[Federal Register Volume 85, Number 158 (Friday, August 14, 2020)]
[Rules and Regulations]
[Pages 49596-49600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15668]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 51

[EPA-HQ-OAR-2018-0633; FRL-10011-71-OAR]
RIN 2060-AT80


Revisions to Appendix P to 40 CFR Part 51, Concerning Minimum 
Emission Reporting Requirements in SIPs

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is amending a 
regulation that specifies what State Implementation Plans (SIPs) must 
require of sources in four categories with respect to continuous 
emission monitoring, recording, and reporting. Specifically, the 
amendments revise provisions that specify the minimum frequency for 
submitting reports of excess emissions that must be included in SIPs. 
The minimum frequency is being revised from ``for each calendar 
quarter'' to ``twice per year at 6-month intervals.'' The four source 
categories covered are: Fossil fuel-fired steam generators; fluid bed 
catalytic cracking unit catalyst regenerators at petroleum refineries; 
sulfuric acid plants; and nitric acid plants. As a result of this 
revision, states may choose to revise their SIPs to reflect the revised 
minimum frequency specified in our regulations. This action also 
corrects an erroneous cross-reference in our regulations.

DATES: This final rule is effective on September 14, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2018-0633. All documents in the docket are 
listed in the https://www.regulations.gov website. Although listed in 
the index, some information may not be publicly available, e.g., 
Confidential Business Information or other information whose disclosure 
is restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy. Publicly available docket materials are available 
electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For further general information on 
this rule, contact Ms. Lisa Sutton, U.S. EPA, Office of Air Quality 
Planning and Standards, Air Quality Policy Division, State and Local 
Programs Group (C539-01), Research Triangle Park, NC 27711, telephone 
number (919) 541-3450, email address: sutton.lisa@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    Entities potentially affected directly by this action include 
states, United States (U.S.) territories, local authorities and 
eligible tribes that are currently administering, or may in the future 
administer, EPA-approved implementation plans (collectively 
``states'').\1\ Entities potentially affected indirectly by this action 
are sources categorized as fossil fuel-fired steam generators, fluid 
bed catalytic cracking unit catalyst regenerators at petroleum 
refineries, sulfuric acid plants, or nitric acid plants. For 
convenience, the EPA's reference to ``affected sources'' in this 
rulemaking generally refers to sources affected by SIP requirements, 
i.e., those sources to which a SIP's 40 CFR part 51, appendix P-
specified monitoring requirements actually apply. While all sources 
among the appendix P source

[[Page 49597]]

categories (when not already excepted in appendix P itself) are 
potentially affected by such requirements, it is within the state's 
discretion to grant an exemption in its SIP from applicability of the 
appendix P-specified monitoring requirements for certain sources. If 
you have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the FOR FURTHER 
INFORMATION CONTACT section of this document.
---------------------------------------------------------------------------

    \1\ The EPA respects the unique relationship between the U.S. 
Government and tribal authorities and acknowledges that tribal 
concerns are not interchangeable with state concerns. Under the CAA 
and EPA regulations, a tribe may, but is not required to, apply for 
eligibility to have a tribal implementation plan (TIP). For 
convenience, the EPA refers to either ``states'' or ``air agencies'' 
in this rulemaking when meaning to refer in general to states, the 
District of Columbia, U.S. territories, local air permitting 
authorities and eligible tribes that are currently administering, or 
may in the future administer, EPA-approved implementation plans.
---------------------------------------------------------------------------

B. What is the Agency's authority for taking this action?

    This action is being taken by the EPA under the authority of 
sections 110(a)(2)(F) and 301(a) of the Clean Air Act (CAA).

C. Where can I get a copy of this document and other related 
information?

    In addition to being available in the docket, an electronic copy of 
this Federal Register document will be posted at https://www.epa.gov/air-quality-implementation-plans/develop-air-quality-sip#guidance.

