C) are generally outside the scope of
infrastructure SIPs; however, a state must provide for regulation of
minor sources and minor modifications (minor NSR).
1. Program for Enforcement of Emission Limitations and Control Measures
A state's infrastructure SIP submission should identify the
statutes, regulations, or other provisions in the SIP that provide for
enforcement of emission limits and control measures.
Minn. Stat. 116.07 gives MPCA the authority to enforce any
provisions of the chapter relating to air contamination. These
provisions include entering into orders, schedules of compliance,
stipulation agreements, requiring owners or operators of emissions
facilities to install and operate monitoring equipment, and conducting
investigations. Minn. Stat. 116.072 authorizes MPCA to issue orders and
assess administrative penalties to correct violations of the agency's
rules, statutes, and permits, and Minn. Stat. 115.071 outlines the
remedies that are available to address such violations. Lastly, Minn.
R. 7009.0030 to 7009.0040 provide for enforcement measures. EPA
proposes that Minnesota has met the program for enforcement of emission
limitations and control measures requirements of section 110(a)(2)(C)
with respect to the 2015 ozone NAAQS.
2. Minor NSR
An infrastructure SIP submission should identify the existing EPA-
approved SIP provisions that govern the minor source pre-construction
program that regulates emissions of the relevant NAAQS pollutant.
EPA first approved Minnesota's minor NSR program on May 2, 1995 (60
FR 21447). Since then, MPCA and EPA have relied on these existing
provisions to ensure that new and modified sources not captured by the
major NSR permitting programs do not interfere with attainment and
maintenance of the ozone and other NAAQS. EPA proposes that Minnesota
has met the minor NSR requirements of section 110(a)(2)(C) with respect
to the 2015 ozone NAAQS.
3. PSD
The evaluation of each state's submission addressing the PSD
requirements of section 110(a)(2)(C) covers: (i) PSD provisions that
explicitly identify NOX as a precursor to ozone in the PSD
program; (ii) identification of precursors to PM2.5 \5\ and
the identification of PM2.5 and PM10 \6\
condensables in the PSD program; (iii) PM2.5 increments in
the PSD program; and (iv) greenhouse gas (GHG) permitting and the
``Tailoring Rule'' in the PSD program.\7\
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\5\ PM2.5 refers to particles with an aerodynamic
diameter of less than or equal to 2.5 micrometers, also referred to
as ``fine'' particles.
\6\ PM10 refers to particles with an aerodynamic
diameter of less than or equal to 10 micrometers.
\7\ In EPA's April 28, 2011, proposed rulemaking for
infrastructure SIPs for the 1997 ozone and PM2.5 NAAQS,
we stated that each state's PSD program must meet applicable
requirements for evaluation of all regulated NSR pollutants in PSD
permits (76 FR 23757 at 23760). This view was reiterated in EPA's
August 2, 2012 proposed rulemaking for infrastructure SIPs for the
2006 PM2.5 NAAQS (77 FR 45992 at 45998). In other words,
if a state lacks provisions needed to adequately address
NOX as a precursor to ozone, PM2.5 precursors,
PM2.5 and PM10 condensables, PM2.5
increments, or the Federal GHG permitting thresholds, the provisions
of section 110(a)(2)(C) requiring a suitable PSD permitting program
must be considered not to be met irrespective of the NAAQS that
triggered the requirement to submit an infrastructure SIP, including
the 2015 ozone NAAQS.
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Some PSD requirements under section 110(a)(2)(C) overlap with
elements of section 110(a)(2)(D)(i), section 110(a)(2)(E), and section
110(a)(2)(J). These links are discussed in the appropriate areas below.
a. PSD Provisions That Explicitly Identify NOX as a
Precursor to Ozone in the PSD Program
EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects
of the 1990 Amendments Relating to New Source Review and Prevention of
Significant Deterioration as They Apply in Carbon Monoxide, Particulate
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase
2 Rule) was published on November 29, 2005 (70 FR 71612). Among other
requirements, the Phase 2 Rule obligated states to revise their PSD
programs to explicitly identify NOX as a precursor to ozone
(see 70 FR 71612 at 71679, 71699-71704). This
[[Page 31465]]
requirement was codified at 40 CFR 51.166.\8\
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\8\ Similar changes were codified in 40 CFR 52.21.
