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[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Rules and Regulations]
[Pages 40248-40258]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17021]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2008-0639; EPA-R01-OAR-2008-0641; EPA-R01-OAR-2008-00642; 
EPA-R01-OAR-2008-0643; A-1-FRL-9431-2]

Approval and Promulgation of Implementation Plans; Connecticut, 
Maine, New Hampshire and Rhode Island; Infrastructure SIPs for the 1997 
8-Hour Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving submittals from the States of Connecticut, 
Maine, New Hampshire and Rhode Island. These submittals outline how 
each state's State Implementation Plan (SIP) meets the requirements of 
the Clean Air Act (CAA) for the 1997 8-hour ozone national ambient air 
quality standards (NAAQS). Section 110(a) of the CAA requires that each 
state adopt and submit a SIP for the implementation, maintenance and 
enforcement of each NAAQS promulgated by the EPA. This SIP is commonly 
referred to as an infrastructure SIP. Specifically, EPA is taking final 
action to fully approve the submittals from Connecticut, Maine, New 
Hampshire and Rhode Island, with one exception. EPA is taking direct 
final action to conditionally approve one element of Connecticut's 
submittal. These actions are being taken under the Clean Air Act.

DATES: Effective Dates: This rule will be effective August 8, 2011, 
with one exception. The conditional approval of one element of 
Connecticut's SIP is a direct final rule which will be effective 
September 6, 2011, unless EPA receives adverse comments on that action 
by August 8, 2011.
    If adverse comments are received, EPA will publish a timely 
withdrawal of the direct final rule in the Federal Register informing 
the public that the rule will not take effect.

ADDRESSES: Submit your comments, if any, on EPA's direct final 
conditional approval for Connecticut, identified by Docket ID Number 
EPA-R01-OAR-200-0639 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: arnold.anne@epa.gov Fax: (617) 918-0047. Mail: ``Docket 
Identification Number EPA-R01-OAR-2008-0639'', Anne Arnold, U.S. 
Environmental Protection Agency, EPA New England Regional Office, 
Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post 
Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912
    3. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, Office of Ecosystem Protection, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post 
Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912. 
Such deliveries are only accepted during the Regional Office's normal 
hours of operation. The Regional Office's official hours of business 
are Monday through Friday, 8:30 to 4:30, excluding legal holidays.
    Instructions: Direct your comments for Connecticut to Docket ID No. 
EPA-R01-OAR-2008-0639. EPA's policy is that all comments received will 
be included in the public docket without change and may be made 
available online at http://www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov, or e-mail, information that you consider to be 
CBI or otherwise protected. The http://www.regulations.gov Web site is 
an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 either electronically in http://www.regulations.gov or in hard copy at Office of Ecosystem Protection, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
5 Post Office Square, Suite 100, Boston, MA. EPA requests that if at 
all possible, you contact the person 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 to 
4:30, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality 
Planning Unit, U.S. Environmental Protection Agency, EPA New England 
Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-
3912, telephone number (617) 918-1664, fax number (617) 918-0664, e-
mail Burkhart.Richard@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Scope of Action on Infrastructure Submissions
III. EPA's Response to Comments
IV. Final Actions
V. Statutory and Executive Order Reviews

I. Background

    Section 110(a) of the Clean Air Act imposes the obligation upon 
states to make a SIP submission to EPA for a new or revised NAAQS, but 
the contents of that submission may vary depending upon the facts and 
circumstances. In particular, the data and analytical tools available 
at the time the state develops and submits the SIP for a new or revised 
NAAQS affects the content of the submission. The contents of such SIP 
submissions may also vary depending upon what provisions the state's 
existing SIP already contains. In the case of the 1997 8-hour ozone 
NAAQS, states typically have met the basic program elements required in 
section 110(a)(2) through earlier SIP submissions in connection with 
previous ozone standards.
    On October 2, 2007, EPA issued a guidance document entitled, 
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) 
for the 1997

[[Page 40249]]

8-hour Ozone and fine particle (PM2.5) National Ambient Air 
Quality Standards.'' This guidance noted that to the extent an existing 
SIP already meets the section 110(a)(2) requirements, states need only 
certify that fact via a letter to EPA.
    The States of Connecticut, Maine, New Hampshire, and Rhode Island 
each submitted such certification letters to EPA on December 28, 2007, 
January 3, 2008, December 14, 2007 and December 14, 2007, respectively. 
All four submittals were deemed complete, effective April 28, 2008. 
(See 73 FR 16205; March 27, 2008.)
    On March 23, 2011, EPA proposed to approve the Connecticut, Maine, 
New Hampshire and Rhode Island infrastructure submissions for the 1997 
8-hour ozone NAAQS. See 76 FR 16358. A summary of the background for 
today's final actions is provided below. See EPA's March 23, 2011, 
proposed rulemaking at 76 FR 16358 for more detail.
    More specifically, section 110(a)(1) provides the procedural and 
timing requirements for SIPs. Section 110(a)(2) lists specific elements 
that states must meet for ``infrastructure'' SIP requirements related 
to a newly established or revised NAAQS. As mentioned above, these 
requirements include SIP infrastructure elements such as modeling, 
monitoring, and emissions inventories that are designed to assure 
attainment and maintenance of the NAAQS. The requirements that are the 
subject of this proposed rulemaking are listed below: \1\
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    \1\ Two elements identified in section 110(a)(2) are not 
governed by the three year submission deadline of section 110(a)(1) 
because SIPs incorporating necessary local nonattainment area 
controls are not due within three years after promulgation of a new 
or revised NAAQS, but rather due at the time the nonattainment area 
plan requirements are due pursuant to section 172. These 
requirements are: (1) Submissions required by section 110(a)(2)(C) 
to the extent that subsection refers to a permit program as required 
in part D Title I of the CAA; and (2) submissions required by 
section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA. Today's final rulemaking 
does not address infrastructure elements related to section 
110(a)(2)(I) but does provide detail, as explained in the notice of 
proposed rulemaking, on how the respective states' SIP addresses the 
requirements of section 110(a)(2)(C) not related to the part D 
permit program for nonattainment areas.
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control 
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element 
as they relate to attainment areas, if any.
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     110(a)(2)(D)(ii): Interstate transport.
     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials; 
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local 
entities.

