[Federal Register Volume 83, Number 170 (Friday, August 31, 2018)]
[Rules and Regulations]
[Pages 44500-44503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18892]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R08-OAR-2018-0109; FRL-9982-81--Region 8]
Interstate Transport Prongs 1 and 2 for the 2010 Sulfur Dioxide
(SO2) Standard for Colorado, Montana, North Dakota, South Dakota and
Wyoming
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is approving
portions of State Implementation Plan (SIP) submissions from Colorado,
Montana, North Dakota, South Dakota and Wyoming addressing the Clean
Air Act (CAA or Act) interstate transport SIP requirements for the 2010
sulfur dioxide (SO2) National Ambient Air Quality Standard
(NAAQS). These submissions address the requirement that each SIP
contain adequate provisions prohibiting air emissions that will have
certain adverse air quality effects in other states. The EPA is
approving portions of these infrastructure SIPs for the aforementioned
states as containing adequate provisions to ensure that air emissions
in the states will not significantly contribute to nonattainment or
interfere with maintenance of the 2010 SO2 NAAQS in any
other state.
DATES: This rule is effective on October 1, 2018.
ADDRESSES: The EPA has established a docket for this action under
Docket ID Number EPA- EPA-R08-OAR-2018-0109. All documents in the
docket are listed on the http://www.regulations.gov website. Although
listed in the index, some information is not publicly available, e.g.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available through http://www.regulations.gov, or please
contact the person identified in the ``For Further Information
Contact'' section for additional availability information.
FOR FURTHER INFORMATION CONTACT: Adam Clark, Air Program, U.S. EPA
Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-
1129, (303) 312-7104, or [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us'' and
``our'' means the EPA.
I. Background
On June 4, 2018, the EPA proposed to approve submissions from
Colorado, Montana, North Dakota, South Dakota and Wyoming as meeting
the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I)
for the 2010 SO2 NAAQS (83 FR 25617). An explanation of the
CAA requirements, a detailed analysis of the states' submissions, and
the EPA's rationale for approval of each submission 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 July 5, 2018.
The EPA received one comment letter from the North Dakota Department of
Health (NDDH), one comment letter from the Wyoming Department of
Environmental Quality (WDEQ) and six anonymous comments on the
proposal. The six anonymous comments lacked the required specificity to
the Colorado, Montana, North Dakota, South Dakota or Wyoming SIP
submissions and the interstate transport requirements of CAA section
110(a)(2)(D)(i)(I). NDDH and WDEQ's comments are addressed below, while
the anonymous comments are not addressed because they fall outside the
scope of our proposed action.
II. Response to Comments
Comment: NDDH stated that the 2010 and 2016 SO2
emissions levels for their state listed in the proposal rule's ``Table
1--SO2 Emission Trends'' (83 FR 25618) appeared too high,
and that the 2000-2016 SO2 reduction in the table for North
Dakota should be 79% rather than the 44% listed in this Table 1. In
addition to this recommended
[[Page 44501]]
correction, NDDH agreed with the EPA's proposed approval of CAA section
110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS for the state of
North Dakota, asserting that ``sources in North Dakota do not
significantly contribute to SO2 concentrations in
nonattainment or maintenance areas in other states.'' NDDH stated that
SO2 emissions in North Dakota continue to decrease,
specifically noting the shutdown of the coal-fired electric generating
unit Stanton Station in 2017, the forthcoming conversion of the
University of North Dakota heating plant from coal to natural gas
(permit currently under review), and the continued replacement of coal-
fired electrical generation by wind electrical generation as a portion
of total electrical generation in the state between 2012 and 2017. NDDH
also provided 2017 SO2 monitoring design values, showing
that these levels continue to be below the 2010 SO2 NAAQS.
Response: The EPA agrees with the state that the 2010 and 2016
SO2 emission levels for North Dakota listed in ``Table 1--
SO2 Emission Trends'' require correction. With regard to the
2016 SO2 emissions, we derived these emissions data from the
EPA's ``Air Pollutant Emissions Trends'' web page which was updated on
March 28, 2018,\1\ after the values for Table 1 had been calculated.
For this reason, the 2016 SO2 emissions levels and the 2000-
2016 SO2 emissions reduction for each state listed in Table
1 of the proposed rule are not consistent with those currently
presented on the EPA's ``Air Pollutant Emissions Trends'' web page.
Therefore, the EPA has recreated ``Table 1--SO2 Emission
Trends'' below.
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\1\ As noted at proposal, these values were derived using the
EPA's web page https://www.epa.gov/air-emissions-inventories/air-pollutant-emissions-trends-data. Specifically, a link on this web
page titled ``State Average Annual Emissions Trend'' which connected
to a spreadsheet. As shown on the ``Read Me'' page of this
spreadsheet, the ``draft state trends'' were updated on March 28,
2018. This update has caused the 2016 SO2 emissions
levels in the prior iteration of the spreadsheet to change for all
states.
