2022-11456. Air Plan Approval; Rhode Island; Infrastructure State Implementation Plan Requirements for the 2012 PM2.5

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving most elements of a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. This revision addresses the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2012 annual fine particle (PM_2.5) National Ambient Air Quality Standard (NAAQS). We are not taking action on three elements of this submittal in sections 110(a)(2)(C), (D)(i)(II), and (J) that relate to requirements for the State's Prevention of Significant Deterioration (PSD) program. These will be addressed in a separate action. In addition, EPA is disapproving the submission with respect to section 110(a)(2)(H) (future SIP revisions). However, because a Federal implementation plan (FIP) has been in place for section 110(a)(2)(H) since 1973, no further action by EPA or the State is required. This action is being taken in accordance with the Clean Air Act.

DATES:

This rule is effective June 30, 2022.

ADDRESSES:

EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2017-0443. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., 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 at https://www.regulations.gov or at the U.S. Environmental Protection Agency, EPA Region 1 Regional Office, Air and Radiation Division, 5 Post Office Square—Suite 100, Boston, MA. EPA requests that, if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays and facility closures due to COVID-19.

FOR FURTHER INFORMATION CONTACT:

Alison C. Simcox, Air Quality Branch, U.S. Environmental Protection Agency, EPA Region 1, 5 Post Office Square—Suite 100, (Mail code 05-2), Boston, MA 02109—3912, tel. [phone], email [e-mail].

SUPPLEMENTARY INFORMATION:

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

Table of Contents

I. Background and Purpose

II. Response to Comments

III. Final Action

IV. Statutory and Executive Order Reviews

I. Background and Purpose

On December 6, 2017, Rhode Island submitted a SIP submission to address the “infrastructure” SIP requirements of the Clean Air Act (CAA or Act)—including the interstate transport requirements—for the 2012 annual PM_2.5  ^[1] NAAQS. EPA refers to this type of SIP submission as an “infrastructure SIP.” On February 1, 2019 (84 FR 1025), EPA published a notice of proposed rulemaking (NPRM) proposing to approve most elements of the State's infrastructure SIP submission and to conditionally approve certain other elements of the submission. The infrastructure SIP 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 for implementation of the NAAQS. The rationale for EPA's proposed action is given in the NPRM and will not be restated here.

II. Response to Comments

During the comment period, EPA received one set of germane comments, which addressed two issues: (1) EPA's proposed conditional approval of certain portions of Rhode Island's infrastructure SIP submission related to the State's PSD program and (2) the impact on this infrastructure SIP action of EPA's 2015 Startup, Shutdown and Malfunction (SSM) SIP Action. In that action, EPA found that certain existing SIP provisions governing periods of SSM in 45 states and local jurisdictions, including one such provision in Rhode Island's SIP, were substantially inadequate to meet CAA requirements. EPA issued a SIP call on June 12, 2015, directing those states to submit SIP revisions to address the specific inadequacies. See 80 FR 33839.

Regarding the first issue, the commenter stated that a conditional approval of the PSD-related elements of Rhode Island's December 6, 2017, infrastructure SIP submission is “not appropriate,” because the State had already made a SIP submission to EPA in March 2018 purporting to address those elements, although EPA had not yet acted on that submission. The commenter stated that the March 2018 submittal is not in the docket for this action and that this “prevent[s] the public from being able to assess whether it does in fact cure the PSD-related deficiencies in the December 2 [sic], 2017, submission [and] prevents the public from being able to fully assess and comment on EPA's proposed conditional approval.”

As EPA noted in the NPRM, Rhode Island's SIP lacked certain provisions ^[2] required for EPA to find that the SIP contained a complete PSD permitting program meeting applicable requirements, which is required by CAA section 110(a)(2)(C), (D)(i)(II), and (J) and which are relevant in the context of an infrastructure SIP submission. The Rhode Island Department of Environmental Management's (RIDEM) December 2017 infrastructure SIP submittal acknowledged these deficiencies and indicated that RIDEM would amend its regulations to address them and submit revised regulations to EPA for inclusion in the SIP. As EPA also noted, RIDEM submitted a SIP revision to EPA on March 26, 2018, that included changes to address the PSD-related deficiencies. We stated in the NPRM that we were currently reviewing that submittal to verify whether it resolved the identified infrastructure SIP deficiencies. The NPRM did not include any substantive assessment of the March 2018 submittal because we had not completed a review of that submittal.