D. How is this final rulemaking organized?

    The information presented in the preamble is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. What is the Agency's authority for taking this action?
    C. Where can I get a copy of this document and other related 
information?
    D. How is this final rulemaking organized?
    E. Judicial Review
II. Amendments to Appendix P
    A. Background and Summary of the Proposed Rule
    B. Summary of Comments on the Proposed Rule and the EPA's 
Responses
    C. Final Action
III. Environmental Justice Considerations
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs
    C. Paperwork Reduction Act (PRA)
    D. Regulatory Flexibility Act (RFA)
    E. Unfunded Mandates Reform Act (UMRA)
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use
    J. National Technology Transfer and Advancement Act (NTTAA)
    K. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act (CRA)
V. Statutory Authority

E. Judicial Review

    Under CAA section 307(b)(1), judicial review of this nationally 
applicable final action is available only by filing a petition for 
review in the United States Court of Appeals for the District of 
Columbia Circuit (the Court) by October 13, 2020. Under CAA section 
307(b)(2), the requirements established by this final rule may not be 
challenged separately in any civil or criminal proceedings brought by 
the EPA to enforce the requirements.

II. Amendments to Appendix P

A. Background and Summary of the Proposed Rule

    Pursuant to CAA section 110, the EPA established procedural 
requirements applicable to all states concerning the preparation, 
adoption, and submission of SIPs and SIP revisions. These regulations, 
initially promulgated in 1971, comprise 40 CFR part 51, ``Requirements 
for Preparation, Adoption, and Submittal of Implementation Plans.'' 
Like the SIPs themselves, these regulations are periodically revised. 
The EPA in 1975 promulgated appendix P to 40 CFR part 51, setting forth 
minimum requirements for continuous emission monitoring that each SIP 
must require of certain specified categories of existing stationary 
sources in order to be approved under the provisions of 40 CFR 51.19 
(now 40 CFR 51.214). See 40 FR 46240 (October 6, 1975). With respect to 
reporting requirements, appendix P specified under paragraph 4.1 that 
the SIP ``shall require owners or operators of facilities required to 
install continuous monitoring systems to submit a written report of 
excess emissions for each calendar quarter and the nature and cause of 
the excess emissions, if known.'' \2\ The reports are required whether 
or not excess emissions occurred within the reporting period (see 
appendix P, paragraph 4.5). At the time of promulgation in 1975, this 
specification in appendix P of quarterly reporting as the minimum 
frequency was by design aligned with the quarterly reporting frequency 
generally specified for new sources under 40 CFR part 60.
---------------------------------------------------------------------------

    \2\ Id. at 46249/1.
---------------------------------------------------------------------------

    Over the next many years, the EPA expanded the types of sources to 
be regulated pursuant to CAA sections 111 (for New Source Performance 
Standards (NSPS)) and 112 (for National Emission Standards for 
Hazardous Air Pollutants (NESHAP)), and those later regulations (e.g., 
NSPS under 40 CFR part 60 and NESHAP under 40 CFR parts 61 and 63) 
increasingly allowed sources to submit such reports on a less frequent 
basis, semiannually or in some cases even annually.
    In finalizing revisions to appendix P, the EPA is resolving a 
longstanding inconsistency in reporting requirements for certain 
categories of sources between (i) those specified as the minimum for 
appendix P source categories in the SIP context (under 40 CFR part 51) 
and (ii) those prescribed for similar sources through NSPS (under part 
60) or NESHAP (under 40 CFR parts 61 and 63).

