
[Federal Register Volume 82, Number 60 (Thursday, March 30, 2017)]
[Proposed Rules]
[Pages 15671-15683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-06206]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2014-0604; FRL-9958-73-Region 1]


Air Plan Approval; VT; Infrastructure State Implementation Plan 
Requirements

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of State Implementation Plan (SIP) submissions from 
Vermont regarding the infrastructure requirements of the Clean Air Act 
(CAA or Act) for the 1997 fine particle matter (PM2.5), 1997 
ozone, 2006 PM2.5, 2008 lead (Pb), 2008 ozone, 2010 nitrogen 
dioxide (NO2), and 2010 sulfur dioxide (SO2) 
National Ambient Air Quality Standards (NAAQS). We also are proposing 
to approve two statutes and one Executive Order submitted by Vermont in 
support of its demonstration that the infrastructure requirements of 
the CAA have been met. In addition, we are conditionally approving 
certain elements of Vermont's submittals relating to prevention of 
significant deterioration (PSD) requirements. Last, we are proposing to 
update the classification for two of Vermont's air quality control 
regions for SO2 based on recent air quality monitoring data 
collected by the state, which will grant the state an exemption from 
the infrastructure SIP contingency plan obligation for SO2. 
The infrastructure requirements are designed to ensure that the 
structural components of each state's air quality management program 
are adequate to meet the state's responsibilities under the CAA.

DATES: Comments must be received on or before May 1, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2014-0604, at www.regulations.gov, or via email to 
arnold.anne@epa.gov. For comments submitted at Regulations.gov, follow 
the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, the EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Publicly available docket materials are available either 
electronically in www.regulations.gov or at the U.S. Environmental 
Protection Agency, Region 1, Air Programs Branch, 5 Post Office Square, 
Boston, Massachusetts. This facility is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding Federal holidays. The interested 
persons wanting to examine these documents should make an appointment 
with the office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT: Alison C. Simcox, Air Quality Planning 
Unit, Air Programs Branch (Mail Code OEP05-02), U.S. Environmental 
Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, 
Massachusetts 02109-3912; (617) 918-1684; simcox.alison@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What should I consider as I prepare my comments for EPA?
II. What is the background of these SIP submissions?
    A. What Vermont SIP submissions does this rulemaking address?
    B. Why did the state make these SIP submissions?
    C. What is the scope of this rulemaking?
III. What guidance is EPA using to evaluate these SIP submissions?
IV. What is the result of EPA's review of these SIP submissions?
    A. Section 110(a)(2)(A)--Emission Limits and Other Control 
Measures.
    B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data 
System.
    C. Section 110(a)(2)(C)--Program for Enforcement of Control 
Measures and for Construction or Modification of Stationary Sources.
    D. Section 110(a)(2)(D)--Interstate Transport.
    E. Section 110(a)(2)(E)--Adequate Resources.
    F. Section 110(a)(2)(F)--Stationary Source Monitoring System.
    G. Section 110(a)(2)(G)--Emergency Powers.
    H. Section 110(a)(2)(H)--Future SIP Revisions.
    I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan 
Revisions Under Part D.
    J. Section 110(a)(2)(J)--Consultation With Government Officials; 
Public Notifications; Prevention of Significant Deterioration; 
Visibility Protection.
    K. Section 110(a)(2)(K)--Air Quality Modeling/Data.
    L. Section 110(a)(2)(L)--Permitting Fees.
    M. Section 110(a)(2)(M)--Consultation/Participation by Affected 
Local Entities.
    N. Vermont Statute and Executive Order Submitted for 
Incorporation Into the SIP
V. What action is EPA taking?
VI. Incorporation by Reference
VII. Statutory and Executive Order Reviews

I. What should I consider as I prepare my comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date, and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. What is the background of these SIP submissions?

A. What Vermont SIP submissions does this rulemaking address?

    This rulemaking addresses submissions from the Vermont Department 
of Environmental

[[Page 15672]]

Conservation (VT DEC). The state submitted its infrastructure SIP for 
each NAAQS on the following dates: 1997 PM2.5\1\--February 
18, 2009; 1997 ozone--February 18, 2009; 2006 PM2.5--May 21, 
2010; 2008 Pb--July 29, 2014; 2008 ozone--November 2, 2015; 2010 
NO2--November 2, 2015; and 2010 SO2--November 2, 
2015.
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    \1\ PM2.5 refers to particulate matter of 2.5 microns 
or less in diameter, often referred to as ``fine'' particles.
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B. Why did the state make these SIP submissions?

    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure that their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS, including 
the 1997 PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. These 
submissions must contain any revisions needed for meeting the 
applicable SIP requirements of section 110(a)(2), or certifications 
that their existing SIPs for the NAAQS already meet those requirements.
    EPA highlighted this statutory requirement in an October 2, 2007, 
guidance document entitled ``Guidance on SIP Elements Required Under 
Sections 110(a)(1) and (2) for the 1997 8-hour ozone and 
PM2.5 National Ambient Air Quality Standards'' (2007 Memo). 
On September 25, 2009, EPA issued an additional guidance document 
pertaining to 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)'' (2009 Memo), followed by the October 14, 2011, 
``Guidance on Infrastructure SIP Elements Required Under Sections 
110(a)(1) and (2) for the 2008 Lead (Pb) National Ambient Air Quality 
Standards (NAAQS)'' (2011 Memo). Most recently, EPA issued ``Guidance 
on Infrastructure State Implementation Plan (SIP) Elements under Clean 
Air Act Sections 110(a)(1) and (2)'' on September 13, 2013 (2013 Memo). 
The SIP submissions referenced in this rulemaking pertain to the 
applicable requirements of section 110(a)(1) and (2) and address the 
1997 PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.

C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submissions from Vermont that address 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 1997 PM2.5, 1997 ozone, 2006 PM2.5, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
    The requirement for states to make a SIP submission of this type 
arises out of CAA sections 110(a)(1) and 110(a)(2). Pursuant to these 
sections, each state must submit a SIP that provides for the 
implementation, maintenance, and enforcement of each primary or 
secondary NAAQS. States must make such SIP submission ``within 3 years 
(or such shorter period as the Administrator may prescribe) after the 
promulgation of a new or revised NAAQS.'' This requirement is triggered 
by the promulgation of a new or revised NAAQS and is not conditioned 
upon EPA's taking any other action. Section 110(a)(2) includes the 
specific elements that ``each such plan'' must address.
    EPA commonly refers to such SIP submissions made for the purpose of 
satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as 
``infrastructure SIP'' submissions. Although the term ``infrastructure 
SIP'' does not appear in the CAA, EPA uses the term to distinguish this 
particular type of SIP submission from submissions that are intended to 
satisfy other SIP requirements under the CAA, such as ``nonattainment 
SIP'' or ``attainment plan SIP'' submissions to address the 
nonattainment planning requirements of part D of title I of the CAA.
    This rulemaking will not cover three substantive areas that are not 
integral to acting on a state's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction at sources (``SSM'' emissions) that 
may be contrary to the CAA and EPA's policies addressing such excess 
emissions; (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''); and, (iii) existing provisions for PSD 
programs that may be inconsistent with current requirements of EPA's 
``Final New Source Review (NSR) Improvement Rule,'' 67 FR 80186 
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR 
Reform''). Instead, EPA has the authority to address each one of these 
substantive areas separately. A detailed history, interpretation, and 
rationale for EPA's approach to infrastructure SIP requirements can be 
found in EPA's May 13, 2014, proposed rule entitled, ``Infrastructure 
SIP Requirements for the 2008 Lead NAAQS'' in the section, ``What is 
the scope of this rulemaking?'' See 79 FR 27241 at 27242-45.

III. What guidance is EPA using to evaluate these SIP submissions?

    EPA reviews each infrastructure SIP submission for compliance with 
the applicable statutory provisions of section 110(a)(2), as 
appropriate. Historically, EPA has elected to use non-binding guidance 
documents to make recommendations for states' development and EPA 
review of infrastructure SIPs, in some cases conveying needed 
interpretations on newly arising issues and in some cases conveying 
interpretations that have already been developed and applied to 
individual SIP submissions for particular elements. EPA guidance 
applicable to these infrastructure SIP submissions is embodied in 
several documents. Specifically, attachment A of the 2007 Memo 
(Required Section 110 SIP Elements) identifies the statutory elements 
that states need to submit in order to satisfy the requirements for an 
infrastructure SIP submission. The 2009 Memo provides additional 
guidance for certain elements regarding the 2006 PM2.5 
NAAQS, and the 2011 Memo provides guidance specific to the 2008 Pb 
NAAQS. Lastly, the 2013 Memo identifies and further clarifies aspects 
of infrastructure SIPs that are not NAAQS specific.