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The Phase 2 Rule required that states submit SIP revisions
incorporating the requirements of the rule, including the provisions
specific to NOX as a precursor to ozone, by June 15, 2007
(see 70 FR 71612 at 71683).
On September 26, 2017 (82 FR 44734), EPA approved into the
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD
rules fully satisfy the requirements of section 110(a)(2)(C) regarding
NOX as a precursor to ozone. EPA therefore proposes that
Minnesota has met this set of infrastructure SIP requirements of
section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.
b. Identification of Precursors to PM2.5 and the
Identification of PM2.5 and PM10 Condensables in
the PSD Program
On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule).
The 2008 NSR Rule finalized several new requirements for SIPs to
address sources that emit direct PM2.5 and other pollutants
that contribute to secondary PM2.5 formation. One of these
requirements is for NSR permits to address pollutants responsible for
the secondary formation of PM2.5, otherwise known as
precursors. In the 2008 NSR Rule, EPA identified precursors to
PM2.5 for the PSD program to be sulfur dioxide
(SO2) and NOX (unless the state demonstrates to
the Administrator's satisfaction or EPA demonstrates that
NOX emissions in an area are not a significant contributor
to that area's ambient PM2.5 concentrations). The 2008 NSR
Rule also specifies that VOCs are not considered to be precursors to
PM2.5 in the PSD program unless the state demonstrates to
the Administrator's satisfaction or EPA demonstrates that emissions of
VOCs in an area are significant contributors to that area's ambient
PM2.5 concentrations.
The explicit references to SO2, NOX, and VOCs
as they pertain to secondary PM2.5 formation are codified at
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of
identifying pollutants that are precursors to PM2.5, the
2008 NSR Rule also required states to revise the definition of
``significant'' as it relates to a net emissions increase or the
potential of a source to emit pollutants. Specifically, 40 CFR
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for
PM2.5 to mean the following emissions rates: 10 tons per
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40
tpy of NOX (unless the state demonstrates to the
Administrator's satisfaction or EPA demonstrates that NOX
emissions in an area are not a significant contributor to that area's
ambient PM2.5 concentrations). The deadline for states to
submit SIP revisions to their PSD programs incorporating these changes
was May 16, 2011 (see 73 FR 28321 at 28341).\9\
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\9\ EPA notes that in Natural Resources Defense Council v. EPA,
706 F.3d 428 (D.C. Cir. 2013), the U.S. Court of Appeals for the
D.C. Circuit held that EPA should have issued the 2008 NSR Rule in
accordance with the CAA's requirements for PM10
nonattainment areas (Title I, part D, subpart 4), and not the
general requirements for nonattainment areas under subpart 1. As the
subpart 4 provisions apply only to nonattainment areas, EPA does not
consider the portions of the 2008 NSR Rule that address requirements
for PM2.5 attainment and unclassifiable areas to be
affected by the court's opinion. Moreover, EPA does not anticipate
the need to revise any PSD requirements promulgated by the 2008 NSR
Rule in order to comply with the court's decision. Accordingly,
EPA's approval of Minnesota's infrastructure SIP as to elements (C),
(D)(i)(II), or (J) with respect to the PSD requirements promulgated
by the 2008 NSR Rule does not conflict with the court's opinion.
The court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 NSR Rule also does not affect
EPA's action on the present infrastructure action. EPA interprets
the CAA to exclude nonattainment area requirements, including
requirements associated with a nonattainment NSR program, from
infrastructure SIP submissions due three years after adoption or
revision of a NAAQS. Instead, these elements are typically referred
to as nonattainment SIP or attainment plan elements, which would be
due by the dates statutorily prescribed under subpart 2 through 5
under part D, extending as far as 10 years following designations
for some elements.
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The 2008 NSR Rule did not require states to immediately account for
gases that could condense to form particulate matter, known as
condensables, in PM2.5 and PM10 emission limits
in NSR permits. Instead, EPA determined that states had to account for
PM2.5 and PM10 condensables for applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10 in PSD permits beginning on or
after January 1, 2011. This requirement is codified in 40 CFR
51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states'
PSD programs incorporating the inclusion of condensables were due to
EPA by May 16, 2011 (see 73 FR 28321 at 28341).
