[Federal Register Volume 81, Number 202 (Wednesday, October 19, 2016)]
[Rules and Regulations]
[Pages 71991-71997]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25145]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2016-0107; FRL-9954-13-Region 8]
Approval and Disapproval and Promulgation of Air Quality
Implementation Plans; Interstate Transport for Utah
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action on portions of six submissions from the State of Utah that are
intended to demonstrate that the State Implementation Plan (SIP) meets
certain interstate transport requirements of the Clean Air Act (Act or
CAA). These submissions address the 2006 and 2012 fine particulate
matter (PM2.5) National Ambient Air Quality Standards
(NAAQS), 2008 ozone NAAQS, 2008 lead (Pb) NAAQS, 2010 sulfur dioxide
(SO2) NAAQS and 2010 nitrogen dioxide (NO2)
NAAQS. The interstate transport requirements under the CAA consist of
four elements: Significant contribution to nonattainment (prong 1) and
interference with maintenance (prong 2) of the NAAQS in other states;
and interference with measures required to be included in the plan for
other states to prevent significant deterioration of air quality (prong
3) or to protect visibility (prong 4). Specifically, the EPA is
approving interstate transport prongs 1, 2 and 4 for the 2008 Pb NAAQS,
approving prong 4 for the 2010 SO2 NAAQS, disapproving prong
4 for the 2006 PM2.5, 2008 ozone, 2010 NO2 and
2012 PM2.5 NAAQS, and disapproving prong 2 for the 2008
ozone NAAQS.
DATES: This final rule is effective on November 18, 2016.
ADDRESSES: EPA has established a docket for this action under Docket
Identification Number EPA-R08-OAR-2016-0107. All documents in the
docket are listed on the http://www.regulations.gov index. Although
listed in the index, some information may not be publicly available,
e.g., Confidential Business Information 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
through http://www.regulations.gov or in hard copy at the Air Program,
Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street,
Denver, Colorado 80202-1129. The EPA requests that you contact the
individual listed in the FOR FURTHER INFORMATION CONTACT section to
view the hard copy of the docket. You may view the hard copy of the
docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal
holidays.
FOR FURTHER INFORMATION CONTACT: Adam Clark, Air Program, U.S.
Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595
Wynkoop, Denver, Colorado 80202-1129, (303) 312-7104,
[email protected].
I. Background
On May 10, 2016, the EPA proposed action on two submittals from
Utah for the interstate transport requirements of CAA section
110(a)(2)(D)(i)(I) for the 2008 Pb and 2008 ozone NAAQS. 81 FR 28807.
An explanation of the CAA requirements, a detailed analysis of the
state's submittals, and the EPA's rationale for approval of a portion
of the 2008 Pb submittal and disapproval of a portion of the 2008 ozone
submittal were all provided in the notice of proposed rulemaking, and
will not be restated here. The public comment period for this proposed
rule ended on June 9, 2016. The EPA received four comments on the
proposal, which will be addressed in the ``Response to Comments''
section, below.
In the May 10, 2016 proposed action, the EPA proposed to disapprove
the Utah SIP for prongs 1 and 2 of CAA section 110(a)(2)(D)(i)(I) for
the 2008 ozone NAAQS. In that document, the EPA cited to air quality
modeling conducted to support the promulgation of an update to the
Cross-State Air Pollution Rule to address interstate transport with
respect to the 2008 ozone NAAQS (CSAPR Update). The air quality
modeling (1) identified locations in the U.S. where the EPA anticipates
nonattainment or maintenance issues in 2017 for the 2008 ozone NAAQS
(these are identified as nonattainment and maintenance receptors), and
(2) quantified the projected contributions from emissions from upwind
states to downwind ozone concentrations at the nonattainment and
maintenance receptors in 2017. The document also
[[Page 71992]]
proposed to apply an air quality threshold of one percent of the NAAQS,
equivalent to 0.75 ppb with respect to the 2008 ozone NAAQS, to
determine whether a state was ``linked'' to an identified downwind air
quality problem in another state such that the upwind state may
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS in the downwind state. The proposal modeling data showed
that emissions from Utah contribute above the one percent threshold to
two identified maintenance receptors and one nonattainment receptor in
the Denver, Colorado area. Accordingly, as the Utah Department of
Environmental Quality (UDEQ) did not provide technical analysis to
support the State's conclusion that emissions originating in Utah do
not significantly contribute to nonattainment or interfere with
maintenance of the 2008 ozone NAAQS in any other state, the EPA
proposed to disapprove the Utah SIP as to prongs 1 and 2 of CAA section
110(a)(2)(D)(i)(I).