IV. What is the result of EPA's review of these SIP submissions?

    EPA is soliciting comment on our evaluation of Vermont's 
infrastructure SIP submissions in this notice of proposed rulemaking. 
In each of Vermont's submissions, a detailed list of Vermont Laws and, 
previously SIP-approved Air Quality Regulations, show precisely how the 
various components of its EPA-approved SIP meet each of the 
requirements of section 110(a)(2) of the CAA for the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS, as 
applicable. The following review evaluates the state's submissions in 
light of section 110(a)(2) requirements and relevant EPA guidance.

A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures

    This section (also referred to in this action as an element) of the 
Act requires SIPs to include enforceable emission limits and other 
control measures, means or techniques, schedules for compliance, and 
other related matters. However, EPA has long interpreted emission 
limits and control measures for attaining the standards as being due

[[Page 15673]]

when nonattainment planning requirements are due.\2\ In the context of 
an infrastructure SIP, EPA is not evaluating the existing SIP 
provisions for this purpose. Instead, EPA is only evaluating whether 
the state's SIP has basic structural provisions for the implementation 
of the NAAQS.
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    \2\ See, e.g., EPA's final rule on ``National Ambient Air 
Quality Standards for Lead.'' 73 FR 66964, 67034 (Nov. 12, 2008).
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    Vermont's infrastructure submittals for this element cite Vermont 
Statutes Annotated (V.S.A) and several Vermont Air Pollution Control 
Regulations (VT APCR) as follows: Vermont's 10 V.S.A. Sec.  554, 
``Powers,'' authorizes the Secretary of the Vermont Agency of Natural 
Resources (ANR) to ``[a]dopt, amend and repeal rules, implementing the 
provisions'' of Vermont's air pollution control laws set forth in 10 
V.S.A. chapter 23. It also authorizes the Secretary to ``conduct 
studies, investigations and research relating to air contamination and 
air pollution'' and to ``[d]etermine by appropriate means the degree of 
air contamination and air pollution in the state and the several parts 
thereof.'' Ten V.S.A. Sec.  556, ``Permits for the construction or 
modification of air contaminant sources,'' requires applicants to 
obtain permits for constructing or modifying air contaminant sources, 
and 10 V.S.A. Sec.  558, ``Emission control requirements,'' authorizes 
the Secretary ``to establish emission control requirements . . . 
necessary to prevent, abate, or control air pollution.''
    The Vermont submittals cite more than 20 specific rules that the 
state has adopted to control the emissions of Pb, SO2, 
PM2.5, volatile organic compounds \3\ (VOCs), and 
NOX. A few, with their EPA approval citation \4\ are listed 
here: Sec.  5-201--Open Burning Prohibited (63 FR 19825; April 
22,1998); Sec.  5-251--Control of Nitrogen Oxides Emissions (81 FR 
50342; August 1, 2016); Sec.  5-252--Control of Sulfur Dioxide 
Emissions (81 FR 50342; August 1, 2016); Sec.  5-253.5--Stage I Vapor 
Recovery Controls at Gasoline Dispensing Facilities (81 FR 23164; April 
20, 2016); Sec.  5-253.14--Solvent Metal Cleaning (63 FR 19825; April 
22, 1998); Sec.  5-261--Control of Hazardous Air Contaminants (47 FR 
6014; February 10, 1982); Sec.  5-502--Major Stationary Sources and 
Major Modifications (81 FR 50342; August 1, 2016); Sec.  5-702--
Excessive Smoke Emissions from Motor Vehicles (45 FR 10775; February 
19, 1980).
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    \3\ VOCs and NOX contribute to the formation of 
ground-level ozone.
    \4\ The citations reference the most recent EPA approval of the 
stated rule, or of revisions to the rule. For example, Sec.  5-252 
was initially approved on February 4, 1977 (42 FR 6811), with 
various revisions being approved since then, with the most recent 
approval of revisions to the applicability section occurring on 
August 1, 2016 (81 FR 50342).
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    On July 25, 2014, VT DEC submitted a SIP revision that contained 
provisions that revise the state's Ambient Air Quality Standards for 
the criteria air pollutants. On August 1, 2016 (81 FR 50342), EPA 
approved the following sections within VT APCR Subchapter III, Ambient 
Air Quality Standards: Section 5-301, ``Scope,'' Section 5-302, 
``Sulfur oxides (sulfur dioxide),'' Section 5-304, ``Particulate Matter 
PM2.5,'' Section 5-306, ``Particulate Matter 
PM10,'' Section 5-307, ``Carbon Monoxide,'' Section 5-308, 
``Ozone,'' Section 5-309, ``Nitrogen Dioxide,'' and Section 5-310, 
``Lead.'' Because the state adopted these standards in 2014, Vermont's 
regulations do not contain an ambient air quality standard for ozone 
that is equivalent to the federal 2015 ozone standard. However, the 
ozone standard that EPA approved on August 1, 2016 is consistent with 
the 2008 federal ozone standard.
    The VT regulations listed above were previously approved into the 
VT SIP by EPA. See 40 CFR 52.2370. In addition, VT DEC requests in its 
November 2, 2015 submittals that 10 V.S.A. Sec.  554 be included in the 
SIP, which is discussed further below and EPA proposes to approve. 
Based upon EPA's review of the submittals, EPA proposes that Vermont 
meets the infrastructure SIP requirements of section 110(a)(2)(A) with 
respect to the 1997 PM2.5, 1997 ozone, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS.
    As previously noted, EPA is not proposing to approve or disapprove 
any existing state provisions or rules related to SSM or director's 
discretion in the context of section 110(a)(2)(A).

B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System

    This section requires SIPs to include provisions to provide for 
establishing and operating ambient air quality monitors, collecting and 
analyzing ambient air quality data, and making these data available to 
EPA upon request. Each year, states submit annual air monitoring 
network plans to EPA for review and approval. EPA's review of these 
annual monitoring plans includes our evaluation of whether the state: 
(i) Monitors air quality at appropriate locations throughout the state 
using EPA-approved Federal Reference Methods or Federal Equivalent 
Method monitors; (ii) submits data to EPA's Air Quality System (AQS) in 
a timely manner; and (iii) provides EPA Regional Offices with prior 
notification of any planned changes to monitoring sites or the network 
plan.
    State law authorizes the Secretary of ANR, or her authorized 
representative, to ``conduct studies, investigations and research 
relating to air contamination and air pollution'' and to ``[d]etermine 
by appropriate means the degree of air contamination and air pollution 
in the state and the several parts thereof.'' See 10 V.S.A. Sec.  
554(8) and (9).\5\ Vermont DEC, one of several departments within ANR, 
operates an air quality monitoring network, and EPA approved the 
state's 2016 Annual Air Monitoring Network Plan for PM2.5, 
Pb, ozone, NO2, and SO2 on September 12, 2016.\6\ 
Furthermore, VT DEC populates AQS with air quality monitoring data in a 
timely manner, and provides EPA with prior notification when 
considering a change to its monitoring network or plan. EPA proposes 
that VT DEC has met the infrastructure SIP requirements of section 
110(a)(2)(B) with respect to the 1997 PM2.5, 1997 ozone, 
2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 
2010 SO2 NAAQS.
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    \5\ As noted earlier, EPA proposes in this action to approve 10 
V.S.A. Sec.  554 into the SIP.
    \6\ See EPA approval letter located in the docket for this 
action.
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C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures 
and for Construction or Modification of Stationary Sources

    States are required to include a program providing for enforcement 
of all SIP measures and the regulation of construction of new or 
modified stationary sources to meet NSR requirements under PSD and 
nonattainment new source review (NNSR) programs. Part C of the CAA 
(sections 160-169B) addresses PSD, while part D of the CAA (sections 
171-193) addresses NNSR requirements.
    The evaluation of each state's submission addressing the 
infrastructure SIP requirements of section 110(a)(2)(C) covers the 
following: (i) Enforcement of SIP measures; (ii) PSD program for major 
sources and major modifications; and (iii) a permit program for minor 
sources and minor modifications. A discussion of greenhouse gas (GHG) 
emissions permitting and the ``Tailoring Rule'' \7\ is

