[Federal Register Volume 85, Number 150 (Tuesday, August 4, 2020)]
[Proposed Rules]
[Pages 47125-47134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-16011]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2020-0178; EPA-R01-OAR-2017-0344; FRL-10012-69-Region 1]
Air Plan Approval; New Hampshire; Infrastructure State
Implementation Plan Requirements for the 2015 Ozone and 2012 PM2.5
Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve a State Implementation Plan (SIP) revision submitted by the
State of New Hampshire. This revision addresses the infrastructure
requirements of the Clean Air Act (CAA or Act) for the 2015 ozone
National Ambient Air Quality Standards (NAAQS). This proposed action
includes all elements of these infrastructure requirements except for
the ``Good Neighbor'' or ``transport'' provisions, which will be
addressed in a future action. We are also proposing to grant the state
an exemption from the infrastructure SIP contingency plan obligation
for ozone, and to conditionally approve several elements of New
Hampshire's submittal relating to air-quality modeling requirements. In
addition, we are proposing to correct errors in our previous approval
of an infrastructure SIP submission from New Hampshire for the 2012
PM2.5 NAAQS and to conditionally approve several elements of
that submittal.
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. This
action is being taken under the Clean Air Act.
DATES: Written comments must be received on or before September 3,
2020.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2020-0178 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.
A. What is the scope of this rulemaking?
B. What guidance is EPA using to evaluate these SIP submissions?
II. EPA's Evaluation of New Hampshire's Infrastructure SIP for the
2015 Ozone Standard.
A. Section 110(a)(2)(A)--Emission Limits and Other Control
Measures.
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data
System.
C. Section 110(a)(2)(C)--Program for Enforcement of Control
Measures and for Construction or Modification of Stationary Sources.
D. Section 110(a)(2)(D)--Interstate Transport.
E. Section 110(a)(2)(E)--Adequate Resources.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System.
G. Section 110(a)(2)(G)--Emergency Powers.
H. Section 110(a)(2)(H)--Future SIP Revisions.
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan
Revisions Under Part D.
J. Section 110(a)(2)(J)--Consultation With Government Officials;
Public Notifications; Prevention of Significant Deterioration;
Visibility Protection.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data.
L. Section 110(a)(2)(L)--Permitting Fees.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected
Local Entities.
III. Proposed Action.
IV. Statutory and Executive Order Reviews.
I. Background and Purpose
On October 1, 2015, EPA promulgated a revision to the ozone NAAQS
(2015 ozone NAAQS), lowering the level of both the primary and
secondary standards to 0.070 parts per million (ppm).\1\ Section
110(a)(1) of the CAA requires states to submit, within 3 years after
promulgation of a new or revised standard, SIPs meeting the applicable
requirements of section 110(a)(2).\2\ On September 5, 2018, the New
Hampshire Department of Environmental Services (NHDES) submitted a
revision to its State Implementation Plan (SIP). The
[[Page 47126]]
SIP revision addresses the infrastructure requirements of CAA sections
110(a)(1) and 110(a)(2) for the 2015 ozone NAAQS.
---------------------------------------------------------------------------
\1\ National Ambient Air Quality Standards for Ozone, Final
Rule, 80 FR 65292 (October 26, 2015). Although the level of the
standard is specified in the units of ppm, ozone concentrations are
also described in parts per billion (ppb). For example, 0.070 ppm is
equivalent to 70 ppb.
\2\ SIP revisions that are intended to meet the applicable
requirements of section 110(a)(1) and (2) of the CAA are often
referred to as infrastructure SIPs, and the applicable elements
under 110(a)(2) are referred to as infrastructure requirements.
---------------------------------------------------------------------------
A. What is the scope of this rulemaking?
EPA is acting on the New Hampshire SIP submission on the
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for
the 2015 ozone NAAQS, except the transport provisions, which will be
addressed in a future action. We are also proposing to correct errors
in our previous approval of an infrastructure SIP submission from New
Hampshire for the 2012 PM2.5 NAAQS and to conditionally
approve several elements of that submittal, as explained in our
discussion of CAA section 110(a)(2)(K) below.
Whenever EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make SIP submissions to provide for the
implementation, maintenance, and enforcement of the NAAQS. This
particular type of SIP submission is commonly referred to as an
``infrastructure SIP.'' These submissions must meet the various
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity
in some of the language of CAA section 110(a)(2), EPA believes that it
is appropriate to interpret these provisions in the specific context of
acting on infrastructure SIP submissions. EPA has previously provided
comprehensive guidance on the application of these provisions through a
guidance document for infrastructure SIP submissions and through
regional actions on infrastructure submissions.\3\ 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.\4\ EPA has other authority to
address any issues concerning a state's implementation of the rules,
regulations, consent orders, etc. that comprise its SIP.
---------------------------------------------------------------------------
\3\ EPA explains and elaborates on these ambiguities and its
approach to address them in its 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 New Hampshire's infrastructure SIP to address the 2008
Ozone NAAQS. See 80 FR 42446 (July 17, 2015).
\4\ See Montana Envtl. Info. Ctr. v. Thomas, 902 F.3d 971 (9th
Cir. 2018).
---------------------------------------------------------------------------
B. What guidance is EPA using to evaluate New Hampshire's
infrastructure SIP submission?
EPA highlighted the statutory requirement to submit infrastructure
SIPs within 3 years of promulgation of a new NAAQS in an October 2,
2007, guidance document entitled ``Guidance on SIP Elements Required
Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and
PM2.5 National Ambient Air Quality Standards'' (2007
memorandum). EPA has issued additional guidance documents and
memoranda, including a September 13, 2013, guidance document entitled
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' (2013
memorandum).
II. EPA's Evaluation of New Hampshire's Infrastructure SIP for the 2015
Ozone Standard
In New Hampshire's submission, a detailed list of New Hampshire
Laws and previously SIP-approved Air Quality Regulations show precisely
how the various components of its EPA-approved SIP meet each of the
requirements of section 110(a)(2) of the CAA for the 2015 ozone NAAQS.
The following review evaluates the state's submission in light of
section 110(a)(2) requirements and relevant EPA guidance. For the
state's September 5, 2018, infrastructure SIP submission, we provide an
evaluation of the applicable Section 110(a)(2) elements, excluding the
transport provisions.
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section (also referred to in this action as an element) of the
Act requires SIPs to include enforceable emission limits and other
control measures, means or techniques, schedules for compliance, and
other related matters. However, EPA has long interpreted emission
limits and control measures for attaining the standards as being due
when nonattainment planning requirements are due.\5\ 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.
---------------------------------------------------------------------------
\5\ See, for example, EPA's final rule on ``National Ambient Air
Quality Standards for Lead,'' 73 FR 66964, 67034 (November 12,
2008).
