[Federal Register Volume 80, Number 137 (Friday, July 17, 2015)]
[Proposed Rules]
[Pages 42446-42459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-17475]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2012-0950; FRL-9930-53-Region 1]
Approval and Promulgation of Air Quality Implementation Plans;
New Hampshire; Infrastructure State Implementation Plan Requirements
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of State Implementation Plan (SIP) submissions from
New Hampshire regarding the infrastructure requirements of the Clean
Air Act (CAA or Act) for the 2008 lead (Pb), 2008 8-hr ozone, 2010
nitrogen dioxide (NO2), and 2010 sulfur dioxide
(SO2) National Ambient Air Quality Standards (NAAQS). EPA is
also proposing to convert conditional approvals for several
infrastructure requirements for the 1997 and 2006 fine particle
(PM2.5) NAAQS to full approval under the CAA. Furthermore,
we are proposing to update the classifications for several of New
Hampshire's air quality control regions for ozone and sulfur dioxide
based on recent air quality monitoring data collected by the state, and
to grant the state's request for an exemption from the infrastructure
SIP contingency plan obligation for ozone. Last, we are proposing to
conditionally approve certain elements of New Hampshire's submittal
relating to prevention of significant deterioration requirements.
The infrastructure requirements are designed to ensure that the
structural components of each state's air quality management program
are adequate to meet the state's responsibilities under the CAA.
DATES: Comments must be received on or before August 17, 2015.
ADDRESSES: Submit your comments, identified by the appropriate Docket
ID number as indicated in the instructions section below, by one of the
following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (617) 918-0047.
4. Mail: Anne Arnold, Manager, Air Quality Planning Unit, Air
Programs Branch, Mail Code OEP05-2, U.S. Environmental Protection
Agency, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-
3912.
5. Hand Delivery: Anne Arnold, Manager, Air Quality Planning Unit,
Air Programs Branch, Mail Code OEP05-2, U.S. Environmental Protection
Agency, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-
3912. Such deliveries are only accepted during the Regional Office
normal hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID. EPA-R01-OAR-2012-
0950. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the U.S. Environmental
Protection Agency, Region 1, Air Programs Branch, 5 Post Office Square,
Boston, Massachusetts. This facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT: Bob McConnell, Environmental Engineer,
Air Quality Planning Unit, Air Programs Branch (Mail Code OEP05-02),
U.S. Environmental Protection Agency, Region 1, 5 Post Office Square,
Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1046;
[email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean
[[Page 42447]]
EPA. This supplementary information section is arranged as follows:
I. What should I consider as I prepare my comments for EPA?
II. What is the background of these State Implementation Plan (SIP)
submissions?
A. What New Hampshire SIP submissions does this rulemaking
address?
B. Why did the state make these SIP submissions?
C. What is the scope of this rulemaking?
III. What guidance is EPA using to evaluate these SIP submissions?
IV. What is the result of EPA's review of these SIP submissions?
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
i. Sub-element 1: Enforcement of SIP measures
ii. Sub-element 2: Prevention of Significant Deterioration (PSD)
program for major sources and major modifications
iii. Sub-element 3: Preconstruction permitting for minor sources
and minor modifications
D. Section 110(a)(2)(D)--Interstate transport
i. Sub-element 1: Section 110(a)(2)(D)(i)(I)--Contribute to
nonattainment (prong 1) and interfere with maintenance of the NAAQS
(prong 2)
ii. Sub-element 2: Section 110(a)(2)(D)(i)(II)--PSD (prong 3)
iii. Sub-element 3: Section 110(a)(2)(D)(i)(II)--Visibility
protection (prong 4)
iv. Sub-element 4: Section 110(a)(2)(D)(ii)--Interstate
pollution abatement
v. Sub-element 5: Section 110(a)(2)(D)(ii)--International
pollution abatement
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; PSD; visibility protection
i. Sub-element 1: Consultation with government officials
ii. Sub-element 2: Public notification
iii. Sub-element 3: PSD
iv. 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
V. What action is EPA taking?
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews
I. What should I consider as I prepare my comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date, and page number).
2. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
identified.
II. What is the background of these State Implementation Plan (SIP)
submissions?
A. What New Hampshire SIP submissions does this rulemaking address?
This rulemaking addresses submissions from the New Hampshire
Department of Environmental Services (NH-DES). The state submitted its
infrastructure SIP for each NAAQS on the following dates: 2008 Pb--
November 7, 2011; 2008 ozone--December 31, 2012; 2010 NO2--
January 28, 2013; and, 2010 SO2--September 13, 2013.
This rulemaking also addresses certain infrastructure SIP elements
for the 1997 and 2006 fine particle (PM2.5) \1\ NAAQS for
which EPA previously issued a conditional approval. See 77 FR 63228,
October 16, 2012. The state submitted these infrastructure SIPs on
April 3, 2008, and September 18, 2009, respectively.
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\1\ PM2.5 refers to particulate matter of 2.5 microns
or less in diameter, oftentimes referred to as ``fine'' particles.
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B. Why did the state make these SIP submissions?
Under sections 110(a)(1) and (2) of the CAA, states are required to
submit infrastructure SIPs to ensure that their SIPs provide for
implementation, maintenance, and enforcement of the NAAQS, including
the 1997 and 2006 PM2.5, 2008 Pb, 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS. These submissions must
contain any revisions needed for meeting the applicable SIP
requirements of section 110(a)(2), or certifications that their
existing SIPs for the NAAQS already meet those requirements.
EPA highlighted this statutory requirement 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 Memo).
On September 25, 2009, EPA issued an additional guidance document
pertaining to the 2006 p.m.2.5 NAAQS entitled ``Guidance on
SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-
Hour Fine Particle (PM2.5) National Ambient Air Quality
Standards (NAAQS)'' (2009 Memo), followed by the October 14, 2011,
``Guidance on infrastructure SIP Elements Required Under Sections
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality
Standards (NAAQS)'' (2011 Memo). Most recently, EPA issued ``Guidance
on Infrastructure State Implementation Plan (SIP) Elements under Clean
Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 (2013 Memo).
The SIP submissions referenced in this rulemaking pertain to the
applicable requirements of section 110(a)(1) and (2) and address the
2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2
NAAQS, and to elements of New Hampshire's submittals for the 1997
PM2.5 and 2006 PM2.5 NAAQS which we previously
conditionally approved. See 77 FR 63228, October 16, 2012. To the
extent that the prevention of significant deterioration (PSD) program
is comprehensive and non-NAAQS specific, a narrow evaluation of other
NAAQS, such as the 1997 8-hour ozone NAAQS, will be included in the
appropriate sections.
C. What is the scope of this rulemaking?
EPA is acting upon the SIP submissions from New Hampshire that
address the infrastructure requirements of CAA sections 110(a)(1) and
110(a)(2) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010
SO2 NAAQS. Additionally, we are proposing to convert
conditional approvals for several infrastructure requirements for the
1997 and 2006 PM2.5 NAAQS (See 77 FR 63228, October 16,
2012) to full approval, proposing approval of the statutes submitted by
New Hampshire that support the infrastructure SIP
[[Page 42448]]
submittals, and proposing to conditionally approve certain aspects of
the infrastructure SIP which pertain to the State's PSD program.
The requirement for states to make a SIP submission of this type
arises out of CAA sections 110(a)(1) and 110(a)(2). Pursuant to these
sections, each state must submit a SIP that provides for the
implementation, maintenance, and enforcement of each primary or
secondary NAAQS. States must make such SIP submission ``within 3 years
(or such shorter period as the Administrator may prescribe) after the
promulgation of'' a new or revised NAAQS. This requirement is triggered
by the promulgation of a new or revised NAAQS and is not conditioned
upon EPA's taking any other action. Section 110(a)(2) includes the
specific elements that ``each such plan'' must address.
EPA commonly refers to such SIP submissions made for the purpose of
satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as
``infrastructure SIP'' submissions. Although the term ``infrastructure
SIP'' does not appear in the CAA, EPA uses the term to distinguish this
particular type of SIP submission from submissions that are intended to
satisfy other SIP requirements under the CAA, such as ``nonattainment
SIP'' or ``attainment plan SIP'' submissions to address the planning
requirements of part D of title I of the CAA.