B. Summary of Comments on the Proposed Rule and the EPA's Responses

    Through a notice of proposed rulemaking (NPRM) (85 FR 10121, 
February 21, 2020), the EPA solicited public comment on proposed 
revisions to appendix P to 40 CFR part 51--to change the minimum 
frequency of continuous emission monitoring reports specified for SIPs 
and to correct an erroneous cross-reference. Also through the NPRM, the 
EPA invited the public to comment on information collection activities 
in the rule; see section IV.C of this document for a brief summary of 
the Information Collection Request (ICR) document that the EPA 
prepared. The EPA received three comment submissions on its proposed 
revisions to appendix P to 40 CFR part 51. Two submissions were from 
state commenters and one submission was from an industry commenter. All 
comments concerned the proposed change in appendix P's minimum 
reporting frequency specified for SIPs. Among comments received, none 
were adverse comments, none were specific to the proposed correction of 
the cross-reference in appendix P, and none were specific to the ICR 
document. In this section of the final rule, the EPA summarizes and 
responds to comments received.
    Comment: All commenters fully supported the proposed change in 
reporting frequency. These commenters agreed with the EPA's observation 
that the proposed reduced frequency of continuous emission monitor data 
reporting (semiannual reporting frequency) is already allowed under 
most Federal rules applicable to facilities among the same source

[[Page 49598]]

categories as those listed under appendix P. All commenters also agreed 
that, as the EPA described in its experience, semiannual reporting 
provides sufficiently timely information to ensure compliance and 
enable adequate enforcement of applicable requirements while imposing 
less burden on the affected industry than would quarterly reporting.
    Response: The EPA acknowledges the commenters' support of the 
proposed revision to the minimum reporting frequency specified in 
appendix P for SIPs.
    Comment: Two commenters suggested that the appendix P revisions, by 
allowing less frequent reporting, would potentially reduce states' 
burden associated with receipt and review of continuous emission 
monitor reports and would not compromise compliance with or 
enforceability of the SIPs' emissions reporting requirements.
    Response: The EPA agrees that the appendix P revisions, by allowing 
less frequent reporting, may result in a reduction in burden associated 
with a state's receipt and review of reports. This rule will directly 
affect burden on a state, however, only so far as the state chooses to 
prepare and submit a SIP revision that includes an appendix P-related 
provision. The changes to appendix P made in this action do not, by 
themselves, revise any SIP provisions. In the case where a state does 
choose to revise its SIP to allow less frequent reporting by some or 
all sources in the four appendix P source categories, any further 
effect on burden, such as that associated with the state's receipt and 
review of reports, will depend on factors unique to that state. Those 
factors include, e.g., the number of sources in the state among 
appendix P source categories and whether the SIP grants certain sources 
an exemption from applicability of the appendix P-specified monitoring 
requirements (as appendix P allows, such as because the sources are 
subject to NSPS requirements). Accordingly, when estimating regulatory 
burden associated with this rulemaking, the EPA did not address 
potential reduction in states' burden attributable to less frequent 
reporting.
    Comment: All commenters asserted that the appendix P revisions 
would potentially reduce reporting burden for owners and operators of 
affected sources. As a case in point, the industry commenter referred 
to NSPS regulations applicable to refineries (40 CFR part 60, subpart 
Ja), which apply to one of the appendix P source categories (fluid bed 
catalytic cracking unit catalyst regenerators at petroleum refineries). 
The commenter calculated the approximate cost of semiannual excess 
emission reporting to be $4,200 per refinery per year, based on the 
EPA's associated burden estimate. The commenter stated that activities 
contributing to the reporting burden are relatively independent of the 
length of the reporting period and that ``quarterly reporting, where it 
is imposed through a SIP program, would roughly double the reporting 
burden cost.'' On that basis, the commenter concluded that to allow 
semiannual reporting in regulations imposed through a SIP ``has the 
potential to significantly reduce the burdens imposed on respondents.''
    Response: The EPA agrees that the revision of reporting frequency 
requirements in SIPs may indirectly provide burden reduction for 
sources. The EPA notes, however, that this action neither revises any 
SIPs nor has any direct effect on industrial sources. Any effect on 
burden for potentially affected sources depends on the extent to which 
(or even whether) the state in which each source is located decides to 
revise its SIP to reflect the revisions to appendix P. Accordingly, in 
estimating regulatory burden associated with this rulemaking, the EPA 
did not include a quantitative estimate of potential burden reduction 
for industrial sources.