---------------------------------------------------------------------------
In its September 2018 submittal for the 2015 ozone NAAQS, New
Hampshire cites a number of state laws and regulations in satisfaction
of element A. The infrastructure SIP cites New Hampshire's Revised
Statutes Annotated (RSA) at Chapter 21-O, which established the NHDES,
and RSA Chapter 125-C, which gives the Commissioner of NHDES the
authority to develop rules and regulations necessary to meet state and
federal ambient air quality standards.
In satisfaction of element A, NHDES also cites 10 state regulations
that it has adopted to control emissions related to ozone and the ozone
precursors, nitrogen oxides (NOX) and volatile organic
compounds (VOCs). Some of these, with their EPA approval citation,\6\
are listed here: Chapter Env-A 1200 ``Volatile Organic Compounds (VOCs)
Reasonably Available Control Technology (RACT)'' (81 FR 53926; August
15, 2016); Chapter Env-A 1300 ``Nitrogen Oxides (NOX) RACT''
(79 FR 49458; August, 21, 2014); Chapter Env-A 2300 ``Mitigation of
Regional Haze'' (81 FR 70360; October 12, 2016); and Chapter Env-A 3200
``NOX Budget Trading Program'' (65 FR 68078; November 14,
2000).
---------------------------------------------------------------------------
\6\ The citations reference the most recent EPA approval of the
stated rule or of revisions to the rule.
---------------------------------------------------------------------------
EPA proposes that New Hampshire meets the infrastructure
requirements of section 110(a)(2)(A) for the 2015 ozone NAAQS.
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to provide for establishment and
operation of appropriate devices, methods, systems, and procedures
necessary to monitor, compile, and analyze ambient air quality data,
and to make these data available to EPA upon request. Each year, states
submit annual air monitoring network plans to EPA for review and
approval. EPA's review of these annual monitoring plans includes our
evaluation of whether 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 (AQS) in a timely manner; and (iii)
provides EPA Regional Offices with prior notification of any planned
changes to monitoring sites or the network plan.
NHDES continues to operate a monitoring network, and EPA approved
the state's 2019/2020 Annual Network Review and Plan on August 15,
2019.\7\ Furthermore, NHDES populates EPA's Air Quality System (AQS)
with air quality monitoring data in a timely manner, and provides EPA
with prior
[[Page 47127]]
notification when considering a change to its monitoring network or
plan.
---------------------------------------------------------------------------
\7\ EPA's approval letter is included in the docket for this
action.
---------------------------------------------------------------------------
Under element B of its September 5, 2018, infrastructure SIP
submittal for the 2015 ozone NAAQS, NHDES cites RSA Chapter 125-C:6
III, IV and XVI, which grants the Commissioner ``the power and duty to
conduct studies related to air quality, to disseminate the results, and
to assure the reliability and accuracy of monitoring equipment to meet
federal EPA standards.'' EPA proposes that New Hampshire 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
and for Construction or Modification of Stationary Sources
States are required to include a program providing for enforcement
of all SIP measures and for the regulation of construction of new or
modified stationary sources to meet new source review (NSR)
requirements under prevention of significant deterioration (PSD) and
nonattainment new source review (NNSR) programs. Part C of the CAA
(sections 160-169B) addresses PSD, while part D of the CAA (sections
171-193) addresses NNSR requirements.
The evaluation of each state's submission addressing the
infrastructure SIP requirements of section 110(a)(2)(C) covers the
following: (i) Enforcement of SIP measures; (ii) PSD program for major
sources and major modifications; and (iii) a permit program for minor
sources and minor modifications.
Sub-Element 1: Enforcement of SIP Measures
NHDES staffs and implements an enforcement program pursuant to RSA
Chapter 125-C, Air Pollution Control, of the New Hampshire Statutes.
Specifically, RSA Chapter 125-C:15, Enforcement, authorizes the
Commissioner of the NHDES or the authorized representative of the
Commissioner, upon finding a violation of Chapter 125-C has occurred,
to issue a notice of violation or an order of abatement, and to include
within it a schedule for compliance. Additionally, RSA 125-C:15 I-b,
II, III, and IV provide for penalties for violations of Chapter 125-C.
EPA proposes that New Hampshire has met the enforcement of SIP
measures requirements of section 110(a)(2)(C) with respect to the 2015
ozone NAAQS.
Sub-Element 2: PSD Program for Major Sources and Major Modifications
Prevention of significant deterioration (PSD) applies to new major
sources or modifications made to major sources for pollutants where the
area in which the source is located is in attainment of, or
unclassifiable with regard to, the relevant NAAQS. EPA interprets the
CAA as requiring each state to make an infrastructure SIP submission
for a new or revised NAAQS demonstrating that the air agency has a
complete PSD permitting program in place satisfying the current
requirements for all regulated NSR pollutants. New Hampshire's EPA-
approved PSD rules, contained at Part Env-A 619, contain provisions
that address applicable requirements for all regulated NSR pollutants,
including greenhouse gases (GHGs).
New Hampshire implements the PSD program by, for the most part,
incorporating by reference the federal PSD program at 40 CFR 52.21, as
it existed on a specific date. The state periodically updates the PSD
program by revising the date of incorporation by reference and
submitting the change as a SIP revision. As a result, the SIP revisions
generally reflect changes to PSD requirements that the EPA has
promulgated prior to the revised date of incorporation by reference. To
address the 2008 NSR Rule and the 2010 NSR Rule, New Hampshire
submitted revisions to its PSD regulations on November 15, 2012, that
incorporated by reference the federal PSD program codified in the July
1, 2011, edition of 40 CFR 52.21. On September 25, 2015, EPA approved
these revisions into the SIP as incorporating the necessary changes
obligated by the 2008 NSR Rule and the 2010 NSR Rule. See 80 FR 57722.
On May 25, 2017, EPA approved additional updates to NHDES's PSD
program. See 82 FR 24057.
New Hampshire's revisions submitted on November 15, 2012, also
satisfy the requirements of 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) published on November 29, 2005.
See 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 id. at 71699-700. The
required revisions to the federal PSD program are codified in 40 CFR
51.166(b) and (i) and in 40 CFR 52.21(b) and (i). By incorporating the
Federal provisions at 40 CFR 52.21(b) and (i) as of July 1, 2011, the
New Hampshire's November 15, 2012, submittal also included the
revisions made to the PSD program by the Phase 2 Rule in 2005 regarding
NOX as a precursor to ozone. See Part Env-A 619.03(a). Thus,
New Hampshire's PSD program is consistent with the requirements of the
Phase 2 Rule.