On September 7, 2016, the EPA promulgated a final CSAPR Update,
which included updated modeling data that reflected responses to
comments received in the context of the CSAPR Update rulemaking.\1\ The
updated modeling projects three maintenance receptors in the Denver,
Colorado area, but it does not project any nonattainment receptors in
that area. Table 1 summarizes the air quality modeling results from the
updated modeling conducted to support the final CSAPR Update relative
to Utah. The modeling continues to indicate that Utah contributes
emissions above the one percent threshold of 0.75 ppb with respect to 3
maintenance receptors in the Denver, Colorado area, confirming the data
cited at proposal.
---------------------------------------------------------------------------
\1\ A pre-publication version of the final CSAPR Update
rulemaking can be found in the docket for this action, and is
available at https://www3.epa.gov/airmarkets/CSAPRU/Cross-State%20Air%20Pollution%20Rule%20Update%20for%20the%202008%20Ozone%20NAAQS%202060%20AS05%20FRM.pdf (Federal Register publication
pending).
Table 1--Maintenance Receptors With Utah Contribution Modeled Above 1%
----------------------------------------------------------------------------------------------------------------
Utah modeled
Monitor I.D. State County contribution
(ppb)
----------------------------------------------------------------------------------------------------------------
80590006................................ Colorado.................. Jefferson................. 1.03
80590011................................ Colorado.................. Jefferson................. 1.17
80350004................................ Colorado.................. Douglas................... 1.63
----------------------------------------------------------------------------------------------------------------
Since the updated modeling continues to indicate that the
contributions from Utah are above the one percent threshold of 0.75 ppb
with respect to maintenance receptors in the Denver, Colorado area, and
because the State has not otherwise provided a technical analysis which
demonstrates that its SIP contains adequate provisions prohibiting
emissions that will interfere with maintenance of the 2008 ozone NAAQS
in any other state, the EPA is finalizing a disapproval of the Utah SIP
with respect to the prong 2 requirements of CAA section
110(a)(2)(D)(i)(I) as to the 2008 ozone NAAQS.
Based on this new technical information showing that there are no
longer any projected 2017 nonattainment receptors in the Denver,
Colorado area or any other state to which Utah contributes at or above
the one percent threshold, the EPA is not finalizing the proposed
disapproval with respect to prong 1 of CAA section 110(a)(2)(D)(i)(I)
as to the 2008 ozone NAAQS, as the proposed disapproval was based on in
part on the EPA's August 4, 2015 Notice of Data Availability (NODA)
modeling of a projected nonattainment receptor in Denver, Colorado. 80
FR 46271. The EPA will address the prong 1 requirements in a separate,
subsequent rulemaking.
On August 1, 2016, the EPA proposed action on six submittals from
Utah for the visibility-related interstate transport requirements of
CAA section 110(a)(2)(D)(i)(II) prong 4. 81 FR 50430. An explanation of
the CAA requirements, a detailed analysis of the state's submittals,
and the EPA's rationale for approval of portions of the 2008 Pb and
2010 SO2 submittals and disapproval of portions of the 2006
and 2012 PM2.5, 2008 ozone and 2010 NO2
submittals were all provided in the notice of proposed rulemaking, and
will not be restated here. The public comment period for this proposed
rule ended on August 31, 2016. The EPA did not receive any comments on
this proposed action.
II. Response to Comments
Comment: Commenters UDEQ and the Wyoming Department of
Environmental Quality (WDEQ) asserted that the CSAPR Update rulemaking
was developed and promulgated for eastern states, and should not apply
to western states. UDEQ stated that the EPA acknowledged in the CSAPR
Update proposal that it will address contribution levels of western
states like Utah on a case-by-case basis. 80 FR 75706, 75708 through
75709, December 3, 2015. The commenters contend that the EPA should
consider other factors beyond those considered in developing the CSAPR
Update.