In this action, we are not finalizing the proposed conditional approvals of these PSD-related requirements of section 110(a)(2)(C), (D)(i)(II), and (J) for purposes of the infrastructure SIP requirements of the 2012 annual PM_2.5 NAAQS. EPA acknowledges that the timing of the proposed conditional approvals was confusing and unusual given that the State had already made a SIP submission purporting to satisfy these requirements by the time EPA proposed the conditional approvals. Therefore, EPA has decided to withdraw the proposed conditional approvals. EPA will issue a separate proposed rule at a future date in which EPA will provide an evaluation of whether Rhode Island's March 2018 SIP satisfies these PSD-related requirements of section 110(a)(2)(C), (D)(i)(II), and (J) for the 2012 annual PM_2.5 NAAQS. The public will have an opportunity to provide comments to EPA on this proposed rule.

Regarding the second issue, the commenter stated that it is “inappropriate” for EPA to rely on the “outsider theory” in approving Rhode Island's infrastructure SIP submission for the 2012 annual PM_2.5 NAAQS where the state has not yet responded to the 2015 SSM SIP Action. In that action, EPA found that a provision approved as a part of Rhode Island's existing approved SIP (25-4-13 R.I. Code R. section 16.2) was substantially inadequate to meet CAA requirements and issued a SIP call to Rhode Island to address the inadequacy. 80 FR 33839 (June 12, 2015). The commenter stated that, until Rhode Island has corrected its SIP as directed by EPA in the 2015 SSM SIP Action, EPA should either not approve the infrastructure SIP submission for the 2012 annual PM_2.5 NAAQS or should condition any approval on submission by Rhode Island of a revision within 12 months that adequately addresses the 2015 SSM SIP Action.^[3]

EPA disagrees with the commenter. EPA has explained that its review of a state's infrastructure SIP submission focuses on assuring that a state's SIP meets basic structural requirements for the new or revised NAAQS. In this context, EPA does not consider it appropriate to review a state's existing approved SIP for all potential deficiencies in existing provisions, and thus has excluded certain types of potentially deficient provisions from this process. EPA considers this approach to infrastructure SIPs reasonable based on the specific statutory language of sections 110(a)(1) and 110(a)(2). The CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs that allow EPA to take appropriately tailored action. EPA has used one of these other mechanisms in this instance to address the SSM deficiency in Rhode Island's SIP.

EPA's 2015 SSM SIP Action included, among other things, a finding that Rhode Island's SIP contained an insufficiently bounded “director's discretion” provision related to emissions during periods of SSM. See 80 FR 33840-33959. However, in the NPRM for this infrastructure SIP action, we stated that the rulemaking would “not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission,” including “[e]xisting 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 [and] 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.”

In response to the commenter's argument, EPA reiterates its view that it generally considers existing provisions in these substantive areas to be outside the scope of its review of a state's infrastructure SIP submittal. The commenter did not provide any specific argument based on the statutory language for its assertion that EPA cannot move forward with finalizing approval of this infrastructure SIP action in light of EPA's position.

As EPA explained in the NPRM, see 84 FR 1026 (citing 79 FR 27241 at 24242-45), an action on a state's infrastructure SIP submission is not the appropriate type of action in which to address deficiencies in a given state's SIP regarding existing provisions related to excess emissions from sources during periods of SSM that may be contrary to the CAA and EPA's policies addressing such excess emissions. EPA may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such deficient provisions and may approve the submission even if it is aware of such existing provisions.^[4] As relevant here, EPA has separate mechanisms for addressing deficient provisions and has used one of those mechanisms here by issuing a SIP call to Rhode Island for its problematic SSM provision. It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing deficient provisions that relate to the specific issue just described.

EPA's approach to evaluation of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. This approach is appropriate because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring EPA review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts.

These existing provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. A better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of the new or revised NAAQS or other factors. For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II) because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

This approach is also a reasonable reading of sections 110(a)(1) and 110(a)(2) in the context of an infrastructure SIP submission because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.^[5] Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.^[6]

Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.^[7]

As noted earlier, EPA has already taken steps through the SIP Call mechanism to address the deficiency identified in Rhode Island's SIP and has taken further steps to ensure that separate process is followed as envisioned and consistent with legal requirements. Under the 2015 SSM SIP Action, Rhode Island was required to revise its SIP to address the SSM provision identified as substantially inadequate within 18 months. Rhode Island failed to meet that deadline, so on January 12, 2022, EPA issued a Finding of Failure to Submit (FFS) to Rhode Island. See 87 FR 1680. If the State has not made the required SIP submittal within 18 months of the effective date of the FFS, then, pursuant to CAA section 179(a) and (b) and 40 CFR 52.31, the 2-to-1 emission offset sanction identified in CAA section 179(b)(2) will apply in the State for all new and modified major sources subject to the nonattainment new source review program.