EPA proposes that New Hampshire has a comprehensive PSD permitting
program in place satisfying the PSD sub-element of 110(a)(2)(C), with
one exception. EPA's PSD regulations at 40 CFR 51.166(l) require a
State's SIP to ``provide for procedures which specify that [a]ll
applications of air quality modeling . . . shall be based on the
applicable models, data bases, and other requirements specified in''
EPA's Guideline on Air Quality Models in appendix W of 40 CFR part 51,
which was most recently revised on January 17, 2017. 82 FR 5182; see
also 82 FR 14324 (Mar. 20, 2017). As explained in our evaluation of
section 110(a)(2)(K) requirements later in this notice, New Hampshire's
SIP currently references an earlier version of appendix W that has
since been superseded by the January 17, 2017, revisions. See Part Env-
A 619.03(a), PSD Program Requirements. Therefore, New Hampshire's SIP
must be updated to refer to an edition of EPA's regulations that
incorporates the January 17, 2017, revisions to appendix W.
As noted under section 110(a)(2)(K), NHDES committed in a letter
dated June 3, 2020, to pursuing revisions to Part Env-A 619.03 to
update the reference to 40 CFR 52.21 so as to incorporate EPA's current
``Guideline on Air Quality Models'' in appendix W to 40 CFR part 51,
and to submitting these revisions to EPA within one year of our final
approval of today's proposed action. Because the EPA Administrator's
approved modeling requirements are found in appendix W, this revision
would satisfy the section 51.166(l) requirement that the SIP provide
for procedures that specify that all applications of modeling be based
on the requirements in appendix W. Consequently, we are proposing to
conditionally approve New Hampshire's submittal for the PSD sub-element
of section 110(a)(2)(C) for the 2015 ozone NAAQS.
We are also proposing to correct our December 4, 2018, final action
on New Hampshire's infrastructure SIP for the 2012 PM2.5
NAAQS, which was submitted to EPA on December 22,
[[Page 47128]]
2015. See 83 FR 62464. That correction entails replacing our previous
full approval for this PSD sub-element with a conditional approval
based on the state's commitment to submit in a timely manner the
necessary revisions to New Hampshire Part Env-A 619.03 needed to fully
approve this infrastructure sub-element. This correction is explained
in more detail in the discussion of section 110(a)(2)(K) below.
Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor
Modifications
To address the pre-construction regulation of the modification and
construction of minor stationary sources and minor modifications of
major stationary sources, an infrastructure SIP submission should
identify the existing EPA-approved SIP provisions and/or include new
provisions that govern the minor source pre-construction program that
regulate emissions of the relevant NAAQS pollutants.
EPA approved New Hampshire's minor NSR program on September 22,
1980 (45 FR 62814), and approved updates to the program on August 14,
1992 (57 FR 36606). New Hampshire and EPA have relied on the existing
minor NSR program to ensure that new and modified sources not captured
by the major NSR permitting programs do not interfere with attainment
and maintenance of the 2008 or 2015 ozone NAAQS.
We are proposing to find that New Hampshire has met the requirement
to have a SIP-approved minor new source review permit program as
required under Section 110(a)(2)(C) for the 2015 ozone NAAQS.
D. Section 110(a)(2)(D)--Interstate Transport
One of the structural requirements of section 110(a)(2) is section
110(a)(2)(D)(i), also known as the ``good neighbor'' provision, which
generally requires SIPs to contain adequate provisions to prohibit in-
state emissions activities from having certain adverse air quality
effects on neighboring states due to interstate transport of air
pollution.
In particular, 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 emitting any air pollutant in amounts that will
contribute significantly to nonattainment, or interfere with
maintenance, of the NAAQS in another state. EPA commonly refers to
these requirements as Prong 1 (significant contribution to
nonattainment) and Prong 2 (interference with maintenance). A state's
SIP submission for Prongs 1 and 2 is also referred to as a state's
``Transport SIP.'' In today's action, EPA is not evaluating New
Hampshire's Transport SIP (i.e., Prongs 1 and 2; combined as (D)1 in
Table 1 below). EPA will address New Hampshire's Transport SIP for the
2015 ozone NAAQS in a future action.
Today's action, however, does address Section 110(a)(2)(D)(i)(II),
which require SIPs to contain adequate provisions to prohibit emissions
that will interfere with measures required to be included in the
applicable implementation plan for any other state under part C of the
Act to prevent significant deterioration of air quality and to protect
visibility. EPA commonly refers to these requirements as Prong 3
(Prevention of Significant Deterioration) and Prong 4 (Visibility
Protection). Today's action also addresses Section 110(a)(2)(D)(ii) of
the Act, which requires SIPs to contain provisions to ensure compliance
with sections 126 and 115 of the Act relating to interstate and
international pollution abatement, respectively.
Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
To prevent significant deterioration of air quality, this sub-
element requires SIPs to include provisions that prohibit any source or
other type of emissions activity in one state from interfering with
measures that are required in any other state's SIP under Part C of the
CAA. As explained in the 2013 memorandum,\8\ a state may meet this
requirement with respect to in-state sources and pollutants that are
subject to PSD permitting through a comprehensive PSD permitting
program that applies to all regulated NSR pollutants and that satisfies
the requirements of EPA's PSD implementation rules. EPA discussed New
Hampshire's PSD permitting program above under Section 110(a)(2)(C).
---------------------------------------------------------------------------
\8\ Included in the docket for today's action.
---------------------------------------------------------------------------
For in-state sources not subject to PSD, this requirement can be
satisfied through a fully approved nonattainment new source review
(NNSR) program with respect to any previous NAAQS. EPA approved New
Hampshire's NNSR regulations on July 27, 2001, and updates to these
regulations on May 25, 2017. See 66 FR 39104 and 82 FR 24057,
respectively. These NNSR regulations contain provisions for how the
state must treat and control sources in nonattainment areas, consistent
with 40 CFR 51.165, or appendix S to 40 CFR part 51.
As discussed above under Section 110(a)(2)(C), New Hampshire's PSD
program fully satisfies the requirements of EPA's PSD implementation
rules, with one exception related to air quality models. However, as
also noted under Section 110(a)(2)(C), New Hampshire has committed to
pursuing revisions to Part Env-A 619.03, PSD Program Requirements, to
update the reference to 40 CFR 52.21 so as to incorporate EPA's current
``Guideline on Air Quality Models'' in appendix W to 40 CFR part 51,
and to submitting these revisions to EPA within one year of our final
approval of today's proposed action. Therefore, EPA proposes to
conditionally approve New Hampshire's submittal for the PSD
requirements of 110(a)(2)(D)(i)(II) for the 2015 ozone NAAQS.
We are also proposing to correct our December 4, 2018, final action
on New Hampshire's infrastructure SIP for the 2012 PM2.5
NAAQS, which was submitted to EPA on December 22, 2015. See 83 FR
62464. That correction entails replacing our previous full approval for
this PSD sub-element of 110(a)(2)(D)(i)(II) with a conditional approval
based on the state's commitment to submit in a timely manner the
necessary revisions to New Hampshire Part Env-A 619.03 needed to fully
approve this infrastructure sub-element. This correction is explained
in more detail in the discussion of section 110(a)(2)(K) below.