UDEQ asserted that there are higher naturally occurring levels of
background ozone in the west,\2\ specifically citing the EPA's draft
Regulatory Impact Analysis for the proposed 2015 ozone NAAQS
rulemaking, contending that ``background ozone is a relatively large
percentage (e.g. 70-80%) of the total seasonal mean ozone in locations
in the intermountain western United States.'' \3\ The commenter
contends that background ozone levels in Utah and Colorado must be
taken into consideration when evaluating nonattainment areas within the
state borders and the impact that they have on intermountain downwind
states.
---------------------------------------------------------------------------
\2\ See National Ambient Air Quality Standards for Ozone, 79 FR
75234, 75382 (December 17, 2014) (proposed rule).
\3\ EPA's draft Regulatory Impact Analysis of the Proposed
Revisions to the National Ambient Air Quality Standards for Ozone p.
2-16.
---------------------------------------------------------------------------
Commenter WDEQ stated that the CSAPR modeling does not adequately
account for important regional differences between the east and the
west, including the unique topography, altitude, weather and wildfire
prevalence (including intensity and duration) in the western U.S. The
commenter asserted that the EPA did not provide a technical explanation
for how the model accounts for the differences between the eastern and
western U.S. with regard to these factors, and that such an analysis
should be conducted before the CSAPR modeling is applied to evaluate
[[Page 71993]]
interstate transport with respect to western states. The commenter
recommended that the EPA work with western states to ``make regional
adjustments and remove erroneous data from the CSAPR model.''
Response: The commenter does not provide any evidence or technical
basis for their claim about the inadequacies of the CSAPR Update
modeling for the western U.S. As described in the CSAPR Update Air
Quality Modeling Technical Support Document (AQM TSD), the CSAPR
modeling was performed for a nationwide domain that accounted for the
differences in emissions (including actual wild fires), meteorology,
and topography in various regions across the U.S. The AQM TSD includes
an evaluation of 2011 base year model performance for 8-hour daily
maximum concentrations on a regional and statewide basis as well as for
individual monitoring sites. For example, the performance evaluation
results for the region that includes Utah and Colorado indicate a mean
bias of less than 10 percent for 8-hour daily maximum predicted ozone
concentrations compared to the corresponding measured data. As
described more fully in the AQM TSD, the EPA's use of the CAMx source
apportionment modeling for the CSAPR Update is appropriate and the
Agency finds its use sufficient for the purposes of assessing and
identifying downwind air quality problems and contributions from upwind
states in both the eastern and the western U.S. \4\ The emissions
modeling TSD for the CSAPR Update final rule ``Preparation of Emission
Inventories for the version 6.3, 2011 Emissions Modeling Platform''
describes how fire emissions were developed and modeled using a
consistent approach for the contiguous U.S. As described earlier, the
most updated modeling continues to indicate that emissions from Utah
will interfere with maintenance of the 2008 ozone NAAQS at three
receptors in the Denver, Colorado area.
---------------------------------------------------------------------------
\4\ ``The EPA used CAMx photochemical source apportionment
modeling to quantify the impact of emissions in specific upwind
states on downwind nonattainment and maintenance receptors for 8-
hour ozone. CAMx employs enhanced source apportionment techniques
that track the formation and transport of ozone from specific
emissions sources and calculates the contribution of sources and
precursors to ozone for individual receptor locations. The strength
of the photochemical model source apportionment technique is that
all modeled ozone at a given receptor location in the modeling
domain is tracked back to specific sources of emissions and boundary
conditions to fully characterize culpable sources.'' 80 FR 75726,
December 3, 2015.
---------------------------------------------------------------------------
The EPA does not find the information provided by the commenters to
indicate flaws in the modeling conducted by the EPA. Rather, the
commenters point to factors which the CSAPR Update modeling
specifically took into account. For these reasons, the EPA disagrees
with these comments and finds the use of the CSAPR Update modeling to
evaluate Utah's contributions to interstate transport is reasonable and
supported.
The EPA did acknowledge in the proposed CSAPR Update that ``there
may be additional criteria to evaluate regarding collective
contribution of transported air pollution in the West,'' and that
``timeframe constrains the opportunity to conduct evaluations of
additional criteria'' in the context of that rulemaking. 80 FR 75709,
December 3, 2015. The commenters do not explain how the EPA's modeling
has allegedly failed to consider the other factors that they contend
should be taken into account. With respect to background
concentrations, UDEQ has not explained how it believes the EPA must
consider background ozone levels in evaluating interstate transport in
the west, nor has UDEQ cited any specific provision of the statute that
specifically requires such consideration. While the EPA does not view
the obligation under the good neighbor provision as a requirement for
upwind states to bear all of the burden for resolving downwind air
quality problems, both upwind and downwind states can take reasonable
steps to control emissions impacting downwind air quality even in areas
affected by high levels of background concentrations of ozone. Were the
EPA to absolve upwind states of the responsibility to make such
reasonable reductions, the area's citizens would suffer the health and
environmental consequences of such inaction.