On September 26, 2017 (82 FR 44734), EPA approved into the
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD
rules fully satisfy the requirements of section 110(a)(2)(C) regarding
identification of precursors to PM2.5 and the identification
of PM2.5 and PM10 condensables. EPA therefore
proposes that Minnesota has met this set of infrastructure SIP
requirements of section 110(a)(2)(C) with respect to the 2015 ozone
NAAQS.
c. PM2.5 Increments in the PSD Program
On October 20, 2010 (75 FR 64864), EPA issued the final rule on the
``Prevention of Significant Deterioration (PSD) for Particulate Matter
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)''
(2010 NSR Rule). This rule established several components for making
PSD permitting determinations for PM2.5, including a system
of ``increments'' which is the mechanism used to estimate significant
deterioration of ambient air quality for a pollutant. These increments
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included
in the table below.
Table 1--PM2.5 Increments Established by the 2010 NSR Rule in Micrograms
per Cubic Meter
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Annual
arithmetic 24-Hour max
mean
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Class I....................................... 1 2
Class II...................................... 4 9
Class III..................................... 8 18
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The 2010 NSR Rule also established a new ``major source baseline
date'' for PM2.5 as October 20, 2010, and a new trigger date
for PM2.5 as October 20, 2011. These revisions are codified
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR
52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule
revised the definition of ``baseline area'' to include a level of
significance of 0.3 micrograms per cubic meter, annual average, for
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i)
and 40 CFR 52.21(b)(15)(i).
On September 26, 2017 (82 FR 44734), EPA approved into the
Minnesota SIP Minn. R. 7007.3000, which incorporates by reference ``as
amended'' the Federal PSD rules at 40 CFR 52.21. These Federal PSD
rules fully satisfy the requirements of section 110(a)(2)(C) regarding
PM2.5 increments. EPA therefore proposes that Minnesota has
met this set of infrastructure SIP requirements of section 110(a)(2)(C)
with respect to the 2015 ozone NAAQS.
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d. GHG Permitting and the ``Tailoring Rule'' in the PSD Program
With respect to the requirements of section 110(a)(2)(C) as well as
section 110(a)(2)(J), EPA interprets the CAA to require each state to
make an infrastructure SIP submission for a new or revised NAAQS that
demonstrates that the air agency has a complete PSD permitting program
meeting the current requirements for all regulated NSR pollutants. The
requirements of section 110(a)(2)(D)(i)(II) may also be satisfied by
demonstrating that the air agency has a complete PSD permitting program
correctly addressing all regulated NSR pollutants. Minnesota has shown
that it currently has a PSD program in place that covers all regulated
NSR pollutants, including GHGs.
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 573 U.S. 302 (2014). The Supreme Court said that EPA may not
treat GHGs as an air pollutant for purposes of determining whether a
source is a major source required to obtain a PSD permit. The Court
also said that EPA could continue to require that PSD permits,
otherwise required based on emissions of pollutants other than GHGs,
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT).
In accordance with the Court's decision, on April 10, 2015, the
U.S. Court of Appeals for the District of Columbia Circuit (the D.C.
Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of EPA's PSD and title V Greenhouse Gas Tailoring
Rule, but not the regulations that implement Step 1 of that rule. Step
1 of the Tailoring Rule covers sources that are required to obtain a
PSD permit based on emissions of pollutants other than GHGs. Step 2
applied to sources that emitted only GHGs above the thresholds
triggering the requirement to obtain a PSD permit. The amended judgment
preserves, without the need for additional rulemaking by EPA, the
application of the BACT requirement to GHG emissions from Step 1 or
``anyway'' sources. With respect to Step 2 sources, the D.C. Circuit's
amended judgment vacated the regulations at issue in the litigation,
including 40 CFR 51.166(b)(48)(v), ``to the extent they require a
stationary source to obtain a PSD permit if greenhouse gases are the
only pollutant (i) that the source emits or has the potential to emit
above the applicable major source thresholds, or (ii) for which there
is a significant emission increase from a modification . . . .''
Coalition for Responsible Regulation, Inc. v. Environmental Protection
Agency, Nos. 09-1322, 10-073, 10-1092, and 10-1167, Amended Judgment
(D.C. Cir. April 10, 2015).
EPA is planning to take additional steps to revise Federal PSD
rules in light of the Supreme Court's opinion and subsequent D.C.
Circuit's ruling. Some states have begun to revise their existing SIP-
approved PSD programs in light of these court decisions, and some
states may prefer not to initiate this process until they have more
information about the planned revisions to EPA's PSD regulations. EPA
is not expecting states to have revised their PSD programs in
anticipation of EPA's planned actions to revise its PSD program rules
in response to the court decisions. For purposes of infrastructure SIP
submissions, EPA is only evaluating such submissions to assure that the
state's program addresses GHGs consistent with both court decisions.