II. Scope of Action on Infrastructure Submissions

    EPA is taking final action to approve the Connecticut, Maine, New 
Hampshire and Rhode Island SIPs as demonstrating that the respective 
States meet the requirements of sections 110(a)(1) and (2) of the CAA 
for the 1997 8-hour ozone NAAQS. Section 110(a) of the CAA requires 
that each state adopt and submit a SIP for the implementation, 
maintenance, and enforcement of each NAAQS promulgated by the EPA, 
which is commonly referred to as an ``infrastructure'' SIP. 
Connecticut, Maine, New Hampshire and Rhode Island certified that the 
Connecticut, Maine, New Hampshire and Rhode Island SIPs contain 
provisions that ensure the 1997 8-hour ozone NAAQS is implemented, 
enforced, and maintained in Connecticut, Maine, New Hampshire and Rhode 
Island, respectively. The Connecticut, Maine, New Hampshire and Rhode 
Island infrastructure submissions address all the required 
infrastructure elements for the 1997 8-hour ozone NAAQS. EPA has 
determined that the Connecticut, Maine, New Hampshire and Rhode Island 
infrastructure submissions are consistent with section 110 of the CAA, 
with the exception of the Connecticut submission with respect to 
section 110(a)(2)(D)(ii). Therefore, EPA is taking final action to 
fully approve the submittals from Connecticut, Maine, New Hampshire and 
Rhode Island, with one exception. EPA is taking direct final action to 
conditionally approve Connecticut's submittal with respect to section 
110(2)(D)(ii), as discussed further in Section III below. Additionally, 
EPA is responding to comments received on EPA's March 23, 2011 proposed 
approval of the Connecticut, Maine, New Hampshire and Rhode Island 
infrastructure submissions.
    EPA is currently acting upon SIPs that address the infrastructure 
requirements of CAA section 110(a)(1) and (2) for ozone and 
PM2.5 NAAQS for various states across the country. 
Commenters on EPA's recent proposals for some states raised concerns 
about EPA statements that it was not addressing certain substantive 
issues in the context of acting on the infrastructure SIP 
submissions.\3\ The commenters specifically raised concerns involving 
provisions in existing SIPs and with EPA's statements that it would 
address two issues separately and not as part of actions on the 
infrastructure SIP submissions: (i) existing provisions related to 
excess emissions during periods of start-up, shutdown, or malfunction 
at sources, that may be contrary to the CAA and EPA's policies 
addressing such excess emissions (``SSM''); and (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (``director's 
discretion''). EPA notes that there are two other substantive issues 
for which EPA likewise stated that it would address the issues 
separately: (i) existing provisions for minor source new source review 
programs that may be inconsistent with the requirements of the CAA and 
EPA's regulations that pertain to such programs (``minor source NSR''); 
and (ii) existing provisions for Prevention of Significant 
Deterioration programs that may be inconsistent with current 
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80,186 
(December 31, 2002), as amended by 72 FR 32,526 (June 13, 2007) (``NSR 
Reform''). In light of the comments, EPA now believes that its 
statements in various proposed actions on infrastructure SIPs with 
respect to these four individual issues should be explained in greater 
depth with respect to these issues.
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    \3\ See, Comments of Midwest Environmental Defense Center, dated 
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse 
comments on proposals for three states in Region 5). EPA notes that 
these public comments on another proposal are not relevant to this 
rulemaking and do not have to be directly addressed in this 
rulemaking. EPA will respond to these comments in the appropriate 
rulemaking action to which they apply.
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    EPA intended the statements in the proposals concerning these four 
issues merely to be informational, and to provide general notice of the 
potential existence of provisions within the existing SIPs of some 
states that might require future corrective action. EPA did not want 
states, regulated entities, or members of the public to be under the 
misconception that the Agency's approval of the infrastructure SIP

[[Page 40250]]

submission of a given state should be interpreted as a reapproval of 
certain types of provisions that might exist buried in the larger 
existing SIP for such state. Thus, for example, EPA explicitly noted 
that the Agency believes that some states may have existing SIP 
approved SSM provisions that are contrary to the CAA and EPA policy, 
but that ``in this rulemaking, EPA is not proposing to approve or 
disapprove any existing State provisions with regard to excess 
emissions during SSM of operations at facilities.'' EPA further 
explained, for informational purposes, that ``EPA plans to address such 
State regulations in the future.'' EPA made similar statements, for 
similar reasons, with respect to the director's discretion, minor 
source NSR, and NSR Reform issues. EPA's objective was to make clear 
that approval of an infrastructure SIP for these ozone and 
PM2.5 NAAQS should not be construed as explicit or implicit 
reapproval of any existing provisions that relate to these four 
substantive issues.
    Unfortunately, the commenters and others evidently interpreted 
these statements to mean that EPA considered action upon the SSM 
provisions and the other three substantive issues to be integral parts 
of acting on an infrastructure SIP submission, and therefore that EPA 
was merely postponing taking final action on the issue in the context 
of the infrastructure SIPs. This was not EPA's intention. To the 
contrary, EPA only meant to convey its awareness of the potential for 
certain types of deficiencies in existing SIPs, and to prevent any 
misunderstanding that it was reapproving any such existing provisions. 
EPA's intention was to convey its position that the statute does not 
require that infrastructure SIPs address these specific substantive 
issues in existing SIPs and that these issues may be dealt with 
separately, outside the context of acting on the infrastructure SIP 
submission of a state. To be clear, EPA did not mean to imply that it 
was not taking a full final agency action on the infrastructure SIP 
submission with respect to any substantive issue that EPA considers to 
be a required part of acting on such submissions under section 110(k) 
or under section 110(c). Given the confusion evidently resulting from 
EPA's statements, however, we want to explain more fully the Agency's 
reasons for concluding that these four potential substantive issues in 
existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA 
section 110(a)(1). That provision requires that states must make a SIP 
submission ``within 3 years (or such shorter period as the 
Administrator may prescribe) after the promulgation of a national 
primary ambient air quality standard (or any revision thereof)'' and 
that these SIPs are to provide for the ``implementation, maintenance, 
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of 
specific elements that ``[e]ach such plan'' submission must meet. EPA 
has historically referred to these particular submissions that states 
must make after the promulgation of a new or revised NAAQS as 
``infrastructure SIPs.'' This specific term does not appear in the 
statute, but EPA uses the term to distinguish this particular type of 
SIP submission designed to address basic structural requirements of a 
SIP from other types of SIP submissions designed to address other 
different requirements, such as ``nonattainment SIP'' submissions 
required to address the nonattainment planning requirements of part D, 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A, new source review 
permitting program submissions required to address the requirements of 
part D, and a host of other specific types of SIP submissions that 
address other specific matters.
    Although section 110(a)(1) addresses the timing and general 
requirements for these infrastructure SIPs, and section 110(a)(2) 
provides more details concerning the required contents of these 
infrastructure SIPs, EPA believes that many of the specific statutory 
provisions are facially ambiguous. In particular, the list of required 
elements provided in section 110(a)(2) contains a wide variety of 
disparate provisions, some of which pertain to required legal 
authority, some of which pertain to required substantive provisions, 
and some of which pertain to requirements for both authority and 
substantive provisions.\4\ Some of the elements of section 110(a)(2) 
are relatively straightforward, but others clearly require 
interpretation by EPA through rulemaking, or recommendations through 
guidance, in order to give specific meaning for a particular NAAQS.\5\
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    \4\ For example, section 110(a)(2)(E) provides that states must 
provide assurances that they have adequate legal authority under 
state and local law to carry out the SIP; section 110(a)(2)(C) 
provides that states must have a substantive program to address 
certain sources as required by part C of the CAA; section 
110(a)(2)(G) provides that states must have both legal authority to 
address emergencies and substantive contingency plans in the event 
of such an emergency.
    \5\ For example, section 110(a)(2)(D)(i) requires EPA to be sure 
that each state's SIP contains adequate provisions to prevent 
significant contribution to nonattainment of the NAAQS in other 
states. This provision contains numerous terms that require 
substantial rulemaking by EPA in order to determine such basic 
points as what constitutes significant contribution. See, e.g., 
``Rule To Reduce Interstate Transport of Fine Particulate Matter and 
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; 
Revisions to the NOx SIP Call; Final Rule,'' 70 FR 25,162 (May 12, 
2005)(defining, among other things, the phrase ``contribute 
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP 
submission must meet the list of requirements therein, EPA has long 
noted that this literal reading of the statute is internally 
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment 
SIP requirements that could not be met on the schedule provided for 
these SIP submissions in section 110(a)(1).\6\ This illustrates that 
EPA must determine which provisions of section 110(a)(2) may be 
applicable for a given infrastructure SIP submission. Similarly, EPA 
has previously decided that it could take action on different parts of 
the larger, general ``infrastructure SIP'' for a given NAAQS without 
concurrent action on all subsections, such as section 110(a)(2)(D)(i), 
because the Agency bifurcated the action on these latter ``interstate 
transport'' provisions within section 110(a)(2) and worked with states 
to address each of the four prongs of section 110(a)(2)(D)(i) with 
substantive administrative actions proceeding on different tracks with 
different schedules.\7\ This illustrates that EPA may conclude that 
subdividing the applicable requirements of section 110(a)(2) into 
separate SIP actions may sometimes be appropriate for a given NAAQS 
where a specific substantive action is necessitated, beyond a mere 
submission addressing basic structural aspects of the state's SIP. 
Finally, EPA notes that not every element of section 110(a)(2) would be 
relevant, or as relevant, or relevant in the same way, for each new or 
revised NAAQS and the attendant infrastructure SIP submission for that 
NAAQS. For example, the monitoring requirements that might be necessary 
for purposes of section 110(a)(2)(B) for one NAAQS could be