Notably, in its comment letter, UDEQ agreed that a further
technical analysis was necessary to demonstrate that the state had
satisfied prongs 1 and 2 of CAA section 110(a)(2)(D)(i)(I), and the
State is in the process of developing such an analysis. The EPA will
review that additional analysis when it is submitted to the EPA in a
subsequent SIP submission.
Comment: Commenter Utility Air Regulatory Group (UARG) cites to
EPA's action to approve Arizona's SIP in spite of the CSAPR Update
modeling indicating that the state significantly contributed to
nonattainment at two California receptors. The commenter contends that
the EPA's differing actions on the Utah and Arizona SIPs amount to
developing policy about what transport criteria apply in western
states. The commenter asserted that the EPA's actions on these two SIPs
establish regulatory policy in a piecemeal fashion through separate,
case-by-case rulemakings, and that this practice leads to confusion and
uncertainty among state officials, the public, and the regulated
community. The commenter stated that the EPA should describe the
western transport criteria in a comprehensive rulemaking which includes
a rationale for selecting these criteria. The commenter asserted that
the EPA's failure to do so would deprived interested parties of an
opportunity to provide meaningful and comprehensive comments on this
issue.
Response: As described in the proposal for this action and in the
CSAPR Update, the EPA is assessing each of the western states transport
obligations on a case-by-case basis using the information available,
which includes information from the CSAPR Update modeling. The
rulemaking addressing the Arizona SIP explains, as the commenter notes,
why additional factors are relevant to evaluating Arizona's
contribution to other states, factors that are not similarly applicable
to Utah's contribution to the Denver receptors. Nothing in section
110(a)(2)(D)(i)(I) requires the EPA to establish criteria for
evaluating individual SIPs through a national rulemaking. See EPA v.
EME Homer City Generation, L.P., 134 S.Ct. 1584, 1601 (2014) (``nothing
in the statute places EPA under an obligation to provide specific
metrics to States before they undertake to fulfill their good neighbor
obligation''). As required by the CAA and Administrative Procedures
Act, the EPA clearly described its bases for disapproving the Utah SIP
in its proposal. Similarly, the EPA also described its bases for
approving the Arizona SIP in its proposal for that action. The public,
including the commenter, had an opportunity to provide meaningful and
comprehensive comments both on the Utah and Arizona actions, and
therefore the EPA disagrees that interested parties are deprived of an
opportunity to comment on issues relating to the EPA's analysis of
western transport.
Comment: Commenter WDEQ stated that the EPA did not provide an
explanation as to what technical analysis from the State of Utah would
have been sufficient. Another commenter (UARG), quoting language from
the CSAPR Update proposal (80 FR 75715, December 3, 2015), stated that
EPA should identify and explain the additional criteria that may be
relevant to the western states and whether it is necessary and
appropriate to also evaluate the same criteria with respect to eastern
states. The commenter
[[Page 71994]]
asserted that the EPA's failure to address this issue denied the public
a meaningful opportunity to comment on it.
Response: The Supreme Court has made clear that ``nothing in the
statute places EPA under an obligation to provide specific metrics to
States before they undertake to fulfill their good neighbor
obligation.'' EPA v. EME Homer City Generation, 134 S.Ct. at 1601.