[[Page 15674]]

included within our evaluation of the PSD provisions of Vermont's 
submittals.
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    \7\ In EPA's April 28, 2011 proposed rulemaking for 
infrastructure SIPs for the 1997 ozone and PM2.5 NAAQS, 
we stated that each state's PSD program must meet applicable 
requirements for evaluation of all regulated NSR pollutants in PSD 
permits (See 76 FR 23757 at 23760). This view was reiterated in 
EPA's August 2, 2012 proposed rulemaking for infrastructure SIPs for 
the 2006 PM2.5 NAAQS (See 77 FR 45992 at 45998). In other 
words, if a state lacks provisions needed to adequately address Pb, 
NOX as a precursor to ozone, PM2.5 precursors, 
PM2.5 and PM10 condensables, PM2.5 
increments, or the Federal GHG permitting thresholds, the provisions 
of section 110(a)(2)(C) requiring a suitable PSD permitting program 
must be considered not to be met irrespective of the NAAQS that 
triggered the requirement to submit an infrastructure SIP, including 
the 2008 Pb NAAQS.
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Sub-Element 1: Enforcement of SIP Measures
    State law provides the Secretary of ANR with the authority to 
enforce air pollution control requirements, including 10 V.S.A. Sec.  
554, which EPA is proposing to approve into the SIP, and which 
authorizes the Secretary of ANR to ``[i]ssue orders as may be necessary 
to effectuate the purposes of [the state's air pollution control laws] 
and enforce the same by all appropriate administrative and judicial 
proceedings.'' In addition, Vermont's SIP-approved regulations VT APCR 
Sec.  5-501, ``Review of Construction or Modification of Air 
Contaminant Sources,'' and VT APCR Sec.  5-502, ``Major Stationary 
Sources and Major Modifications,'' establish requirements for permits 
to construct, modify or operate major air contaminant sources.
    EPA proposes that Vermont has met the enforcement of SIP measures 
requirements of section 110(a)(2)(C) with respect to the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 2: PSD Program for Major Sources and Major Modifications
    Prevention of significant deterioration (PSD) applies to new major 
sources or modifications made to major sources for pollutants where the 
area in which the source is located is in attainment of, or 
unclassifiable with regard to, the relevant NAAQS. Vermont DEC's EPA-
approved PSD rules, contained at VT APCR Subchapters I, IV, and V, 
contain provisions that address applicable requirements for all 
regulated NSR pollutants, including GHGs.
    EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 2; Final Rule To Implement Certain Aspects 
of the 1990 Amendments Relating to New Source Review and Prevention of 
Significant Deterioration as They Apply in Carbon Monoxide, Particulate 
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase 
2 Rule) was published on November 29, 2005 (70 FR 71612). Among other 
requirements, the Phase 2 Rule obligated states to revise their PSD 
programs to explicitly identify NOX as a precursor to ozone. 
See 70 FR 71679, 71699-700. This requirement was codified in 40 CFR 
51.166, and requires that states submit SIP revisions incorporating the 
requirements of the rule, including provisions that would treat 
NOX as a precursor to ozone provisions. These SIP revisions 
were to have been submitted to EPA by states by June 15, 2007. See 70 
FR 71683.
    Vermont has amended its VT APCR Sec.  5-101 to include 
NOX and VOC as precursor pollutants to ozone in defining a 
``significant'' increase in actual emissions from a source of air 
contaminants. In a letter dated November 21, 2016, VT DEC committed to 
submit its revised regulation to EPA for approval into the Vermont SIP 
by no later than one year after the effective date of EPA's final 
action on the pending infrastructure SIPs (I-SIPs).
    Therefore, we are proposing to conditionally approve the 
requirements of section 110(a)(2)(C), as obligated by the Phase 2 Rule, 
for the 1997 PM2.5, 1997 ozone, 2006 PM2.5, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
    On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule). 
The 2008 NSR Rule finalized several new requirements for SIPs to 
address sources that emit direct PM2.5 and other pollutants 
that contribute to secondary PM2.5 formation. One of these 
requirements is for NSR permits to address pollutants responsible for 
the secondary formation of PM2.5, otherwise known as 
precursors. In the 2008 rule, EPA identified precursors to 
PM2.5 for the PSD program to be SO2 and 
NOX (unless the state demonstrates to the Administrator's 
satisfaction or EPA demonstrates that NOX emissions in an 
area are not a significant contributor to that area's ambient 
PM2.5 concentrations). The 2008 NSR Rule also specifies that 
VOCs are not considered to be precursors to PM2.5 in the PSD 
program unless the state demonstrates to the Administrator's 
satisfaction or EPA demonstrates that emissions of VOCs in an area are 
significant contributors to that area's ambient PM2.5 
concentrations.
    The explicit references to SO2, NOX, and VOCs 
as they pertain to secondary PM2.5 formation are codified at 
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of 
identifying pollutants that are precursors to PM2.5, the 
2008 NSR Rule also required states to revise the definition of 
``significant'' as it relates to a net emissions increase or the 
potential of a source to emit pollutants. Specifically, 40 CFR 
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for 
PM2.5 to mean the following emissions rates: 10 tons per 
year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 
tpy of NOX (unless the state demonstrates to the 
Administrator's satisfaction or EPA demonstrates that NOX 
emissions in an area are not a significant contributor to that area's 
ambient PM2.5 concentrations). The deadline for states to 
submit SIP revisions to their PSD programs incorporating these changes 
was May 16, 2011. See 73 FR 28321 at 28341.\8\
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    \8\ EPA notes that on January 4, 2013, the U.S. Court of Appeals 
for the D.C. Circuit, in Natural Resources Defense Council v. EPA, 
706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 
NSR Rule in accordance with the CAA's requirements for 
PM10 nonattainment areas (Title I, Part D, subpart 4), 
and not the general requirements for nonattainment areas under 
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250). 
As the subpart 4 provisions apply only to nonattainment areas, EPA 
does not consider the portions of the 2008 rule that address 
requirements for PM2.5 attainment and unclassifiable 
areas to be affected by the court's opinion. Moreover, EPA does not 
anticipate the need to revise any PSD requirements promulgated by 
the 2008 NSR rule in order to comply with the court's decision. 
Accordingly, EPA's approval of Vermont's infrastructure SIP as to 
Elements C, D(i)(II), or J with respect to the PSD requirements 
promulgated by the 2008 implementation rule does not conflict with 
the court's opinion.
    The Court's decision with respect to the nonattainment NSR 
requirements promulgated by the 2008 implementation rule also does 
not affect EPA's action on the present infrastructure action. EPA 
interprets the CAA to exclude nonattainment area requirements, 
including requirements associated with a nonattainment NSR program, 
from infrastructure SIP submissions due three years after adoption 
or revision of a NAAQS. Instead, these elements are typically 
referred to as nonattainment SIP or attainment plan elements, which 
would be due by the dates statutorily prescribed under subpart 2 
through 5 under part D, extending as far as 10 years following 
designations for some elements.
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    On August 1, 2016, EPA approved revisions to Vermont's PSD program 
at VT APCR Sec.  5-101 that identify SO2 and NOX 
as precursors to PM2.5 and revise the state's regulatory 
definition of ``significant'' for PM2.5 to mean 10 tpy or 
more of direct PM2.5 emissions, 40 tpy or more of 
SO2 emissions, or 40 tpy or more of NOX 
emissions. (81 FR 50342). Consequently, EPA proposes that Vermont's SIP 
incorporates the necessary changes obligated by the 2008 NSR Rule with 
respect to provisions that explicitly identify precursors to 
PM2.5.
    The 2008 NSR Rule did not require states to immediately account for 
gases that could condense to form particulate matter, known as 
condensables, in PM2.5 and PM10 emission limits 
in NSR permits. Instead, EPA determined that

[[Page 15675]]