C. Final Action

    The EPA is amending appendix P to 40 CFR part 51, which specifies 
what SIPs must require of sources among four categories with respect to 
continuous emission monitoring, recording, and reporting. Those four 
appendix P source categories are: Fossil fuel-fired steam generators; 
fluid bed catalytic cracking unit catalyst regenerators at petroleum 
refineries; sulfuric acid plants; and nitric acid plants.
    All revisions proposed in the NPRM (85 FR 10121, February 21, 2020) 
are being finalized without substantive change in this action. This 
action changes the minimum reporting frequency specified in appendix P 
for SIPs from ``for each calendar quarter'' to ``twice per year at 6-
month intervals.'' The change aligns the minimum reporting frequency 
specified in appendix P for SIPs with the reporting frequency that the 
EPA has generally established under more recently updated programs 
applicable to sources among the four appendix P source categories, as 
the EPA explained in the NPRM. As a result of this change, a state may 
in turn choose to revise its SIP's reporting frequency requirement 
applicable to appendix P source categories. With this action, the EPA 
is achieving its mission of protecting public health and the 
environment by assuring that SIPs continue to apply adequate monitoring 
requirements. This action does not obligate a state to revise its SIP, 
however. The change in minimum reporting frequency specified in 
appendix P does not affect any state choosing to retain a more frequent 
reporting frequency requirement in its SIP for affected source 
categories. Therefore, this action will directly affect burden on a 
given state only to the extent that the state voluntarily prepares and 
submits a SIP revision that includes an appendix P-related provision. 
The EPA has prepared and submitted to OMB an Information Collection 
Request (ICR) document to estimate the regulatory burden from 
information collection activities associated with this rule. That 
burden is attributed to states' preparation and submission of SIP 
revisions, a type of reporting burden. The ICR is briefly summarized in 
Section IV.C of this document, and a copy of the ICR is available in 
the docket for this rulemaking. Aside from the direct burden attributed 
to states' preparation and submission of SIP revisions, the EPA 
anticipates that the final rule will indirectly reduce reporting-
related burden on certain states and affected sources located in those 
states, while continuing to protect public health and the environment. 
The EPA has found, as noted in the NPRM at section IV.A, that 
semiannual reporting provides sufficiently timely information to ensure 
compliance and enable adequate enforcement of applicable requirements 
while imposing less burden on the affected industry than would 
quarterly reporting. The EPA does not expect the change in minimum 
reporting frequency to result in any change in the pollutant emissions 
from any of the sources.
    In this action, the EPA is also revising a cross-reference in 
appendix P under section 1.0, as explained in the NPRM at section II.A, 
so that it correctly refers to the continuous emission monitoring 
regulations at 40 CFR 51.214.
    Notwithstanding the revisions to appendix P being promulgated in 
this action, a source that is subject to more stringent federally 
enforceable excess emission reporting requirements would be required to 
comply with the applicable provisions of those rules.

III. Environmental Justice Considerations

    A change in the specified minimum frequency with which affected 
sources must submit continuous monitoring system data reports to 
states, as a result of the final rule revising appendix P, is not 
expected to result in any change in

[[Page 49599]]