Thus, the EPA does not agree that it is required to identify all
relevant criteria for evaluating SIPs before taking formal action on
the submissions. The Court explained that ``[t]he statute speaks
without reservation: Once a NAAQS has issued, a state `shall' propose a
SIP within three years, [40 U.S.C.] 7410(a)(1), and that SIP `shall'
include, among other components, provisions adequate to satisfy the
Good Neighbor Provision, [40 U.S.C.] 7410(a)(2).'' Id. It is therefore
the responsibility of the state to demonstrate that its SIP contains
provisions sufficient to meet the requirements of CAA section
110(a)(2)(D)(i)(I). A state can and should submit all of the technical
information it considers relevant to evaluate its contribution to
downwind air quality, including anticipated changes in the emissions
from sources within the state and any additional factors specific to
the state that influence its emissions and air pollution which may
transport to other states. As we noted at proposal and in this final
action, Utah has not submitted technical information or analysis which
leads the EPA to conclude that the state is not interfering with
maintenance of the NAAQS in other states, particularly in light of air
quality modeling demonstrating that emissions from Utah impact air
quality in Denver, Colorado. The basis for this conclusion was clearly
explained at proposal, and the EPA therefore does not agree that the
public did not have a meaningful opportunity to comment on the factors
relevant to the proposed disapproval of the Utah SIP submission.
Comments regarding the factors relevant to evaluation of interstate
transport with respect to eastern states are out of the scope of this
rulemaking and do not require a response.
Comment: Commenter UDEQ stated that Utah's contributions to Denver
are modest and other factors weigh against the conclusion of
significant contribution or interference with maintenance. UDEQ argued
that the one percent threshold should be a screening threshold that can
be overcome by empirical evidence. The commenter cited a proposed EPA
action on Idaho's SIP in which EPA Region 10 did not rely solely on
Idaho's contribution being below one percent in its action on that SIP,
but also considered Idaho's modeling data and analysis that reinforced
the EPA modeling results. 80 FR 66862, October 30, 2015. UDEQ argued
that the EPA should follow this and ``consider additional factors when
evaluating Utah's ozone infrastructure SIP.'' Commenter WDEQ claimed
that it is appropriate for western states to use a ``weight of
evidence'' approach, as was used in EPA Region 9's proposed action on
Arizona's 2008 ozone transport SIP. 81 FR 15200, March 22, 2016.
Response: The EPA encourages states to submit any relevant
information, such as that submitted by Idaho, to assist us in
evaluating a state's impact on downwind state's air quality and the
control requirements in order to determine whether a state's SIP is
approvable. The EPA agrees that it is appropriate to analyze all
information for western states and make a conclusion based on a weight
of the evidence, but the EPA has not received any such evidence from
UDEQ that is sufficient to alter our determination that Utah interferes
with maintenance at Denver area receptors.
The EPA notes that the one percent threshold as used in the CSAPR
rulemakings is in fact a screening threshold. States are not determined
to significantly contribute to nonattainment or interfere with
maintenance downwind merely because emissions from the state exceed the
one percent threshold. Rather, the threshold is used to identify those
states that are subject to further analysis to determine whether cost-
effective reductions are achievable from sources within the states. The
levels of such reductions quantify the amounts of emissions that
significantly contribute to nonattainment and interfere with
maintenance in other states. CSAPR Update, Final Rule, pre-publication
draft at 77-80. If UDEQ believes that the EPA should consider
additional factors with respect to its linkage to the Denver receptors,
it should identify those factors in its SIP submission. But as noted,
UDEQ did not provide any technical analysis in its SIP submission, and
to the extent additional factors have been identified in UDEQ's
comments, it did not explain how those factors should affect the EPA's
conclusion in this action. Without explaining how such factors should
impact EPA's analysis, the EPA does not agree that Utah's impacts on
the Denver receptors are modest, particularly considering emissions
from the State contribute as much as twice the one percent air quality
threshold, nor has the State offered any analysis to support this
conclusory statement.
The EPA also analyzed the State's submission and in the proposal
described deficiencies such as a lack of quantification of the included
emission reduction measures or evaluation of how such measures are
sufficient to address the State's contribution to nonattainment and
maintenance receptors in Denver, Colorado. The commenters here again
provide no information as to why the EPA's case-specific analysis of
Utah's SIP is incorrect.
Comment: Commenter UDEQ asserted that the one percent screening
threshold is arbitrary, stating that EPA only explains why it rejected
five percent and anything below one percent, but does not justify one
percent as opposed to two percent, which Utah meets. UDEQ argued that
this threshold has not been subject to sufficient scrutiny and comment
when applied to western states, and that the EPA has only determined
that the one percent threshold is appropriate for eastern states. 80 FR
66862-66863, October 30, 2015.