states had to account for PM2.5 and PM10 
condensables for applicability determinations and in establishing 
emissions limitations for PM2.5 and PM10 in PSD 
permits beginning on or after January 1, 2011. See 73 FR 28321 at 
28334. This requirement is codified in 40 CFR 51.166(b)(49)(i)(a) and 
40 CFR 52.21(b)(50)(i)(a). Revisions to states' PSD programs 
incorporating the inclusion of condensables were required be submitted 
to EPA by May 16, 2011. See 73 FR 28321 at 28341.
    Vermont's SIP-approved PSD program defines ``PM2.5 
direct emissions'' and ``PM10 emissions'' to include 
``gaseous emissions from a source or activity which condense to form 
particulate matter at ambient temperature.'' See VT APCR Sec.  5-101. 
EPA approved these definitions into the SIP on August 1, 2016 (81 FR 
50342). Consequently, we propose that the state's PSD program 
adequately accounts for the condensable fraction of PM2.5 
and PM10.
    Therefore, we are proposing that Vermont has met this set of 
requirements of section 110(a)(2)(C) for the 1997 PM2.5, 
1997 ozone, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS regarding the 
requirements obligated by the 2008 NSR Rule.
    On October 20, 2010 (75 FR 64864), EPA issued the final rule on the 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs) and Significant Monitoring Concentration (SMC)'' 
(2010 NSR Rule). This rule established several components for making 
PSD permitting determinations for PM2.5, including a system 
of ``increments,'' which is the mechanism used to estimate significant 
deterioration of ambient air quality for a pollutant. PM2.5 
increment values are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c). 
On September 14, 2016 (81 FR 63102), EPA approved Vermont's 
codification of these increments in Table 2 of the VT APCR.
    The 2010 NSR Rule also established a new ``major source baseline 
date'' for PM2.5 as October 20, 2010, and a new trigger date 
for PM2.5 of October 20, 2011 in the definition of ``minor 
source baseline date.'' These revisions are codified in 40 CFR 
51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 52.21(b)(14)(i)(c) 
and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of 
``baseline area'' to include a level of significance (SIL) of 0.3 
micrograms per cubic meter ([mu]g/m\3\), annual average, for 
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) 
and 40 CFR 52.21(b)(15)(i).
    On August 1, 2016 (81 FR 50342) and September 14, 2016 (81 FR 
63102), EPA approved revisions to the Vermont SIP that address certain 
aspects of EPA's 2010 NSR rule. However, the state has not defined a 
method for determining the amount of PSD increments available to a new 
or modified major source. In a letter dated November 21, 2016, VT DEC 
committed to revising its NSR regulations to address the methodology 
for determining available increment, and to submitting the revised 
regulations to EPA for approval into the Vermont SIP no later than one 
year after the effective date of EPA's final action on the I-SIPs.
    Therefore, we are proposing to conditionally approve this part of 
sub-element 2 of section 110(a)(2)(C) relating to requirements for 
state NSR regulations outlined within our 2010 NSR regulation.
    With respect to Elements (C) and (J), EPA interprets the Clean Air 
Act to require each state to make an infrastructure SIP submission for 
a new or revised NAAQS that demonstrates that the air agency has a 
complete PSD permitting program meeting the current requirements for 
all regulated NSR pollutants. The requirements of Element D(i)(II) may 
also be satisfied by demonstrating the air agency has a complete PSD 
permitting program correctly addressing all regulated NSR pollutants. 
Vermont has shown that it currently has a PSD program in place that 
covers all regulated NSR pollutants, including GHGs.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. See Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that EPA may not treat 
GHGs as an air pollutant for purposes of determining whether a source 
is a major source required to obtain a PSD permit. The Court also said 
that EPA could continue to require that PSD permits, otherwise required 
based on emissions of pollutants other than GHGs, contain limitations 
on GHG emissions based on the application of Best Available Control 
Technology (BACT).
    In accordance with the Supreme Court decision, on April 10, 2015, 
the U.S. Court of Appeals for the District of Columbia Circuit (the 
D.C. Circuit) issued an amended judgment vacating the regulations that 
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas 
Tailoring Rule, but not the regulations that implement Step 1 of that 
rule. Step 1 of the Tailoring Rule covers sources that are required to 
obtain a PSD permit based on emissions of pollutants other than GHGs. 
Step 2 applied to sources that emitted only GHGs above the thresholds 
triggering the requirement to obtain a PSD permit. The amended judgment 
preserves, without the need for additional rulemaking by EPA, the 
application of the Best Available Control Technology (BACT) requirement 
to GHG emissions from Step 1 or ``anyway'' sources. With respect to 
Step 2 sources, the D.C. Circuit's amended judgment vacated the 
regulations at issue in the litigation, including 40 CFR 
51.166(b)(48)(v), ``to the extent they require a stationary source to 
obtain a PSD permit if greenhouse gases are the only pollutant (i) that 
the source emits or has the potential to emit above the applicable 
major source thresholds, or (ii) for which there is a significant 
emission increase from a modification.''
    On August 19, 2015, EPA amended its PSD and title V regulations to 
remove from the Code of Federal Regulations portions of those 
regulations that the D.C. Circuit specifically identified as vacated. 
EPA intends to further revise the PSD and title V regulations to fully 
implement the Supreme Court and D.C. Circuit rulings in a separate 
rulemaking. This future rulemaking will include revisions to additional 
definitions in the PSD regulations.
    Some states have begun to revise their existing SIP-approved PSD 
programs in light of these court decisions, and some states may prefer 
not to initiate this process until they have more information about the 
additional planned revisions to EPA's PSD regulations. EPA is not 
expecting states to have revised their PSD programs in anticipation of 
EPA's additional actions to revise its PSD program rules in response to 
the court decisions for purposes of infrastructure SIP submissions. 
Instead, EPA is only evaluating such submissions to assure that the 
state's program addresses GHGs consistent with both the court decision, 
and the revisions to PSD regulations that EPA has completed at this 
time.
    On October 5, 2012, EPA approved revisions to the Vermont SIP that 
modified Vermont's PSD program to establish appropriate emission 
thresholds for determining which new stationary sources and 
modification projects become subject to Vermont's PSD permitting 
requirements for their GHG emissions (77 FR 49404). Therefore, EPA has 
determined that Vermont's SIP is sufficient to satisfy Elements (C), 
(D)(i)(II), and (J) with respect to GHGs. The Supreme Court decision 
and subsequent D.C. Circuit judgment do not prevent EPA's approval

[[Page 15676]]

of Vermont's infrastructure SIP as to the requirements of Elements (C), 
(as well as sub-elements (D)(i)(II), and (J)(iii)).
    For the purposes of the 1997 PM2.5, 1997 ozone, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS infrastructure SIPs, EPA reiterates that NSR 
Reform is not in the scope of these actions.
    In summary, we are proposing to conditionally approve Vermont's 
submittals for this sub-element with respect to the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 3: Preconstruction Permitting for Minor Sources and Minor 
Modifications
    To address the pre-construction regulation of the modification and 
construction of minor stationary sources and minor modifications of 
major stationary sources, an infrastructure SIP submission should 
identify the existing EPA-approved SIP provisions and/or include new 
provisions that govern the minor source pre-construction program that 
regulate emissions of the relevant NAAQS pollutants. EPA approved 
revisions to Vermont's minor NSR program on August 1, 2016 (81 FR 
50342). Vermont and EPA rely on the existing minor NSR program to 
ensure that new and modified sources not captured by the major NSR 
permitting programs, VT APCR Sec.  5-502, do not interfere with 
attainment and maintenance of the 1997 PM2.5, 1997 ozone, 
2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 
2010 SO2 NAAQS.
    We are proposing to find that Vermont has met the requirement to 
have a SIP-approved minor new source review permit program as required 
under Section 110(a)(2)(C) for the 1997 PM2.5, 1997 ozone, 
2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 
2010 SO2 NAAQS.

D. Section 110(a)(2)(D)--Interstate Transport

    This section contains a comprehensive set of air quality management 
elements pertaining to the transport of air pollution with which states 
must comply. It covers the following five topics, categorized as sub-
elements: Sub-element 1, Contribute to nonattainment, and interference 
with maintenance of a NAAQS; Sub-element 2, PSD; Sub-element 3, 
Visibility protection; Sub-element 4, Interstate pollution abatement; 
and Sub-element 5, International pollution abatement. Sub-elements 1 
through 3 above are found under section 110(a)(2)(D)(i) of the Act, and 
these items are further categorized into the four prongs discussed 
below, two of which are found within sub-element 1. Sub-elements 4 and 
5 are found under section 110(a)(2)(D)(ii) of the Act and include 
provisions insuring compliance with sections 115 and 126 of the Act 
relating to interstate and international pollution abatement.
Sub-Element 1: Section 110(a)(2)(D)(i)(I)--Contribute to Nonattainment 
(Prong 1) and Interfere With Maintenance of the NAAQS (Prong 2)
    Section 110(a)(2)(D)(i)(I) addresses any emissions activity in one 
state that contributes significantly to nonattainment, or interferes 
with maintenance, of the NAAQS in another state. The EPA sometimes 
refers to these requirements as prong 1 (significant contribution to 
nonattainment) and prong 2 (interference with maintenance). Vermont's 
February 18, 2009 infrastructure SIP submission for the 1997 
PM2.5 and 1997 ozone NAAQS that is the subject of today's 
proposed rulemaking did not address prong 1 and 2 (also called 
``transport elements''). Vermont did, however, make a subsequent 
submittal for this sub-element on April 15, 2009. EPA proposed approval 
of this submittal on December 15, 2016 (81 FR 90758). Therefore, we are 
not taking action on these elements for these two NAAQS in this notice.
    Vermont's May 21, 2010 infrastructure SIP submission for the 2006 
PM2.5 NAAQS addressed section 110(a)(2)(D)(i)(I). EPA 
proposed approval of this submittal as meeting the transport elements 
for the 2006 PM2.5 NAAQS on December 15, 2016 (81 FR 90758).
    With respect to the 2008 Pb NAAQS, the 2011 Memo notes that the 
physical properties of Pb prevent it from experiencing the same travel 
or formation phenomena as PM2.5 or ozone. Specifically, 
there is a sharp decrease in Pb concentrations as the distance from a 
Pb source increases. Accordingly, although it may be possible for a 
source in a state to emit Pb at a location and in such quantities that 
contribute significantly to nonattainment in, or interference with 
maintenance by, any other state, EPA anticipates that this would be a 
rare situation, e.g., sources emitting large quantities of Pb in close 
proximity to state boundaries. The 2011 Memo suggests that the 
applicable interstate transport requirements of section 
110(a)(2)(D)(i)(I) with respect to Pb can be met through a state's 
assessment as to whether or not emissions from Pb sources located in 
close proximity to its borders have emissions that impact a neighboring 
state such that they contribute significantly to nonattainment or 
interfere with maintenance in that state.
    Vermont's infrastructure SIP submission for the 2008 Pb NAAQS 
states that Vermont has no lead sources that exceed the 0.5 ton/year 
monitoring threshold to identify lead emission sources which should be 
monitored. No single source of Pb, or group of sources, anywhere within 
the state emits enough Pb to cause ambient concentrations to approach 
the Pb NAAQS. Our review of the Pb emissions data from Vermont sources, 
which the state has entered into the EPA National Emissions Inventory 
(NEI) database, confirms this, and therefore, EPA agrees with Vermont 
and proposes that Vermont has met this set of requirements related to 
section 110(a)(2)(D)(i)(I) for the 2008 Pb NAAQS.
    Vermont's November 2, 2015 infrastructure SIP submission for the 
2008 ozone NAAQS includes a demonstration that no source or sources 
within Vermont contribute significantly to non-attainment in, or 
interfere with maintenance by, any other state with respect to the 2008 
ozone NAAQS. EPA approved this infrastructure requirement for the 2008 
ozone NAAQS on October 13, 2016 (81 FR 70631).
    Vermont's infrastructure SIP submission for the 2010 NO2 
NAAQS addressed section 110(a)(2)(D)(i)(I). The submission notes that 
on January 20, 2012, EPA designated all areas of the country as 
``unclassifiable/attainment'' for the 2010 NO2 NAAQS because 
design values for the 2008-2010 period at all monitored sites met the 
NAAQS. Measurements from 2013-2015 indicate continued attainment of the 
2010 NO2 NAAQS in Vermont and throughout the country. The 
Vermont submittal notes that Vermont NOX emissions are among 
the lowest of any state and have been declining for several decades, 
with total statewide NOX emissions dropping from 37,744 tons 
in 2002 to 19,352 tons in 2011. Our review of NOX emissions 
data from Vermont sources, which Vermont has entered into the EPA 
National Emissions Inventory (NEI) database, confirms this and, 
therefore, EPA agrees with Vermont and proposes that Vermont has met 
requirements related to section 110(a)(2)(D)(i)(I) for the 2010 
NO2 NAAQS.
    Vermont's infrastructure SIP submission for the 2010 SO2 
NAAQS includes a demonstration that no source or sources within Vermont 
contribute significantly to non-attainment in, or interfere with 
maintenance by, any other state with respect to the 2010 SO2