[[Page 40251]]

very different than what might be necessary for a different pollutant. 
Thus, the content of an infrastructure SIP submission to meet this 
element from a state might be very different for an entirely new NAAQS, 
versus a minor revision to an existing NAAQS.\8\
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    \6\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12, 
2005)(explaining relationship between timing requirement of section 
110(a)(2)(D) versus section 110(a)(2)(I)).
    \7\ EPA issued separate guidance to states with respect to SIP 
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 
1997 PM2.5 NAAQS. See, ``Guidance for State 
Implementation Plan (SIP) Submissions to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards,'' from 
William T. Harnett, Director Air Quality Policy Division OAQPS, to 
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \8\ For example, implementation of the 1997 PM2.5 
NAAQS required the deployment of a system of new monitors to measure 
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required 
under the statute also must meet the requirements of section 110(a)(2), 
and this also demonstrates the need to identify the applicable elements 
for other SIP submissions. For example, nonattainment SIPs required by 
part D likewise have to meet the relevant subsections of section 
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear 
that nonattainment SIPs would not need to meet the portion of section 
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement 
applicable in attainment areas. Nonattainment SIPs required by part D 
also would not need to address the requirements of section 110(a)(2)(G) 
with respect to emergency episodes, as such requirements would not be 
limited to nonattainment areas. As this example illustrates, each type 
of SIP submission may implicate some subsections of section 110(a)(2) 
and not others.
    Given the potential for ambiguity of the statutory language of 
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA 
to interpret that language in the context of acting on the 
infrastructure SIPs for a given NAAQS. Because of the inherent 
ambiguity of the list of requirements in section 110(a)(2), EPA has 
adopted an approach in which it reviews infrastructure SIPs against 
this list of elements ``as applicable.'' In other words, EPA assumes 
that Congress could not have intended that each and every SIP 
submission, regardless of the purpose of the submission or the NAAQS in 
question, would meet each of the requirements, or meet each of them in 
the same way. EPA elected to use guidance to make recommendations for 
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for 
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS 
and the 1997 PM2.5 NAAQS. \9\ Within this guidance document, 
EPA described the duty of states to make these submissions to meet what 
the Agency characterized as the ``infrastructure'' elements for SIPs, 
which it further described as the ``basic SIP requirements, including 
emissions inventories, monitoring, and modeling to assure attainment 
and maintenance of the standards.'' \10\ As further identification of 
these basic structural SIP requirements, ``attachment A'' to the 
guidance document included a short description of the various elements 
of section 110(a)(2) and additional information about the types of 
issues that EPA considered germane in the context of such 
infrastructure SIPs. EPA emphasized that the description of the basic 
requirements listed on attachment A was not intended ``to constitute an 
interpretation of'' the requirements, and was merely a ``brief 
description of the required elements.'' \11\ EPA also stated its belief 
that with one exception, these requirements were ``relatively self 
explanatory, and past experience with SIPs for other NAAQS should 
enable States to meet these requirements with assistance from EPA 
Regions.'' \12\ For the one exception to that general assumption, 
however, i.e., how states should proceed with respect to the 
requirements of section 110(a)(2)(G) for the 1997 PM2.5 
NAAQS, EPA gave much more specific recommendations. But for other 
infrastructure SIP submittals, and for certain elements of the 
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each 
state would work with its corresponding EPA regional office to refine 
the scope of a state's submittal based on an assessment of how the 
requirements of section 110(a)(2) should reasonably apply to the basic 
structure of the state's SIP for the NAAQS in question.
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    \9\ See, ``Guidance on SIP Elements Required Under Section 
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 
National Ambient Air Quality Standards,'' from William T. Harnett, 
Director Air Quality Policy Division, to Air Division Directors, 
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA 
issued comparable guidance for the 2006 PM2.5 NAAQS 
entitled ``Guidance on SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2006 24-Hour Fine Particle 
(PM2.5) National Ambient Air Quality Standards (NAAQS),'' 
from William T, Harnett, Director Air Quality Policy Division, to 
Regional Air Division Directors, Regions I-X, dated September 25, 
2009 (the ``2009 Guidance'').
    \10\ Id., at page 2.
    \11\ Id., at attachment A, page 1.
    \12\ Id., at page 4. In retrospect, the concerns raised by 
commenters with respect to EPA's approach to some substantive issues 
indicates that the statute is not so ``self explanatory,'' and 
indeed is sufficiently ambiguous that EPA needs to interpret it in 
order to explain why these substantive issues do not need to be 
addressed in the context of infrastructure SIPs and may be addressed 
at other times and by other means.
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    Significantly, the 2007 Guidance did not explicitly refer to the 
SSM, director's discretion, minor source NSR, or NSR Reform issues as 
among specific substantive issues EPA expected states to address in the 
context of the infrastructure SIPs, nor did EPA give any more specific 
recommendations with respect to how states might address such issues 
even if they elected to do so. The SSM and director's discretion issues 
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform 
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, 
EPA did not indicate to states that it intended to interpret these 
provisions as requiring a substantive submission to address these 
specific issues in the context of the infrastructure SIPs for these 
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that 
the states should make submissions in which they established that they 
have the basic SIP structure necessary to implement, maintain, and 
enforce the NAAQS. EPA believes that states can establish that they 
have the basic SIP structure, notwithstanding that there may be 
potential deficiencies within the existing SIP. Thus, EPA's proposals 
mentioned these issues not because the Agency considers them issues 
that must be addressed in the context of an infrastructure SIP as 
required by section 110(a)(1) and (2), but rather because EPA wanted to 
be clear that it considers these potential existing SIP problems as 
separate from the pending infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP 
requirement is reasonable, because it would not be feasible to read 
section 110(a)(1) and (2) to require a top to bottom, stem to stern, 
review of each and every provision of an existing SIP 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 that, 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 considers the overall effectiveness of the 
SIP. To the contrary, EPA believes that a better approach is for EPA to 
determine which specific SIP elements from section 110(a)(2) are 
applicable to an infrastructure SIP for a given NAAQS, and to focus 
attention on those elements that are most likely to need a specific SIP 
revision in light of the new or revised NAAQS. Thus, for example, EPA's 
2007 Guidance specifically directed states to focus on the requirements 
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of

