[Federal Register Volume 87, Number 176 (Tuesday, September 13, 2022)]
[Rules and Regulations]
[Pages 55916-55918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19693]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2017-0443; FRL-10193-02-R1]


Air Plan Approval; Rhode Island; Prevention of Significant 
Deterioration Infrastructure State Implementation Plan Elements for the 
2012 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving three 
elements of a State Implementation Plan (SIP) revision, which was 
submitted by the State of Rhode Island on December 6, 2017. This 
revision addressed the infrastructure requirements of the Clean Air Act 
(CAA or the Act) for the 2012 annual fine particle (PM2.5) 
National Ambient Air Quality Standard (NAAQS). On May 31, 2022, EPA 
approved much of the submission, but did not act on three elements 
related to the infrastructure requirement to have a comprehensive 
Prevention of Significant Deterioration (PSD) program. In today's 
action, EPA is approving the three remaining elements of the state's 
December 2017 infrastructure SIP submittal based on a previous EPA 
approval of Rhode Island's Air Pollution Control Regulation (APCR) No. 
9. This action is being taken in accordance with the Clean Air Act.

DATES: This direct final rule will be effective November 14, 2022, 
unless EPA receives adverse comments by October 13, 2022. If adverse 
comments are received, EPA will publish a timely withdrawal of the 
direct final rule in the Federal Register informing the public that the 
rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2017-0443 at https://www.regulations.gov, or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets. Publicly 
available docket materials are available at https://www.regulations.gov 
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional 
Office, Air and Radiation Division, 5 Post Office Square--Suite 100, 
Boston, MA. EPA requests that if at all possible, you contact the 
contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
legal holidays 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. Final Action
III. Statutory and Executive Order Reviews

I. Background and Purpose

    On December 6, 2017, Rhode Island submitted a SIP submission 
addressing the ``infrastructure'' SIP requirements of the Clean Air Act 
(CAA or Act) for the 2012 annual PM2.5 \1\ NAAQS. 
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. On February 1, 2019, EPA published a 
Notice of Proposed Rulemaking proposing to approve most elements of the 
submission and to conditionally approve the submission for the 
infrastructure SIP requirement in CAA sections 110(a)(2)(C), 
(D)(i)(II), and (J) to have a complete Prevention of Significant 
Deterioration (PSD) permitting program.\2\ See 84 FR 1025.
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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.
    \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). EPA had previously found, in the context 
of infrastructure SIP actions on other criteria pollutants, that 
Rhode Island's SIP did not incorporate these requirements. See, 
e.g., 81 FR 58849 (August 26, 2016); 81 FR 23175 (April 20, 2016).
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    On May 31, 2022 (87 FR 32316), EPA published a Notice of Final 
Rulemaking (NFRM) finalizing approval of most elements of the 
infrastructure SIP for the 2012 PM2.5 NAAQS but withdrawing 
the proposed conditional approvals of the above-mentioned requirements 
in section 110(a)(2)(C), (D)(i)(II), and (J) related to the state's PSD 
program and taking no further action on those elements. EPA stated that 
it would issue a separate action at a future date providing an 
evaluation of Rhode Island's SIP for these PSD-related requirements for 
the 2012 annual PM2.5 NAAQS. The reasons for that action are 
given in the NFRM and are not restated here. See 87 FR 32316.
    In this action, EPA is approving Rhode Island's SIP for the PSD-
related infrastructure SIP requirements of section 110(a)(2)(C), 
(D)(i)(II), and (J) for the 2012 annual PM2.5 NAAQS. To

[[Page 55917]]