EPA is proposing that Minnesota's SIP is sufficient to satisfy CAA
sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) with
respect to GHGs. This is because the PSD permitting program approved by
EPA into the SIP on September 26, 2017 (82 FR 44734) continues to
require that PSD permits issued to ``anyway sources'' contain
limitations on GHG emissions based on the application of BACT.
EPA proposes that Minnesota has met the infrastructure SIP
requirements of section 110(a)(2)(C) with respect to the 2015 ozone
NAAQS.
D. Section 110(a)(2)(D)--Interstate Transport
Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct
components, commonly referred to as ``prongs,'' that must be addressed
in infrastructure SIP submissions. The first two prongs, which are
codified in section 110(a)(2)(D)(i)(I), prohibit any source or other
type of emissions activity in one state from contributing significantly
to nonattainment of the NAAQS in another state (prong 1) and from
interfering with maintenance of the NAAQS in another state (prong 2).
The third and fourth prongs, which are codified in section
110(a)(2)(D)(i)(II), prohibit emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state (prong 3) or from interfering with
measures to protect visibility in another state (prong 4).
Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions
prohibiting any source or other type of emissions activity in one state
from contributing significantly to nonattainment, or interfering with
maintenance, of the NAAQS in another state. Section 110(a)(2)(D)(i)(II)
requires SIPs to include provisions prohibiting any source or other
type of emissions activity in one state from interfering with measures
required of any other state to prevent significant deterioration of air
quality, or from interfering with measures required of any other state
to protect visibility. Section 110(a)(2)(D)(ii) requires each SIP to
contain adequate provisions requiring compliance with the applicable
requirements of CAA section 126 and section 115 (relating to interstate
and international pollution abatement, respectively).
1. Significant Contribution to Nonattainment
In this rulemaking, EPA is not evaluating section
110(a)(2)(D)(i)(I) requirements relating to significant contribution to
nonattainment for the 2015 ozone NAAQS. Instead, EPA will evaluate
these requirements in a separate rulemaking.
2. Interference With Maintenance
In this rulemaking, EPA is not evaluating section
110(a)(2)(D)(i)(I) requirements relating to interference with
maintenance for the 2015 ozone NAAQS. Instead, EPA will evaluate these
requirements in a separate rulemaking.
3. Interference With PSD
EPA notes that Minnesota's satisfaction of the applicable
infrastructure SIP PSD requirements has been detailed in the discussion
of section 110(a)(2)(C). EPA further notes that the proposed actions in
that discussion related to PSD are consistent with the proposed actions
related to PSD for section 110(a)(2)(D)(i)(II) and are reiterated
below.
EPA previously approved revisions to Minnesota's SIP to meet
certain requirements obligated by the Phase 2 Rule and the 2008 NSR
Rule. These revisions included provisions that explicitly identify
NOX as a precursor to ozone, explicitly identify
SO2 and NOX as precursors to PM2.5,
regulate condensable PM2.5 and PM10 in
applicability determinations, and regulate condensable PM2.5
and PM10 in applicability determinations for purposes of
establishing emission limits. EPA also previously approved revisions to
Minnesota's SIP that incorporate the PM2.5 increments and
[[Page 31467]]
the associated implementation regulations, including the major source
baseline date, trigger date, and level of significance for
PM2.5, as required by the 2010 NSR Rule. Therefore, EPA is
proposing that Minnesota's SIP contains provisions that adequately
address the infrastructure requirements for the 2015 ozone NAAQS.
States also have an obligation to ensure that sources located in
nonattainment areas do not interfere with a neighboring state's PSD
program. This requirement can be satisfied through an NNSR program
consistent with the CAA that addresses any pollutants for which there
is a designated nonattainment area within the state.
Minnesota's EPA-approved NNSR regulations are contained in Minn. R.
7007 and are consistent with 40 CFR 51.165 (60 FR 27411, May 24, 1995).
Therefore, EPA proposes that Minnesota has met all the applicable PSD
requirements for the 2015 ozone NAAQS.
4. Interference With Visibility Protection
In this rulemaking, EPA is not evaluating section
110(a)(2)(D)(i)(II) requirements relating to interference with
visibility protection for the 2015 ozone NAAQS. Instead, EPA will
evaluate these requirements in a separate rulemaking.
