[Federal Register Volume 87, Number 104 (Tuesday, May 31, 2022)]
[Rules and Regulations]
[Pages 32316-32320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-11456]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2017-0443; FRL-9876-01-R1]
Air Plan Approval; Rhode Island; Infrastructure State
Implementation Plan Requirements for the 2012 PM2.5 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving most
elements of a State Implementation Plan (SIP) revision submitted by the
State of Rhode Island. This revision addresses the infrastructure
requirements of the Clean Air Act (CAA or Act) for the 2012 annual fine
particle (PM2.5) National Ambient Air Quality Standard
(NAAQS). We are not taking action on three elements of this submittal
in sections 110(a)(2)(C), (D)(i)(II), and (J) that relate to
requirements for the State's Prevention of Significant Deterioration
[[Page 32317]]
(PSD) program. These will be addressed in a separate action. In
addition, EPA is disapproving the submission with respect to section
110(a)(2)(H) (future SIP revisions). However, because a Federal
implementation plan (FIP) has been in place for section 110(a)(2)(H)
since 1973, no further action by EPA or the State is required. This
action is being taken in accordance with the Clean Air Act.
DATES: This rule is effective June 30, 2022.
ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R01-OAR-2017-0443. All documents in the docket
are listed on the https://www.regulations.gov website. Although listed
in the index, some information is not publicly available, i.e.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available at https://www.regulations.gov or at the U.S.
Environmental Protection Agency, EPA Region 1 Regional Office, Air and
Radiation Division, 5 Post Office Square--Suite 100, Boston, MA. EPA
requests that, if at all possible, you contact the contact listed in
the FOR FURTHER INFORMATION CONTACT section to schedule your
inspection. The Regional Office's official hours of business are Monday
through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays and
facility closures due to COVID-19.
FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Branch,
U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office
Square--Suite 100, (Mail code 05-2), Boston, MA 02109--3912, tel. (617)
918-1684, email [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. Background and Purpose
II. Response to Comments
III. Final Action
IV. Statutory and Executive Order Reviews
I. Background and Purpose
On December 6, 2017, Rhode Island submitted a SIP submission to
address the ``infrastructure'' SIP requirements of the Clean Air Act
(CAA or Act)--including the interstate transport requirements--for the
2012 annual PM2.5 \1\ NAAQS. EPA refers to this type of SIP
submission as an ``infrastructure SIP.'' On February 1, 2019 (84 FR
1025), EPA published a notice of proposed rulemaking (NPRM) proposing
to approve most elements of the State's infrastructure SIP submission
and to conditionally approve certain other elements of the submission.
The infrastructure SIP 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 for
implementation of the NAAQS. The rationale for EPA's proposed action is
given in the NPRM and will not be restated here.
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\1\ PM2.5 refers to particulate matter of 2.5 microns
or less in diameter, often referred to as ``fine'' particles.
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II. Response to Comments
During the comment period, EPA received one set of germane
comments, which addressed two issues: (1) EPA's proposed conditional
approval of certain portions of Rhode Island's infrastructure SIP
submission related to the State's PSD program and (2) the impact on
this infrastructure SIP action of EPA's 2015 Startup, Shutdown and
Malfunction (SSM) SIP Action. In that action, EPA found that certain
existing SIP provisions governing periods of SSM in 45 states and local
jurisdictions, including one such provision in Rhode Island's SIP, were
substantially inadequate to meet CAA requirements. EPA issued a SIP
call on June 12, 2015, directing those states to submit SIP revisions
to address the specific inadequacies. See 80 FR 33839.
Regarding the first issue, the commenter stated that a conditional
approval of the PSD-related elements of Rhode Island's December 6,
2017, infrastructure SIP submission is ``not appropriate,'' because the
State had already made a SIP submission to EPA in March 2018 purporting
to address those elements, although EPA had not yet acted on that
submission. The commenter stated that the March 2018 submittal is not
in the docket for this action and that this ``prevent[s] the public
from being able to assess whether it does in fact cure the PSD-related
deficiencies in the December 2 [sic], 2017, submission [and] prevents
the public from being able to fully assess and comment on EPA's
proposed conditional approval.''