Section 110(a)(2)(D)(i)(II)--Visibility Protection (Prong 4)
With regard to applicable requirements for visibility protection of
section 110(a)(2)(D)(i)(II), states are subject to visibility and
regional haze program requirements under part C of the CAA (which
includes sections 169A and 169B). The 2009 memorandum, 2011 memorandum,
and 2013 memorandum recommend that these requirements can be satisfied
by an approved SIP addressing reasonably attributable visibility
impairment, if required, or an approved SIP addressing regional
haze.\9\
---------------------------------------------------------------------------
\9\ All referenced memoranda are included in the docket for
today's action.
---------------------------------------------------------------------------
A fully approved regional haze SIP meeting the requirements of 40
CFR 51.308 will include all measures needed to achieve the state's
apportionment of emission reduction obligations agreed upon through a
regional planning process and will therefore ensure that emissions from
sources under the air agency's jurisdiction are not interfering with
measures required to be included
[[Page 47129]]
in other air agencies' plans to protect visibility.
New Hampshire's Regional Haze SIP was approved by EPA on August 22,
2012. See 77 FR 50602. Accordingly, EPA proposes that New Hampshire
meets the visibility protection requirements of 110(a)(2)(D)(i)(II) for
the 2015 ozone NAAQS.
Section 110(a)(2)(D)(ii)--Interstate Pollution Abatement
This sub-element requires that each SIP contain provisions
requiring compliance with requirements of CAA section 126 relating to
interstate pollution abatement. 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.
On May 25, 2017, EPA approved into the New Hampshire SIP revisions
to the state's PSD program that require the NHDES to provide notice of
a draft PSD permit to, among other entities, any state whose lands may
be affected by emissions from the source. See Parts Env-A 621.03,
.04(e)(3); 82 FR 24057 at 24060; see also Part Env-A 619.07(d). These
public notice requirements are consistent with the Federal SIP-approved
PSD program's public notice requirements for affected states under 40
CFR 51.166(q). Therefore, we propose to approve New Hampshire's
compliance with the infrastructure SIP requirements of CAA section
126(a) for the 2015 ozone NAAQS. New Hampshire has no obligations under
any other provision of CAA section 126, and no source or sources within
the state are the subject of an active finding under section 126 with
respect to the 2015 ozone NAAQS.
Section 110(a)(2)(D)(ii)--International Pollution Abatement
This sub-element also requires each SIP to contain provisions
requiring compliance with the applicable requirements of CAA section
115 relating to international pollution abatement. Section 115
authorizes the Administrator to require a state to revise its SIP to
alleviate international transport into another country where the
Administrator has made a finding with respect to emissions of a NAAQS
pollutant and its precursors, if applicable. There are no final
findings under section 115 against New Hampshire with respect to the
2015 ozone NAAQS. Therefore, EPA is proposing that New Hampshire has
met the applicable infrastructure SIP requirements of section
110(a)(2)(D)(ii) related to CAA section 115 for the 2015 ozone NAAQS.
E. Section 110(a)(2)(E)--Adequate Resources
Section 110(a)(2)(E)(i) requires each SIP to provide assurances
that the state will have adequate personnel, funding, and legal
authority under state law to carry out its SIP. In addition, section
110(a)(2)(E)(ii) requires each state to comply with the requirements
for state boards in CAA section 128. Finally, section 110(a)(2)(E)(iii)
requires that, where a state relies upon local or regional governments
or agencies for the implementation of its SIP provisions, the state
retain responsibility for ensuring implementation of SIP obligations
with respect to relevant NAAQS. Section 110(a)(2)(E)(iii), however,
does not apply to this action because New Hampshire does not rely upon
local or regional governments or agencies for the implementation of its
SIP provisions.
Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under
State Law To Carry Out Its SIP, and Related Issues
New Hampshire, through its infrastructure SIP submittal, has
documented that its air agency has authority and resources to carry out
its SIP obligations. New Hampshire RSA 125-C:6, ``Powers and Duties of
the Commissioner,'' authorizes the Commissioner of the NHDES to enforce
the state's air laws, establish a permit program, accept and administer
grants, and exercise incidental powers necessary to carry out the law.
Additionally, RSA-125-C:12, ``Administrative Requirements,'' authorizes
the Commissioner to collect fees to recover the costs of reviewing and
acting upon permit applications and enforcing the terms of permits
issued. The New Hampshire SIP, as originally submitted on January 27,
1972, and subsequently amended, provides additional descriptions of the
organizations, staffing, funding and physical resources necessary to
carry out the plan.
EPA proposes that New Hampshire meets the infrastructure SIP
requirements of this portion of section 110(a)(2)(E) for the 2015 ozone
NAAQS.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
Section 110(a)(2)(E)(ii) requires each SIP to contain provisions
that comply with the state board requirements of section 128 of the
CAA. That provision contains two explicit requirements: (1) 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 (2) 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. Section 128 further provides
that a state may adopt more stringent conflicts of interest
requirements and requires EPA to approve any such requirements
submitted as part of a SIP.
New Hampshire RSA 21-O:11, ``Air Resources Council,'' established
the New Hampshire Air Resources Council, a state board that hears all
administrative appeals from department enforcement and permitting
decisions. The Council consists of 11 members, 6 of whom ``shall
represent the public interest.'' RSA 21-O:11, I. Those representing the
public interest ``may not derive any significant portion of their
income from persons subject to permits or enforcement orders, and may
not serve as attorney for, act as consultant for, serve as officer or
director of, or hold any other official or contractual relationship
with any person subject to permits or enforcement orders.'' Id. The
statute further provides that ``[a]ll potential conflicts of interest
shall be adequately disclosed.'' Id. On December 16, 2015, EPA approved
RSA 21-O:11 for incorporation into the New Hampshire SIP as satisfying
the requirements of section 128. See 80 FR 78135. Additional details
are provided in our July 17, 2015 proposal notification. See 80 FR
42446.
EPA proposes that New Hampshire meets the infrastructure SIP
requirements of this portion of section 110(a)(2)(E) for the 2015 ozone
NAAQS.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
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
[[Page 47130]]
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.
New Hampshire Statute Title X, Chapter 125-C:6, ``Powers and Duties
of the Commissioner,'' authorizes the Commissioner of NHDES to require
the installation, maintenance, and use of emissions monitoring devices
and to require periodic reporting to the Commissioner of the nature and
extent of the emissions. This authority also enables the Commissioner
to correlate this information to any applicable emissions standard and
to make such information available to the public.