[[Page 15677]]

NAAQS. EPA will act on this infrastructure requirement for the 2010 
SO2 NAAQS in a separate action.
    EPA is proposing to find that Vermont has met requirements for sub-
element 1 of section 110(a)(2)(D)(i)(I) for the 2008 Pb and 2010 
NO2 NAAQS. EPA previously approved Vermont's submittals 
addressing this sub-element for the 2008 ozone NAAQS (81 FR 70631) and 
previously proposed approval of Vermont's submittal for this element 
for the 1997 PM2.5, 1997 ozone, and 2006 PM2.5 
NAAQS, and will address Vermont's submittal for the 2010 SO2 
NAAQS in a subsequent notice.
Sub-Element 2: Section 110(a)(2)(D)(i)(II)--PSD (Prong 3)
    One aspect of section 110(a)(2)(D)(i)(II) requires SIPs to include 
provisions prohibiting any source or other type of emissions activity 
in one state from interfering with measures required to be in any other 
state's SIP under Part C of the Act to prevent significant 
deterioration of air quality. One way for a state to meet this 
requirement, specifically with respect to those in-state sources and 
pollutants that are subject to PSD permitting, is through a 
comprehensive PSD permitting program that applies to all regulated NSR 
pollutants and that satisfies the requirements of EPA's PSD 
implementation rules. For in-state sources not subject to PSD, this 
requirement can be satisfied through a fully-approved nonattainment new 
source review (NNSR) program with respect to any previous NAAQS. EPA's 
latest approval of some revisions to Vermont's NNSR regulations was on 
August 1, 2016 (81 FR 50342).
    To meet requirements of Prong 3, Vermont cites 10 V.S.A Sec.  556, 
and VT APCR Sec.  5-501, Review of Construction or Modification of Air 
Contaminant Sources, and VT APCR Sec.  5-502, Major Stationary Sources 
and Major Modifications, which set forth requirements for permits to 
construct, modify or operate major air contaminant sources. 
Specifically, Sec.  5-501 and Sec.  5-502 provide for nonattainment and 
PSD permitting for major sources. As noted above in our discussion of 
Element C, Vermont's PSD program does not fully satisfy the 
requirements of EPA's PSD implementation rules. However, in a letter 
dated November 21, 2016, VT DEC committed to submit the required 
provisions for EPA approval into the Vermont SIP by no later than one 
year after the effective date of EPA's final action on the pending I-
SIPs. Therefore, we are proposing to conditionally approve this sub-
element for the 1997 PM2.5, 1997 ozone, 2006 
PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS related to section 110(a)(2)(D)(i)(II) for the 
reasons discussed under Element C.
Sub-Element 3: Section 110(a)(2)(D)(i)(II)--Visibility Protection 
(Prong 4)
    With regard to the applicable requirements for visibility 
protection of section 110(a)(2)(D)(i)(II), states are subject to 
visibility and regional haze program requirements under part C of the 
CAA (which includes sections 169A and 169B). The 2009 Memo, the 2011 
Memo, and 2013 Memo state that these requirements can be satisfied by 
an approved SIP addressing reasonably attributable visibility 
impairment, if required, or an approved SIP addressing regional haze. A 
fully approved regional haze SIP meeting the requirements of 40 CFR 
51.308 will ensure that emissions from sources under an air agency's 
jurisdiction are not interfering with measures required to be included 
in other air agencies' plans to protect visibility. Vermont's Regional 
Haze SIP was approved by EPA on May 22, 2012 (77 FR 30212). 
Accordingly, EPA proposes that Vermont has met the visibility 
protection requirements of 110(a)(2)(D)(i)(II) for the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 4: Section 110(a)(2)(D)(ii)--Interstate Pollution Abatement
    One aspect of section 110(a)(2)(D)(ii) requires each SIP to contain 
adequate provisions requiring compliance with the applicable 
requirements of section 126 relating to interstate pollution abatement.
    Section 126(a) requires new or modified sources to notify 
neighboring states of potential impacts from the source. The statute 
does not specify the method by which the source should provide the 
notification. States with SIP-approved PSD programs must have a 
provision requiring such notification by new or modified sources. A 
lack of such a requirement in state rules would be grounds for 
disapproval of this element. On August 1, 2016 (81 FR 50342), EPA 
approved revisions to VT APCR Sec.  5-501, which includes a provision 
that satisfies the requirement for Vermont's EPA-approved PSD program 
to provide notice to neighboring states of a determination to issue a 
draft PSD permit. See VT APCR Sec.  5-501(7)(c). Therefore, we propose 
to approve Vermont's compliance with the infrastructure SIP 
requirements of section 126(a) with respect to the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS. Vermont has 
no obligations under any other provision of section 126.
Sub-Element 5: Section 110(a)(2)(D)(ii)--International Pollution 
Abatement
    One portion of section 110(a)(2)(D)(ii) requires each SIP to 
contain adequate provisions requiring compliance with the applicable 
requirements of section 115 relating to international pollution 
abatement. Vermont does not have any pending obligations under section 
115 for the 1997 PM2.5, 1997 ozone, 2006 PM2.5, 
2008 Pb, 2008 ozone, 2010 NO2, or 2010 SO2 NAAQS. 
Therefore, EPA is proposing that Vermont has met the applicable 
infrastructure SIP requirements of section 110(a)(2)(D)(ii) related to 
section 115 of the CAA (international pollution abatement) for the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.

E. Section 110(a)(2)(E)--Adequate Resources

    This section requires each state to provide for adequate personnel, 
funding, and legal authority under state law to carry out its SIP and 
related issues. Additionally, Section 110(a)(2)(E)(ii) requires each 
state to comply with the requirements with respect to state boards 
under section 128. Finally, section 110(a)(2)(E)(iii) requires that, 
where a state relies upon local or regional governments or agencies for 
the implementation of its SIP provisions, the state retain 
responsibility for ensuring adequate implementation of SIP obligations 
with respect to relevant NAAQS. This sub-element, however, is 
inapplicable to this action, because Vermont does not rely upon local 
or regional governments or agencies for the implementation of its SIP 
provisions.
Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under 
State Law to Carry out its SIP, and Related Issues
    Vermont, through its infrastructure SIP submittals, has documented 
that its air agency has the requisite authority and resources to carry 
out its SIP obligations. Vermont cites 10 V.S.A. Sec.  553, which 
designates ANR as the air pollution control agency of the state, and 10 
V.S.A Sec.  554, which provides the Secretary of ANR with the power to 
``[a]dopt, amend and repeal rules, implementing the provisions'' of 10 
V.S.A. Chapter 23, Air Pollution

[[Page 15678]]

Control, and to ``[a]ppoint and employ personnel and consultants as may 
be necessary for the administration of'' 10 V.S.A. Chapter 23. Section 
554 also authorizes the Secretary of ANR to ``[a]ccept, receive and 
administer grants or other funds or gifts from public and private 
agencies, including the federal government, for the purposes of 
carrying out any of the functions of'' 10 V.S.A. Chapter 23. 
Additionally, 3 V.S.A. Sec.  2822 provides the Secretary of ANR with 
the authority to assess air permit and registration fees, which fund 
state air programs. In addition to Federal funding and permit and 
registration fees, Vermont notes that the Vermont Air Quality and 
Climate Division (AQCD) receives state funding to implement its air 
programs.\9\
---------------------------------------------------------------------------