This rulemaking will not cover three substantive areas that are not
integral to acting on a state's infrastructure SIP submission: (i)
Existing 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; (ii) 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
(``director's discretion''); and, (iii) existing provisions for PSD
programs that may be inconsistent with current requirements of EPA's
``Final New Source Review (NSR) Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR
Reform''). Instead, EPA has the authority to address each one of these
substantive areas separately. A detailed history, interpretation, and
rationale for EPA's approach to infrastructure SIP requirements can be
found in EPA's May 13, 2014, proposed rule entitled, ``Infrastructure
SIP Requirements for the 2008 Lead NAAQS'' in the section, ``What is
the scope of this rulemaking?'' (See 79 FR 27241 at 27242-27245).
III. What guidance is EPA using to evaluate these SIP submissions?
EPA reviews each infrastructure SIP submission for compliance with
the applicable statutory provisions of section 110(a)(2), as
appropriate. Historically, EPA has elected to use non-binding guidance
documents to make recommendations for states' development and EPA
review of infrastructure SIPs, in some cases conveying needed
interpretations on newly arising issues and in some cases conveying
interpretations that have already been developed and applied to
individual SIP submissions for particular elements. EPA guidance
applicable to these infrastructure SIP submissions is embodied in
several documents. Specifically, attachment A of the 2007 Memo
(Required Section 110 SIP Elements) identifies the statutory elements
that states need to submit in order to satisfy the requirements for an
infrastructure SIP submission. The 2009 Memo provides additional
guidance for certain elements regarding the 2006 PM2.5
NAAQS, and the 2011 Memo provides guidance specific to the 2008 Pb
NAAQS. Lastly, the 2013 Memo identifies and further clarifies aspects
of infrastructure SIPs that are not NAAQS specific.
IV. What is the result of EPA's review of these SIP submissions?
Pursuant to section 110(a), and as noted in the 2011 Memo and the
2013 Memo, states must provide reasonable notice and opportunity for
public hearing for all infrastructure SIP submissions. NH-DES held
public hearings for each infrastructure SIP on the following dates:
2008 Pb--October 3, 2011; 2008 ozone--December 31, 2012; 2010
NO2--January 16, 2013; and, 2010 SO2--May 24,
2013. New Hampshire received comments from EPA on each of its proposed
infrastructure SIPs, and also received comments from the Sierra Club on
its proposed SO2 infrastructure SIP. EPA is also soliciting
comment on our evaluation of the state's infrastructure SIP submissions
in this notice of proposed rulemaking. New Hampshire provided detailed
synopses of how various components of its SIP meet each of the
requirements in section 110(a)(2) for the 2008 Pb, 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS, as applicable. The
following review evaluates the state's submissions in light of section
110(a)(2) requirements and relevant EPA guidance. The review also
evaluates certain infrastructure requirements for the 1997 and 2006
PM2.5 NAAQS for which EPA previously issued a conditional
approval. (See 77 FR 63228, October 16, 2012).
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section requires SIPs to include enforceable emission limits
and other control measures, means or techniques, schedules for
compliance, and other related matters. However, EPA has long
interpreted emission limits and control measures for attaining the
standards as being due when nonattainment planning requirements are
due.\2\ In the context of an infrastructure SIP, EPA is not evaluating
the existing SIP provisions for this purpose. Instead, EPA is only
evaluating whether the state's SIP has basic structural provisions for
the implementation of the NAAQS.
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\2\ See, e.g., EPA's final rule on ``National Ambient Air
Quality Standards for Lead.'' 73 FR 66964, 67034 (Nov. 12, 2008).
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New Hampshire's Revised Statutes Annotated (RSA) at Chapter 21-O
established the New Hampshire Department of Environmental Services (NH-
DES), and RSA Chapter 125-C provides the Commissioner of NH-DES with
the authority to develop rules and regulations necessary to meet state
and Federal ambient air quality standards. New Hampshire also has SIP-
approved provisions for specific pollutants. For example, NH-DES has
adopted primary and secondary ambient air quality standards for each of
these pollutants in its Chapter Env-A 300 Ambient Air Quality
Standards, as follows: for PM2.5, Part Env-A 303; for
SO2, Part Env-A 304; for NO2, Part Env-A 306; for
ozone, Part Env-A 307; and, for lead, Part Env-A 308. As noted in EPA's
approval of New Hampshire's Chapter Env-A 300, Ambient Air Quality
Standards, on June 24, 2014 (79 FR 35695), New Hampshire's standards
are consistent with the current federal NAAQS. Therefore, EPA proposes
that New Hampshire has met the infrastructure SIP requirements of
section 110(a)(2)(A) with respect to the 2008 Pb, 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS. In addition, we
previously issued a conditional approval for New Hampshire's
infrastructure SIP submittal made for the 1997 and 2006
PM2.5 NAAQS because portions of Env-A 300 were outdated.
(See 77 FR 63228, October 16, 2012). However, as noted in our June 24,
2014 action mentioned above, New Hampshire has revised their standards
and they are now consistent
[[Page 42449]]
with the federal NAAQS. In light of this, we propose to convert the
conditional approval for this infrastructure requirement for the 1997
and 2006 PM2.5 NAAQS (See 77 FR 63228, October 16, 2012) to
full approval. As previously noted, EPA is not proposing to approve or
disapprove any existing state provisions or rules related to SSM or
director's discretion in the context of section 110(a)(2)(A).
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to include provisions to provide for
establishing and operating ambient air quality monitors, collecting and
analyzing ambient air quality data, and making 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.
NH-DES continues to operate a monitoring network, and EPA approved
the state's most recent Annual Air Monitoring Network Plan for Pb,
ozone, NO2, and SO2 on October 10, 2014.
Furthermore, NH-DES populates AQS with air quality monitoring data in a
timely manner, and provides EPA with prior notification when
considering a change to its monitoring network or plan. EPA proposes
that NH-DES has met the infrastructure SIP requirements of section
110(a)(2)(B) with respect to the 2008 Pb, 2008 ozone, 2010
NO2, and 2010 SO2 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 the regulation of construction of new or
modified stationary sources to meet NSR requirements under 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) permitting program for
minor sources and minor modifications. A discussion of GHG permitting
and the ``Tailoring Rule'' \3\ is included within our evaluation of the
PSD provisions of New Hampshire's submittals.
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\3\ In EPA's April 28, 2011 proposed rulemaking for several
states' infrastructure SIPs for the 1997 ozone and PM2.5
NAAQS, we stated that each state's PSD program must meet applicable
requirements for evaluation of all regulated NSR pollutants in PSD
permits (See 76 FR 23757 at 23760). This view was reiterated in
EPA's August 2, 2012 proposed rulemaking for several infrastructure
SIPs for the 2006 PM2.5 NAAQS (See 77 FR 45992 at 45998).
In other words, if a state lacks provisions needed to adequately
address Pb, NOX as a precursor to ozone, PM2.5
precursors, PM2.5 and PM10 condensables,
PM2.5 increments, or the Federal GHG permitting
thresholds, the provisions of section 110(a)(2)(C) requiring a
suitable PSD permitting program must be considered not to be met
irrespective of the NAAQS that triggered the requirement to submit
an infrastructure SIP, including the 2008 Pb NAAQS.
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i. Sub-Element 1: Enforcement of SIP Measures
NH-DES 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 NH-DES 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 2008 Pb, 2008
ozone, 2010 NO2, and 2010 SO2 NAAQS.
ii. 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. NH-DES's EPA-
approved PSD rules, contained at Part Env-A 619, contain provisions
that address the majority of the applicable infrastructure SIP
requirements related to the 2008 Pb, 2008 ozone, 2010 NO2,
and 2010 SO2 NAAQS. One aspect of New Hampshire's PSD rules
relating to notification of neighboring states regarding the issuance
of PSD permits, however, has not been fully addressed at this time.
However, on April 24, 2015, EPA proposed to conditionally approve a
recent update from New Hampshire to address this deficiency. (See 80 FR
22957). Once we have published a final conditional approval for that
action, we intend to conditionally approve this aspect of sub-element 2
of the state's infrastructure SIPs as well. Accordingly, we propose to
approve the majority of New Hampshire's submittals for this sub-element
pertaining to section 110(a)(2)(C) with respect to the 2008 Pb, 2008
ozone, 2010 NO2, and 2010 SO2 NAAQS, but to
conditionally approve the aspect pertaining to provision of notice to
neighboring states.
EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects
of the 1990 Amendments Relating to New Source Review and Prevention of
Significant Deterioration as They Apply in Carbon Monoxide, Particulate
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase
2 Rule) was published on November 29, 2005 (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 (70 FR 71612 at 71679, 71699-71700, November 29, 2005). This
requirement was codified in 40 CFR 51.166, and requires that states
submit SIP revisions incorporating the requirements of the rule,
including these specific NOX as a precursor to ozone
provisions, by June 15, 2007 (See 70 FR 71612 at 71683, November 29,
2005).
On November 15, 2012, New Hampshire submitted revisions to its PSD
program incorporating the necessary changes regarding NOX as
a precursor to ozone, consistent with the requirements of the Phase 2
Rule. EPA proposed approval of New Hampshire's SIP revisions with
respect to the NSR portion of the Phase 2 Rule on January 21, 2015,
(See 80 FR 2860),\4\ and we will take final action on those revisions
prior to, or in conjunction with, finalizing our action on these
infrastructure SIP requirements. Therefore, we are proposing to find
that New Hampshire has met this set of requirements of section
110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010
SO2 NAAQS regarding the explicit
[[Page 42450]]
identification of NOX as a precursor to ozone, consistent
with our Phase 2 Rule.
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\4\ Note that EPA subsequently proposed a conditional approval
of New Hampshire's PSD program due to a lack of a provision
requiring notification to neighboring states of the issuance of PSD
permits. See 80 FR 22957; April 24, 2015.
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On May 16, 2008 (See 73 FR 28321), EPA issued the Final Rule on the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule).
The 2008 NSR Rule finalized several new requirements for SIPs to
address sources that emit direct PM2.5 and other pollutants
that contribute to secondary PM2.5 formation. One of these
requirements is for NSR permits to address pollutants responsible for
the secondary formation of PM2.5, otherwise known as
precursors. In the 2008 rule, EPA identified precursors to
PM2.5 for the PSD program to be sulfur dioxide
(SO2) and NOX, unless the state demonstrates to
the Administrator's satisfaction or EPA demonstrates that
NOX emissions in an area are not a significant contributor
to that area's ambient PM2.5 concentrations. The 2008 NSR
Rule also specifies that volatile organic compounds (VOCs) are not
considered to be precursors to PM2.5 in the PSD program,
unless the state demonstrates to the Administrator's satisfaction or
EPA demonstrates that emissions of VOCs in an area are significant
contributors to that area's ambient PM2.5 concentrations.
The explicit references to SO2, NOX, and VOCs
as they pertain to secondary PM2.5 formation are codified at
40 CFR 51.166(b)(49)(i)(b) and 52.21(b)(50)(i)(b). As part of
identifying pollutants that are precursors to PM2.5, the
2008 NSR Rule also required states to revise the definition of
``significant'' as it relates to a net emissions increase or the
potential of a source to emit pollutants. Specifically, 40 CFR
51.166(b)(23)(i) and 52.21(b)(23)(i) define ``significant'' for
PM2.5 to mean the following emissions rates: 10 tons per
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40
tpy of NOX (unless the state demonstrates to the
Administrator's satisfaction or EPA demonstrates that NOX
emissions in an area are not a significant contributor to that area's
ambient PM2.5 concentrations). The deadline for states to
submit SIP revisions to their PSD programs incorporating these changes
was May 16, 2011 (See 73 FR 28321 at 28341, May 16, 2008).\5\
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\5\ EPA notes that on January 4, 2013, the U.S. Court of Appeals
for the D.C. Circuit, in Natural Resources Defense Council v. EPA,
706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008
NSR Rule in accordance with the CAA's requirements for
PM10 nonattainment areas (Title I, Part D, subpart 4),
and not the general requirements for nonattainment areas under
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250).
As the subpart 4 provisions apply only to nonattainment areas, the
EPA does not consider the portions of the 2008 rule that address
requirements for PM2.5 attainment and unclassifiable
areas to be affected by the court's opinion. Moreover, EPA does not
anticipate the need to revise any PSD requirements promulgated by
the 2008 NSR rule in order to comply with the court's decision.
Accordingly, the EPA's approval of New Hampshire's infrastructure
SIP as to elements C, D(i)(II), or J with respect to the PSD
requirements promulgated by the 2008 implementation rule does not
conflict with the court's opinion. The Court's decision with respect
to the nonattainment NSR requirements promulgated by the 2008
implementation rule also does not affect EPA's action on the present
infrastructure action. EPA interprets the CAA to exclude
nonattainment area requirements, including requirements associated
with a nonattainment NSR program, from infrastructure SIP
submissions due three years after adoption or revision of a NAAQS.
Instead, these elements are typically referred to as nonattainment
SIP or attainment plan elements, which would be due by the dates
statutorily prescribed under subpart 2 through 5 under part D,
extending as far as 10 years following designations for some
elements.
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The 2008 NSR Rule did not require states to immediately account for
gases that could condense to form particulate matter, known as
condensables, in PM2.5 and PM10 emission limits
in NSR permits. Instead, EPA determined that states had to account for
PM2.5 and PM10 condensables for applicability
determinations and in establishing emissions limitations for
PM2.5 and PM10 in PSD permits beginning on or
after January 1, 2011. 73 FR 28321 at 28334. This requirement is
codified in 40 CFR 51.166(b)(49)(i)(a) and 52.21(b)(50)(i)(a).
Revisions to states' PSD programs incorporating the inclusion of
condensables were required be submitted to EPA by May 16, 2011 (See 73
FR 28321 at 28341).
On November 15, 2012, New Hampshire submitted revisions to its PSD
program incorporating the necessary changes obligated by the 2008 NSR
Rule, including provisions that explicitly identify precursors to
PM2.5 and account for PM2.5 and PM10
condensables for applicability determinations and in establishing
emissions limitations for PM2.5 and PM10 in PSD
permits. EPA's proposed approval of New Hampshire's SIP revision with
respect to the 2008 NSR Rule was published on January 21, 2015 (See 80
FR 2860),\6\ and we will take final action on these revisions prior to,
or in conjunction with, finalizing our action on these infrastructure
SIP revisions from New Hampshire.
---------------------------------------------------------------------------
\6\ Note that EPA subsequently proposed a conditional approval
of New Hampshire's PSD program due to a lack of a provision
requiring notification to neighboring states of the issuance of PSD
permits. See 80 FR 22957; April 24, 2015.
---------------------------------------------------------------------------
Therefore, we are proposing that New Hampshire has met this set of
requirements of section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS regarding the
requirements obligated by the 2008 NSR Rule. Additionally, we are also
proposing to convert our prior conditional approval for this
infrastructure requirement for the 1997 and 2006 PM2.5 NAAQS
(see 77 FR 63228, October 16, 2012) to full approval.
On October 20, 2010, EPA issued the final rule on the ``Prevention
of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM2.5)--Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC)'' (2010 NSR
Rule). 75 FR 64864. This rule established several components for making
PSD permitting determinations for PM2.5, including a system
of ``increments'' which is the mechanism used to estimate significant
deterioration of ambient air quality for a pollutant. These increments
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c).
The 2010 NSR Rule also established a new ``major source baseline
date'' for PM2.5 as October 20, 2010, and a new trigger date
for PM2.5 as October 20, 2011. These revisions are codified
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and
52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule
revised the definition of ``baseline area'' to include a level of
significance of 0.3 micrograms per cubic meter, annual average, for
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i)
and 52.21(b)(15)(i).
On November 15, 2012, New Hampshire submitted revisions to its PSD
program incorporating the necessary changes obligated by the 2010 NSR
Rule, including the increments established by the 2010 NSR Rule for
incorporation into the SIP, as well as the revised major source
baseline date, trigger date, and baseline area level of significance
for PM2.5. EPA's proposed approval of New Hampshire's SIP
revision with respect to the 2010 NSR Rule was published on January 21,
2015, (See 80 FR 2860),\7\ and we will take final action on that
submittal prior to, or in conjunction with, finalizing our action on
these infrastructure SIP submittals from New Hampshire. Therefore, we
are proposing that New Hampshire has met this set of requirements of
section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010 NO2,
and 2010 SO2 NAAQS regarding the requirements obligated by
the 2010 NSR Rule. Additionally, we are also proposing to convert our
prior
[[Page 42451]]
conditional approval for this infrastructure requirement for the 1997
and 2006 PM2.5 NAAQS (See 77 FR 63228) to full approval.