NHDES implements Chapter Env-A 800, ``Testing and Monitoring
Procedures,'' and Chapter Env-A 900, ``Owner or Operator Recordkeeping
and Reporting Obligations,'' as the primary means of fulfilling these
obligations. New Hampshire's Chapters Env-A 800 and 900 have been
approved into the SIP (See 77 FR 66388; November 5, 2012).
Additionally, under RSA 125-C:6, VII, and Part Env-A 103.04, emissions
data are not considered confidential information. EPA recognizes that
New Hampshire routinely collects information on air emissions from its
industrial sources and makes this information available to the public.
New Hampshire states in its submittal that it does not have any
provisions that would prevent the use of valid emissions data.
Therefore, EPA proposes that New Hampshire meets the infrastructure
SIP requirements of section 110(a)(2)(F) for the 2015 ozone NAAQS.
G. Section 110(a)(2)(G)--Emergency Powers
This section requires that a plan provide for state authority
analogous to that provided to the EPA Administrator in section 303 of
the CAA, and adequate contingency plans to implement such authority.
Section 303 of the CAA provides authority to the EPA Administrator to
seek a court order to restrain any source from causing or contributing
to emissions that present an ``imminent and substantial endangerment to
public health or welfare, or the environment.'' Section 303 further
authorizes the Administrator to issue ``such orders as may be necessary
to protect public health or welfare or the environment'' in the event
that ``it is not practicable to assure prompt protection . . . by
commencement of such civil action.''
We propose to find that New Hampshire's submittal and certain state
statutes provide for authority comparable to that in section 303. New
Hampshire's submittal specifies that RSA 125-C:9, ``Authority of the
Commissioner in Cases of Emergency,'' authorizes the Commissioner of
NHDES, with the consent of the Governor and Air Resources Council, to
issue an order requiring actions to be taken as the Commissioner deems
necessary to address an air pollution emergency. Such orders are
effective immediately upon issuance. Id. We note also that RSA 125-
C:15, I, provides that, ``[u]pon a finding by the commissioner that
there is an imminent and substantial endangerment to the public health
or welfare or the environment, the commissioner shall issue an order of
abatement requiring immediate compliance and said order shall be final
and enforceable upon issuance, but may be appealed to the council
within 30 days of its issuance, and the council may, after hearing,
uphold, modify, or abrogate said order.'' With regard to the authority
to bring suit, RSA 125-C:15, II, further provides that violation of
such an order ``shall be subject to enforcement by injunction,
including mandatory injunction, issued by the superior court upon
application of the attorney general.''
Section 110(a)(2)(G) also requires that New Hampshire have an
approved contingency plan for any Air Quality Control Region (AQCR)
within the state that is classified as Priority I, IA, or II for
certain pollutants. See 40 CFR 51.150, 51.152(c). Contingency plans for
Priority I, IA, and II areas must meet the applicable requirements of
40 CFR part 51, subpart H (40 CFR 51.150 through 51.153) (``Prevention
of Air Pollution Emergency Episodes'') for the relevant NAAQS, if the
NAAQS is covered by those regulations. A contingency plan is not
required if the entire state is classified as Priority III for a
particular pollutant. See 40 CFR part 51 subpart H.
Classifications for all pollutants for AQCRs in New Hampshire can
be found at 40 CFR 52.1521.\10\ For ozone, New Hampshire has two AQCRs
(Androscoggin Valley Interstate and Central New Hampshire Intrastate)
that are classified as Priority III, and one AQCR (Merrimack Valley--
Southern New Hampshire Interstate) that is classified as Priority I.
---------------------------------------------------------------------------
\10\ Classification of regions in New Hampshire is available at
https://www.ecfr.gov/cgi-bin/retrieveECFR?gp=&SID=5c6639933ef9479b11c7179568ef4b05&mc=true&r=PART&n=pt40.4.52#se40.4.52_11521 and ozone monitor values for individual
monitoring sites throughout New Hampshire are available at
www.epa.gov/outdoor-air-quality-data/monitor-values-report.
---------------------------------------------------------------------------
Although a Priority I classification triggers the contingency plan
obligation requirement of 40 CFR 51.151, New Hampshire previously
requested, pursuant to 40 CFR 51.152(d)(1), an exemption from the
contingency plan obligation for the 2008 ozone standard for the
Priority I Merrimack Valley--Southern New Hampshire Interstate AQCR
because the state is designated as unclassifiable/attainment for that
standard. EPA granted this request on December 16, 2015. See 80 FR
78135. In its September 5, 2018, infrastructure SIP submission, New
Hampshire requested an exemption from the contingency plan obligation
for this AQCR for the 2015 ozone standard because it is also classified
as unclassifiable/attainment for this standard. Therefore, we are
proposing to grant this request for an exemption. New Hampshire also
provided data from eight monitoring sites within this AQCR for the
years 2013 to 2017, which indicate that ozone levels during this
timeframe are well below the significant harm level for ozone of 0.6
parts per million (ppm) on a 2-hour average. See 40 CFR 51.151. In
addition, since 2017, all monitors in the state have continued to
remain well below the significant harm level for ozone.\11\ These data
are also below the 0.1 ppm 1-hour maximum established by regulation for
classifying an area as Priority I. See id. 51.150.
---------------------------------------------------------------------------
\11\ New Hampshire's 24-hour and annual ozone monitor values for
individual monitoring sites are available at https://www.epa.gov/outdoor-air-quality-data/monitor-values-report.
---------------------------------------------------------------------------
Furthermore, New Hampshire has broad statutory authority (see RSA
125- C:9, Authority of the Commissioner in Cases of Emergency) to
address activities causing imminent and substantial endangerment to
public health. However, New Hampshire does not have regulations that
specifically address all the 40 CFR part 51 subpart H requirements. New
Hampshire does, however, as a matter of practice, post on the internet
daily forecasted ozone levels through the EPA AIRNOW and EPA
ENVIROFLASH systems. Information regarding these two systems is
available on EPA's website at www.airnow.gov. Notices are sent out to
ENVIROFLASH participants when levels are forecast to exceed the current
8-hour ozone standard. In addition, when levels are expected to exceed
the ozone standard in New Hampshire, the media are alerted via a press
release, and the National Weather Service (NWS) is alerted to issue an
Air Quality Advisory through the normal NWS weather alert system. These
actions are similar to the notification and
[[Page 47131]]
communication requirements of 40 CFR 51.152.
EPA proposes that New Hampshire meets the applicable infrastructure
SIP requirements for section 110(a)(2)(G), including contingency-plan
requirements, for the 2015 ozone NAAQS.
H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires that a state's SIP provide for revision from
time to time as may be necessary to take account of changes in the
NAAQS or availability of improved methods for attaining the NAAQS and
whenever EPA finds that the SIP is substantially inadequate.