Response: As stated in the May 10, 2016 proposal for this final
action, the EPA believes contribution from an individual state equal to
or above one percent of the NAAQS could be considered significant where
the collective contribution of emissions from one or more upwind states
is responsible for a considerable portion of the downwind air quality
problem. The EPA's analysis has shown that the one percent threshold
captures a high percentage of the total pollution transport affecting
downwind states. 81 FR 28810, May 10, 2016. This threshold has been
used by the EPA in past transport actions including the original CSAPR
(76 FR 48208, August 8, 2011), and the EPA determined this threshold
was appropriate following the public comment process in those previous
rulemakings.
In the final CSAPR Update rulemaking, the EPA compiled the
contribution modeling results from the air quality modeling in order to
analyze the impact of different possible thresholds, and concluded that
the one percent threshold continues to be a reasonable means of
accounting for the combined impact of relatively small contributions
from many upwind states. See CSAPR Update, Final Rule, pre-publication
draft at 81-82; AQM TSD. For each of the ozone receptors identified in
the final CSAPR Update rule analysis, the EPA identified: (1) The total
upwind state contributions, and (2) the amount of the total upwind
[[Page 71995]]
state contribution that is captured at one percent, five percent, and
half (0.5) percent of the NAAQS. The EPA continues to find that the
total collective contribution from upwind states' sources represent a
significant portion of the ozone concentrations at downwind
nonattainment and maintenance receptor locations. This analysis shows
that the one percent threshold generally captures a substantial
percentage of the total pollution transport affecting downwind states
without also implicating states that contribute insignificant amounts.
Analysis of the data for the Denver receptors at issue in this
rulemaking results in the same conclusion. Use of a higher threshold
would result in a relatively large reduction in the overall percentage
of ozone pollution transport captured relative to the amounts captured
at the one percent level at the receptors. For example, none of the
transport from upwind states would be captured with a five percent
threshold.
Although UDEQ proposes that the EPA should instead use a two
percent threshold with respect to the Denver receptors, it has not
submitted additional information or analysis to assist the EPA in
determining whether there is an appropriate alternative contribution
threshold for Utah or western states generally. Rather, UDEQ's proposal
to use a two percent threshold appears to only be justified by the
conclusion that Utah would not have been linked to Denver receptors at
this level (the updated modeling indicates contribution to a
maintenance receptor above two percent: See Table 1 of this preamble).
Given the lack of relevant information or analysis submitted by the
State, and based on an analysis of EPA's own CAMx air quality modeling
data, the EPA continues to find that the one percent threshold is
appropriate to apply to identify upwind states linked to the Denver
receptors.
Comment: Commenter UDEQ asserted that the IPM model used to project
emissions for electric generating units is not precise. The commenter
supported this assertion by citing a comment from Louisiana Chemical
Association (LCA) on the NODA which stated the IPM model ``is simply
not accurate enough and is dependent upon too many uncertain
assumptions and imprecise inputs to make binding decisions of
`significant contribution' or `interference with maintenance' when
dealing with projections of ozone at part per billion level.'' UDEQ
argued that this model is imprecise and should therefore be subject to
``opportunity for rebuttal based on empirical evidence.''
Response: The EPA has addressed LCA's comment in the response to
comments document on the CSAPR Update proposal. In that document, we
noted that the D.C. Circuit Court has recognized the usefulness of
models despite the inherent uncertainty. In upholding the EPA's
approach to evaluating interstate transport in CSAPR, the D.C. Circuit
held that they would not ``invalidate EPA's predictions solely because
there might be discrepancies between those predictions and the real
world. That possibility is inherent in the enterprise of prediction.''
EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 135 (2015). The
court continued to note that ``the fact that a `model does not fit
every application perfectly is no criticism; a model is meant to
simplify reality in order to make it tractable.' '' Id. at 135-36
(quoting Chemical Manufacturers Association v. EPA, 28 F.3d 1259, 1264
(D.C. Cir. 1994).
The EPA has also provided thorough explanation as to how the
modeling conducted for the CSAPR Update was appropriate. As stated in
the final CSAPR Update, ``the EPA projected future 2017 baseline EGU
emissions using version 5.15 of the Integrated Planning Model (IPM)
(www.epa.gov/airmarkets/power-sector-modeling). IPM, developed by ICF
Consulting, is a state-of-the-art, peer-reviewed, multiregional,
dynamic, deterministic linear programming model of the contiguous U.S.
electric power sector. . . The model is designed to reflect electricity
markets as accurately as possible. The EPA uses the best available
information from utilities, industry experts, gas and coal market
experts, financial institutions, and government statistics as the basis
for the detailed power sector modeling in IPM.'' \5\ CSAPR Update,
Final Rule, pre-publication draft at 131.