The sanction will not take effect if, within 18 months after the effective date of the FFS, EPA affirmatively determines that the State has made a complete SIP submittal addressing the deficiency in accordance with the 2015 SSM Action. Additionally, a finding that Rhode Island has failed to submit a required SIP submission triggers an obligation under CAA section 110(c) for EPA to promulgate a FIP no later than 2 years after issuance of the FFS. If the State makes the required SIP submittal and EPA takes final action to approve the submittal within 2 years of the effective date of the FFS, EPA is not required to promulgate a FIP.

Based on the above rationale, we are finalizing the action as described above.

III. Final Action

EPA is approving most elements of Rhode Island's December 6, 2017, infrastructure SIP submission for the 2012 annual PM_2.5 NAAQS. EPA is disapproving Rhode Island's infrastructure SIP submission for section 110(a)(2)(H), for which Federal regulations through a FIP are already in place. The disapproval with respect to section 110(a)(2)(H) does not start a sanctions clock because the disapproval relates neither to a submission required under CAA title I part D nor to one required in response to a SIP call under CAA section 10(k)(5). No further action by EPA or the State is required with respect to this disapproval.

We are finalizing the action as proposed, except that, for the reasons provided above, we are not finalizing our proposal to conditionally approve the infrastructure SIP submission with respect to the PSD-related requirements of section 110(a)(2)(C), 110(a)(2)(D)(i)(II) and 110(a)(2)(J) for the annual 2012 PM_2.5 NAAQS. EPA is withdrawing the proposed conditional approvals and will address those PSD-related requirements in a separate action.

IV. Statutory and Executive Order Reviews

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this 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 August 1, 2022. 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
• Carbon monoxide
• Incorporation by reference
• Intergovernmental relations
• Lead
• Nitrogen dioxide
• Ozone
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: May 22, 2022.

David Cash,

Regional Administrator, EPA Region 1.

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

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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(e), amend the table by adding an entry for “Infrastructure SIP and Transport SIP for the 2012 PM _2.5 NAAQS” at the end of the table to read as follows:

§ 52.2070

Identification of plan.

* * * * *

(e) * * *

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 and Transport SIP for the 2012 PM 2.5 NAAQS	Statewide	12/6/2017	May 31, 2022, [Insert Federal Register citation]	This submittal is approved with respect to the following CAA elements: 110(a)(2) (A); (B); (C); (D) ; (E); (F); (G); (J); (K); (L); and (M), except for certain PSD-related requirements in (C), (D)(i)(II), and (J). This submittal is disapproved for (H). This approval includes the Transport SIP for the 2012 PM 2.5 NAAQS, which shows that Rhode Island does not significantly contribute to PM 2.5 nonattainment or maintenance in any other state.

3. In § 52.2077, add paragraph (b)(7) to read as follows:

§ 52.2077

Identification of plan—conditional approvals and disapprovals.

* * * * *

(b) * * *

(7) 2012 PM_2.5 NAAQS: The 110(a)(2) infrastructure SIP submitted on December 6, 2017, is disapproved for Clean Air Act element 110(a)(2)(H). A Federal Implantation Plan is already in place at § 52.2080.

Footnotes

1.  PM_2.5 refers to particulate matter of 2.5 microns or less in diameter, often referred to as “fine” particles.

2.  In particular, EPA noted that Rhode Island's SIP did not yet incorporate: (1) A requirement to identify NO_X as a precursor to ozone in the definition of “major stationary source” from 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,” 70 FR 71612 (November 29, 2005); and (2) definitional changes required under an EPA rule entitled “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM_2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration,” 75 FR 64864 (October 20, 2010); see 84 FR 1025 at 1027-28 (February 1, 2019).

3.  The 2015 SSM SIP Action referenced in the comment addressed how provisions in a number of States' SIPs treat excess emissions during periods of SSM. 80 FR 33840 (June 12, 2015). While the comment states that Rhode Island must correct SIP “provisions,” EPA notes that it issued the SIP Call to Rhode Island with respect to just one provision. Id. at 33959.

4.  By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

5.  For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

6.  EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

7.  See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).