New Hampshire's infrastructure submittal references New Hampshire
RSA 125-C:6, ``Powers and Duties of the Commissioner,'' which provides
that the Commissioner of NHDES may develop a comprehensive program and
provide services for the study, prevention, and abatement of air
pollution. Additionally, Chapter Env-A 200, ``Procedural Rules,'' which
was approved into the New Hampshire SIP on October 28, 2002 (67 FR
65710), provides for public hearings for SIP revision requests prior to
their submittal to EPA. Therefore, EPA proposes that New Hampshire
meets the infrastructure SIP requirements of CAA section 110(a)(2)(H)
with respect to the 2015 ozone NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions
Under Part D
Section 110(a)(2)(I) provides that each plan or plan revision for
an area designated as a nonattainment area shall meet the applicable
requirements of part D of the CAA. EPA interprets section 110(a)(2)(I)
to be inapplicable to the infrastructure SIP process because specific
SIP submissions for designated nonattainment areas, as required under
part D, are subject to a different submission schedule under subparts 2
through 5 of part D, extending as far as 10 years following area
designations for some elements, whereas infrastructure SIP submissions
are due within three years after adoption or revision of a NAAQS.
Accordingly, EPA takes action on part D attainment plans through
separate processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notifications; Prevention of Significant Deterioration; Visibility
Protection
Section 110(a)(2)(J) of the CAA requires that each SIP ``meet the
applicable requirements of section 121 of this title (relating to
consultation), section 127 of this title (relating to public
notification), and part C of this subchapter (relating to PSD of air
quality and visibility protection).'' The evaluation of the submission
from New Hampshire with respect to these requirements is described
below.
Sub-Element 1: Consultation With Government Officials
Pursuant to CAA section 121, a state must provide a satisfactory
process for consultation with local governments and Federal Land
Managers (FLMs) in carrying out its NAAQS implementation requirements.
New Hampshire RSA 125-C:6, ``Powers and Duties of the
Commissioner,'' authorizes the Commissioner of NHDES to advise,
consult, and cooperate with the cities, towns, and other agencies of
the state and federal government, interstate agencies, and other groups
or agencies in matters relating to air quality. In addition, RSA 125-
C:6 enables the Commissioner to coordinate and regulate the air
pollution control programs of political subdivisions to plan and
implement programs for the control and abatement of air pollution.
Furthermore, New Hampshire regulations at Part Env-A 621 direct NHDES
to notify town officials, regional planning agencies, and FLMs, among
others, of the receipt of certain permit applications and the NHDES
preliminary determination to issue, amend, or deny such permits. EPA
proposes that New Hampshire meets the infrastructure SIP requirements
of this portion of section 110(a)(2)(J) for the 2015 ozone NAAQS.
Sub-Element 2: Public Notification
Pursuant to CAA section 127, states must notify the public if NAAQS
are exceeded in an area, advise the public of health hazards associated
with exceedances, and enhance public awareness of measures that can be
taken to prevent exceedances and of ways in which the public can
participate in regulatory and other efforts to improve air quality.
As part of the fulfillment of RSA 125-C:6, New Hampshire issues
press releases and posts warnings on its website advising people what
they can do to help prevent NAAQS exceedances and avoid adverse health
effects on poor air quality days. In addition, the NHDES website
includes near real-time air quality data, and a record of historical
data. Air quality forecasts are distributed daily via email to
interested parties. Air quality alerts are sent by email to a large
number of affected parties, including the media. Alerts include
information about the health implications of elevated pollutant levels
and list actions to reduce emissions and to reduce the public's
exposure. Also, Air Quality Data Summaries of the year's air quality
monitoring results are issued annually and posted on the NHDES website.
New Hampshire is also an active partner in EPA's AirNow and EnviroFlash
air quality alert programs.
EPA proposes that New Hampshire meets the infrastructure SIP
requirements of this portion of section 110(a)(2)(J) for the 2015 ozone
NAAQS.
Sub-Element 3: PSD
EPA has already discussed New Hampshire's PSD program in the
context of infrastructure SIPs in the paragraphs addressing section
110(a)(2)(C) and 110(a)(2)(D)(i)(II) and determined that it satisfies
the requirements of EPA's PSD implementation rules, with the exception
of the air quality modeling provision. Therefore, the SIP also
satisfies the PSD sub-element of section 110(a)(2)(J) for the 2015
ozone NAAQS, except for the modeling requirement. For the same reasons
discussed under Section 110(a)(2)(C) above, EPA proposes to
conditionally approve the SIP for the PSD sub-element of section
110(a)(2)(J) for the 2015 ozone NAAQS.
We are also proposing to correct our December 4, 2018, final action
on New Hampshire's infrastructure SIP for the 2012 PM2.5
NAAQS, which was submitted to EPA on December 22, 2015. See 83 FR
62464. That correction entails replacing our previous full approval for
this PSD sub-element with a conditional approval based on the state's
commitment to submit in a timely manner the necessary revisions to New
Hampshire Part Env-A 619.03 needed to fully approve this infrastructure
sub-element. This correction is explained in more detail in the
discussion of section 110(a)(2)(K) below.
Sub-Element 4: Visibility Protection
With regard to the applicable requirements for visibility
protection, states are subject to visibility and regional haze program
requirements under part C of the CAA (which includes sections 169A and
169B). In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C do not
change. Thus, as noted in EPA's 2013 memorandum, we find that there is
no new visibility obligation ``triggered'' under section 110(a)(2)(J)
when a new NAAQS becomes effective. In other words, the visibility
protection requirements of section 110(a)(2)(J) are not germane to
[[Page 47132]]
infrastructure SIPs for the 2015 ozone NAAQS. Therefore, we are not
proposing action on this sub-element.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
Section 110(a)(2)(K) of the Act requires that a SIP provide for the
performance of such air quality modeling as the EPA Administrator may
prescribe for the purpose of predicting the effect on ambient air
quality of any emissions of any air pollutant for which EPA has
established a NAAQS, and the submission, upon request, of data related
to such air quality modeling. EPA has published modeling guidelines at
40 CFR part 51, appendix W, for predicting the effects of emissions of
criteria pollutants on ambient air quality. EPA also recommends in the
2013 memorandum that, to meet section 110(a)(2)(K), a state submit or
reference the statutory or regulatory provisions that provide the air
agency with the authority to conduct such air quality modeling and to
provide such modeling data to EPA upon request.
