2016-08913. Air Plan Approval; Rhode Island; Infrastructure State Implementation Plan Requirements for Particle Matter, Ozone, Lead, Nitrogen Dioxide and Sulfur Dioxide

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving most elements of State Implementation Plan (SIP) submissions from Rhode Island regarding the infrastructure requirements of the Clean Air Act (CAA or Act) for the 1997 fine particle matter (PM_2.5), 2006 PM_2.5, 2008 lead (Pb), 2008 ozone, 2010 nitrogen dioxide (NO₂), and 2010 sulfur dioxide (SO₂) National Ambient Air Quality Standards (NAAQS). Additionally, EPA is disapproving the submissions with respect to CAA section 110(a)(2)(H), for which a Federal Implementation Plan has been in place for this requirement since 1973. EPA is also correcting an earlier approval of this element for the 1997 8-hour ozone NAAQS infrastructure requirements. Finally, EPA is approving several statutes submitted by Rhode Island in support of their demonstration that the infrastructure requirements of the CAA have been met. Lastly, EPA is conditionally approving certain elements of Rhode Island's submittal relating to Prevention of Significant Deterioration (PSD) requirements.

DATES:

This rule is effective on May 20, 2016.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2015-0402. All documents in the docket are listed on the http://www.regulations.gov Web site, although some information, such as confidential business information or other information whose disclosure is restricted by statute is not publicly available. 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 at http://www.regulations.gov or at the U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post Office Square—Suite 100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.

FOR FURTHER INFORMATION CONTACT:

Richard P. Burkhart, 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; [phone]; [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Organization of this document. The following outline is provided to aid in locating information in this preamble.

I. Background and Purpose

II. Public Comments

III. Final Action

IV. Incorporation by Reference

V. Statutory and Executive Order Reviews

I. Background and Purpose

This rulemaking addresses infrastructure SIP submissions from the State of Rhode Island for the 1997 PM_2.5, 2006 PM_2.5, 2008 Pb, 2008 ozone, 2010 NO₂, and 2010 SO₂ NAAQS. The state submitted these infrastructure SIPs on the following dates: 1997 PM_2.5—September 10, 2008; 2006 PM_2.5—November 6, 2009; 2008 Pb—October 26, 2011; 2008 ozone—January 2, 2013; 2010 NO₂—January 2, 2013; and 2010 SO₂—June 27, 2014. Details of Rhode Island's submittals and EPA evaluation of those submittals can be found in our Notice of Proposed Rulemaking (NPR) (81 FR 10168; February 29, 2016).

EPA is approving most of the elements of the above submittals (details can be found below). Additionally, EPA is disapproving the submissions with respect to CAA section 110(a)(2)(H). For this element, a Federal Implementation Plan has been in place for this requirement since 1973, such that no further action is required by EPA or Rhode Island. EPA is also, under section 110(k)(6) of the Act, correcting an earlier approval of this element for the 1997 8-hour ozone NAAQS infrastructure requirements. The correction changes our prior approval of element H for the 1997 ozone NAAQS infrastructure requirements to a disapproval. As stated above, a FIP is already in place, so no further action is required by EPA or Rhode Island. Furthermore, EPA is approving into the Rhode Island SIP several statutes submitted by Rhode Island in support of their demonstration that the infrastructure requirements of the CAA have been met. Also, we are conditionally approving certain elements of Rhode Island's submittal relating to the PSD requirements.

In addition, EPA is removing the following sections from the Code of Federal Regulations (CFR): 40 CFR 52.2073(a); 52.2074(a) and (b); 52.2075(a); 52.2078(a); and 52.2079. These sections are no longer necessary for the reasons outlined in the NPR. Finally, although the NPR also proposed removal of 40 CFR 52.2073(b), 52.2075(b), and 52.2078(b), we are not taking final action with respect to these sections today.

II. Public Comments

EPA did not receive any comments in response to the NPR.

III. Final Action

EPA is approving SIP submissions from Rhode Island certifying that the state's current SIP is sufficient to meet the required infrastructure elements under sections 110(a)(1) and (2) of the Act for the 1997 PM_2.5, 2006 PM_2.5, 2008 Pb, 2008 ozone, 2010 NO₂, and 2010 SO₂ NAAQS, with the exception of certain aspects relating to the state's PSD program which we are conditionally approving. Additionally, EPA is disapproving the submissions with respect to CAA section 110(a)(2)(H). EPA is also correcting an earlier approval of this element for the 1997 8-hour ozone NAAQS infrastructure requirements. The corrective action is taken under section 110(k)(6) of the Act. The correction changes our prior approval of element H for the 1997 ozone infrastructure requirement to a disapproval of element H. Finally, we are conditionally approving certain elements of Rhode Island's submittals relating to the PSD requirements.