---------------------------------------------------------------------------
\7\ Note that EPA subsequently proposed a conditional approval
of New Hampshire's PSD program due to a lack of a provision
requiring notification to neighboring states of the issuance of PSD
permits. See 80 FR 22957; April 24, 2015.
---------------------------------------------------------------------------
With respect to greenhouse gas permitting, EPA's ``Tailoring
Rule,'' and element C,\8\ EPA interprets the Clean Air Act to require
each state to make an infrastructure SIP submission for a new or
revised NAAQS that demonstrates that the air agency has a complete PSD
permitting program meeting the current requirements for all regulated
NSR pollutants. New Hampshire has shown that it currently has a PSD
program in place that covers all regulated NSR pollutants, including
greenhouse gases (GHGs).
---------------------------------------------------------------------------
\8\ In this rulemaking, ``element C'' refers to section
110(a)(2)(C) of the CAA. References to other ``elements'' have
similar meanings, e.g., element D(i)(II) refers to section
110(a)(2)(D)(i)(II) of the CAA.
---------------------------------------------------------------------------
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not
treat GHGs as an air pollutant for purposes of determining whether a
source is a major source required to obtain a PSD permit. The Court
also said that the EPA could continue to require that PSD permits,
otherwise required based on emissions of pollutants other than GHGs,
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT). In order to act consistently with
its understanding of the Court's decision, the EPA is not continuing to
apply EPA regulations that would require that SIPs include permitting
requirements that the Supreme Court found impermissible. Specifically,
EPA is not applying the requirement that a state's SIP-approved PSD
program require that sources obtain PSD permits when GHGs are the only
pollutant (i) that the source emits or has the potential to emit above
the major source thresholds, or (ii) for which there is a significant
emissions increase and a significant net emissions increase from a
modification (e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to
revise federal PSD rules in light of the Supreme Court opinion. In
addition, EPA anticipates that many states will revise their existing
SIP-approved PSD programs in light of the Supreme Court's decision. At
this juncture, EPA is not expecting states to have revised their PSD
programs for purposes of infrastructure SIP submissions and is only
evaluating such submissions to assure that the state's program
correctly addresses GHGs consistent with the Supreme Court's decision.
At present, EPA has determined that New Hampshire's SIP is
sufficient to satisfy element C with respect to GHGs because the PSD
permitting program previously approved by EPA into the SIP continues to
require that PSD permits (otherwise required based on emissions of
pollutants other than GHGs) contain limitations on GHG emissions based
on the application of BACT. Although the approved New Hampshire PSD
permitting program may currently contain provisions that are no longer
necessary in light of the Supreme Court decision, this does not render
the infrastructure SIP submission inadequate to satisfy element C. The
SIP contains the necessary PSD requirements at this time, and the
application of those requirements is not impeded by the presence of
other previously-approved provisions regarding the permitting of
sources of GHGs that EPA does not consider necessary at this time in
light of the Supreme Court decision. Accordingly, the Supreme Court
decision does not affect EPA's proposed approval of New Hampshire's
infrastructure SIP as to the requirements of element C.
For the purposes of the 2008 Pb, 2008 ozone, 2010 NO2,
and 2010 SO2 NAAQS infrastructure SIPs, EPA reiterates that
NSR Reform regulations are not in the scope of these actions.
Therefore, we are not taking action on existing NSR Reform regulations
for New Hampshire.
In summary, we are proposing to approve the majority of New
Hampshire's submittals for this sub-element pertaining to section
110(a)(2)(C) with respect to the 2008 Pb, 2008 ozone, 2010
NOX, and 2010 S02 NAAQS, but to conditionally
approve the aspect pertaining to provision of notice to neighboring
states. In addition, EPA previously issued a conditional approval to
New Hampshire regarding the state's infrastructure submittals for the
1997 and 2006 PM2.5 NAAQS because the state had not met the
requirements of EPA's 2008 and 2010 NSR rules. See 77 FR 63228. Given
that we have now proposed approval of New Hampshire's PSD program SIP
revision with respect to the 2008 and 2010 NSR rules, we are also
proposing to convert the prior conditional approval for this
infrastructure requirement for the 1997 and 2006 PM2.5 NAAQS
(see 77 FR 63228) from conditional approval to approval. Note, however,
that our April 24, 2015 notice of proposed rulemaking on New
Hampshire's November 15, 2012 submittal proposes a conditional approval
of the aspect of the state's permitting program pertaining to providing
notification to neighboring states regarding the issuance of PSD
permits. Accordingly, we are proposing to conditionally approve the
aspect of New Hampshire's 1997 and 2006 PM2.5 NAAQS
infrastructure SIP submittals regarding provision of notification to
neighboring states of the issuance of PSD permits.
iii. 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
regulates 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. (See 57 FR 36606).
Since this date, 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 Pb, 2008 ozone, 2010 NO2, and
2010 SO2 NAAQS.
We are proposing to find that New Hampshire has met this set of
requirements of Section 110(a)(2)(C) for the 2008 Pb, 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS.
D. Section 110(a)(2)(D)--Interstate Transport
This section contains a comprehensive set of air quality management
elements pertaining to the transport of air pollution that states must
address. It covers the following 5 topics, categorized as sub-elements:
Sub-element 1, Contribute to nonattainment, and interference with
maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, Visibility
protection; Sub-element 4, Interstate pollution abatement; and Sub-
element 5, International pollution abatement. Sub-elements 1 through 3
above are found under section 110(a)(2)(D)(i) of the Act, and these
items are further categorized into the 4 prongs discussed below, 2 of
which are found within sub-element 1. Sub-elements 4 and 5 are found
under section 110(a)(2)(D)(ii) of the Act and include provisions
insuring compliance with sections 115 and 126
[[Page 42452]]
of the Act relating to interstate and international pollution
abatement.
i. Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to
Nonattainment (Prong 1) and Interfere With Maintenance of the NAAQS
(Prong 2)
With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the
physical properties of Pb prevent it from experiencing the same travel
or formation phenomena as PM2.5 or ozone. Specifically,
there is a sharp decrease in Pb concentrations as the distance from a
Pb source increases. Accordingly, although it may be possible for a
source in a state to emit Pb at a location and in such quantities that
contribute significantly to nonattainment in, or interference with
maintenance by, any other state, EPA anticipates that this would be a
rare situation (e.g., sources emitting large quantities of Pb in close
proximity to state boundaries). The 2011 Memo suggests that the
applicable interstate transport requirements of section
110(a)(2)(D)(i)(I) with respect to lead can be met through a state's
assessment as to whether or not emissions from Pb sources located in
close proximity to its borders have emissions that impact a neighboring
state such that they contribute significantly to nonattainment or
interfere with maintenance in that state.
New Hampshire's infrastructure SIP submission for the 2008 Pb NAAQS
notes that there are no sources of Pb emissions located in close
proximity to any of the state's borders with neighboring states.
Additionally, New Hampshire's submittal and the emissions data the
state collects from its sources indicate that there is no single source
of Pb, or group of sources, anywhere within the state that emits enough
Pb to cause ambient concentrations to approach the Pb NAAQS. Our review
of data within our National Emissions Inventory (NEI) database confirms
this, and therefore we propose that New Hampshire has met this set of
requirements related to section 110(a)(2)(D)(i)(I) for the 2008 Pb
NAAQS.
In today's rulemaking, EPA is not proposing to approve or
disapprove New Hampshire's compliance with section 110(a)(2)(D)(i)(I)
with respect to the 2008 ozone, 2010 NO2 and 2010
SO2 NAAQS, since New Hampshire's infrastructure SIPs for
these NAAQS do not include a submittal with respect to transport for
sub-element 1, prongs 1 and 2.
ii. Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include
provisions prohibiting any source or other type of emissions activity
in one state from interfering with measures required to prevent
significant deterioration of air quality in another state.