[[Page 40252]]

the absence of underlying EPA regulations for emergency episodes for 
this NAAQS and an anticipated absence of relevant provisions in 
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of 
section 110(a)(1) and (2) because the statute provides other avenues 
and mechanisms to address specific substantive deficiencies in existing 
SIPs. These other statutory tools allow the Agency to take appropriate 
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 otherwise to comply with the CAA.\13\ Section 
110(k)(6) authorizes EPA to correct errors in past actions, such as 
past approvals of SIP submissions.\14\ Significantly, EPA's 
determination that an action on the infrastructure SIP is not the 
appropriate time and place to address all potential existing SIP 
problems does not preclude the Agency's subsequent reliance on 
provisions in section 110(a)(2) as part of the basis for action 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 the infrastructure SIP, EPA 
believes that section 110(a)(2)(A) may be among the statutory bases 
that the Agency cites in the course of addressing the issue in a 
subsequent action.\15\
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    \13\ EPA has recently issued a SIP call to rectify a specific 
SIP deficiency related to the SSM issue. See, ``Finding of 
Substantial Inadequacy of Implementation Plan; Call for Utah State 
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
    \14\ EPA has recently utilized 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 82,536 (Dec. 30, 2010). 
EPA has previously used its authority under CAA 110(k)(6) to remove 
numerous other SIP provisions that the Agency determined it had 
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR 
34,641 (June 27, 1997) (corrections to American Samoa, Arizona, 
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16, 
2004) (corrections to California SIP); and 74 FR 57,051 (November 3, 
2009) (corrections to Arizona and Nevada SIPs).
    \15\ EPA has recently disapproved 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 42,342 at 42,344 (July 21, 2010) 
(proposed disapproval of director's discretion provisions); 76 FR 
4,540 (Jan. 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

III. EPA's Response to Comments

    EPA received one set of comments (from the Law Office of Robert 
Ukeiley, hereinafter referred to as ``the Commenter'') on the March 23, 
2011, proposed rulemaking to approve revisions to the Connecticut, 
Maine, New Hampshire and Rhode Island infrastructure submissions as 
meeting the requirements of sections 110(a)(1) and (2) of the CAA for 
the 1997 8-hour ozone NAAQS. Generally, the Commenter's concerns relate 
to whether EPA's approval of the Connecticut, Maine, New Hampshire and 
Rhode Island infrastructure submissions are in compliance with section 
110(l) of the CAA, and whether EPA's approval will interfere with the 
states' compliance with the CAA's prevention of significant 
deterioration (PSD) requirements. In addition, the commenter has 
concerns with how the Connecticut SIP addresses the element required by 
section 110(a)(2)(D)(ii). The comments are provided in the docket for 
today's final action. A summary of the comments and EPA's responses are 
provided below.
    Comment 1: Under the header ``No Clean Air Act Section 110(l) 
analysis,'' the Commenter states ``Before providing the technical 
analysis for why finalizing this proposed rule would be contrary to the 
Clean Air Act, I wish to point out that it is 2011 and EPA has yet to 
ensure that these areas have plans to meet the 1997 National Ambient 
Air Quality Standard (NAAQS) for ozone.'' The Commenter goes on to 
state that ``EPA acknowledged that the science indicates that the 1997 
NAAQS, which is effectively 85 parts per billion (ppb), does not 
protect people's health or welfare when in 2008, EPA set a new ozone 
NAAQS at 75 ppb.''
    Response 1: As noted in EPA's proposed rulemaking on the 
Connecticut, Maine, New Hampshire and Rhode Island infrastructure 
submissions and in today's final rulemaking, the very action that EPA 
is undertaking is a determination that Connecticut, Maine, New 
Hampshire and Rhode Island have plans to ensure compliance with the 
1997 8-hour ozone NAAQS. The level of the 1997 ozone NAAQS is 0.08 
parts per million (ppm) on an 8-hour average basis. The Connecticut, 
Maine, New Hampshire and Rhode Island submissions predate the release 
of the recent revision to the 8-hour ozone NAAQS on March 12, 2008, and 
are distinct from any plans that the States of Connecticut, Maine, New 
Hampshire and Rhode Island may provide to ensure compliance of the 2008 
NAAQS. Our actions today are meant to address the 1997 ozone 
infrastructure requirements under Section 110 of the Act. EPA does not 
have before us the Section 110 infrastructure requirements for the 2008 
ozone NAAQS. Nevertheless, EPA has considered the 2008 8-hour ozone 
NAAQS to the extent that section 110(l) applies to this action and will 
expound on this consideration in Response 2 below. Further, EPA agrees 
that the Agency has made the determination that the 1997 8-hour ozone 
NAAQS is not as protective as needed for public health and welfare, and 
as the Commenter mentioned, the Agency established a new ozone NAAQS at 
a level of 0.075 ppm on an 8-hour average basis. However, EPA notes 
that the Agency is currently reconsidering the 2008 8-hour ozone NAAQS, 
and has not yet designated areas for any subsequent NAAQS.
    Finally, while it is not clear which areas the Commenter refers to 
in stating ``EPA has yet to ensure these areas have plans to meet'' the 
1997 ozone NAAQS, the comment may refer to the requirements under 
section 172, Part D, Title I of the Act for states with nonattainment 
areas for the 1997 ozone NAAQS to submit nonattainment plans. As 
discussed in our notice proposing approval of the Connecticut, Maine, 
New Hampshire and Rhode Island infrastructure SIP, submissions required 
by section 110(a)(2)(I) which pertain to the nonattainment planning 
requirements of part D, Title I of the CAA are outside the scope of 
this action, as such plans are not due within three years after 
promulgation of a new or revised NAAQS, but rather are due at the time 
the nonattainment area plan requirements are due pursuant to section 
172.
    In addition, all of Rhode Island (see 75 FR 64949, Oct. 21, 2010), 
New Hampshire (see 76 FR 14865, March 18, 2011), and Maine (see 71 FR 
71489, Dec. 11, 2006) meet the 1997 ozone NAAQS. The Greater 
Connecticut 8-hour ozone nonattainment area also meets the 1997 ozone 
NAAQS (see 75 FR 53219, August 31, 2011). The remainder of the State of 
Connecticut also meets the 1997 ozone NAAQS based on 2007-2009 ozone 
data, but EPA has not yet made the formal determination in the Federal 
Register. In summary, all four states have ozone air quality that meets 
the 1997 ozone NAAQS.
    Comment 2: Also under the header ``No Clean Air Act Section 110(l) 
analysis,'' the Commenter cites the section 110(l) CAA requirement, and 
states ``Clean Air Act Sec.  110(l) requires `EPA to evaluate whether 
the plan as revised will achieve the pollution reductions required 
under the Act, and