Specifically, EPA's actions for each infrastructure SIP requirement are shown in Table 1.

Table 1—EPA's Action on Rhode Island's Infrastructure SIP Submittals for Listed NAAQS

Element	2008 Pb	2008 ozone	2010 NO2	2010 SO2	1997 PM2.5	2006 PM2.5
(A): Emission limits and other control measures	A	A	A	A	A	A
(B): Ambient air quality monitoring and data system	A	A	A	A	A	A
(C)1: Enforcement of SIP measures	A	A	A	A	A	A
(C)2: PSD program for major sources and major modifications	A*	A*	A*	A*	A*	A*
(C)3: PSD program for minor sources and minor modifications	A	A	A	A	A	A
(D)1: Contribute to nonattainment/interfere with maintenance of NAAQS	A	NI	NI	NI	NI	NT
(D)2: PSD	A*	A*	A*	A*	A*	A*
(D)3: Visibility Protection	A	A	A	A	A	A
(D)4: Interstate Pollution Abatement	A	A	A	A	A	A
(D)5: International Pollution Abatement	A	A	A	A	A	A
(E): Adequate resources	A	A	A	A	A	A
(E): State boards	A	A	A	A	A	A
(E): Necessary assurances with respect to local agencies	NA	NA	NA	NA	NA	NA
(F): Stationary source monitoring system	A	A	A	A	A	A
(G): Emergency power	A	A	A	A	A	A
(H): Future SIP revisions	D	D	D	D	D	D
(I): Nonattainment area plan or plan revisions under part D	+	+	+	+	+	+
(J)1: Consultation with government officials	A	A	A	A	A	A
(J)2: Public notification	A	A	A	A	A	A
(J)3: PSD	A*	A*	A*	A*	A*	A*
(J)4: Visibility protection	+	+	+	+	+	+
(K): Air quality modeling and data	A	A	A	A	A	A
(L): Permitting fees	A	A	A	A	A	A
(M): Consultation and participation by affected local entities	A	A	A	A	A	A

In the above table, the key is as follows:

A* Approve

A Approve, but conditionally approve aspect of PSD program relating to the identification of NO_X as a precursor for ozone and addressing the changes made to 40 CFR part 51.116 in EPA's October 20, 2010 rulemaking (75 FR 64864) concerning emissions of fine particulate.

D Disapprove, but no further action required because federal regulations already in place.

+ Not germane to infrastructure SIPs.

NI Not included in the September 10, 2008 (PM_2.5)_, January 2, 2013 (ozone and NO₂), and May 30, 2013 (SO₂) submittals which are the subject of today's action.

NT Not taking action in today's action.

NS No Submittal.

NA Not applicable.

In addition, we are incorporating into the Rhode Island SIP the following Rhode Island statutes which were included for approval in Rhode Island's infrastructure SIP submittals: (1) Rhode Island General Laws, Title 23—Health and Safety, Chapter 23-23—Air Pollution, Section 23-23-5—Powers and duty of the director., and Section 23-23-16—Emergencies.; (2) Rhode Island General Laws, Title 23—Health and Safety, Chapter 23-23.1—Air Pollution Episode Control, Section 23-23.1-5—Proclamations of episodes and issuance of orders.; and (3) Rhode Island General Laws, Title 36—Public Officers and Employees, Chapter 36-14—Code of Ethics, Sections 36-14-1 through 36-14-7.

Furthermore, EPA is removing the following sections from the CFR: 40 CFR 52.2073(a); 52.2074(a) and (b); 52.2075(a); 52.2078(a); and 52.2079. These sections are no longer necessary for the reasons outlined in the NPR.

As noted in Table 1, EPA is conditionally approving aspects of Rhode Island's SIP submittals pertaining to the state's PSD program. The outstanding issue with the PSD program concerns adding NO_X as a precursor for ozone, and addressing the changes made to 40 CFR part 51.116 in the October 20, 2010 rulemaking (75 FR 64864) concerning emissions of fine particulate. Rhode Island must submit to EPA by April 20, 2017, these revisions to its PSD program. If Rhode Island fails to do so, this approval will become a disapproval on that date. EPA will notify RI DEM by letter that this action has occurred. At that time, this commitment will no longer be a part of the approved Rhode Island SIP. EPA subsequently will publish a notice in the notice section of the Federal Register notifying the public that the conditional approval automatically converted to a disapproval. If the state meets its commitment within the applicable timeframe, 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 aspect of Rhode Island's PSD program will also be disapproved at that time. If EPA approves the revised PSD program submittal, then the portions of Rhode Island's infrastructure SIP submittals that were conditionally approved will be fully approved in their entirety and replace the conditional approval in the SIP. In addition, final disapproval of an infrastructure SIP submittal triggers the Federal Implementation Plan (FIP) requirement under section 110(c).