address deficiencies in its PSD program that EPA had previously 
identified, see, e.g., 81 FR 10168, 10171-73 (February 29, 2016), Rhode 
Island revised its Air Pollution Control Regulation No. 9, Air 
Pollution Control Permits (APCR 9), which contains the state's PSD 
permitting program. The state submitted these revisions to EPA on March 
26, 2018, and a clarification letter on February 6, 2019.\3\ EPA 
reviewed Rhode Island's proposed revisions to APCR 9, determined that 
they are consistent with EPA's PSD program regulations, and, on October 
2, 2019, approved the revisions into the Rhode Island SIP. See 84 FR 
52364. In the October 2019 notice, EPA also fully approved 
infrastructure SIP requirements related to Rhode Island's PSD program 
for the 2008 ozone, 2008 lead, 2010 nitrogen dioxide, and 1997 and 2006 
PM2.5 NAAQS. The rationale for EPA's determination that the 
revisions to APCR 9 satisfy EPA's PSD program requirement and 
infrastructure SIP requirements is given in the NPRM and will not be 
restated here. See 84 FR 35582 (July 24, 2019).
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    \3\ Copies of Rhode Island's March 2018 SIP submission and 
clarification letter are included in the docket for this action.
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    EPA has determined that the previously SIP-approved APCR 9 also 
rectifies the deficiencies indicated in our proposal to approve Rhode 
Island's 2012 PM2.5 infrastructure SIP. See 84 FR 1025 
(February 1, 2019). The rationale for this determination is the same as 
that given for our approval of the March 2018 revisions to APCR 9 and 
will not be restated here. See 84 FR 35582. In addition, EPA reiterates 
and incorporates by reference into today's notice the discussion in our 
February 1, 2019, NPRM explaining that Rhode Island's SIP satisfies the 
other requirements for a complete PSD permitting program covering all 
regulated NSR pollutants. See 84 FR at 1027-29. Therefore, in today's 
action we are approving the three PSD-related elements--CAA section 
110(a)(2)(C), (D)(i)(II), and (J)--of the state's 2012 PM2.5 
infrastructure SIP submission.
    Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

II. Final Action

    EPA is approving three PSD elements, including CAA section 
110(a)(2)(C), (D)(i)(II), and (J) of Rhode Island's 2012 
PM2.5 infrastructure SIP, which was submitted on December 6, 
2017.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial amendment and anticipates 
no adverse comments. However, in the proposed rules section of this 
issue of the Federal Register, EPA is publishing a separate document 
that will serve as the proposal to approve the SIP revision should 
relevant adverse comments be filed. This rule will be effective 
November 14, 2022 without further notice unless the Agency receives 
relevant adverse comments by October 13, 2022.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the final rule and informing the public that the rule will 
not take effect. All public comments received will then be addressed in 
a subsequent final rule based on the proposed rule. The EPA will not 
institute a second comment period on the proposed rule. All parties 
interested in commenting on the proposed rule should do so at this 
time. If no such comments are received, the public is advised that this 
rule will be effective on November 14, 2022 and no further action will 
be taken on the proposed rule. Please note that if EPA receives adverse 
comment on an amendment, paragraph, or section of this rule and if that 
provision may be severed from the remainder of the rule, EPA may adopt 
as final those provisions of the rule that are not the subject of an 
adverse comment.

III. 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. See 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 55918]]

States Court of Appeals for the appropriate circuit by November 14, 
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. Parties with objections to this 
direct final rule are encouraged to file a comment in response to the 
parallel notice of proposed rulemaking for this action published in the 
proposed rules section of this issue of the Federal Register, rather 
than file an immediate petition for judicial review of this direct 
final rule, so that EPA can withdraw this direct final rule and address 
the comment in the proposed rulemaking. 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, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

    Dated: September 7, 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, in paragraph (e), amend the table by revising the 
entry for ``Infrastructure SIP and Transport SIP for the 2012 
PM2.5 NAAQS'', to read as follows:


Sec.  52.2070   Identification of plan.

* * * * *
    (e) * * *

                                           Rhode Island Non Regulatory
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                                                                 State
  Name of non regulatory SIP     Applicable geographic or      submittal
           provision                nonattainment area           date/      EPA approved date     Explanations
                                                            effective date
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                                                  * * * * * * *
Infrastructure SIP and          Statewide.................       12/6/2017  May 31, 2022, 87   This submittal is
 Transport SIP for the 2012                                                  FR 32320 and       approved with
 PM2.5 NAAQS.                                                                September 13,      respect to the
                                                                             2022 [Insert       following CAA
                                                                             Federal Register   elements:
                                                                             citation].         110(a)(2) (A);
                                                                                                (B); (C); (D);
                                                                                                (E); (F); (G);
                                                                                                (J); (K); (L);
                                                                                                and (M). 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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[FR Doc. 2022-19693 Filed 9-12-22; 8:45 am]
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