As EPA noted in the NPRM, Rhode Island's SIP lacked certain
provisions \2\ required for EPA to find that the SIP contained a
complete PSD permitting program meeting applicable requirements, which
is required by CAA section 110(a)(2)(C), (D)(i)(II), and (J) and which
are relevant in the context of an infrastructure SIP submission. The
Rhode Island Department of Environmental Management's (RIDEM) December
2017 infrastructure SIP submittal acknowledged these deficiencies and
indicated that RIDEM would amend its regulations to address them and
submit revised regulations to EPA for inclusion in the SIP. As EPA also
noted, RIDEM submitted a SIP revision to EPA on March 26, 2018, that
included changes to address the PSD-related deficiencies. We stated in
the NPRM that we were currently reviewing that submittal to verify
whether it resolved the identified infrastructure SIP deficiencies. The
NPRM did not include any substantive assessment of the March 2018
submittal because we had not completed a review of that submittal.
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\2\ In particular, EPA noted that Rhode Island's SIP did not yet
incorporate: (1) A requirement to identify NOX as a
precursor to ozone in the definition of ``major stationary source''
from 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,'' 70 FR 71612 (November 29, 2005); and (2)
definitional changes required under an EPA rule entitled
``Prevention of Significant Deterioration (PSD) for Particulate
Matter Less Than 2.5 Micrometers (PM2.5)--Increments,
Significant Impact Levels (SILs) and Significant Monitoring
Concentration,'' 75 FR 64864 (October 20, 2010); see 84 FR 1025 at
1027-28 (February 1, 2019).
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In this action, we are not finalizing the proposed conditional
approvals of these PSD-related requirements of section 110(a)(2)(C),
(D)(i)(II), and (J) for purposes of the infrastructure SIP requirements
of the 2012 annual PM2.5 NAAQS. EPA acknowledges that the
timing of the proposed conditional approvals was confusing and unusual
given that the State had already made a SIP submission purporting to
satisfy these requirements by the time EPA proposed the conditional
approvals. Therefore, EPA has decided to withdraw the proposed
conditional approvals. EPA will issue a separate proposed rule at a
future date in which EPA will provide an evaluation of whether Rhode
Island's March 2018 SIP satisfies these PSD-related requirements of
section 110(a)(2)(C), (D)(i)(II), and (J) for the 2012 annual
PM2.5 NAAQS. The public will have an opportunity to provide
comments to EPA on this proposed rule.
Regarding the second issue, the commenter stated that it is
``inappropriate'' for EPA to rely on the ``outsider theory'' in
approving Rhode Island's infrastructure SIP submission
[[Page 32318]]
for the 2012 annual PM2.5 NAAQS where the state has not yet
responded to the 2015 SSM SIP Action. In that action, EPA found that a
provision approved as a part of Rhode Island's existing approved SIP
(25-4-13 R.I. Code R. section 16.2) was substantially inadequate to
meet CAA requirements and issued a SIP call to Rhode Island to address
the inadequacy. 80 FR 33839 (June 12, 2015). The commenter stated that,
until Rhode Island has corrected its SIP as directed by EPA in the 2015
SSM SIP Action, EPA should either not approve the infrastructure SIP
submission for the 2012 annual PM2.5 NAAQS or should
condition any approval on submission by Rhode Island of a revision
within 12 months that adequately addresses the 2015 SSM SIP Action.\3\
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\3\ The 2015 SSM SIP Action referenced in the comment addressed
how provisions in a number of States' SIPs treat excess emissions
during periods of SSM. 80 FR 33840 (June 12, 2015). While the
comment states that Rhode Island must correct SIP ``provisions,''
EPA notes that it issued the SIP Call to Rhode Island with respect
to just one provision. Id. at 33959.
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EPA disagrees with the commenter. EPA has explained that its review
of a state's infrastructure SIP submission focuses on assuring that a
state's SIP meets basic structural requirements for the new or revised
NAAQS. In this context, EPA does not consider it appropriate to review
a state's existing approved SIP for all potential deficiencies in
existing provisions, and thus has excluded certain types of potentially
deficient provisions from this process. EPA considers this approach to
infrastructure SIPs reasonable based on the specific statutory language
of sections 110(a)(1) and 110(a)(2). The CAA provides other avenues and
mechanisms to address specific substantive deficiencies in existing
SIPs that allow EPA to take appropriately tailored action. EPA has used
one of these other mechanisms in this instance to address the SSM
deficiency in Rhode Island's SIP.
EPA's 2015 SSM SIP Action included, among other things, a finding
that Rhode Island's SIP contained an insufficiently bounded
``director's discretion'' provision related to emissions during periods
of SSM. See 80 FR 33840-33959. However, in the NPRM for this
infrastructure SIP action, we stated that the rulemaking would ``not
cover three substantive areas that are not integral to acting on a
state's infrastructure SIP submission,'' including ``[e]xisting
provisions related to excess emissions during periods of start-up,
shutdown, or malfunction at sources (``SSM'' emissions) that may be
contrary to the CAA and EPA's policies addressing such excess emissions
[and] existing provisions related to `director's variance' or
`director's discretion' that purport to permit revisions to SIP-
approved emissions limits with limited public process or without
requiring further approval by EPA, that may be contrary to the CAA.''