[[Page 40253]]

the absence of exacerbation of the existing situation does not assure 
this result.' Hall v. EPA, 273 F.3d 1146, 1152 (9th Cir. 2001).'' The 
Commenter goes on to state that ``* * * the Federal Register notices 
are devoid of any analysis of how these rule makings will or will not 
interfere with attaining, making reasonable further progress on 
attaining and maintaining the 75 ppb ozone NAAQS as well as the 1-hour 
100 ppb nitrogen oxides NAAQS.''
    Response 2: EPA agrees with the Commenter's assertion that 
consideration of section 110(l) of the CAA is necessary for EPA's 
action with regard to approving the states' submissions. However, EPA 
disagrees with the Commenter's assertion that EPA did not consider 
110(l) in terms of the March 23, 2011, proposed action. Further, EPA 
disagrees with the Commenter's assertion that EPA's proposed March 23, 
2011 action does not comply with the requirements of section 110(l). 
Section 110(l) provides in part that: ``[t]he Administrator shall not 
approve a revision of a plan if the revision would interfere with any 
applicable requirement concerning attainment and reasonable further 
progress * * *, or any other applicable requirement of this chapter.'' 
EPA has consistently interpreted section 110(l) as not requiring a new 
attainment demonstration for every SIP submission. EPA has further 
concluded that preservation of the status quo air quality during the 
time new attainment demonstrations are being prepared will not 
interfere with a state meeting its obligations to develop timely 
attainment demonstrations. The following actions are examples of where 
EPA has addressed 110(l) in previous rulemakings: See 70 FR 53, 57 
(January 3, 2005); 70 FR 17029, 17033 (April 4, 2005); 70 FR 28429, 
28431 (May 18, 2005); and 70 FR 58119, 58134 (October 5, 2005). The 
Connecticut, Maine, New Hampshire and Rhode Island infrastructure 
submissions do not revise or remove any existing emissions limit for 
any NAAQS or any other existing substantive SIP provisions relevant to 
the 1997 8-hour ozone NAAQS or the 2010 nitrogen dioxide 
(NO2) NAAQS. Simply put, the submissions do not make any 
substantive revision that could result in any change in emissions. As a 
result, the submissions do not relax any existing requirements or alter 
the status quo air quality. Therefore, approval of the Connecticut, 
Maine, New Hampshire and Rhode Island infrastructure submissions will 
not interfere with attainment or maintenance of any NAAQS.
    Comment 3: Under the header ``No Clean Air Act Section 110(l) 
analysis,'' the Commenter states that ``We are not required to guess 
what EPA's Clean Air Act 110(l) analysis would be. Rather, EPA must 
approve in part and disapprove in part these action and re-propose to 
approve the disapproved part with a Clean Air Act Sec.  110(l) 
analysis.'' Further, the Commenter states that ``EPA cannot include its 
analysis in its response to comments and approve the actions without 
providing the public with an opportunity to comment on EPA's Clean Air 
Act Sec.  110(l) analysis.''
    Response 3: Please see Response 2 for a fuller explanation 
regarding EPA's response to the Commenter's assertion that EPA's action 
is not in compliance with section 110(l) of the CAA. EPA does not agree 
with the Commenter's assertion that EPA's analysis did not somehow 
consider section 110(l) and so, therefore, ``EPA must approve in part 
and disapprove in part these action [sic] and re-propose to approve the 
disapproved part with a Clean Air Act Sec.  110(l) analysis.'' Every 
action that EPA takes to approve a SIP revision is subject to 110(l) 
and thus EPA's consideration of whether a state's submission ``* * * 
would interfere with any applicable requirement concerning attainment 
and reasonable further progress * * *, or any other applicable 
requirement of this chapter'' is inherent in EPA's action to approve or 
disapprove a submission from a state. In the ``Proposed Action'' 
section of the March 23, 2010, rulemaking, EPA notes that EPA is 
proposing to approve the Connecticut, Maine, New Hampshire and Rhode 
Island infrastructure submissions for the 1997 8-hour ozone NAAQS 
because these submissions are consistent with section 110 of the CAA. 
Section 110(l) is a component of section 110, so EPA believes that this 
provides sufficient notice that EPA considered section 110(l) for the 
proposed action and concluded that section 110(l) was not violated. 
Further, EPA does not agree with the Commenter's assertion that the 
Agency cannot provide additional clarification in response to a comment 
and take a final approval action without ``* * * providing the public 
with an opportunity to comment on EPA's Clean Air Act Sec.  110(l) 
analysis.'' The Commenter does not cite any provision of the Act or 
other authority for the Commenter's assertion. In fact, the proposition 
that providing an analysis for the first time in response to a comment 
on a rulemaking somehow violates the public's opportunity to comment 
has been rejected by the DC Circuit Court of Appeals. See Int'l 
Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 n.51 (D.C. Cir. 1973). 
Furthermore, as mentioned above, EPA's approval of the Connecticut, 
Maine, New Hampshire and Rhode Island infrastructure submissions does 
not make any substantive revision that could result in any change in 
emissions, so there is no further ``analysis'' beyond whether the state 
has adequate provisions in their SIPs to address the infrastructure 
requirements for the 1997 8-hour ozone NAAQS. EPA's March 23, 2011, 
proposed rulemaking goes through each of the relevant infrastructure 
requirements and provides detailed information on how the Connecticut, 
Maine, New Hampshire and Rhode Island SIPs address the relevant 
infrastructure requirements. Beyond making a general statement 
indicating that the Connecticut, Maine, New Hampshire and Rhode Island 
submissions are somehow not in compliance with section 110(l) of the 
CAA, the Commenter does not provide comments on EPA's detailed analysis 
of each infrastructure requirement to indicate that the Connecticut, 
Maine, New Hampshire and Rhode Island infrastructure submissions for 
the 1997 8-hour ozone NAAQS are deficient in meeting these individual 
requirements. Therefore, EPA has no basis to question the Agency's 
determination that the Connecticut, Maine, New Hampshire and Rhode 
Island infrastructure submissions meet the requirements for the 
infrastructure submission for the 1997 8-hour ozone NAAQS, including 
section 110(l) of the CAA.
    Comment 4: Under the header ``No Clean Air Act Section 110(l) 
analysis,'' the Commenter further asserts that ``EPA's analysis must 
conclude that this proposed action would violation [sic] Sec.  110(l) 
if finalized.'' An example given by the Commenter is as follows; ``For 
example, a 42 U.S.C. Sec.  7502(a)(2)(J) public notification program 
based on a 85 [parts per billion (ppb)] ozone level interferes with a 
public notification program that should exist for a 75 ppb ozone level. 
At its worst, the public notification system would be notifying people 
that the air is safe when in reality, based on the latest science, the 
air is not safe. Thus, EPA would be condoning the states providing 
information that can physical[ly] hurt people.''
    Response 4: EPA disagrees with the Commenter's statement that 
``EPA's analysis must conclude that this proposed action would 
violation [sic] Sec.  110(l) if finalized.'' As mentioned above, the 
Connecticut, Maine, New Hampshire and Rhode Island