Revised Table 1--SO2 Emission Trends in Tons per Year
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SO2 reduction,
State 2000 2005 2010 2016 2000-2016 (%)
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Arizona......................... 118,528 90,577 73,075 41,415 65
Colorado........................ 115,122 80,468 60,459 25,547 78
Idaho........................... 34,525 35,451 14,774 10,016 71
Iowa............................ 265,005 222,419 142,738 56,139 79
Kansas.......................... 148,416 199,006 80,267 18,624 87
Minnesota....................... 148,899 156,468 85,254 35,480 76
Montana......................... 57,517 42,085 26,869 18,338 68
Nebraska........................ 86,894 121,785 77,898 54,934 37
New Mexico...................... 164,631 47,671 23,651 17,959 89
North Dakota.................... 275,138 159,221 119,322 58,058 79
Oklahoma........................ 145,862 169,464 136,348 81,890 44
South Dakota.................... 41,120 28,579 16,202 3,081 92
Utah............................ 58,040 52,998 29,776 15,512 73
Wyoming......................... 141,439 122,453 91,022 51,769 63
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The EPA also agrees with NDDH that the 2010 emissions value for
North Dakota was incorrect in ``Table 1--SO2 Emission
Trends.'' That value has been corrected in this revised version of the
table. The 2010 SO2 emissions levels for all other states,
as well as all 2000 and 2005 emissions levels, remain unchanged from
those in ``Table 1--SO2 Emission Trends'' in the proposed
rulemaking. The corrected values for North Dakota illustrate an even
greater decline in emissions of SO2 than that discussed in
the proposed rulemaking. The corrected values in this table are
therefore consistent with the EPA's analysis in its proposed
determination that emissions from North Dakota are not in violation of
section 110(a)(2)(D)(i)(I).
The EPA notes that North Dakota's comment refers to ``nonattainment
or maintenance areas'' (emphasis added) as part of its reiteration that
sources within the state do not have certain downwind impacts on other
states. The EPA has routinely interpreted the obligation to prohibit
emissions that ``significantly contribute to nonattainment'' of the
NAAQS in downwind states to be independent of formal designations
because exceedances can happen in any area. Similarly, the EPA does not
interpret the reference to ``maintenance'' under section
110(a)(2)(D)(i)(I) to be limited to maintenance areas, as this
provision requires evaluation of the potential impact of upwind
emissions on all areas that are currently measuring clean data, but may
have issues maintaining that air quality. Nothing in the CAA limits
states' obligations under section 110(a)(2)(D)(i)(I) to downwind areas
that have been formally designated.
Regarding the additional information provided by NDDH to support
the EPA's proposed conclusion that the state meets the requirements of
110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS, the EPA agrees
that this information is supportive of that conclusion.
Comment: WDEQ expressed support of the EPA's proposed approval of
their SIP as meeting the interstate transport requirements of CAA
section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS. However,
WDEQ disagreed with the EPA's statement in our proposal that
``Wyoming's analysis does not independently address whether the SIP
contains adequate provisions prohibiting emissions that will interfere
with maintenance of the 2010 SO2 NAAQS in any other state.''
83 FR 25631. WDEQ asserted that its weight of evidence demonstration
for prong 1, ``significant contribution to nonattainment,'' also
adequately addresses the requirements for prong 2, ``interference with
maintenance.'' WDEQ also stated that there were no other 2010
SO2 nonattainment or maintenance areas in neighboring states
to address at the time of its submission apart from the Billings,
Montana 2010 SO2 maintenance area, which WDEQ addressed in
that submission when the
[[Page 44502]]
area was still designated as nonattainment.\2\
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\2\ As noted at proposal, the Billings 2010 SO2
maintenance area was in nonattainment status at the time of
Wyoming's March 6, 2015 submission, and was redesignated to
attainment on May 10, 2016.
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Response: The EPA disagrees that WDEQ's analysis of potential
impact on the Billings area represents an independent analysis of
110(a)(2)(D)(i)(I) prong 2. WDEQ's March 6, 2015 submission analyzed
Wyoming's potential impact on the Billings area and the lack of
additional nonattainment areas in surrounding states to determine
whether the Wyoming SIP meets the requirements of prong 1 and prong 2.
However, the court in North Carolina v. EPA, (531 F.3d 896, DC Cir.