    \9\ VT ANR's authority to carry out the provisions of the SIP 
identified in 40 CFR 51.230 is discussed in the sections of this 
document assessing elements A, C, F, and G, as applicable.
---------------------------------------------------------------------------

    EPA proposes that Vermont has met the infrastructure SIP 
requirements of this portion of section 110(a)(2)(E) with respect to 
the 1997 PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
    Section 110(a)(2)(E) also requires each SIP to contain provisions 
that comply with the state board requirements of section 128 of the 
CAA. That provision contains two explicit requirements: (1) That any 
board or body which approves permits or enforcement orders under this 
chapter shall have at least a majority of members who represent the 
public interest and do not derive any significant portion of their 
income from persons subject to permits and enforcement orders under 
this chapter, and (2) that any potential conflicts of interest by 
members of such board or body or the head of an executive agency with 
similar powers be adequately disclosed.
    In Vermont, no board or body approves permits or enforcement 
orders; these are approved by the Secretary of Vermont ANR. Thus, with 
respect to this sub-element, Vermont is subject only to the 
requirements of paragraph (a)(2) of section 128 of the CAA (regarding 
conflicts of interest). Accordingly, Vermont indicated in its November 
2, 2015 infrastructure SIP submittals for the 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS that it was submitting 
the Vermont Executive Code of Ethics, Executive Order 09-11, for 
incorporation into the SIP.\10\ However, Exhibits A and B of Executive 
Order 09-11 were inadvertently omitted from the November 2, 2015 I-SIP 
submittal. To address this omission, VT DEC submitted these exhibits in 
a November 21, 2016 letter that provided additional information and 
clarification in support of its November 2015 I-SIP submittal.
---------------------------------------------------------------------------

    \10\ Vermont also referenced incorporation of the Vermont 
Executive Code of Ethics into the SIP in its July 29, 2014 
infrastructure SIP submittal for the 2008 Pb NAAQS.
---------------------------------------------------------------------------

    The Vermont Executive Code of Ethics prohibits all Vermont 
Executive Branch appointees (including the ANR Secretary) from taking 
``any action in any particular matter in which he or she has either a 
conflict of interest or the appearance of a conflict of interest, until 
such time as the conflict is resolved.'' Among other things, the code 
requires an appointee to ``take all reasonable steps to avoid any 
action or circumstances, whether or not specifically prohibited by this 
code, which might result in (1) [u]ndermining his or her independence 
or impartiality or action; (2) [t]aking official action on the basis of 
unfair considerations; (3) [g]iving preferential treatment to any 
private interest on the basis of unfair considerations; (4) [g]iving 
preferential treatment to any family member or member of the 
appointee's household; (5) [u]sing public office for the advancement of 
personal interest; (6) [u]sing public office to secure special 
privileges or exemptions; or (7) [a]ffecting adversely the confidence 
of the public in the integrity of state government.'' The code further 
requires that every appointee earning $30,000 or more per year, which 
includes the ANR Secretary, annually file with the Vermont Secretary of 
Civil and Military Affairs an ``Ethics Questionnaire'' identifying 
``significant personal interests'' that ``might conflict with the best 
interests of the state.'' EPA is proposing to approve the Vermont 
Executive Code of Ethics, Vermont Executive Order 09-11, into the 
Vermont SIP. We are also proposing to remove Sec.  52.2382(a)(5) from 
the Vermont SIP, which previously took no action on conflict-of-
interest requirements.
    EPA proposes that, with the inclusion of Executive Order 09-11 into 
the Vermont SIP, Vermont has met the applicable infrastructure SIP 
requirements for this sub-element for the 1997 PM2.5, 1997 
ozone, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 
and 2010 SO2 NAAQS.

F. Section 110(a)(2)(F)--Stationary Source Monitoring System

    States must establish a system to monitor emissions from stationary 
sources and submit periodic emissions reports. Each plan shall also 
require the installation, maintenance, and replacement of equipment, 
and the implementation of other necessary steps, by owners or operators 
of stationary sources to monitor emissions from such sources. The state 
plan shall also require periodic reports on the nature and amounts of 
emissions and emissions-related data from such sources, and correlation 
of such reports by each state agency with any emission limitations or 
standards established pursuant to this chapter. Lastly, the reports 
shall be available at reasonable times for public inspection.
    Vermont's infrastructure submittals reference existing state 
regulations previously approved by EPA that require sources to monitor 
emissions and submit reports. In particular, VT APCR Sec.  5-405, 
Required Air Monitoring, (45 FR 10775, Feb. 19, 1980), provides that 
ANR ``may require the owner or operator of any air contaminant source 
to install, use and maintain such monitoring equipment and records, 
establish and maintain such records, and make such periodic emission 
reports as [ANR] shall prescribe.'' Moreover, section 5-402, Written 
Reports When Requested (81 FR 50342; Aug. 1, 2016), authorizes ANR to 
``require written reports from the person operating or responsible for 
any proposed or existing air contaminant source, which reports shall 
contain,'' among other things, information concerning the ``nature and 
amount and time periods or durations of emissions and such other 
information as may be relevant to the air pollution potential of the 
source. These reports shall also include the results of such source 
testing as may be required under Section 5-404 herein.'' Section 5-404, 
Methods for Sampling and Testing of Sources (45 FR 10775 Feb. 19, 1980) 
in turn authorizes ANR to ``require the owner or operator of [a] source 
to conduct tests to determine the quantity of particulate and/or 
gaseous matter being emitted'' and requires a source to allow access, 
should ANR have reason to believe that emission limits are being 
violated by the source, and allows ANR ``to conduct tests of [its] own 
to determine compliance.'' In addition, operators of sources that emit 
more than five tons of any and all air contaminants per year are 
required to register the source with the Secretary of ANR and to submit 
emissions data annually, pursuant to Sec.  5-802, Requirement for 
Registration, and Sec.  5-803, Registration Procedure (60 FR 2524 Jan. 
10, 1995). Vermont also certifies that nothing in its

[[Page 15679]]

SIP would preclude the use, including the exclusive use, of any 
credible evidence or information, relevant to whether a source would 
have been in compliance with applicable requirements if the appropriate 
performance or compliance test or procedure had been performed. See 40 
CFR 51.212(c).
    Vermont's infrastructure SIP submittals for the 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS provide for correlation 
by VT DEC of emissions reports by sources with applicable emission 
limitations or standards, as required by CAA Sec.  110(a)(2)(F)(iii). 
As explained in a letter from VT DEC dated November 21, 2016, and 
included in the docket for this action, Vermont receives emissions data 
through its annual registration program. Currently VT DEC analyzes a 
portion of these data manually to correlate a facility's actual 
emissions with permit conditions, NAAQS, and, if applicable, hazardous 
air contaminant action levels. VT DEC is in the process of setting up 
an integrated electronic database that will merge all air contaminant 
source information across permitting, compliance and registration 
programs, so that information concerning permit conditions, annual 
emissions data, and compliance data will be accessible in one location 
for a particular air contaminant source. VT DEC stated in its November 
2016 letter that the database will be capable of correlating certain 
emissions data with permit conditions and other applicable standards 
electronically where feasible to allow VT DEC to complete this 
correlation more efficiently and accurately.
    Regarding the section 110(a)(2)(F) requirement that the SIP provide 
for the public availability of emission reports, Vermont certified in 
its November 2, 2015 submittals for the 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS that the Vermont Public 
Records Act, 1 V.S.A. Sec. Sec.  315-320, provides for the free and 
open examination of public records, including emissions reports. 
Vermont further noted that it was ``pursuing amendments to 10 V.S.A. 
Sec.  563'' that ``will require [ANR] to make public all emissions and 
emissions monitoring data submitted to the Agency by owners and 
operators of air contaminant sources'' and that it expected these 
amendments to become law in 2016. When EPA approved Vermont's original 
SIP in 1972, the Agency found that Vermont did not ``have the authority 
to make emissions data available to the public since 10 V.S.A. section 
363 \11\ would require the data to be held confidential if a source 
certified that it related to production or sales figures, unique 
processes, or would tend to affect adversely the competitive position 
of the owner.'' See 40 CFR 52.2373(a). Accordingly, EPA found that 
Vermont's plan did not provide for public availability of emission data 
as required by 40 CFR 51.116(c). See 40 CFR 52.2374. Newly revised 
Sec.  563, however, which became effective July 1, 2016, now provides 
that the ANR ``Secretary shall not withhold emissions data and emission 
monitoring data from public inspection or review'' and that the ANR 
``Secretary shall keep confidential any record or other information 
furnished to or obtained by the Secretary concerning an air contaminant 
source, other than emissions data and emission monitoring data, that 
qualifies as a trade secret pursuant to 1 V.S.A. Sec.  317(c)(9).'' 
(emphasis added). By letter dated November 21, 2016, Vermont submitted 
revised Sec.  563 to EPA for inclusion in the SIP. Consequently, EPA is 
proposing to approve Vermont's submittals for this requirement of 
section 110(a)(2)(F) for the 1997 ozone, 1997 PM2.5, 2006 
PM2.5, 2006 ozone, 2008 lead, 2010 NO2, and 2010 
SO2 NAAQS.
---------------------------------------------------------------------------