5. Interstate and International Pollution Abatement
Section 110(a)(2)(D)(ii) requires each SIP to contain adequate
provisions requiring compliance with the applicable requirements of
section 126 and section 115 (relating to interstate and international
pollution abatement, respectively).
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. A
lack of such a requirement in state rules would be grounds for
disapproval of this element.
Minnesota has provisions in its SIP-approved PSD program in Minn.
R. 7007.3000 requiring new or modified sources to notify neighboring
states of potential negative air quality impacts and has referenced
this program as having adequate provisions to meet the requirements of
CAA section 126(a). Minnesota does not have obligations under any other
subsection of CAA section 126, nor does it have any pending obligations
under CAA section 115. Therefore, EPA is proposing that Minnesota has
met all applicable infrastructure SIP requirements of section
110(a)(2)(D)(ii) with respect to the 2015 ozone NAAQS.
E. Section 110(a)(2)(E)--Adequate Resources; State Board Requirements
This section requires each state to provide for adequate personnel,
funding, and legal authority under state law to carry out its SIP, and
related issues. Section 110(a)(2)(E)(ii) also requires each state to
comply with the requirements respecting state boards under section 128.
1. Adequate Resources
To satisfy the adequate resources requirements of section
110(a)(2)(E), the state should provide assurances that its air agency
has adequate resources, personnel, and legal authority to implement the
relevant NAAQS.
MPCA's Environmental Performance Partnership Agreement with EPA
provides MPCA's assurances of resources to carry out certain air
programs. EPA also notes that Minn. Stat. 116.07 provides the legal
authority under state law to carry out the SIP. Therefore, EPA proposes
that Minnesota has met the infrastructure SIP requirements of this
portion of section 110(a)(2)(E) with respect to the 2015 ozone NAAQS.
2. State Board Requirements
Section 110(a)(2)(E) also requires each SIP to set forth provisions
that comply with the state board requirements of section 128 of the
CAA. Specifically, this section contains two explicit requirements: (i)
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 (ii) 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.
Minnesota has no board or body which approves permits or
enforcement orders in relation to the CAA. The administrative powers
and duties of MPCA, including issuance of permits and enforcement
orders, are vested in the Commissioner of the MPCA. Therefore,
Minnesota has no further obligations under section 128(a)(1) of the
CAA.
Under section 128(a)(2), the head of the executive agency with the
power to approve permits or enforcement orders must adequately disclose
any potential conflicts of interest. In Minnesota, this power is vested
in the Commissioner of the MPCA. Under Minn. Stat. 10A, matters of
disclosure and public interest are governed by the Minnesota Campaign
Finance and Public Disclosure Board (MCFPDB). Minn. Stat. 10A.09
requires that statements of economic interest be filed with the MCFPDB
upon the nomination of the Commissioner, and a supplementary statement
must be submitted every year thereafter. Under Minn. Stat. 10A.07, if
the Commissioner has a financial interest relating to a matter before
the agency, he or she must make this interest known in writing.
Decision-making responsibility on the matter must be assigned by the
Governor to another employee who does not have a conflict of interest,
or the Commissioner must abstain from influence over the matter in a
manner prescribed by the MCFPDB. Minn. R. 7000.0300 further prescribes
a ``duty of candor'' for the Commissioner.
On November 2, 2017 (82 FR 50807), EPA approved MPCA's request to
approve Minn. Stat. 10A.07, Minn. Stat. 10A.09, and Minn. R. 7000.0300
into Minnesota's SIP, and determined that these rules satisfied all
requirements under section 128 of the CAA. Therefore, EPA is proposing
that Minnesota has satisfied the applicable infrastructure SIP
requirements for this section of 110(a)(2)(E) for the 2015 ozone NAAQS.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
Section 110(a)(2)(F) contains several requirements, each of which
are described below.
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 established pursuant to this chapter. Lastly, the reports
shall be available at reasonable times for public inspection.
Minn. Stat. 116.07 gives MPCA the authority to require owners or
operators
[[Page 31468]]
of emission facilities to install and operate monitoring equipment,
while Minn. R. 7007.0800 sets forth the minimum monitoring requirements
that must be included in stationary source permits. Minn. R. 7017
contains monitoring and testing requirements, and Minn. R. 7019
contains emissions reporting requirements for applicable facilities.