2008) was specifically concerned with areas not designated
nonattainment when it rejected the view that ``a state can never
`interfere with maintenance' unless the EPA determines that at one
point it `contribute[d] significantly to nonattainment.' '' 531 F.3d at
910. The court pointed out that areas barely attaining the standard due
in part to emissions from upwind sources would have ``no recourse''
pursuant to such an interpretation. Id. In accordance with the court's
decision and as noted in our proposal, ``the EPA interprets CAA section
110(a)(2)(D)(i)(I) prong 2 to require an evaluation of the potential
impact of a state's emissions on areas that are currently measuring
clean data, but that may have issues maintaining that air quality,
rather than only former nonattainment, and thus current maintenance,
areas.'' 83 FR 25621. For this reason, Wyoming's analysis of the
Billings area alone would not independently address 110(a)(2)(D)(i)(I)
prong 2, based on the EPA's longstanding interpretation of this
provision. Because WDEQ did not conduct such an analysis as part of its
weight of evidence, the EPA supplemented the state's analysis (see
proposal at 83 FR 25631) and proposed to find that Wyoming does not
interfere with maintenance of the 2010 SO2 NAAQS in any
other state.
With respect to the assertions WDEQ makes in its comments regarding
maintenance areas, the EPA does not interpret the reference to
``maintenance'' under section 110(a)(2)(D)(i)(I) to be limited to
maintenance areas. As previously described, this provision requires
evaluation of the potential impact of upwind emissions on all areas
that are currently measuring clean data, but may have issues
maintaining that air quality. Nothing in the CAA limits states'
obligations under section 110(a)(2)(D)(i)(I) to downwind areas that
have been formally designated.
III. Final Action
The EPA is approving the following submission as meeting the
interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for
the 2010 SO2 NAAQS: Colorado's July 17, 2013 and February
16, 2018 submissions; Montana's July 15, 2013 submission; North
Dakota's March 7, 2013 submission; South Dakota's December 20, 2013
submission; and Wyoming's March 6, 2015 submission. This action is
being taken under section 110 of the CAA.
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 choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and do
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);
Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, 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 CAA; 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, these SIPs are not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by October 30, 2018. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Particulate
matter, Reporting and recordkeeping
[[Page 44503]]
requirements, Sulfur dioxide, Volatile organic compounds.
Dated: August 27, 2018.
Debra Thomas,
Acting Regional Administrator, Region 8.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart G--Colorado
0
2. Section 52.352 is amended by adding paragraph (f) to read as
follows:
Sec. 52.352 Interstate transport.
* * * * *
(f) Addition to the Colorado State Implementation Plan of the
Colorado Interstate Transport SIP regarding 2010 Standards, submitted
to EPA on July 17, 2013, and February 16, 2018, for both elements of
CAA section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS.
Subpart BB--Montana
0
3. Section 52.1393 is amended by adding paragraph (e) to read as
follows:
Sec. 52.1393 Interstate transport requirements.
* * * * *
(e) EPA is approving the Montana 2010 SO2 NAAQS
Infrastructure Certification, submitted to EPA on July 15, 2013, for
both elements of CAA section 110(a)(2)(D)(i)(I) for the 2010
SO2 NAAQS.
Subpart JJ--North Dakota
0
4. Section 52.1833 is amended by adding paragraph (h) to read as
follows:
Sec. 52.1833 Section 110(a)(2) infrastructure requirements.
* * * * *
(h) EPA is approving the North Dakota 2010 SO2 NAAQS
Infrastructure Certification, submitted to EPA on March 7, 2013, for
both elements of CAA section 110(a)(2)(D)(i)(I) for the 2010
SO2 NAAQS.
Subpart QQ--South Dakota
0
5. Section 52.2170, paragraph (e), is amended by adding table entry
XXII. to read as follows:
Sec. 52.2170 Identification of plan.
* * * * *
(e) * * *
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EPA effective Final rule citation,
Rule title State effective date date date Comments
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* * * * * * *
XXII. Section 110(a)(2)(D)(i)(I) Submitted: 12/20/2013 10/1/2018 [Insert Federal
Interstate Transport Requirements Register citation],
for the 2010 SO2 NAAQS. 8/31/2018.
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Subpart ZZ--Wyoming
0
6. Section 52.2620, paragraph (e), is amended by adding table entry
(31) to read as follows:
Sec. 52.2620 Identification of plan.
* * * * *
(e) * * *
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State EPA effective
Rule No. Rule title effective date date Final rule citation, date Comments
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(31) XXXI................................ Interstate transport SIP for 3/6/2015 10/1/2018 [Insert Federal Register
Section 110(a)(2)(D)(i)(I) citation], 8/31/2018.
prongs 1 and 2 for the 2010 SO2
NAAQS..
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[FR Doc. 2018-18892 Filed 8-30-18; 8:45 am]
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