EPA notes that New Hampshire has satisfied the majority of the
applicable infrastructure SIP PSD requirements for the 2008 Pb, 2008
ozone, 2010 NO2, 2010 SO2 NAAQS, and the 1997 and
2006 PM2.5 NAAQS, but as detailed in the section of this
notice addressing section 110(a)(2)(C), we are conditionally approving
one element of the state's PSD program. We note that the proposed
actions in that section related to PSD are consistent with the proposed
actions related to PSD for section 110(a)(2)(D)(i)(II), and they are
reiterated below.
New Hampshire has submitted revisions to its PSD regulations that
are consistent with the EPA's requirements contained in the Phase 2
Rule, the 2008 NSR Rule, and the 2010 NSR Rule. EPA proposed approval
of a number of these SIP revisions on January 21, 2015, (see 80 FR
2860),\9\ and we will take final action on these revisions prior to, or
in conjunction with, finalizing our action on these infrastructure
requirements. Additionally, we proposed to conditionally approve an
aspect of this program relating to providing notification to
neighboring states of the issuance of PSD permits within a notice of
proposed rulemaking published on April 24, 2015. (See 80 FR 22957).
Therefore, in this rulemaking, we are proposing to approve all but one
of the applicable infrastructure SIP requirements for this sub-element
for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010
SO2 NAAQS, including the applicable PSD requirements
associated with the permitting of GHG emitting sources, and are
proposing to conditionally approve the remaining aspect of the state's
program relating to notification to neighboring states mentioned above.
Furthermore, we are also proposing to convert our prior conditional
approval for this infrastructure requirement for the 1997 and 2006
PM2.5 NAAQS (See 77 FR 63228, October 16, 2012) to an
approval, except for the aspect relating to notification to neighboring
states for which we are proposing a conditional approval.
---------------------------------------------------------------------------
\9\ Note that EPA subsequently proposed a conditional approval
of New Hampshire's PSD program due to a lack of a provision
requiring notification to neighboring states of the issuance of PSD
permits. See 80 FR 22957; April 24, 2015.
---------------------------------------------------------------------------
States also have an obligation to ensure that sources located in
nonattainment areas do not interfere with a neighboring state's PSD
program. One way that this requirement can be satisfied is through an
NNSR program consistent with the CAA that addresses any pollutants for
which there is a designated nonattainment area within the state.
EPA approved New Hampshire's NNSR regulations on July 27, 2001 (66
FR 39104). These 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. EPA proposes that New
Hampshire has met the requirements with respect to the prohibition of
interference with a neighboring state's PSD program for the 2008 Pb,
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS related
to section 110(a)(2)(D)(i)(II).
iii. Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection
(Prong 4)
With regard to the 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 Memo, the 2011
Memo, and 2013 Memo state that these requirements can be satisfied by
an approved SIP addressing reasonably attributable visibility
impairment, if required, or an approved SIP addressing regional haze.
New Hampshire's Regional Haze SIP was approved by EPA on August 22,
2012 (See 77 FR 50602). Accordingly, EPA proposes that New Hampshire
has met the visibility protection requirements of 110(a)(2)(D)(i)(II)
for the 2008 Pb NAAQS, 2008 ozone, 2010 NO2, and 2010
SO2 NAAQS.
iv. Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution
Abatement
One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain
adequate provisions requiring compliance with the applicable
requirements of 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
[[Page 42453]]
by new or modified sources. A lack of such a requirement in state rules
would be grounds for disapproval of this element.
As mentioned elsewhere in this notice, in a separate action we are
proposing to conditionally approve one element of New Hampshire's PSD
program pertaining to notification to neighboring states of the
issuance of PSD permits. Therefore, we propose to also conditionally
approve New Hampshire's compliance with the infrastructure SIP
requirements of section 126(a) with respect to the 2008 Pb, 2008 ozone,
2010 NO2, and 2010 SO2 NAAQS. New Hampshire has
no obligations under any other provision of section 126.\10\
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\10\ By letter dated August 22, 2013, EPA received a petition
from the town of Eliot, Maine, requesting that, pursuant to Section
126 of the CAA, a coal fired electric utility in New Hampshire be
required to lower its SO2 emissions. As of this time, EPA
is currently evaluating the merits of this petition.
---------------------------------------------------------------------------
v. Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution
Abatement
One portion of section 110(a)(2)(D)(ii) requires each SIP to
contain adequate provisions requiring compliance with the applicable
requirements of section 115 relating to international pollution
abatement. New Hampshire does not have any pending obligations under
section 115 for the 2008 Pb, 2008 ozone, 2010 NO2, or 2010
SO2 NAAQS. Therefore, EPA is proposing that New Hampshire
has met the applicable infrastructure SIP requirements of section
110(a)(2)(D)(ii) related to section 115 of the CAA (international
pollution abatement) for the 2008 Pb, 2008 ozone, 2010 NO2,
and 2010 SO2 NAAQS.
E. Section 110(a)(2)(E)--Adequate Resources
This section requires each state to provide for adequate personnel,
funding, and legal authority under state law to carry out its SIP, and
related issues. Additionally, Section 110(a)(2)(E)(ii) requires each
state to comply with the requirements with respect to state boards
under 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 adequate implementation of SIP obligations
with respect to relevant NAAQS. This sub-element, however, is
inapplicable 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 submittals, has
documented that its air agency has the requisite 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 NH-DES 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 has met the infrastructure SIP requirements
of this portion of section 110(a)(2)(E) with respect to the 2008 Pb,
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
New Hampshire has made several amendments to its Statutory
Authority since its statutes were submitted to EPA for approval in
1972. In its December 31, 2012 infrastructure SIP submittal for ozone,
New Hampshire submitted an updated amendment to the statutory authority
within Title I: The State and its Government: Chapter 21-O:11
Department of Environmental Services, Air Resources Council.
Additionally, within its September 13, 2013 infrastructure SIP
submittal for the 2010 SO2 NAAQS, New Hampshire included
updated amendments to its statutory authority within Title X: Public
Health, Chapter 125: Air Pollution Control, for incorporation into the
SIP, although it later withdrew section 125-C:15, Enforcement, within a
May 21, 2015 letter to EPA. The amendments we are proposing to approve
are included in the following table:
Table 1--New Hampshire Statutes Submitted for Incorporation Into the SIP
------------------------------------------------------------------------
------------------------------------------------------------------------
Title I--The State and its Government
Chapter 21-O: Department of Environmental Services Section 21-O:11 Air
Resources Council Effective September 19, 2010
------------------------------------------------------------------------
Title X: Public Health
Chapter 125-C: Air Pollution Control
------------------------------------------------------------------------
Section 125-C:1............... Declaration of Policy Effective July
and Purpose. 1, 1979.
Section 125-C:2............... Definitions........... Effective July
21, 2010.
Section 125-C:4............... Rulemaking Authority; Effective June
Subpoena Power. 21, 2010.
Section 125-C:6............... Powers and Duties of Effective June
the Commissioner. 21, 2010.
Section 125-C:8............... Administration of Effective July
Chapter; Delegation 1, 1996.
of Duties.
Section 125-C:9............... Authority of the Effective July
Commissioner in Cases 1, 1996.
of Emergency.
Section 125-C:10.............. Devices Contributing Effective August
to Air Pollution. 9, 1996.
Section 125-C:10-a............ Municipal Waste Effective
Combustion Units. January 1,
2006.
Section 125-C:11.............. Permit Required....... Effective June
21, 2010.
Section 125-C:12.............. Administrative Effective June
Requirements.. 18, 2012.
Section 125-C:13.............. Criteria for Denial; Effective June
Suspension or 21, 2010.
Revocation;
Modification.
Section 125-C:14.............. Rehearings and Appeals Effective July
1, 1996.
Section 125-C:18.............. Existing Remedies Effective July
Unimpaired. 1, 1979.
Section 125-C:19.............. Protection of Powers.. Effective July
1, 1996.
Section 125-C:21.............. Severability.......... Effective August
16, 1981.
------------------------------------------------------------------------
[[Page 42454]]
Title X: Public Health
Chapter 125-O: Multiple Pollutant Reduction Program
------------------------------------------------------------------------
Section 125-O:1............... Findings and Purpose.. Effective July
1, 2002.
Section 125-O:3............... Integrated Power Plant Effective
Strategy. January 1,
2013.