---------------------------------------------------------------------------
\5\ Detailed information and documentation of the EPA's Base
Case, including all the underlying assumptions, data sources, and
architecture parameters can be found on the EPA's Web site at:
www.epa.gov/airmarkets/power-sector-modeling.
---------------------------------------------------------------------------
We have not received empirical evidence from the State to rebut our
conclusions as stated in the proposal for this final rulemaking.
Comment: Commenter UDEQ argued that the EPA's reliance on IPM
modeling is incorrect in Utah's case because this modeling used a 2011
emissions inventory that excluded certain enforceable reductions and
included Carbon plant emissions, though the facility is no longer in
operation.
Response: The EPA disagrees that the IPM modeling excluded certain
enforceable reductions and included Carbon plant emissions. The
shutdown of the Carbon power plant was accounted for in the CSAPR
Update modeling, and no emissions were modeled from the facility in the
2017 scenario. (See documents and EPA-HQ-OAR-2015-0500-0205 and EPA-HQ-
OAR-2015-0500-0014 in the docket for the CSAPR Update, or in the docket
for this rulemaking. These documents, respectively, are the NEEDS
database which defines the starting fleet in IPM and a unit level
comparison of emissions from point sources between the 2011 and 2017
inventories). As for the other enforceable reductions referenced by the
commenter, we cannot respond because the commenter has not provided
specific detail as to the reductions that were unaccounted for. The EPA
has encouraged and given the opportunity for states to submit
information with regard to any inconsistencies between ``on the books''
upcoming reductions and the emissions modeled for the CSAPR Update in
both that proposed rulemaking and in the August 4, 2015 NODA. 80 FR
46271, August 4, 2015.
Comment: Commenter UDEQ asserted that western states do not have
confidence in the way in which they can submit data for consideration
under the Exceptional Events Rule, which has not yet been finalized.
UDEQ stated that ``it will be difficult for the EPA to get an accurate
assessment of the responsibility that Utah and other western states
have to downwind states with regard to the 2008 ozone NAAQS as used in
CSAPR until the EPA releases a final rule on these revisions.''
Commenter insisted that finalization of this rulemaking will allow the
EPA to address data influenced by wildfires, stratospheric intrusions,
and abnormally high background ozone.
Response: The EPA agrees that the final Exceptional Events Rule
will assist states and the EPA in preparing and processing exceptional
events demonstrations for events, including wildfires, which contribute
to monitored ozone NAAQS exceedances or violations, if those events
meet the applicable criteria in the Exceptional Events Rule, including
(1) the event affected air quality; (2) the event was not reasonably
controllable or preventable; and (3) the event was caused by human
activity that is unlikely to recur at a particular location or was a
natural event. Exceptional Events Final Rule, pre-publication draft.\6\
Although the rule is intended to
[[Page 71996]]
streamline the exceptional events demonstration process, there is an
exceptional events rule and process currently in place. See 40 CFR
50.14. We have not received and failed to act on exceptional events
demonstrations from states that would impact the determination that
Utah interferes with maintenance at receptors in the Denver area.
---------------------------------------------------------------------------
\6\ See ``Treatment of Data Influenced by Exceptional Events,''
final rule, pre-publication draft as signed by EPA Administrator
Gina McCarthy on September 16, 2016.
---------------------------------------------------------------------------
The EPA disagrees with the comment's note that abnormally high
background ozone itself may qualify as an exceptional event. An
exceptional event must be defined by the source of its emissions. If
the underlying source is a natural event (e.g., wildfire) and the
emissions influence a regulatory monitor, then it can be considered for
exclusion under the Exceptional Events Rule. If the underlying source
is anthropogenic then the explicit text of CAA section 319 requires
that it can only be considered under the Exceptional Events Rule if the
activity causing emissions is unlikely to recur at a particular
location. The meteorological processes that result in pollutant
transport and the formation of background ozone are ongoing and thus
not an event, even though their influence on ambient concentrations at
a particular time and location may be observed only occasionally and
thus seem ``event-like.'' Regardless of where the activity or event
that caused emissions occurred, and regardless of whether the emissions
travel internationally or interstate, all exceptional event criteria
applicable to that activity or event must be met in order for the
emissions to be excluded.