In response to the commenter's argument, EPA reiterates its view
that it generally considers existing provisions in these substantive
areas to be outside the scope of its review of a state's infrastructure
SIP submittal. The commenter did not provide any specific argument
based on the statutory language for its assertion that EPA cannot move
forward with finalizing approval of this infrastructure SIP action in
light of EPA's position.
As EPA explained in the NPRM, see 84 FR 1026 (citing 79 FR 27241 at
24242-45), an action on a state's infrastructure SIP submission is not
the appropriate type of action in which to address deficiencies in a
given state's SIP regarding existing provisions related to excess
emissions from sources during periods of SSM that may be contrary to
the CAA and EPA's policies addressing such excess emissions. EPA may
approve an infrastructure SIP submission without scrutinizing the
totality of the existing SIP for such deficient provisions and may
approve the submission even if it is aware of such existing
provisions.\4\ As relevant here, EPA has separate mechanisms for
addressing deficient provisions and has used one of those mechanisms
here by issuing a SIP call to Rhode Island for its problematic SSM
provision. It is important to note that EPA's approval of a state's
infrastructure SIP submission should not be construed as explicit or
implicit re-approval of any existing deficient provisions that relate
to the specific issue just described.
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\4\ By contrast, EPA notes that if a state were to include a new
provision in an infrastructure SIP submission that contained a legal
deficiency, such as a new exemption for excess emissions during SSM
events, then EPA would need to evaluate that provision for
compliance against the rubric of applicable CAA requirements in the
context of the action on the infrastructure SIP.
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EPA's approach to evaluation of infrastructure SIP submissions is
to identify the CAA requirements that are logically applicable to that
submission. This approach is appropriate because it would not be
reasonable to read the general requirements of section 110(a)(1) and
the list of elements in 110(a)(2) as requiring EPA review of each and
every provision of a state's existing SIP against all requirements in
the CAA and EPA regulations merely for purposes of assuring that the
state in question has the basic structural elements for a functioning
SIP for a new or revised NAAQS. Because SIPs have grown by accretion
over the decades as statutory and regulatory requirements under the CAA
have evolved, they may include some outmoded provisions and historical
artifacts.
These existing provisions, while not fully up to date, nevertheless
may not pose a significant problem for the purposes of
``implementation, maintenance, and enforcement'' of a new or revised
NAAQS when EPA evaluates adequacy of the infrastructure SIP submission.
A better approach is for states and EPA to focus attention on those
elements of section 110(a)(2) of the CAA most likely to warrant a
specific SIP revision due to the promulgation of the new or revised
NAAQS or other factors. For example, EPA's 2013 Guidance gives simpler
recommendations with respect to carbon monoxide than other NAAQS
pollutants to meet the visibility requirements of section
110(a)(2)(D)(i)(II) because carbon monoxide does not affect visibility.
As a result, an infrastructure SIP submission for any future new or
revised NAAQS for carbon monoxide need only state this fact in order to
address the visibility prong of section 110(a)(2)(D)(i)(II).
This approach is also a reasonable reading of sections 110(a)(1)
and 110(a)(2) in the context of an infrastructure SIP submission
because the CAA provides other avenues and mechanisms to address
specific substantive deficiencies in existing SIPs. These other
statutory tools allow EPA to take appropriately tailored action,
depending upon the nature and severity of the alleged SIP deficiency.
Section 110(k)(5) authorizes EPA to issue a ``SIP call'' whenever the
Agency determines that a state's SIP is substantially inadequate to
attain or maintain the NAAQS, to mitigate interstate transport, or to
otherwise comply with the CAA.\5\ Section 110(k)(6) authorizes EPA to
correct errors in past actions, such as past approvals of SIP
submissions.\6\
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\5\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
\6\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under CAA section 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR
34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16,
2004) (corrections to California SIP); and 74 FR 57051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
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[[Page 32319]]
Significantly, EPA's determination that an action on a state's
infrastructure SIP submission is not the appropriate time and place to
address all potential existing SIP deficiencies does not preclude EPA's
subsequent reliance on provisions in section 110(a)(2) as part of the
basis for action to correct those deficiencies at a later time. For
example, although it may not be appropriate to require a state to
eliminate all existing inappropriate director's discretion provisions
in the course of acting on an infrastructure SIP submission, section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\7\
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\7\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).