[[Page 40254]]

infrastructure submissions do not revise or remove any existing 
emissions limit for any NAAQS, nor do they make any substantive 
revision that could result in any change in emissions. EPA has 
concluded that the Connecticut, Maine, New Hampshire and Rhode Island 
infrastructure submissions do not relax any existing requirements or 
alter the status quo air quality. Therefore, approval of the 
Connecticut, Maine, New Hampshire and Rhode Island infrastructure 
submissions will not interfere with attainment or maintenance of any 
NAAQS. See Response 2 and Response 3 above for a fuller discussion. 
Further, EPA disagrees with the Commenter's assertion that the section 
110(a)(2)(J) requirement for public notification for the 1997 8-hour 
ozone NAAQS based on 85 ppb interferes with a public notification 
program that should exist for a 75 ppb ozone level, and * * * ``EPA 
would be condoning the states providing information that can 
physical[ly] hurt people.'' First, the 1997 8-hour ozone NAAQS is 0.08 
ppm, which is effectively 0.084 ppm or 84 ppb due to the rounding 
convention, and not ``85 ppb'' as the Commenter mentioned. Second, EPA 
establishes the health-based NAAQS and provides extensive resources, 
technical analyses and support to the states to ensure compliance with 
the NAAQS to protect human health and the environment. As noted in 
Response 1, the Connecticut, Maine, New Hampshire and Rhode Island 
infrastructure submissions were provided to address the 1997 8-hour 
ozone NAAQS and were submitted prior to EPA's promulgation of the 2008 
8-hour ozone in March 2008. Thus, the States of Connecticut, Maine, New 
Hampshire and Rhode Island provided sufficient information at that time 
to meet the requirement for the 1997 8-hour ozone NAAQS which is the 
subject of this action.
    As mentioned, in 2008, EPA issued revised 8-hour ozone NAAQS, which 
are currently under reconsideration. Infrastructure requirements for 
the 2008 (or a subsequent) NAAQS are distinct from these requirements 
for the 1997 8-hour ozone NAAQS. EPA continues to implement the 2008 
ozone NAAQS for the purposes of health based air quality notification. 
When EPA promulgated the 2008 NAAQS (73 FR 16436, March 27, 2008), we 
revised the Air Quality Index (AQI) for ozone to show that at the level 
of the 2008 ozone NAAQS (0.075 ppm) the AQI is set to 100, which 
indicates ozone levels that are unhealthful for sensitive groups. It is 
this revised AQI that EPA uses to both forecast ozone levels and to 
provide notice to the public of current air quality. The EPA AIRNOW 
system uses the revised AQI as its basis for ozone. (See http://www.airnow.gov.) In addition when the States of Connecticut, Maine, New 
Hampshire and Rhode Island forecast ozone air quality and provide real-
time ozone air quality information to the public, either through the 
AIRNOW system, or through their own (state-based) Internet system, the 
four states use the revised ozone AQI keyed to the 2008 revised ozone 
NAAQS.
    Comment 5: Lastly, under the header ``No Clean Air Act Section 
110(l) analysis,'' the Commenter asserts that ``if a SIP provides an 
ozone NAAQS of 85 ppb for PSD purposes, this interferes with the 
requirement that PSD programs require sources to demonstrate that they 
will not cause or contribute to a violation of a NAAQS because this 
requirement includes the current 75 ppb ozone NAAQS.''
    Response 5: EPA believes that this comment gives no basis for 
concluding that EPA approval of the Connecticut, Maine, New Hampshire 
and Rhode Island infrastructure SIPs violate the requirements of 
section 110(l). EPA assumes that the comment refers to the requirement 
that owners and operators of sources subject to PSD demonstrate that 
the allowable emissions increases from the proposed source or 
modification, in conjunction with all other applicable emissions 
increases or reductions (including secondary emissions), will not cause 
or contribute to a violation of the NAAQS. 40 CFR 51.166(k)(1).
    EPA further assumes that the Commenter's language ``if a SIP 
provides an ozone NAAQS of 85 ppb for PSD purposes'' refers to a 
hypothetical SIP-approved PSD program that only requires owners and 
operators of sources subject to PSD to make the demonstration discussed 
above for the 1997 ozone NAAQS, and not for the 2008 ozone NAAQS. 
However, the Commenter gives no indication that Connecticut, Maine, New 
Hampshire and Rhode Island's SIP-approved PSD program suffers from this 
alleged defect.
    Furthermore, as discussed in detail above, the infrastructure SIP 
makes no substantive change to any provision of the Connecticut, Maine, 
New Hampshire and Rhode Island SIP-approved PSD programs, and therefore 
does not violate the requirements of section 110(l). Had these states 
submitted SIP revisions that substantively modified their PSD program 
to limit the required demonstration to just the 1997 ozone NAAQS, then 
the comment might have been relevant to a 110(l) analysis of that 
hypothetical SIP revision. However, in this case, the comment gives no 
basis for EPA to conclude that the four states' infrastructure SIPs 
would interfere with any applicable requirement of the Act.
    In addition, all of Connecticut, Rhode Island, New Hampshire and 
Maine are in the Ozone Transport Region (OTR) (see CAA Section 184). 
For ozone and ozone precursors, all new or modified major sources in 
the OTR are covered by nonattainment new source review (NSR) 
regulations and must obtain offsets (at a greater than 1 to 1 ratio) 
for ozone precursors.\16\ In summary, for OTR states, the PSD 
regulations for ozone do not apply and nonattainment NSR regulations 
require offsets consistent with the CAA's requirements to address the 
ambient impact of new source construction in these areas.
---------------------------------------------------------------------------

    \16\ For portions of northern and downeast Maine EPA has granted 
a waiver for the ozone precursor oxides of nitrogen. (see 71 FR 
5791, 2/3/06). This waiver was based on a finding that additional 
reductions in oxides of nitrogen in these areas would not produce 
net ozone air quality benefits in the ozone transport region. See 42 
U.S.C. 7511a(f)(1)(B).
---------------------------------------------------------------------------

    EPA concludes that approval of the Connecticut, Maine, New 
Hampshire and Rhode Island infrastructure submissions will not make the 
status quo air quality worse and is in fact consistent with the 
development of an overall plan capable of meeting the Act's 
requirements. Accordingly, when applying section 110(l) to this 
submission, EPA finds that approval of Connecticut, Maine, New 
Hampshire and Rhode Island's infrastructure submissions is consistent 
with section 110 (including section 110(l)) of the CAA.
    Comment 6: The Commenter provided comments on the lack of a 
designated air quality model to demonstrate that a PSD source will not 
cause or contribute to a violation of the ozone NAAQS. Specifically, 
the commenter stated:

    The SIP submittals do not comply with Clean Air Act 
110(a)(2)(J), (K), and (D)(i)(II) because the SIP submittals do not 
identify a specific model to use in PSD permitting to demonstrate 
that a proposed source [or] modification will not cause or 
contribute to a violation of the ozone NAAQS. Many states abuse this 
lack of an explicitly named model by claiming that because no model 
is explicitly named, no modeling is required or use of completely 
irrelevant modeling (e.g. Kentucky using modeling from Georgia for 
the J.K. Smith proposed facility) is allowed.