Comment: Commenter WDEQ stated that the EPA's application of CSAPR
to the western U.S. will place an undue burden on all western states.
WDEQ noted that its department lacks staff experienced in running
Comprehensive Air Quality Model with Extensions (CAMx version 6.11)
modeling, and asserted that the EPA has acknowledged that this modeling
is quite costly and resource intensive.
Response: States are not required to conduct modeling to address
their interstate transport requirements under CAA section
110(a)(2)(D)(i)(I). However, where the EPA has conducted modeling that
indicates emissions from a state may impact air quality in another
state, both the EPA and the state must address how that modeling
impacts any conclusion regarding the upwind state's compliance with the
statutory interstate transport requirements. The EPA understands that
air quality modeling can be both complex and resource intensive, and
remains committed to assisting the states in conducting or reviewing
air quality modeling and other relevant technical information for the
purposes of determining compliance with CAA section 110(a)(2)(D)(i)(I).
III. Final Action
In this action, the EPA is approving the Utah SIP with regard to
certain interstate transport requirements of CAA section
110(a)(2)(D)(i) for the 2008 Pb and 2010 SO2 NAAQS from the
State's certifications as shown in Table 2 of this preamble. The EPA is
disapproving the Utah SIP with regard to certain interstate transport
requirements of CAA section 110(a)(2)(D)(i) for the 2006
PM2.5, 2008 ozone, 2010 NO2 and 2012
PM2.5 NAAQS as shown in Table 3 of this preamble. As noted
in our August 1, 2016 proposed action, the EPA is not required to take
further action with regard to the prong 4 disapprovals, because a FIP
is already in place for Utah that corrects all regional haze, and thus
visibility transport, SIP deficiencies. 81 FR 43894. This action is
being taken under section 110 of the CAA.
Table 2--List of Utah Interstate Transport Prongs That EPA Is Approving
------------------------------------------------------------------------
Final approval
-------------------------------------------------------------------------
January 19, 2012 submittal--2008 Pb NAAQS:
(D)(i)(I) prongs 1 and 2, (D)(i)(II) prong 4.
June 2, 2013 submittal--2010 SO2 NAAQS:
(D)(i)(II) prong 4.
------------------------------------------------------------------------
Table 3--List of Utah Interstate Transport Prongs That EPA Is
Disapproving
------------------------------------------------------------------------
Final disapproval
-------------------------------------------------------------------------
February 21, 2010 submittal--2006 PM2.5 NAAQS:
(D)(i)(II) prong 4.
January 31, 2013 submittal--2008 Ozone NAAQS:
(D)(i)(I) prong 2, (D)(i)(II) prong 4.
January 31, 2013 submittal--2010 NO2 NAAQS:
(D)(i)(II) prong 4.
December 22, 2015 submittal--2012 PM2.5 NAAQS:
(D)(i)(II) prong 4.
------------------------------------------------------------------------
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, the EPA's role is to approve state actions,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves some state law provisions as meeting federal
requirements and disapproves other state law because it does not meet
federal requirements; this action does not impose additional
requirements beyond those imposed by state law. For that reason, this
action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
Does not provide the 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 does not apply on any Indian reservation land or
in any other area where the EPA or an Indian tribe has demonstrated
that a tribe has
[[Page 71997]]
jurisdiction. In those areas of Indian country, the rule does not have
tribal implications and will not impose substantial direct costs on
tribal governments or preempt tribal law as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by December 19, 2016. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See CAA section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 29, 2016.
Shaun L. McGrath,
Regional Administrator, Region 8.
40 CFR part 52 is amended to read as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for Part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 52.2354 is amended by redesignating the introductory text as
paragraph (a) and adding paragraph (b).
The addition reads as follows:
Subpart TT--Utah
Sec. 52.2354 Interstate transport.
* * * * *
(b) Addition to the Utah State Implementation Plan regarding the
2008 Pb Standard for CAA section 110(a)(2)(D)(i) prongs 1, 2 and 4,
submitted to EPA on January 19, 2012, and addition to the Utah SIP
regarding the 2010 SO2 Standard for CAA section
110(a)(2)(D)(i) prong 4, submitted to EPA on June 2, 2013.
[FR Doc. 2016-25145 Filed 10-18-16; 8:45 am]
BILLING CODE 6560-50-P