    \11\ Vermont also referenced incorporation of the Vermont 
Executive Code of Ethics into the SIP in its July 29, 2014 
infrastructure SIP submittal for the 2008 Pb NAAQS.
---------------------------------------------------------------------------

G. Section 110(a)(2)(G)--Emergency Powers

    This section requires that a plan provide for state authority 
analogous to that provided to the EPA Administrator in section 303 of 
the CAA, and adequate contingency plans to implement such authority. 
Section 303 of the CAA provides authority to the EPA Administrator to 
seek a court order to restrain any source from causing or contributing 
to emissions that present an ``imminent and substantial endangerment to 
public health or welfare, or the environment.'' Section 303 further 
authorizes the Administrator to issue ``such orders as may be necessary 
to protect public health or welfare or the environment'' in the event 
that ``it is not practicable to assure prompt protection . . . by 
commencement of such civil action.''
    We propose to find that Vermont's submittals and certain state 
statutes and regulations provide for authority comparable to that in 
section 303. Vermont's submittals cite 10 V.S.A. Sec.  560, which 
authorizes the Secretary of ANR to order the immediate discontinuation 
of air emissions causing imminent danger to human health or safety. In 
addition, 10 V.S.A. Sec.  554 authorizes the Secretary to enforce 
orders issued pursuant to Sec.  560 ``by all appropriate administrative 
and judicial proceedings.'' The submittals also cite 10 V.S.A. Sec.  
8009, which authorizes the issuance of an emergency administrative 
order when a violation presents, or an activity will or is likely to 
result in, an immediate threat to the public health or an immediate 
threat of substantial harm to the environment. Newly adopted VT APCR 
Sec.  5-407, which became effective December 15, 2016, prohibits any 
person from emitting such quantities of air contaminants that will 
result in a condition of air pollution. ``Air pollution'' is defined in 
Sec.  5-101 as ``the presence in the outdoor atmosphere of one or more 
air contaminants in such quantities, and duration as is or tends to be 
injurious to human health or welfare, animal or plant life, or 
property, or would unreasonably interfere with the enjoyment of life, 
or property. Such effects may result from direct exposure to air 
contaminants, from deposition of air contaminants to other 
environmental media, or from alterations caused by air contaminants to 
the physical or chemical properties of the atmosphere.'' VT DEC 
interprets 10 V.S.A. Sec.  8009 and VT APCR Sec.  5-407 as allowing the 
Secretary to issue an emergency administrative order when air pollution 
is causing an imminent threat to public health, welfare, or the 
environment. Furthermore, an order issued pursuant to 10 V.S.A. Sec.  
8009 is presented to the Environmental Division of Vermont Superior 
Court and, if no hearing is requested, becomes a judicial order when 
signed by the Court. See 10 V.S.A. Sec.  8008(d). If a hearing is 
requested, the order is reviewed by the court. Id. Sec. Sec.  8009(d), 
8012(b).
    We propose to find that this combination of state statutory and 
regulatory provisions provides the Secretary with authority comparable 
to that given the Administrator in section 303 of the CAA. Therefore, 
we are proposing to approve the state's submittals with respect to this 
requirement of Section 110(a)(2)(G) for the 1997 PM2.5, 1997 
ozone, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 
and 2010 SO2 NAAQS.
    Section 110(a)(2)(G) also requires that, for any NAAQS, Vermont 
have an approved contingency plan for any Air Quality Control Region 
(AQCR) within the state that is classified as Priority I, IA, or II. 
See 40 CFR 51.152(c). A contingency plan is not required if the entire 
state is classified as Priority III for a particular pollutant. Id. The 
entire state of Vermont is classified as Priority

[[Page 15680]]

III for ozone and NO2 pursuant to 40 CFR 52.2371.
    With regard to SO2 and PM, however, two air quality 
control regions (``AQCR'') in Vermont--Champlain Valley Interstate and 
Vermont Intrastate--are classified as Priority II areas. However, EPA's 
last update to the priority classifications for Vermont occurred in 
1980. See 45 FR 10782. Vermont indicated in its November 2, 2015, 
submittal for the 2008 ozone, 2010 NO2, and 2010 
SO2 NAAQS that it wishes to update its SO2 
priority classifications for both AQCRs, and that SO2 
concentrations in Vermont have been below Priority II area levels for 
more than 35 years. There are currently no SO2 monitors in 
the Champlain Valley Interstate and Vermont Intrastate AQCRs. EPA has 
reviewed the SO2 monitoring data that the state has 
certified, and agrees that the SO2 levels are significantly 
below the threshold of a Priority I, IA, or II level.
    Vermont SO2 emissions are among the lowest of any state, 
with 2011 National Emission Inventory (NEI) point-source emissions 
totaling less than 500 tons from all Vermont point-sources combined. 
Ambient Vermont SO2 concentrations at Vermont's highest 
concentration site have declined by 75 percent in the past 10 years, 
with a 2012-2014 1-hour design value of 13 parts per billion (ppb).\12\ 
The only 1-hour SO2 nonattainment area in a state adjacent 
to Vermont, in central New Hampshire, has recently experienced dramatic 
reductions in SO2 emissions and ambient concentrations 
following the 2012 installation of a scrubber at the Merrimack Station 
in Bow, NH.
---------------------------------------------------------------------------

    \12\ The 2010 1-hour SO2 NAAQS is 75 ppb.
---------------------------------------------------------------------------

    Therefore, we are proposing to revise Vermont's priority 
classification for the Champlain Valley Interstate and Vermont 
Intrastate areas from Priority II to Priority III for SO2. 
Accordingly, a contingency plan for SO2 is not required. See 
40 CFR 51.152(c). As emission levels change, states are encouraged to 
periodically evaluate the priority classifications and propose changes 
to the classifications based on the three most recent years of air 
quality data. See 40 CFR 51.153.
    We note that PM2.5 and Pb are not explicitly included in 
the contingency plan requirements of 40 CFR subpart H. According to 
EPA's 2011 NEI, there are no Pb sources within Vermont that exceed 
EPA's reporting threshold of 0.5 tons per year. The largest source is 
reported to be 260 pounds per year (0.13 tons per year).
    With respect to the 2006 PM2.5 NAAQS, EPA's 2009 Memo 
recommends that states develop emergency episode plans for any area 
that has monitored and recorded 24-hour PM2.5 levels greater 
than 140 [micro]g/m\3\ since 2006. In its May 21, 2010, submittal, 
Vermont certified that the highest 24-hour PM2.5 
concentration recorded in the state in the previous three years was 
36.7 [micro]g/m\3\. Furthermore, EPA's review of Vermont's certified 
air quality data in AQS indicates that the highest 24-hour 
PM2.5 level since that time (i.e., data through December 31, 
2015) was 43.5 [micro]g/m\3\ [micro]g/m\3\, which occurred in 2015.
    Although not expected, if Pb or PM2.5 conditions were to 
change, Vermont does have general authority, as noted previously (i.e., 
10 V.S.A. Sec.  560 and 10 V.S.A. Sec.  8009), to order a source to 
cease operations if it is determined that emissions from the source 
pose an imminent danger to human health or safety or an immediate 
threat of substantial harm to the environment.
    In addition, as stated in Vermont's infrastructure SIP submittals 
under the discussion of public notification (Element J), Vermont posts 
near real-time air quality data, air quality predictions and a record 
of historical data on the VT DEC Web site and distributes air quality 
alerts by email to a large number of parties, including the media. 
Alerts include information about the health implications of elevated 
pollutant levels and list actions to reduce emissions and to reduce the 
public's exposure. In addition, daily forecasted fine particle levels 
are also made available on the internet through the EPA AirNow and 
EnviroFlash systems. Information regarding these two systems is 
available on EPA's Web site at www.airnow.gov. Notices are sent out to 
EnviroFlash participants when levels are forecast to exceed the current 
24-hour PM2.5 standard.
    EPA proposes that Vermont has met the applicable infrastructure SIP 
requirements for section 110(a)(2)(G) with respect to contingency plans 
for the 1997 PM2.5, 1997 ozone, 2006 PM2.5, 2008 
Pb, 2008 ozone, 2010 NO2, and 2010 SO2 NAAQS. We 
also are proposing to update the classifications for two of Vermont's 
air quality control regions from Priority II to Priority III for 
SO2 based on recent air quality monitoring data collected by 
the state.