    To support the position as to the necessity of ``[w]hy and which 
model should be designated,'' the Commenter

[[Page 40255]]

attached a petition \17\ and incorporated this petition, and the 
exhibits to this petition, by reference in the submitted comments.
---------------------------------------------------------------------------

    \17\ The Commenter attached the July 28, 2010, ``Petition for 
Rulemaking to Designate Air Quality Models to use for PSD Permit 
Applications with Regard to Ozone and PM2.5,'' from 
Robert Ukeiley on behalf of the Sierra Club. That petition and the 
attached exhibits are available in the docket supporting this 
action.
---------------------------------------------------------------------------

    Response 6: The Commenter referred to the petition for rulemaking 
from Robert Ukeiley on behalf of the Sierra Club to designate air 
quality models to use for PSD permit applications with regard to ozone 
and PM2.5. EPA is separately reviewing the July 28, 2010, 
``Petition for Rulemaking to Designate Air Quality Models to Use for 
PSD Permit Applications with Regard to Ozone and PM2.5,'' 
which requests that the EPA Administrator designate computer models to 
determine whether major sources of air pollution cause or contribute to 
violations of the ozone NAAQS and the PM2.5 NAAQS and 
increments. Although the Commenter purports to incorporate the July 28, 
2010 petition by reference, that petition arises in a different 
context, requests different relief, and raises distinct issues from 
those raised by the comment. EPA believes that the appropriate place to 
respond to the issues raised in the petition is in a direct response to 
the petition. Accordingly, this Response to the Comment is not a 
response to the July 28, 2010 petition, and the issues raised in that 
petition are being addressed under separate consideration.
    Furthermore, the states included in this action are Connecticut, 
Maine, New Hampshire and Rhode Island. Since these states are in the 
Ozone Transport Region (OTR), they are required to, under Sections 
182(f)(1) and 184(b) of the Clean Air Act, and in fact do, conduct 
nonattainment NSR for new major and modified major sources of ozone 
precursors.\18\ Section 184(b)(2) requires major stationary sources of 
volatile organic compounds at the 50 ton per year level in the OTR to 
meet all ``the requirements which would be applicable to major 
stationary sources if the area were classified as a Moderate 
nonattainment area.'' Section 182(f)(1) has the effect of extending 
that requirement to major sources of nitrogen oxides at the 100 ton per 
year level in the OTR. Under the nonattainment NSR program, sources are 
not required to predict their ambient impacts using modeling. Rather, 
the program assumes the new or modified sources will contribute to 
nonattainment in the area. Accordingly, the program requires that these 
sources secure offsets for their new emissions at a ratio of at least 
1.15 to 1 in the OTR. Thus, the offset requirement addresses the 
ambient impact element of NSR in these states for ozone precursors 
without reliance on any predictive modeling. Therefore, this comment 
regarding which model to use in the PSD modeling of single source's 
ozone precursors is not relevant to this action.
---------------------------------------------------------------------------

    \18\ Note that EPA has granted a waiver from the requirements of 
182(f) for the northern-most counties in Maine. EPA granted this 
waiver based on the finding required under 182(f)(1)(B) that 
``additional reductions of oxides of nitrogen would not produce net 
ozone air quality benefits in [the OTR].'' EPA has determined for 
northern Maine that NOx emissions reductions are not necessary to 
attain or maintain the ozone NAAQS in the OTR. Therefore, EPA does 
not believe that the absence of a specified model in the PSD program 
for predicting ozone impacts from a NOx source in this particular 
area of the OTR is problematic.
---------------------------------------------------------------------------

    Comment 7: Under the heading ``CT's SIP must require notice to 
affected states,'' the Commenter states, ``CT's SIP is defective 
because its PSD regulations fail to require CT to give notice of PSD 
sources to affected states. 76 FR 16358, 16362 (Mar. 23, 2011). EPA 
must disapprove this defective provision. The fact that neighboring 
states have consistently obtained draft permits in the past does not 
justify approving an illegal SIP. It does not even make sense. To begin 
with, it is unlikely that EPA actually reviewed all PSD permits issued 
in the past to actually determine that proper notice was actually given 
by CT. In any event, CT could change its informal policy in the future, 
especially if there is a change in management in the agency or state.''
    Response 7: Section 110(a)(2)(D)(ii) of the CAA requires SIPs to 
include provisions insuring compliance with the applicable requirements 
of sections 126 and 115 (relating to interstate and international 
pollution abatement). Specifically, section 126(a) requires new or 
modified major sources to notify neighboring states of potential 
impacts from the source. As noted in EPA's proposed approval (see 76 FR 
16362), Connecticut's PSD regulations provide for notice to most of the 
parties consistent with the requirements in the EPA PSD program, 
although there is no specific mandate that affected states receive 
notice. As also noted in the proposed approval, Connecticut in fact 
issues extensive notice of its draft permits, and neighboring states 
consistently get copies on those drafts. However, EPA agrees with the 
commenter that the current Connecticut SIP does not explicitly require 
notice to affected states for some sources of air pollution. Subsequent 
to EPA's proposal, on May 2, 2011, EPA received a written commitment 
from the State of Connecticut to pursue regulatory revisions to 
Connecticut's PSD program to adopt a formal requirement to notify 
nearby states. Connecticut's letter also committed to continue to 
provide notice to nearby states while shepherding these regulatory 
revisions through the state process. Therefore, taking all of this 
information into consideration, EPA has decided to take direct final 
action to conditionally approve this element of the Connecticut SIP. 
Conditional approval is appropriate in this circumstance because the 
State has explicitly committed to continuing its practice of notifying 
affected states while it conforms its regulations to mandate that 
practice.