the pollutant emissions from any of the affected sources. Therefore, 
the EPA concludes that this action will not have potential 
disproportionately high and adverse human health or environmental 
effects on minority, low-income, or indigenous populations.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, 
therefore, not submitted to the Office of Management and Budget (OMB) 
for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is not an Executive Order 13771 regulatory action 
because this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) document that 
the EPA prepared has been assigned EPA ICR number 2590.01. It will be 
assigned an OMB control number upon approval by OMB. You can find a 
copy of the ICR submitted to OMB in the docket for this rule, and it is 
briefly summarized here.
    The regulatory burden under the information collection is 
attributed to states' preparation and submission of SIP revisions, a 
type of reporting burden. For purposes of estimating the paperwork 
burden, the EPA assumes that each of 56 entities, including states, the 
District of Columbia, and U.S. territories, would make a single SIP 
submission that includes an appendix P-related provision within 3 years 
after the effective date of the rule, corresponding to the requested 3-
year collection period. There are no capital costs or operation and 
maintenance costs attributed to the rule.
    Respondents/affected entities: All states.
    Respondent's obligation to respond: Voluntary.
    Estimated number of respondents: 56.
    Frequency of response: One-time.
    Total estimated burden: 3,080 hours per year (or 55 hours per 
respondent per year). Burden is defined at 5 CFR 1320.3(b).
    Total estimated cost: $191,200 per year (or $3,414 per respondent 
per year), with no capital cost and no operation and maintenance cost.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB 
approves this ICR, the Agency will announce that approval in the 
Federal Register and publish a technical amendment to 40 CFR part 9 to 
display the OMB control number for the approved information collection 
activities contained in this final rule.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. Any agency may certify that 
a rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to this rule. This action will not impose any 
requirements on small entities. Instead, this action leaves to each 
state the choice as to whether to reflect in its SIP a reduction in 
minimum reporting frequency specified for certain categories of 
stationary sources regulated under the CAA.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local, or tribal governments or the private sector.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the National Government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. It would not have a substantial direct effect on 
one or more Indian tribes, since no tribe has to develop a TIP under 
these regulatory revisions. Furthermore, these regulation revisions do 
not affect the relationship or distribution of power and 
responsibilities between the Federal Government and Indian tribes. The 
CAA and the Tribal Air Rule establish the relationship of the Federal 
Government and tribes in developing plans to attain the NAAQS, and 
these revisions to the regulations do nothing to modify that 
relationship. Thus, Executive Order 13175 does not apply to this 
action.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive order. This action is not subject to 
Executive Order 13045 because the reduction in minimum reporting 
frequency specified for certain categories of sources regulated under 
the CAA will have no effect on any obligation to comply with emission 
limitations in SIPs, and so it does not concern an environmental health 
risk or safety risk.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. This action merely allows states the 
option to reflect in their SIPs a reduction in minimum reporting 
frequency specified for certain categories of stationary sources 
regulated under the CAA.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately 
high and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous populations as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).
    This action merely allows states the option to reflect in their 
SIPs a

[[Page 49600]]

reduction in minimum reporting frequency specified for certain 
categories of stationary sources regulated under the CAA, which will 
have no effect on any obligation to comply with emission limitations in 
SIPs.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

VI. Statutory Authority

    The statutory authority for this action is provided by CAA section 
101 et seq. (42 U.S.C. 7401 et seq.).

List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Carbon monoxide, Intergovernmental relations, 
Lead, Nitrogen dioxide, Nitrogen oxides, Opacity, Ozone, Reporting and 
recordkeeping requirements, Sulfur dioxide, Sulfur oxides, 
Transportation, Volatile organic compounds.

Andrew Wheeler,
Administrator.
    For the reasons stated in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 51--REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF 
IMPLEMENTATION PLANS

0
1. The authority citation for part 51 continues to read as follows:

    Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.

Appendix P to Part 51--[Amended]

0
2. In appendix P to part 51:
0
a. Paragraph 1.0 is amended by removing ``40 CFR 51.165(b)'' and adding 
in its place ``40 CFR 51.214'';
0
b. Paragraph 4.1 is amended by removing the words ``for each calendar 
quarter'' and adding in their place the words ``twice per year at 6-
month intervals'';
0
c. Paragraph 4.6 is amended by removing the words ``in the quarterly 
summaries, and'' and adding in their place the words ``as specified in 
paragraph 4.1 of this appendix,'';
0
d. Paragraph 5.2.3 is amended by removing the words ``quarterly 
summary'' and adding in their place the words ``reports submitted as 
specified in paragraph 4.1 of this appendix''; and
0
e. Paragraph 5.3.3 is amended by removing the words ``quarterly 
summary'' and replacing them with ``reports submitted as specified in 
paragraph 4.1 of this appendix''.

[FR Doc. 2020-15668 Filed 8-13-20; 8:45 am]
BILLING CODE 6560-50-P