RSA 125-C:6 authorizes the Commissioner of the NHDES to review the
potential impact of major sources through modeling. For major sources,
NHDES sends modeling data to EPA along with the draft major permit. For
non-major sources, Part Env-A 606, Air Pollution Dispersion Modeling
Impact Analysis Requirements, specifies the air pollution dispersion
modeling impact analysis requirements that apply to owners and
operators of certain sources and devices in order to demonstrate
compliance with the New Hampshire SIP, RSA 125-C, RSA 125-I, and any
rules adopted thereunder. The state also collaborates with the Ozone
Transport Commission (OTC) and the Mid-Atlantic Regional Air Management
Association and EPA in order to perform large-scale urban air shed
modeling for ozone and PM, if necessary.
As noted in our discussion of section 110(a)(2)(C), the EPA
Administrator's approved air quality models, databases, and other
requirements are found in EPA's modeling guidelines at 40 CFR part 51,
appendix W, which EPA revised on January 17, 2017. 82 FR 5182; see also
82 FR 14324 (Mar. 20, 2017). New Hampshire's SIP, however, references
an earlier version of appendix W. See Part Env-A 619.03(a). Therefore,
New Hampshire's SIP must be updated to provide for the performance of
modeling prescribed by EPA's January 17, 2017, revisions. In a letter
dated June 3, 2020, NHDES committed to pursuing revisions to Part Env-A
619.03, PSD Program Requirements, that would update the reference to 40
CFR 52.21 in Part Env-A 619.03 so as to incorporate EPA's revisions to
appendix W and to submitting these revisions to EPA within one year of
our final approval of today's proposed action.\12\ With such revision
of Env- 619.03, New Hampshire's SIP would provide for the performance
of such air quality modeling as the EPA Administrator has prescribed,
as required by section 110(a)(2)(K) of the Act.
---------------------------------------------------------------------------
\12\ This letter is included in the docket for today's action.
---------------------------------------------------------------------------
Because New Hampshire has committed to submit, but has not yet
submitted, necessary revisions to Part Env-A 619.03 that would provide
for the performance of such air quality modeling as the EPA
Administrator has prescribed, EPA proposes to conditionally approve
section 110(a)(2)(K) for the 2015 ozone NAAQS.
For the same reason, we also propose to conditionally approve
section 110(a)(2)(K) of New Hampshire's infrastructure SIP for the 2012
PM2.5 NAAQS, which was submitted on December 22, 2015. EPA
previously proposed, but never finalized, full approval of this
submission for element K, on April 10, 2018. See 83 FR 15343; 83 FR
62464. In today's action, EPA is rescinding its previous proposed full
approval for section 110(a)(2)(K) for the 2012 PM2.5 NAAQS
\13\ and is re-proposing as a conditional approval because, as stated
above, New Hampshire's SIP must be updated to provide for the
performance of modeling prescribed by EPA's January 17, 2017,
revisions, and New Hampshire has committed to making this update. In
addition, while EPA never finalized its proposed approval of New
Hampshire's submittal for the 2012 PM2.5 NAAQS for section
110(a)(2)(K), EPA did finalize its approval of the remaining
infrastructure requirements for the 2012 PM2.5 NAAQS on
December 4, 2018, including approval of section 110(a)(2)(D)(i)(II),
sub-element 2 of 110(a)(2)(C), and sub-element 3 of 110(a)(2)(J). In
today's action, EPA is proposing to correct those approvals and to
replace them with conditional approvals. EPA's previous approvals for
section 110(a)(2)(D)(i)(II), sub-element 2 of 110(a)(2)(C) and sub-
element 3 of 110(a)(2)(J) were in error; EPA's PSD regulations at 40
CFR 51.166(l) require a State's SIP to ``provide for procedures which
specify that [a]ll applications of air quality modeling . . . shall be
based on the applicable models, data bases, and other requirements
specified in'' EPA's Guideline on Air Quality Models in appendix W of
40 CFR part 51. As explained earlier, New Hampshire's SIP currently
references an earlier version of appendix W that has since been
superseded. Therefore, New Hampshire's SIP must be updated to refer to
an edition of EPA's regulations that incorporates the January 17, 2017,
revisions to appendix W. Because the EPA Administrator's approved
modeling requirements are found in appendix W, such a revision would
satisfy the section 51.166(l) requirement that the SIP provide for
procedures that specify that all applications of modeling be based on
the requirements in appendix W. Consequently, we are proposing to
conditionally approve New Hampshire's submittal for the PSD-related
requirements of section 110(a)(2)(D)(i)(II), 110(a)(2)(C), and
110(a)(2)(J) for the 2012 PM2.5 NAAQS based on the state's
commitment to submit in a timely manner the necessary revisions to Part
Env-A 619.03.
---------------------------------------------------------------------------
\13\ EPA received one set of public comments relevant to the
April 10, 2018, proposal to approve New Hampshire's 2012
PM2.5 submission for section 110(a)(2)(K). Because EPA is
rescinding that proposal, EPA is not responding to the comments
submitted on that proposal. Any person wishing to comment on our
action on section 110(a)(2)(K) for the 2012 PM2.5
standard should submit comments on today's proposal.
---------------------------------------------------------------------------
L. Section 110(a)(2)(L)--Permitting Fees
This section requires SIPs to mandate that each major stationary
source pay permitting fees to cover the costs of reviewing, approving,
implementing, and enforcing a permit.
New Hampshire implements and operates the Title V permit program,
which EPA approved on September 24, 2001. See 66 FR 48806. Chapter Env-
A 700, Permit Fee System, establishes a fee system requiring the
payment of fees to cover the costs of: Reviewing and acting upon
applications for the issuance of, amendment to, modification to, or
renewal of a temporary permit, state permit to operate, or Title V
operating permit; implementing and enforcing the terms and conditions
of these permits; and developing, implementing, and administering the
Title V operating permit program. In addition, Part Env-A 705
establishes the emission-based fee program for Title V and non-Title V
sources.
Therefore, EPA proposes that New Hampshire meets the infrastructure
SIP requirements of section 110(a)(2)(L) for the 2015 ozone NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
To satisfy Element M, states must provide for consultation with,
and participation by, local political
[[Page 47133]]
subdivisions affected by the SIP. New Hampshire Chapter Env-A 200 and
Part Env-A 204 provides a public participation process for all
stakeholders that includes a minimum of a 30-day comment period and an
opportunity for public hearing for revisions to the SIP. Additionally,
RSA 125-C:6, ``Powers and Duties of the Commissioner,'' authorizes the
Commissioner to consult and cooperate with the cities, towns, other
agencies of the state and federal government, interstate agencies, and
other affected agencies or groups in matters relating to air quality.
EPA proposes that New Hampshire meets the infrastructure SIP
requirements of section 110(a)(2)(M) with respect to the 2015 ozone
NAAQS.
III. Proposed Action
EPA is proposing to approve most of the elements of the
infrastructure SIP submitted by New Hampshire on September 5, 2018, for
the 2015 ozone NAAQS. Today's action does not include the ``good
neighbor'' provisions (i.e., section 110(a)(2)(D)(i)), also known as a
state's Transport SIP. New Hampshire's Transport SIP for the 2015 ozone
NAAQS will be addressed in a future action.