IV. Final Action

    As described above, the Connecticut, Maine, New Hampshire and Rhode 
Island ozone infrastructure SIP submissions have addressed the elements 
of the CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 
2, 2007 guidance to ensure that the 1997 8-hour ozone NAAQS are 
implemented, enforced, and maintained in the respective state, except 
for one element in Connecticut. EPA is taking final action to approve 
the Connecticut, Maine, New Hampshire and Rhode Island infrastructure 
submissions for the 1997 8-hour ozone NAAQS because these submissions 
are consistent with section 110 of the CAA, except for the element 
required by section 110(a)(2)(D)(ii) in Connecticut.
    EPA is conditionally approving the Connecticut submittal with 
respect to the requirement of CAA section 110(a)(2)(D)(ii). The State 
must submit to EPA by July 9, 2012 the revised PSD regulations 
requiring notification of nearby states. If the State fails to do so, 
this approval will become a disapproval on that date. EPA will notify 
the State by letter that this action has occurred. At that time, this 
commitment will no longer be a part of the approved Connecticut 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 time frame, the conditionally 
approved submission will remain a part of the SIP until EPA takes final 
action approving or disapproving the new submittal. If EPA disapproves 
the new submittal, the conditionally approved submittal will also be 
disapproved at that time. If EPA approves the new submittal, 
Connecticut's infrastructure SIP will be fully approved in its entirety 
and

[[Page 40256]]

replace the conditionally approved element in the SIP.
    If the conditional approval is converted to a disapproval, the 
final disapproval triggers the Federal Implementation Plan (FIP) 
requirement under section 110(c).
    The EPA is publishing this conditional approval without prior 
proposal because the Agency views this as a noncontroversial amendment 
and anticipates no adverse comments. However, in the proposed rules 
section of this Federal Register publication, EPA is publishing a 
separate document that will serve as the proposal to conditionally 
approve the Connecticut submittal with respect to CAA section 
110(a)(2)(D)(ii) should relevant adverse comments be filed. This rule 
will be effective September 6, 2011 without further notice unless the 
Agency receives relevant adverse comments by August 8, 2011.
    If the EPA receives such comments, then EPA will publish a notice 
withdrawing the final conditional approval and informing the public 
that the conditional approval will not take effect. All public comments 
received will then be addressed in a subsequent final rule based on the 
proposed rule. The EPA will not institute a second comment period on 
the proposed rule. All parties interested in commenting on the proposed 
rule should do so at this time. If no such comments are received, the 
public is advised that the conditional approval will be effective on 
September 6, 2011 and no further action will be taken on the proposed 
rule. Please note that if EPA receives adverse comment on an amendment, 
paragraph, or section of this rule and if that provision may be severed 
from the remainder of the rule, EPA may adopt as final those provisions 
of the rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the Act and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. 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 Order 
12866 (58 FR 51735, October 4, 1993);
     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 CAA; 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, this rule does not have Tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP either is not approved to apply in Indian country 
located in the state or does not alter the requirements of any state 
law that may already apply in Indian country. EPA notes that this 
approval will not impose substantial direct costs on Tribal governments 
or preempt Tribal law.
    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 September 6, 2011. 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.

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

    Dated: June 28, 2011.
Ira W. Leighton,
Acting, 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]

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart H--Connecticut

0
2. Section 52.377 is amended by adding paragraphs (g) and (h) to read 
as follows:

Sec.  52.377  Control strategy: Ozone.

* * * * *
    (g) Approval--Submittal from the Connecticut Department of 
Environmental Protection, dated December 28, 2007, to address the Clean 
Air Act (CAA) infrastructure requirements for the 1997 ozone National 
Ambient Air Quality Standard (NAAQS). This submittal satisfies the 
requirements of CAA sections 110(a)(2)(A), (B), (C), (E), (F), (G), 
(H), (J), (K), (L), and (M).
    (h) Conditional Approval--Submittal from the Connecticut Department 
of Environmental Protection, dated December 28, 2007, to address the 
Clean Air Act (CAA) infrastructure

[[Page 40257]]

requirements for the 1997 ozone National Ambient Air Quality Standard 
(NAAQS). On May 2, 2011, the State of Connecticut supplemented this 
submittal with a commitment to address the requirements of section 
110(a)(2)(D)(ii) of the CAA that requires notification of affected 
states for Prevention of Significant Deterioration purposes. EPA is 
conditionally approving Connecticut's submittal with respect to CAA 
section 110(a)(2)(D)(ii).

Subpart U--Maine

0
3. In Sec.  52.1020, Table (e) is amended by adding a new entry at the 
end of the table to read as follows:

Sec.  52.1020  Identification of plan.

* * * * *
    (e) * * *

                                                                  Maine Non Regulatory
--------------------------------------------------------------------------------------------------------------------------------------------------------
     Name of non regulatory SIP           Applicable geographic or        State submittal date/effective
             provision                       nonattainment area                        date                 EPA approved date \3\       Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Submittal to meet Clean Air Act      State of Maine...................  January 3, 2008..................  July 8, 2011..........  This action addresses
 Section 110(a)(2) Infrastructure                                                                          [Insert Federal          the following Clean
 Requirements for the 1997 8-Hour                                                                           Register page number    Air Act
 Ozone National Ambient Air Quality                                                                         where the document      requirements:
 Standard.                                                                                                  begins].                110(a)(2)(A), (B),
                                                                                                                                    (C), (D)(ii), (E),
                                                                                                                                    (F), (G), (H), (J),
                                                                                                                                    (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column
  for the particular provision.

Subpart EE--New Hampshire

0
4. In Sec.  52.1520, Table (e) is amended by adding a new entry at the 
end of the table to read as follows:

Sec.  52.1520  Identification of plan.

* * * * *
    (e) * * *

                                                              New Hampshire Non Regulatory
--------------------------------------------------------------------------------------------------------------------------------------------------------
     Name of non regulatory SIP           Applicable geographic or        State submittal date/effective
             provision                       nonattainment area                        date                 EPA approved date \3\       Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Submittal to meet Clean Air Act      State of New Hampshire...........  December 14, 2007................  July 8, 2011..........  This action addresses
 Section 110(a)(2) Infrastructure                                                                          [Insert Federal          the following Clean
 Requirements for the 1997 8-Hour                                                                           Register page number    Air Act
 Ozone National Ambient Air Quality                                                                         where the document      requirements:
 Standard.                                                                                                  begins].                110(a)(2)(A), (B),
                                                                                                                                    (C), (D)(ii), (E),
                                                                                                                                    (F), (G), (H), (J),
                                                                                                                                    (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column
  for the particular provision.

Subpart OO--Rhode Island

0
5. In Sec.  52.2070, Table (e) is amended by adding a new entry at the 
end of the table to read as follows:

Sec.  52.2070  Identification of plan.

* * * * *
    (e) * * *

                                                               Rhode Island Non Regulatory
--------------------------------------------------------------------------------------------------------------------------------------------------------
     Name of non regulatory SIP           Applicable geographic or        State submittal date/effective
             provision                       nonattainment area                        date                   EPA approved date         Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
Submittal to meet Clean Air Act      State of Rhode Island............  December 14, 2007................  July 8, 2011..........  This action addresses
 Section 110(a)(2) Infrastructure                                                                          [Insert Federal          the following Clean
 Requirements for the 1997 8-Hour                                                                           Register page number    Air Act
 Ozone National Ambient Air Quality                                                                         where the document      requirements:
 Standard.                                                                                                  begins].                110(a)(2)(A), (B),
                                                                                                                                    (C), (D)(ii), (E),
                                                                                                                                    (F), (G), (H), (J),
                                                                                                                                    (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 40258]]

[FR Doc. 2011-17021 Filed 7-7-11; 8:45 am]
BILLING CODE 6560-50-P
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