IV. Incorporation by Reference

In this rulemaking, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of: (1) Rhode Island General Laws, Title 23—Health and Safety, Chapter 23-23—Air Pollution, Section 23-23-5—Powers and duty of the director., and Section 23-23-16—Emergencies.; (2) Rhode Island General Laws, Title 23—Health and Safety, Chapter 23-23.1—Air Pollution Episode Control, Section 23-23.1-5—Proclamations of episodes and issuance of orders.; and (3) Rhode Island General Laws, Title 36—Public Officers and Employees, Chapter 36-14—Code of Ethics, Sections 36-14-1 through 36-14-7. These are described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available through http://www.regulations.gov.

V. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 20, 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 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

Dated: April 7, 2016.

H. Curtis Spalding,

Regional Administrator, EPA New England.

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart OO—Rhode Island

2. In § 52.2070, Tables (c) and (e) are amended by adding new state citations to the end of the tables to read as follows:

§ 52.2070

Identification of plan.

* * * * *

(c) EPA approved regulations.

EPA-Approved Rhode Island Regulations

State citation	Title/subject	State effective date	EPA approval date	Explanations
*         *         *         *         *         *         *
Rhode Island General Laws, Title 23, Chapter 23-23	Air Pollution	Submitted 1/2/2013 1	4/20/2016 [Insert Federal Register citation]	Section 23-23-5—Powers and duty of director. Section 23-23-16—Emergencies.
Rhode Island General Laws, Title 23, Chapter 23-23.1	Air Pollution Episode Control	Submitted 1/2/2013 1	4/20/2016 [Insert Federal Register citation]	Section 23-23.1-5—Proclamations of episodes and issuances of orders.
Rhode Island General Laws, Title 36, Chapter 36-14	Code of Ethics	Submitted 1/2/2013 1	4/20/2016 [Insert Federal Register citation]	Section 36-14-1—Declaration of policy. Section 36-14-2—Definitions.
				Section 36-14-3—Code of ethics.
				Section 36-14-4—Persons subject to the code of ethics.
				Section 36-14-5—Prohibited activities.
				Section 36-14-6—Statement of conflict of interest.
				Section 36-14-7—Interest in conflict with discharge of duties.
1 This is the date Rhode Island submitted these Rhode Island General Laws to EPA for approval.

* * * * *

(e) Nonregulatory.

Rhode Island Non-Regulatory

Name of non regulatory SIP provision	Applicable geographic or nonattainment area	State submittal date/effective date	EPA approved date	Explanations
*         *         *         *         *         *         *
Infrastructure SIP for the 2008 Ozone NAAQS	Statewide	Submitted 1/2/2013	4/20/2016 [Insert Federal Register citation]	Approved submittal, except for certain aspects related to PSD which were conditionally approved and element (H) which was disapproved. See 52.2077.
Infrastructure SIP for the 2008 Lead NAAQS	Statewide	Submitted 10/26/2011	4/20/2016 [Insert Federal Register citation]	Approved submittal, except for certain aspects related to PSD which were conditionally approved and element (H) which was disapproved. See 52.2077.
Infrastructure SIP for the 2010 NO2 NAAQS	Statewide	Submitted 1/2/2013	4/20/2016 [Insert Federal Register citation]	Approved submittal, except for certain aspects related to PSD which were conditionally approved and element (H) which was disapproved. See 52.2077.
Infrastructure SIP for the 1997 PM2.5 NAAQS	Statewide	Submitted 9/10/2008	4/20/2016 [Insert Federal Register citation]	Approved submittal, except for certain aspects related to PSD which were conditionally approved and element (H) which was disapproved. See 52.2077.
Infrastructure SIP for 2006 PM2.5 NAAQS	Statewide	Submitted 11/6/2009	4/20/2016 [Insert Federal Register citation]	Approved submittal, except for certain aspects related to PSD which were conditionally approved and element (H) which was disapproved. See 52.2077.
Infrastructure SIP for 2010 SO2 NAAQS	Statewide	Submitted 6/27/2014	4/20/2016 [Insert Federal Register citation]	Approved submittal, except for certain aspects related to PSD which were conditionally approved and element (H) which was disapproved. See 52.2077.

§ 52.2073

[Amended]

3. Section 52.2073 is amended by removing and reserving paragraph (a).

§ 52.2074

[Amended]

4. Section 52.2074 is amended by removing and reserving paragraphs (a) and (b).

§ 52.2075

[Amended]

5. Section 52.2075 is amended by removing and reserving paragraph (a).

6. Section 52.2077 is added to read as follows:

§ 52.2077

Identification of plan—conditional approvals and disapprovals.