In addition, EPA is proposing to conditionally approve section
110(a)(2)(K) and the PSD-related elements, which include section
110(a)(2)(D)(i)(II), sub-element 2 of section 110(a)(2) (C), and sub-
element 3 of section 110(a)(2)(J) of New Hampshire's infrastructure SIP
for the 2015 ozone NAAQS based on the state's commitment to submit in a
timely manner the necessary revisions to New Hampshire Part Env-A
619.03, PSD Program Requirements. EPA's proposed action regarding each
infrastructure SIP requirement for the 2015 ozone NAAQS is contained in
Table 1 below.
Table 1--Proposed Action on New Hampshire's Infrastructure SIP Submittal
for the 2015 Ozone and 2012 PM2.5 NAAQS
------------------------------------------------------------------------
2012 PM2.5 NAAQS
Element 2015 ozone NAAQS
------------------------------------------------------------------------
(A): Emission limits and other A.................. PA
control measures.
(B): Ambient air quality A.................. PA
monitoring and data system.
(C)1: Enforcement of SIP A.................. PA
measures.
(C)2: PSD program for major CA................. CA
sources and major
modifications.
(C)3: Program for minor sources A.................. PA
and minor modifications.
(D)1: Contribute to No action.......... PA
nonattainment/interfere with
maintenance of NAAQS.
(D)2: PSD...................... CA................. CA
(D)3: Visibility Protection.... A.................. PA
(D)4: Interstate Pollution A.................. PA
Abatement.
(D)5: International Pollution A.................. PA
Abatement.
(E)1: Adequate resources....... A.................. PA
(E)2: State boards............. A.................. PA
(E)3: Necessary assurances with NA................. NA
respect to local agencies.
(F): Stationary source A.................. PA
monitoring system.
(G): Emergency power........... A.................. PA
(H): Future SIP revisions...... A.................. PA
(I): Nonattainment area plan or +.................. +
plan revisions under part D.
(J)1: Consultation with A.................. PA
government officials.
(J)2: Public notification...... A.................. PA
(J)3: PSD...................... CA................. CA
(J)4: Visibility protection.... +.................. +
(K): Air quality modeling and CA................. CA
data.
(L): Permitting fees........... A.................. PA
(M): Consultation and A.................. PA
participation by affected
local entities.
------------------------------------------------------------------------
In the above table, the key is as follows:
A................................. Approve.
CA................................ Conditionally Approve.
+................................. Not germane to infrastructure SIPs.
No action......................... EPA is taking no action on this
infrastructure requirement.
NA................................ Not applicable.
PA................................ Previously Approved.
We also propose to conditionally approve section 110(a)(2)(K) of
New Hampshire's infrastructure SIP for the 2012 PM2.5 NAAQS,
which was submitted on December 22, 2015. EPA approved all other
elements of New Hampshire's infrastructure SIP submittal for the 2012
PM2.5 NAAQS on December 4, 2018 but, as previously
mentioned, never took final action on section 110(a)(2)(K). In
addition, we propose to correct that final rule (83 FR 62464) by
conditionally approving 110(a)(2)(K) and replacing our approvals of the
PSD-related requirements of section 110(a)(2)(D)(i)(II), 110(a)(2)(C),
and 110(a)(2)(J) with conditional approvals, based on the state's
commitment to submit in a timely manner the necessary revisions to New
Hampshire Part Env-A 619.03.
Finally, we are proposing to grant New Hampshire's request,
pursuant to 40 CFR 51.152(d)(1), to exempt the state from the
contingency plan requirement for the 2015 ozone standard for the
Merrimack Valley--Southern New Hampshire Interstate AQCR based on the
fact that the state is designated as unclassifiable/attainment for that
standard.
EPA is soliciting public comments on the issues discussed in this
proposal or on other relevant matters. These comments will be
considered before EPA takes final action. Interested parties may
participate in the Federal rulemaking procedure by submitting comments
to this proposed rule by following the instructions listed in the
ADDRESSES section of this Federal Register.
Under section 110(k)(4) of the Act, EPA may conditionally approve a
plan based on a commitment from the State to adopt specific enforceable
measures by a date certain, but not later than 1 year from the date of
approval. If EPA conditionally approves the commitment in a final
rulemaking action, the State must meet its commitment to submit the
necessary revisions to New Hampshire
[[Page 47134]]
Part Env-A 619.03 to satisfy 110(a)(2)(K) and the PSD-related
requirements of section 110(a)(2)(D)(i)(II), 110(a)(2)(C), and
110(a)(2)(J) of New Hampshire's infrastructure SIP for the 2012
PM2.5 and 2015 ozone NAAQS. If the State fails to do so,
this action will become a disapproval one year from the date of final
approval. EPA will notify the State by letter that this action has
occurred. At that time, this commitment will no longer be a part of the
approved New Hampshire SIP. EPA subsequently will publish a document in
the Federal Register notifying the public that the conditional approval
automatically converted to a disapproval. If the State meets its
commitment, within the applicable time frame, the conditionally
approved submission will remain a part of the SIP until EPA takes final
action approving or disapproving the necessary SIP revision. If EPA
disapproves the new submittal, the conditionally approved section
110(a)(2)(K) and the PSD-related requirements of section
110(a)(2)(D)(i)(II), 110(a)(2)(C), and 110(a)(2)(J) of New Hampshire's
infrastructure SIP for the 2012 PM2.5 and 2015 ozone NAAQS
will also be disapproved at that time. If EPA approves the submittal,
section 110(a)(2)(K) and the PSD-related requirements of section
110(a)(2)(D)(i)(II), sub-element 2 of 110(a)(2)(C), and sub-element 3
of 110(a)(2)(J) of the state's infrastructure SIP the 2012
PM2.5 and 2015 ozone NAAQS will be fully approved in their
entirety and will replace the conditionally approved elements in the
SIP.
If EPA determines that it cannot issue a final conditional approval
or if the conditional approval is converted to a disapproval, such
action will trigger EPA's authority to impose sanctions under section
110(m) of the CAA at the time EPA issues the final disapproval or on
the date the State fails to meet its commitment. In the latter case,
EPA will notify the State by letter that the conditional approval has
been converted to a disapproval and that EPA's sanctions authority has
been triggered. In addition, the final disapproval triggers the Federal
implementation plan (FIP) requirement under section 110(c).
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 proposed 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 proposed action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Is not expected to be an Executive Order 13771 regulatory
action because this action is not significant under Executive Order
12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 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).
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: July 17, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.
[FR Doc. 2020-16011 Filed 8-3-20; 8:45 am]
BILLING CODE 6560-50-P