EPA proposes that Minnesota has met the infrastructure SIP requirements
of section 110(a)(2)(F) with respect to the 2015 ozone NAAQS.
G. Section 110(a)(2)(G)--Emergency Powers
Section 110(a)(2)(G) requires the SIP to provide for authority
analogous to that in section 303 of the CAA, and adequate contingency
plans to implement such authority. EPA's 2013 Guidance states that
infrastructure SIP submissions should specify authority, vested in an
appropriate official, to restrain any source from causing or
contributing to emissions which present an imminent and substantial
endangerment to public health or welfare, or the environment.
Minn. Stat. 116.11 provides to MPCA emergency powers, which are
further discussed in Minn. R. 7000.5000. Specifically, these
regulations allow the agency to ``direct the immediate discontinuance
or abatement of the pollution without notice and without a hearing or
at the request of the agency, the attorney general may bring an action
in the name of the state in the appropriate district court for a
temporary restraining order to immediately abate or prevent the
pollution.'' EPA proposes that Minnesota has met the infrastructure SIP
requirements of section 110(a)(2)(G) with respect to the 2015 ozone
NAAQS.
H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires states to have the authority to revise their
SIPs in response to changes in the NAAQS, to the availability of
improved methods for attaining the NAAQS, or to an EPA finding that the
SIP is substantially inadequate.
Minn. Stat. 116.07 grants the agency the authority to ``[a]dopt,
amend, and rescind rules and standards having the force of law relating
to any purpose . . . for the prevention, abatement, or control of air
pollution.'' EPA proposes that Minnesota has met the infrastructure SIP
requirements of section 110(a)(2)(H) with respect to the 2015 ozone
NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Planning Requirements of Part D
The CAA requires that each plan or plan revision for an area
designated as a nonattainment area meet the applicable requirements of
part D of the CAA. Part D relates to nonattainment areas.
EPA has determined that section 110(a)(2)(I) is not applicable to
the infrastructure SIP process. Instead, EPA will take action on part D
attainment plans through separate processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notification; PSD; Visibility Protection
The evaluation of the submission from Minnesota with respect to the
requirements of section 110(a)(2)(J) are described below.
1. Consultation With Government Officials
States must provide a process for consultation with local
governments and Federal Land Managers in carrying out NAAQS
implementation requirements.
MPCA is an active member of the Lake Michigan Air Director's
Consortium (LADCO), which provides technical assessments and a forum
for discussion regarding air quality issues to member states. Minnesota
has also demonstrated that it frequently consults and discusses air
quality issues with pertinent Tribes. In addition to LADCO, MPCA is an
active participant in the National Association of Clean Air Agencies,
which has a member total of 185 air agencies, including representatives
from all EPA regional offices and headquarters, across the United
States. EPA proposes that Minnesota has satisfied the infrastructure
SIP requirements of this portion of section 110(a)(2)(J) with respect
to the 2015 ozone NAAQS.
2. Public Notification
Section 110(a)(2)(J) also requires states to notify the public if
NAAQS are exceeded in an area and to enhance public awareness of
measures that can be taken to prevent exceedances. MPCA's website
(https://www.pca.state.mn.us/air) features information regarding health
impacts of air pollution, current air quality and forecasting, and non-
point, vehicle, and traditionally permitted sources. Additionally, MPCA
developed a free mobile application (Minnesota Air) that contains
forecasting information. Minnesota's procedural rules are contained in
Minn. R. Ch. 7000, and include general guidelines, as well as emergency
and variance procedures. Minn. R. Ch. 7007 lists public notice and
comment procedures for the issuance of air quality permits, which
provide the public with an opportunity to comment and/or request public
hearing regarding proposed SIP revisions. Therefore, EPA proposes that
Minnesota has met the infrastructure SIP requirements of this portion
of section 110(a)(2)(J) with respect to the 2015 ozone NAAQS.
3. PSD
States must meet applicable requirements of section 110(a)(2)(C)
related to PSD. Minnesota's PSD program in the context of
infrastructure SIPs has already been discussed above in the paragraphs
addressing section 110(a)(2)(C) and section 110(a)(2)(D)(i)(II), and
EPA notes that the proposed actions for those sections are consistent
with the proposed actions for this portion of section 110(a)(2)(J).
Therefore, EPA proposes that Minnesota has met all the
infrastructure SIP requirements for PSD associated with section
110(a)(2)(D)(J) for the 2015 ozone NAAQS.