------------------------------------------------------------------------
EPA proposes to approve these statutes into the SIP, and also
proposes that upon final approval of these statutes into the SIP, New
Hampshire will have demonstrated that it has met the infrastructure SIP
requirements for this section of 110(a)(2)(E) for the 2008 Pb, 2008
ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
Section 110(a)(2)(E) also 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: (i) That any
board or body which approves permits or enforcement orders under this
chapter shall have at least a majority of members who represent the
public interest and do not derive any significant portion of their
income from persons subject to permits and enforcement orders under
this chapter, and (ii) that any potential conflicts of interest by
members of such board or body or the head of an executive agency with
similar powers be adequately disclosed.
Of relevance within New Hampshire, RSA 21-O:11, Air Resources
Council, establishes the New Hampshire Air Resources Council, a state
board that has the authority to hear enforcement and permit appeals.
The Council consists of 11 members, 6 of whom must represent the public
interest. 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.'' New Hampshire RSA 21-0:11 further provides
that ``[a]ll potential conflicts of interest shall be adequately
disclosed.''
EPA's review of New Hampshire's infrastructure SIP submissions has
raised one issue that warrants further evaluation. Section 128(a)(2)
requires that a state's SIP provide for adequate disclosure of
conflicts of interest by ``members of such board or body or the head of
an executive agency with similar powers.'' The use of the disjunctive
``or'' between ``board or body'' and ``head of an executive agency''
results in ambiguity concerning whether merely one or both of these
parties must disclose conflicts of interest, and if it is only one of
these entities, which one? This ambiguity is relevant in the case of
the submission from New Hampshire because under state law included
within such submission, only the members of the Air Resources Council
are required to disclose conflicts of interest, not the head of the
executive agency. In order to determine whether this is sufficient for
purposes of meeting the requirements of section 128(a)(2), we have
evaluated the statutory language more closely.
First, the term ``or'' can be interpreted as ``one or the other,
but not necessarily both,'' or it can be interpreted as ``and.''
Although the word ``or'' could be read to mean ``and'' in some
circumstances, we believe that, in this instance, it is appropriate to
give the word ``or'' its most straightforward meaning. In isolation, it
could seem unreasonable to give ``or'' the first meaning, as that would
allow a state to require adequate disclosure of conflict of interest by
either the members of the state board or the head of an agency, without
regard to whether that disclosure requirement applies to the entity
that makes the final permit or enforcement order decision. To read
section 128(a)(2) to require disclosure by the entity that is not the
actual final decisionmaker appears logically inconsistent and contrary
to the overall purposes of section 128. EPA believes that the purpose
of section 128(a)(2) is to assure that conflicts of interest are
disclosed by the entity making the permit or enforcement order
decision, and requiring this of the ultimate decisionmaker rather than
other parties that may be involved in the process.
As discussed above, under New Hampshire law pertaining to the Air
Resources Council, ``[a]ll potential conflicts of interest shall be
adequately disclosed.'' Under the structure of the State's program, the
Commissioner makes certain decisions such as the issuance of air
permits and enforcement orders. However, under state law these permits
and enforcement orders issued by the Commissioner can be appealed to
the Air Resources Council in an adjudicative proceeding. RSA 21-O:11,
IV; RSA 21-O:14, I. Given this division of authority in the State, we
believe that the Air Resources Council is functionally the final
decisionmaker with respect to permits and enforcement orders in New
Hampshire, and thus the disclosure of conflicts of interest by members
of the Council is necessary to meet the requirements of section
128(a)(2). Naturally, a state may elect to require disclosure of
conflicts of interest by other state officials and employees as well,
and this would be fully consistent with the explicit reservation of
authority for states to impose more stringent requirements than those
imposed by section 128.
For the foregoing reasons, the EPA believes that New Hampshire's
infrastructure SIP submittals contain provisions that meet the
requirements of section 128(a)(1) and section 128(a). Accordingly, we
are proposing approval of the infrastructure SIP submissions as meeting
the requirements of section 128.
New Hampshire submitted RSA 21-O:11, Air Resources Council, for
incorporation into the SIP on December 31, 2012, and we are proposing
to approve it into the New Hampshire SIP. Upon approval of RSA 21-O:11
into the SIP, EPA proposes that New Hampshire has met the applicable
infrastructure SIP requirements for this section of 110(a)(2)(E) for
the 2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2
NAAQS. In addition, EPA previously issued a conditional approval to New
Hampshire for this infrastructure requirement for the 1997 and 2006
PM2.5 NAAQS. See 77 FR 63228. This conditional approval
occurred prior to New Hampshire's SIP submittal of RSA 21-0:11 to EPA,
which occurred on December 31, 2012. Given that New Hampshire has now
addressed this issue, we are also proposing to convert the prior
conditional approval for this infrastructure requirement for the 1997
and 2006 PM2.5 NAAQS (see 77 FR 63228) to full approval.
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
[[Page 42455]]
installation, maintenance, and replacement of equipment, and the
implementation of other necessary steps, by owners or operators of
stationary sources to monitor emissions from such sources. The state
plan shall also require periodic reports on the nature and amounts of
emissions and emissions-related data from such sources, and correlation
of such reports by each state agency with any emission limitations or
standards established pursuant to this chapter. Lastly, the reports
shall be available at reasonable times for public inspection.
New Hampshire RSA 125-C:6, Powers and Duties of the Commissioner,
authorizes the Commissioner of NH-DES 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. NH-DES 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 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. EPA, therefore, proposes that New Hampshire
has met the infrastructure SIP requirements of section 110(a)(2)(F)
with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010
SO2 NAAQS.
G. Section 110(a)(2)(G)--Emergency Powers
This section requires that a plan provide for authority that is
analogous to what is provided 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 submittals and certain
state statutes provide for authority comparable to that in section 303.
New Hampshire's submittals specify that RSA 125-C:9, Authority of the
Commissioner in Cases of Emergency, authorizes the Commissioner of NH-
DES, 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. 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.''
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 Web site 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 communication requirements
of 40 CFR 51.152.
Section 110(a)(2)(G) also requires that, for any NAAQS, except
lead, 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. 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. The entire state of New
Hampshire is classified as Priority III for ozone, nitrogen dioxide,
and carbon monoxide.
With regard to ozone, however, we note that New Hampshire's
December 31, 2012 infrastructure SIP submittal for the 2008 ozone NAAQS
contends that it is a Priority I region for ozone, although as
mentioned above each AQCR in the state is listed as Priority III for
ozone within 40 CFR 52.1521. New Hampshire's submittal cites air
quality monitoring data to substantiate its view.
EPA's last update to the priority classifications for New Hampshire
occurred in 1972. See 37 FR 10879, May 31, 1972. As noted above, New
Hampshire's submittal, and a supplement to that submittal made on May
21, 2015, cite more recent ozone air quality data. This information
indicates that the proper ozone classification for the New Hampshire
portion of the Merrimack Valley--Southern New Hampshire Interstate AQCR
would be Priority I. Therefore, we are proposing to revise New
Hampshire's priority classification for the Merrimack Valley--Southern
New Hampshire Interstate AQCR from Priority III to Priority I for
ozone. This reclassification triggers the contingency plan obligation
requirement of 40 CFR 51.151, but New Hampshire's submittal requests,
pursuant to 40 CFR 51.152(d)(1), an exemption from the contingency plan
obligation because the state is designated as unclassifiable/attainment
for the 2008 ozone standard. In accordance with 40 CFR 51.152(d), we
are proposing to grant New Hampshire's request for an exemption from
the contingency obligation in light of the state being designated as
unclassifiable/attainment for the 2008 ozone NAAQS. See 40 CFR 81.330.
Additionally, as documented within the state's submittal, we note that
recent air monitoring data have not come close to the significant harm
level for ozone of 0.6 parts per million (ppm) on a 2-hour average, and
the state has only exceeded 0.1 ppm on three occasions in the 2012-2014
timeframe. See 40 CFR 51.151.
Regarding SO2, the Androscoggin Valley Interstate AQCR
is classified as
[[Page 42456]]
Priority IA, the Merrimack Valley-Southern New Hampshire Interstate
AQCR is classified as Priority I, and the Central New Hampshire
Interstate AQCR is classified as Priority III. However, these
classifications were made in 1972 when SO2 emissions in New
Hampshire were significantly higher than they are today. As emission
levels change, states are encouraged to periodically evaluate the
priority classifications and propose changes to the classifications
based on the three most recent years of air quality data. See 40 CFR
51.153.