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As noted earlier, EPA has already taken steps through the SIP Call
mechanism to address the deficiency identified in Rhode Island's SIP
and has taken further steps to ensure that separate process is followed
as envisioned and consistent with legal requirements. Under the 2015
SSM SIP Action, Rhode Island was required to revise its SIP to address
the SSM provision identified as substantially inadequate within 18
months. Rhode Island failed to meet that deadline, so on January 12,
2022, EPA issued a Finding of Failure to Submit (FFS) to Rhode Island.
See 87 FR 1680. If the State has not made the required SIP submittal
within 18 months of the effective date of the FFS, then, pursuant to
CAA section 179(a) and (b) and 40 CFR 52.31, the 2-to-1 emission offset
sanction identified in CAA section 179(b)(2) will apply in the State
for all new and modified major sources subject to the nonattainment new
source review program.
The sanction will not take effect if, within 18 months after the
effective date of the FFS, EPA affirmatively determines that the State
has made a complete SIP submittal addressing the deficiency in
accordance with the 2015 SSM Action. Additionally, a finding that Rhode
Island has failed to submit a required SIP submission triggers an
obligation under CAA section 110(c) for EPA to promulgate a FIP no
later than 2 years after issuance of the FFS. If the State makes the
required SIP submittal and EPA takes final action to approve the
submittal within 2 years of the effective date of the FFS, EPA is not
required to promulgate a FIP.
Based on the above rationale, we are finalizing the action as
described above.
III. Final Action
EPA is approving most elements of Rhode Island's December 6, 2017,
infrastructure SIP submission for the 2012 annual PM2.5
NAAQS. EPA is disapproving Rhode Island's infrastructure SIP submission
for section 110(a)(2)(H), for which Federal regulations through a FIP
are already in place. The disapproval with respect to section
110(a)(2)(H) does not start a sanctions clock because the disapproval
relates neither to a submission required under CAA title I part D nor
to one required in response to a SIP call under CAA section 10(k)(5).
No further action by EPA or the State is required with respect to this
disapproval.
We are finalizing the action as proposed, except that, for the
reasons provided above, we are not finalizing our proposal to
conditionally approve the infrastructure SIP submission with respect to
the PSD-related requirements of section 110(a)(2)(C),
110(a)(2)(D)(i)(II) and 110(a)(2)(J) for the annual 2012
PM2.5 NAAQS. EPA is withdrawing the proposed conditional
approvals and will address those PSD-related requirements in a separate
action.
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this 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 Clean Air Act; and
Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
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
[[Page 32320]]
States Court of Appeals for the appropriate circuit by August 1, 2022.
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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.
Dated: May 22, 2022.
David Cash,
Regional Administrator, EPA Region 1.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended 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 OO--Rhode Island
0
2. In Sec. 52.2070(e), amend the table by adding an entry for
``Infrastructure SIP and Transport SIP for the 2012 PM2.5
NAAQS'' at the end of the table to read as follows:
Sec. 52.2070 Identification of plan.
* * * * *
(e) * * *
Rhode Island Non Regulatory
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Applicable State
Name of non regulatory SIP geographic or submittal date/ EPA approved date Explanations
provision nonattainment area effective date
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* * * * * * *
Infrastructure SIP and Statewide........... 12/6/2017 May 31, 2022, This submittal is
Transport SIP for the 2012 [Insert Federal approved with respect
PM2.5 NAAQS. Register to the following CAA
citation]. elements: 110(a)(2)
(A); (B); (C); (D) ;
(E); (F); (G); (J);
(K); (L); and (M),
except for certain
PSD-related
requirements in (C),
(D)(i)(II), and (J).
This submittal is
disapproved for (H).
This approval
includes the
Transport SIP for the
2012 PM2.5 NAAQS,
which shows that
Rhode Island does not
significantly
contribute to PM2.5
nonattainment or
maintenance in any
other state.
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0
3. In Sec. 52.2077, add paragraph (b)(7) to read as follows:
Sec. 52.2077 Identification of plan--conditional approvals and
disapprovals.
* * * * *
(b) * * *
(7) 2012 PM2.5 NAAQS: The 110(a)(2) infrastructure SIP
submitted on December 6, 2017, is disapproved for Clean Air Act element
110(a)(2)(H). A Federal Implantation Plan is already in place at Sec.
52.2080.
[FR Doc. 2022-11456 Filed 5-27-22; 8:45 am]
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