4. Visibility Protection
States are subject to visibility and regional haze program
requirements under part C of the CAA (which includes sections 169A and
169B). However, EPA has determined that the CAA section 110(a)(2)(J)
provision on visibility is not triggered by a new NAAQS because the
visibility requirements in part C are not changed by a new NAAQS.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
SIPs must provide for performance of air quality modeling to
predict the effects on air quality from emissions of any NAAQS
pollutant and the submission of such data to EPA upon request.
MPCA has the authority under Minn. R. Ch. 7007.0500 to require
applicable major sources to perform modelling to show that emissions do
not cause or contribute to a violation of any NAAQS. Such information
is mandatory for applicants subject to PSD requirements (Minn. R. Ch.
7007.3000) and/or NNSR requirements (Minn. R. Ch. 7007.4000 through
7007.4030). MPCA also maintains staff that conduct permit-related (and
other) modeling, to support facilities and ensure modeling accuracy.
EPA proposes that Minnesota has met the infrastructure SIP requirements
of section 110(a)(2)(K) with respect to the 2015 ozone NAAQS.
[[Page 31469]]
L. Section 110(a)(2)(L)--Permitting Fees
This section requires SIPs to mandate each major stationary source
to pay permitting fees to cover the cost of reviewing, approving,
implementing, and enforcing a permit.
MPCA implements and operates the title V permit program, which EPA
approved on December 4, 2001 (66 FR 62967). Minn. R. 7002.0005 through
7002.0085 contain the provisions, requirements, and structures
associated with the costs for reviewing, approving, implementing, and
enforcing various types of permits. EPA proposes that Minnesota has met
the infrastructure SIP requirements of section 110(a)(2)(L) with
respect to the 2015 ozone NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
States must consult with and allow participation from local
political subdivisions affected by the SIP.
Minn. Stat. 116.05 authorizes cooperation and agreement between
MPCA and other State and local governments, with whom Minnesota
regularly consults. The Minnesota Administrative Procedures Act
provides general notice and comment procedures that govern rulemaking
for all state agencies, which MPCA follows during SIP development.
Therefore, EPA proposes that Minnesota has met the infrastructure SIP
requirements of section 110(a)(2)(M) with respect to the 2015 ozone
NAAQS.
III. What action is EPA taking?
EPA is proposing to approve most elements of a submission from MPCA
certifying that its current SIP is sufficient to meet the required
infrastructure elements under sections 110(a)(1) and (2) for the 2015
ozone NAAQS. EPA's proposed actions for the State's satisfaction of
infrastructure SIP requirements pursuant to section 110(a)(2) and NAAQS
are contained in the table below.
------------------------------------------------------------------------
Element 2015 Ozone
------------------------------------------------------------------------
(A)--Emission limits and other control measures......... A
(B)--Ambient air quality monitoring/data system......... A
(C)1--Program for enforcement of control measures....... A
(C)2--Minor NSR......................................... A
(C)3--PSD............................................... A
(D)1--I Prong 1: Interstate transport--significant NA
contribution to nonattainment..........................
(D)2--I Prong 2: Interstate transport--interference with NA
maintenance............................................
(D)3--II Prong 3: Interstate transport--interference A
with PSD...............................................
(D)4--II Prong 4: Interstate transport--interference NA
with visibility protection.............................
(D)5--Interstate and international pollution abatement.. A
(E)1--Adequate resources................................ A
(E)2--State board requirements.......................... A
(F)--Stationary source monitoring system................ A
(G)--Emergency powers................................... A
(H)--Future SIP revisions............................... A
(I)--Nonattainment planning requirements of part D...... *
(J)1--Consultation with government officials............ A
(J)2--Public notification............................... A
(J)3--PSD............................................... A
(J)4--Visibility protection............................. *
(K)--Air quality modeling/data.......................... A
(L)--Permitting fees.................................... A
(M)--Consultation/participation by affected local A
entities...............................................
------------------------------------------------------------------------
In the above table, the key is as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
A............................... Approve.
NA.............................. No Action/Separate Rulemaking.
D............................... Disapprove.
*............................... Not germane to infrastructure SIPs.
------------------------------------------------------------------------
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 CAA 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 approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
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).
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
[[Page 31470]]
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, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
Dated: May 16, 2022.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2022-10819 Filed 5-23-22; 8:45 am]
BILLING CODE 6560-50-P