(a) Conditional approvals. (1) 2008 Ozone National Ambient Air Quality Standards (NAAQS): The 110(a)(2) infrastructure SIP submitted on January 2, 2013, is conditionally approved for Clean Air Act sections 110(a)(2)(C)(ii), (D)(i)(II), and (J)(iii) only as it relates to the aspect of the Prevention of Significant Deterioration (PSD) program pertaining to adding NO_X as a precursor for ozone, and addressing the changes made to 40 CFR part 51.116 in the October 20, 2010 rulemaking (75 FR 64864) concerning emissions of fine particulate. On February 18, 2016, the State of Rhode Island supplemented this submittal with a commitment to address these requirements for PSD.

(2) 2008 Lead NAAQS: The 110(a)(2) infrastructure SIP submitted on October 26, 2011, is conditionally approved for Clean Air Act sections 110(a)(2)(C)(ii), (D)(i)(II), and (J)(iii) only as it relates to the aspect of the PSD program pertaining to adding NO_X as a precursor for ozone, and addressing the changes made to 40 CFR part 51.116 in the October 20, 2010 rulemaking (75 FR 64864) concerning emissions of fine particulate. On February 18, 2016, the State of Rhode Island supplemented this submittal with a commitment to address these requirements for PSD.

(3) 2010 Nitrogen Dioxide NAAQS: The 110(a)(2) infrastructure SIP submitted on January 2, 2013, is conditionally approved for Clean Air Act sections 110(a)(2)(C)(ii), (D)(i)(II), and (J)(iii) only as it relates to the aspect of the PSD program pertaining to adding NO_X as a precursor for ozone, and addressing the changes made to 40 CFR part 51.116 in the October 20, 2010 rulemaking (75 FR 64864) concerning emissions of fine particulate. On February 18, 2016, the State of Rhode Island supplemented this submittal with a commitment to address these requirements for PSD.

(4) 1997 fine particulate (PM_2.5) NAAQS: The 110(a)(2) infrastructure SIP submitted on September 10, 2008, is conditionally approved for Clean Air Act sections 110(a)(2)(C)(ii), (D)(i)(II), and (J)(iii) only as it relates to the aspect of the PSD program pertaining to adding NO_X as a precursor for ozone, and addressing the changes made to 40 CFR part 51.116 in the October 20, 2010 rulemaking (75 FR 64864) concerning emissions of fine particulate. On February 18, 2016, the State of Rhode Island supplemented this submittal with a commitment to address these requirements for PSD.

(5) 2006 PM_2.5 NAAQS: The 110(a)(2) infrastructure SIP submitted on November 6, 2009, is conditionally approved for Clean Air Act sections 110(a)(2)(C)(ii), (D)(i)(II), and (J)(iii) only as it relates to the aspect of the PSD program pertaining to providing adding NO_X as a precursor for ozone, and addressing the changes made to 40 CFR part 51.116 in the October 20, 2010 rulemaking (75 FR 64864) concerning emissions of fine particulate. On February 18, 2016, the State of Rhode Island supplemented this submittal with a commitment to address these requirements for PSD.

(b) Disapprovals. (1) 1997 Ozone NAAQS: The 110(a)(2) infrastructure SIP submitted on December 14, 2007, is disapproved for Clean Air Act element 110(a)(2)(H). A Federal Implantation Plan is already in place at 40 CFR 52.2080.

(2) 2008 Ozone NAAQS: The 110(a)(2) infrastructure SIP submitted on January 2, 2013, is disapproved for Clean Air Act element 110(a)(2)(H). A Federal Implantation Plan is already in place at 40 CFR 52.2080.

(3) 2008 Lead NAAQS: The 110(a)(2) infrastructure SIP submitted on October 26, 2011, is disapproved for Clean Air Act element 110(a)(2)(H). A Federal Implantation Plan is already in place at 40 CFR 52.2080.

(4) 2010 Nitrogen Dioxide NAAQS: The 110(a)(2) infrastructure SIP submitted on January 2, 2013, is disapproved for Clean Air Act element 110(a)(2)(H). A Federal Implantation Plan is already in place at 40 CFR 52.2080.

(5) 1997 PM_2.5 NAAQS: The 110(a)(2) infrastructure SIP submitted on September 10, 2008, is disapproved for Clean Air Act element 110(a)(2)(H). A Federal Implantation Plan is already in place at 40 CFR 52.2080.

(6) 2006 PM_2.5 NAAQS: The 110(a)(2) infrastructure SIP submitted on November 6, 2009, is disapproved for Clean Air Act element 110(a)(2)(H). A Federal Implantation Plan is already in place at 40 CFR 52.2080.

§ 52.2078

[Amended]

7. Section 52.2078 is amended by removing and reserving paragraph (a).

§ 52.2079

[Removed and Reserved]

8. Section 52.2079 is removed and reserved.