In its September 13, 2013 infrastructure SIP submittal for the 2010
SO2 NAAQS, New Hampshire provided air quality data for
SO2 from 2005-2012. New Hampshire supplemented this with
more recent data in a letter dated May 21, 2015. In this letter, New
Hampshire requested the entire state be re-classified as Priority III
for SO2 based on the air quality data from 2012-2014. New
Hampshire's SO2 monitoring program is focused on the more
populous and more industrial southern portion of the state represented
by the Merrimack Valley--Southern New Hampshire area, and there are
currently no SO2 monitors in the more northerly Central New
Hampshire Intrastate and Androscoggin Valley Interstate AQCRs. EPA has
reviewed the SO2 monitoring data, which the state has
certified, and agrees that the SO2 levels are significantly
below the threshold of a Priority I, IA, or II level.
The Public Service Company of New Hampshire's (PSNH's) Merrimack
Station, a large coal-fired electric utility located in Bow, has
historically been the largest SO2 emitter in the Merrimack
Valley--Southern New Hampshire AQCR, and also in the state, by a wide
margin. By 2012, however, the facility had installed and begun
operating an air pollution control device for this pollutant. In 2011,
the last year that Merrimack Station's SO2 emissions were
essentially uncontrolled, the facility emitted 22,393 tons of
SO2. For context, the next largest SO2 emitter
that year in the entire state was PSNH's Schiller Station, which
emitted 1,708 tons of SO2. The requirement for operation of
SO2 controls at Merrimack Station are contained within
Permit TP-0008. This permit was submitted to EPA and we have approved
it into the SIP. See 77 FR 50602, August 22, 2012. Since installation
of the control equipment, Merrimack Station's SO2 emissions
have fallen considerably, registering 1,004 tons in 2012, and 1,400
tons in 2013, and 1,044 tons in 2014. The ambient SO2 air
monitoring data submitted by NH-DES within their May 21, 2015
correspondence for the years 2012-2014 have also declined considerably
when compared to data recorded for prior time periods.
As mentioned above, New Hampshire's SO2 monitoring
network is focused on the more populous and more industrial southern
part of the state represented by the Merrimack Valley--Southern New
Hampshire AQCR. Based on our review of the monitoring data for this
area, we propose to reclassify the New Hampshire portion of the
Merrimack Valley--Southern New Hampshire Interstate AQCR to Priority
III for SO2. The more northerly AQCRs are much less likely
to experience high SO2 levels due to their lower population
and lesser industrial base, and based on the low amounts of
SO2 emitted by sources in these areas. For example, the most
recent 3 year cycle emissions inventory data contained within EPA's
National Emissions Inventory database is for 2011, and for New
Hampshire the data indicate that approximately 95% of the state's
SO2 emissions occur in the counties within the Merrimack
Valley--Southern New Hampshire AQCR. Given that the monitoring data in
the New Hampshire portion of the Merrimack Valley--Southern New
Hampshire AQCR indicate that the appropriate classification for this
region is Priority III, and given that the preponderance of
SO2 emissions occur in this region, we also propose to grant
New Hampshire's request that the state's portion of the Androscoggin
Valley Interstate AQCR also be reclassified to Priority III for
SO2. Accordingly, a contingency plan for SO2 is
not required. See 40 CFR 51.152(c).
EPA proposes that New Hampshire has met the applicable
infrastructure SIP requirements for this portion of section
110(a)(2)(G) with respect to the 2008 Pb NAAQS, 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS.
H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires states to have the authority to revise their
SIPs in response to changes in the NAAQS, availability of improved
methods for attaining the NAAQS, or an EPA finding that the SIP is
substantially inadequate.
New Hampshire RSA 125-C:6, Powers and Duties of the Commissioner,
provides that the Commissioner of NH-DES 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 (see
67 FR 65710) provides for public hearings for SIP revision requests
prior to their submittal to EPA. EPA proposes that New Hampshire has
met the infrastructure SIP requirements of CAA section 110(a)(2)(H)
with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010
SO2 NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions
Under Part D
The CAA requires that each plan or plan revision for an area
designated as a nonattainment area meet the applicable requirements of
part D of the CAA. Part D relates to nonattainment areas. EPA has
determined that section 110(a)(2)(I) is not applicable to the
infrastructure SIP process. Instead, EPA takes action on part D
attainment plans through separate processes.
J. Section 110(a)(2)(J)--Consultation with Government Officials; Public
Notifications; PSD; Visibility Protection
The evaluation of the submissions from New Hampshire with respect
to the requirements of CAA section 110(a)(2)(J) are described below.
i. Sub-Element 1: Consultation With Government Officials
States must provide a process for consultation with local
governments and Federal Land Managers (FLMs) carrying out NAAQS
implementation requirements.
New Hampshire RSA 125-C:6 Powers and Duties of the Commissioner,
authorizes the Commissioner of NH-DES 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. Additionally, 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 NH DES to notify town officials,
regional planning agencies, and FLMs, among others, of the receipt of
certain permit applications and the NH DES' preliminary determination
to issue, amend, or deny such permits. Therefore, EPA proposes that New
Hampshire has met the infrastructure SIP requirements of this portion
of section 110(a)(2)(J) with respect to the 2008 Pb, 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS.
ii. Sub-Element 2: Public Notification
Section 110(a)(2)(J) also requires states to notify the public if
NAAQS are
[[Page 42457]]
exceeded in an area and must enhance public awareness of measures that
can be taken to prevent exceedances.
As part of the fulfillment of RSA 125-C:6, Powers and Duties of the
Commissioner, New Hampshire issues press releases and posts warnings on
its Web site advising people what they can do to help prevent NAAQS
exceedances and avoid adverse health effects on poor air quality days.
New Hampshire is also an active partner in EPA's AIRNOW and Enviroflash
air quality alert programs. EPA proposes that New Hampshire has met the
infrastructure SIP requirements of this portion of section 110(a)(2)(J)
with respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010
SO2 NAAQS.
iii. Sub-Element 3: PSD
States must meet applicable requirements of section 110(a)(2)(C)
related to PSD. New Hampshire's PSD program in the context of
infrastructure SIPs has already been discussed in the paragraphs
addressing section 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes
that the proposed actions for those sections are consistent with the
proposed actions for this portion of section 110(a)(2)(J). Our proposed
actions are reiterated below.
New Hampshire's PSD regulations are consistent with the EPA's
requirements regarding this sub-element with the exception of the
notification to neighboring states provision. Therefore, we are
proposing that New Hampshire has met the applicable infrastructure SIP
requirements for the 2008 Pb, 2008 ozone, 2010 NO2, and 2010
SO2 NAAQS as they relate to the requirements obligated by
EPA's PSD regulations, with the exception of the notification to
neighboring states provision, for which we are proposing a conditional
approval. In addition, EPA previously issued a conditional approval to
New Hampshire for this infrastructure requirement for the 1997 and 2006
PM2.5 NAAQS. See 77 FR 63228, October 16, 2012. This
conditional approval occurred prior to New Hampshire's submittal of its
November 15, 2012 PSD program SIP revision. Given that we have now
proposed approval of New Hampshire's SIP revision with respect to the
2008 and 2010 NSR rules, we are also proposing to convert the prior
conditional approval for this infrastructure requirement for the 1997
and 2006 PM2.5 NAAQS to approval. However, in this action we
are also proposing to conditionally approve this sub-element for the
1997 and 2006 PM2.5 NAAQS with respect to the notification
to neighboring states issue previously mentioned.
iv. 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, 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 infrastructure SIPs for the
2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2
NAAQS.
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
To satisfy element K, the state air agency must demonstrate that it
has the authority to perform air quality modeling to predict effects on
air quality of emissions of any NAAQS pollutant and submission of such
data to EPA upon request.
Pursuant to the authority granted to the Commissioner of NH-DES in
RSA 125-C:6, New Hampshire reviews the potential impact of major
sources consistent with 40 CFR part 51, appendix W, ``Guidelines on Air
Quality Models.'' The modeling data are sent 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 State Implementation
Plan, RSA 125-C, RSA 125-I, and any rules adopted thereunder. The state
also collaborates with the Ozone Transport Commission (OTC), the Mid-
Atlantic Regional Air Management Association, and EPA in order to
perform large scale urban airshed modeling. EPA proposes that New
Hampshire has met the infrastructure SIP requirements of section
110(a)(2)(K) with respect to the 2008 Pb, 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS.
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 cost 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. EPA proposes that New Hampshire has met the infrastructure SIP
requirements of section 110(a)(2)(L) for the 2008 Pb, 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
Pursuant to element M, states must consult with, and allow
participation from, local political subdivisions affected by the SIP.
As previously mentioned, Chapter Env-A 200, 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 all SIP-related actions. Additionally, RSA 125-C:6, Powers
and Duties of the Commissioner, provides that the Commissioner shall
consult 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 has
met the infrastructure SIP requirements of section 110(a)(2)(M) with
respect to the 2008 Pb, 2008 ozone, 2010 NO2, and 2010
SO2 NAAQS.
V. What action is EPA taking?
EPA is proposing to approve SIP submissions from New Hampshire
certifying that its current SIP is sufficient to meet the required
infrastructure elements under sections 110(a)(1) and (2) for the 2008
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS,
with the exception of certain aspects relating to PSD which we are
proposing to conditionally approve. EPA's proposed actions regarding
these infrastructure SIP requirements are contained in Table 2 below.
[[Page 42458]]
Table 2--Proposed Action on NH Infrastructure SIP Submittals for Various
NAAQS
------------------------------------------------------------------------
2008
Element 2008 Pb Ozone 2010 NO2 2010 SO2
------------------------------------------------------------------------
(A): Emission limits and other A A A A
control measures.
(B): Ambient air quality A A A A
monitoring and data system.
(C)(i): Enforcement of SIP A A A A
measures.
(C)(ii): PSD program for major A* A* A* A*
sources and major
modifications.
(C)(iii): Permitting program A A A A
for minor sources and minor
modifications.
(D)(i)(I): Contribute to A NS NS NS
nonattainment/interfere with
maintenance of NAAQS (prongs 1
and 2).
(D)(i)(II): PSD (prong 3)...... A* A* A* A*
(D)(i)(II): Visibility A A A A
Protection (prong 4).
(D)(ii): Interstate Pollution A* A* A* A*
Abatement.
(D)(ii): International A A A A
Pollution Abatement.
(E)(i): Adequate resources..... A A A A
(E)(ii): State boards.......... A A A A
(E)(iii): Necessary assurances NA NA NA NA
with respect to local agencies.
(F): Stationary source A A A A
monitoring system.
(G): Emergency power........... A A A A
(H): Future SIP revisions...... A A A A
(I): Nonattainment area plan or + + + +
plan revisions under part D.
(J)(i): Consultation with A A A A
government officials.
(J)(ii): Public notification... A A A A
(J)(iii): PSD.................. A* A* A* A*
(J)(iv): Visibility protection. + + + +
(K): Air quality modeling and A A A A
data.
(L): Permitting fees........... A A A A
(M): Consultation and A A A A
participation by affected
local entities.
------------------------------------------------------------------------
In the above table, the key is as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
A...................................... Approve
A*..................................... Approve, but conditionally
approve aspect of PSD program
relating to notification to
neighboring states
+...................................... Not germane to infrastructure
SIPs
NS..................................... No Submittal
NA..................................... Not applicable
------------------------------------------------------------------------
Also, with respect to the 1997 and 2006 PM2.5 NAAQS, EPA
is proposing to approve that New Hampshire has met the infrastructure
SIP requirements pertaining to elements (A) and (E)(ii), and the PSD
elements (C)(ii), (D)(i)(II)(prong 3), and (J)(iii) for which a
conditional approval was previously issued. See 77 FR 63228. As
discussed in detail above, New Hampshire has since met the conditions
outlined in that action. Furthermore, in keeping with our recently
proposed conditional approval of the New Hampshire PSD program with
respect to the requirement that neighboring states be notified of the
issuance of a PSD permit by New Hampshire DES (80 FR 22957), we are
also proposing a conditional approval for elements (C)(ii),
(D)(i)(II)(prong 3) and (J)(iii) for the 1997 and 2006 PM2.5
NAAQS, with respect to the requirement to notify neighboring states.
In addition, we are proposing to incorporate into the New Hampshire
SIP the following New Hampshire statutes which were included for
approval in New Hampshire's infrastructure SIP submittals:
Title I, The State and Its Government, Chapter 21-O: Department of
Environmental Services, Section 21-O:11, Air Resources Council.
Title X Public Health, Chapter 125-C Air Pollution Control, Section
125-C:1--Declaration of Policy and Purpose; Section 125-C:2--
Definitions; Section 125-C:4--Rulemaking Authority; Subpoena Power;
Section 125-C:6--Powers and Duties of the Commissioner; Section 125-
C:8--Administration of Chapter; Delegation of Duties; Section 125-C:9--
Authority of the Commissioner in Cases of Emergency; Section 125-C:10--
Devices Contributing to Air Pollution; Section 125-C:10a--Municipal
Waste Combustion Units; Section 125-C:11--Permit Required; Section 125-
C:12--Administrative Requirements; Section 125-C:13--Criteria for
Denial; Suspension or Revocation; Modification; Section 125-C:14--
Rehearings and Appeals; Section 125-C:18--Existing Remedies Unimpaired;
Section 125-C:19--Protection of Powers; and Section 125-C:21--
Severability.
Title X Public Health, Chapter 125-O: Multiple Pollutant Reduction
Program, Section 125-O:1--Findings and Purpose; and Section 125-O:3--
Integrated Power Plant Strategy.
Additionally, we are proposing to update the 40 CFR 52.1521
classifications for several of New Hampshire's air quality control
regions for ozone and sulfur dioxide based on recent air quality
monitoring data collected by the state, and to grant the state's
request for an exemption from the infrastructure SIP contingency plan
obligation for ozone.
As noted in Table 2, we are proposing to conditionally approve one
portion of New Hampshire's infrastructure SIP submittals pertaining to
the state's PSD program. The outstanding issues with the PSD program
concern the lack of a requirement that neighboring states be notified
of the issuance of a PSD permit by the New Hampshire Department of
Environmental Services. For this reason, EPA is proposing to
conditionally approve this portion of New Hampshire's infrastructure
SIP revisions for the 2008 lead, 2008 ozone, 2010 NO2, 2010
SO2, and the 1997 and 2006 PM2.5 NAAQS,
consistent with our proposed conditional approval of New Hampshire's
PSD program published in the Federal Register on April 24, 2015. See 80
FR 22957.
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 an
update to its PSD program that fully remedies the lack of notification
requirement mentioned above. If the State fails to do so, this action
will become a disapproval one year from the
[[Page 42459]]
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 new submittal. If
EPA disapproves the new submittal, the conditionally approved
infrastructure SIP elements will also be disapproved at that time. In
addition, a final disapproval would trigger the Federal Implementation
Plan (FIP) requirement under section 110(c). If EPA approves the new
submittal, the PSD program and relevant infrastructure SIP elements
will be fully approved and replace the conditionally approved program
in the SIP.
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 written
comments to the EPA New England Regional Office listed in the ADDRESSES
section of this Federal Register, or by submitting comments
electronically, by mail, or through hand delivery/courier following the
directions in the ADDRESSES section of this Federal Register.
VI. Incorporation by Reference
In this rulemaking, the EPA is proposing to include in a final EPA
rule regulatory text that includes incorporation by reference. In
accordance with requirements of 1 CFR 51.5, the EPA is proposing to
incorporate by reference into the New Hampshire SIP the statutes
identified within Table 1 of this proposal. The EPA has made, and will
continue to make, these documents generally available electronically
through www.regulations.gov and/or in hard copy at the appropriate EPA
office (see the ADDRESSES section of this preamble for more
information).
VII. Statutory and Executive Order Reviews
Under the CAA, 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 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).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Sulfur Oxides, Reporting and recordkeeping
requirements.
Dated: July 1, 2015.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2015-17475 Filed 7-16-15; 8:45 am]
BILLING CODE 6560-50-P