H. Section 110(a)(2)(H)--Future SIP Revisions

    This section requires that a state's SIP provide for revision from 
time to time as may be necessary to take account of changes in the 
NAAQS or availability of improved methods for attaining the NAAQS and 
whenever the EPA finds that the SIP is substantially inadequate. To 
address this requirement, Vermont's infrastructure submittals reference 
10 V.S.A Sec.  554, which provides the Secretary of Vermont ANR with 
the power to ``[p]repare and develop a comprehensive plan or plans for 
the prevention, abatement and control of air pollution in this state'' 
and to ``[a]dopt, amend and repeal rules, implementing the provisions'' 
of Vermont's air pollution control laws set forth in 10 V.S.A. chapter 
23. Vermont has submitted this statute for inclusion into the SIP. EPA 
proposes that Vermont has met the infrastructure SIP requirements of 
CAA section 110(a)(2)(H) with respect to the 1997 PM2.5, 
1997 ozone, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS.

I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions 
Under Part D

    The CAA requires that each plan or plan revision for an area 
designated as a nonattainment area meet the applicable requirements of 
part D of the CAA. Part D relates to nonattainment areas. EPA has 
determined that section 110(a)(2)(I) is not applicable to the 
infrastructure SIP process. Instead, EPA takes action on part D 
attainment plans through separate processes.

J. Section 110(a)(2)(J)--Consultation With Government Officials; Public 
Notifications; Prevention of Significant Deterioration; Visibility 
Protection

    The evaluation of the submissions from Vermont with respect to the 
requirements of CAA section 110(a)(2)(J) are described below.
Sub-Element 1: Consultation With Government Officials
    States must provide a process for consultation with local 
governments and Federal Land Managers (FLMs) carrying out NAAQS 
implementation requirements.
    Vermont's 10 V.S.A Sec.  554 specifies that the Secretary of 
Vermont ANR shall have the power to ``[a]dvise, consult, contract and 
cooperate with other agencies of the state, local governments, 
industries, other states, interstate or interlocal agencies, and the 
federal government, and with interested persons or groups.'' Vermont 
has submitted this statute for inclusion into the SIP. In addition, VT 
APCR Sec.  5-501(7)(c) requires VT ANR to provide notice to local 
governments and federal land managers of a determination by ANR to 
issue a draft PSD permit for a major stationary source or major 
modification. On August 1, 2016 (81 FR

[[Page 15681]]

50342), EPA approved VT APCR Sec.  5-501(7)(c) into Vermont's SIP.
    EPA proposes to approve 10 V.S.A Sec.  554 into the SIP and 
proposes that Vermont has met the infrastructure SIP requirements of 
this portion of section 110(a)(2)(J) with respect to the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 2: Public Notification
    Section 110(a)(2)(J) also requires states to: Notify the public if 
NAAQS are exceeded in an area; advise the public of health hazards 
associated with exceedances; and enhance public awareness of measures 
that can be taken to prevent exceedances and of ways in which the 
public can participate in regulatory and other efforts to improve air 
quality.
    Vermont's 10 V.S.A Sec.  554 authorizes the Secretary of Vermont 
ANR to ``[c]ollect and disseminate information and conduct educational 
and training programs relating to air contamination and air 
pollution.'' In addition, the VT DEC Air Quality and Climate Division 
Web site includes near real-time air quality data, and a record of 
historical data. Air quality forecasts are distributed daily via email 
to interested parties. Air quality alerts are sent by email to a large 
number of affected parties, including the media. Alerts include 
information about the health implications of elevated pollutant levels 
and list actions to reduce emissions and to reduce the public's 
exposure. Also, Air Quality Data Summaries of the year's air quality 
monitoring results are issued annually and posted on the VT DEC Air 
Quality and Climate Division Web site. Vermont is also an active 
partner in EPA's AirNow and EnviroFlash air quality alert programs.
    EPA proposes that Vermont has met the infrastructure SIP 
requirements of this portion of section 110(a)(2)(J) with respect to 
the 1997 PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 
2008 ozone, 2010 NO2, and 2010 SO2 NAAQS.
Sub-Element 3: PSD
    States must meet applicable requirements of section 110(a)(2)(C) 
related to PSD. Vermont's PSD program in the context of infrastructure 
SIPs has already been discussed in the paragraphs addressing sections 
110(a)(2)(C) and 110(a)(2)(D)(i)(II) and, as we have noted, does not 
fully satisfy the requirements of EPA's PSD implementation rules.
    Consequently, we are proposing to conditionally approve the PSD 
sub-element of section 110(a)(2)(J) for the 1997 PM2.5, 1997 
ozone, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 
and 2010 SO2 NAAQS, consistent with the actions we are 
proposing for sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II).
Sub-Element 4: Visibility Protection
    With regard to the applicable requirements for visibility 
protection, states are subject to visibility and regional haze program 
requirements under part C of the CAA (which includes sections 169A and 
169B). In the event of the establishment of a new NAAQS, however, the 
visibility and regional haze program requirements under part C do not 
change. Thus, as noted in EPA's 2013 Memo, we find that there is no new 
visibility obligation ``triggered'' under section 110(a)(2)(J) when a 
new NAAQS becomes effective. In other words, the visibility protection 
requirements of section 110(a)(2)(J) are not germane to infrastructure 
SIPs for the 1997 PM2.5, 1997 ozone, 2006 PM2.5, 
2008 Pb, 2008 ozone, 2010 NO2, and 2010 SO2 
NAAQS.

K. Section 110(a)(2)(K)--Air Quality Modeling/Data

    To satisfy Element K, the state air agency must demonstrate that it 
has the authority to perform air quality modeling to predict effects on 
air quality of emissions of any NAAQS pollutant and submission of such 
data to EPA upon request. Vermont reviews the potential impact of major 
sources consistent with 40 CFR part 51, appendix W, ``Guidelines on Air 
Quality Models.'' See VT APCR Sec.  5-406(2).
    In its submittals, Vermont cites to VT APCR Sec.  5-406, Required 
Air Modeling, which authorizes ``[t]he Air Pollution Control Officer 
[to] require the owner or operator of any proposed air contaminant 
source . . . to conduct . . . air quality modeling and to submit an air 
quality impact evaluation to demonstrate that operation of the proposed 
source . . . will not directly or indirectly result in a violation of 
any ambient air quality standard, interfere with the attainment of any 
ambient air quality standard, or violate any applicable prevention of 
significant deterioration increment . . . .'' Vermont also cites to VT 
APCR Sec.  5-502, Major Stationary Sources and Major Modifications, 
which requires the submittal of an air quality impact evaluation or air 
quality modeling to ANR to demonstrate impacts of new and modified 
major sources. The modeling data are sent to EPA along with the draft 
major permit.
    The state also collaborates with the Ozone Transport Commission 
(OTC) and the Mid-Atlantic Regional Air Management Association and EPA 
in order to perform large-scale urban air shed modeling for ozone and 
PM, if necessary. EPA proposes that Vermont has met the infrastructure 
SIP requirements of section 110(a)(2)(K) with respect to the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.

L. Section 110(a)(2)(L)--Permitting Fees

    This section requires SIPs to mandate that each major stationary 
source pay permitting fees to cover the cost of reviewing, approving, 
implementing, and enforcing a permit.
    Vermont implements and operates a Title V permit program. See 
Subchapter X of VT APCR, which was approved by EPA on November 29, 2001 
(66 FR 59535). To gain this approval, Vermont demonstrated the ability 
to collect sufficient fees to run the program. Vermont also notes in 
its submittals that the costs of all CAA permitting, implementation, 
and enforcement for new or modified sources are covered by Title V 
fees, and that Vermont state law provides for the assessment of 
application fees from air emissions sources for permits for the 
construction or modification of air contaminant sources, and sets forth 
permit fees. See 10 V.S.A Sec.  556, and 3 V.S.A Sec.  2822(j).
    EPA proposes that Vermont has met the infrastructure SIP 
requirements of section 110(a)(2)(L) for the 1997 PM2.5, 
1997 ozone, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 
NO2, and 2010 SO2 NAAQS. We also are proposing to 
remove Sec.  52.2382(a)(1) from the CFR, which states that EPA has 
taken no action to approve or disapprove permitting fees.

M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local 
Entities

    To satisfy Element M, states must consult with, and allow 
participation from, local political subdivisions affected by the SIP. 
Vermont's infrastructure submittals reference 10 V.S.A Sec.  554, which 
in today's action is being proposed for approval into the SIP, and 
which authorizes the Secretary of Vermont ANR to ``[a]dvise, consult, 
contract and cooperate with other agencies of the state, local 
governments, industries, other states, interstate or interlocal 
agencies, and the federal government, and with interested persons or 
groups.'' EPA proposes that Vermont has met the infrastructure SIP 
requirements of section 110(a)(2)(M) with respect to the 1997 
PM2.5, 1997 ozone, 2006 PM2.5, 2008 Pb, 2008 
ozone, 2010 NO2, and 2010 SO2 NAAQS.

[[Page 15682]]

N. Vermont Statutes for Inclusion Into the Vermont SIP

    As noted above in the discussion of several elements, Vermont 
submitted, and EPA is proposing to approve 10 V.S.A. Sec.  554 
(Powers), 10 V.S.A. Sec.  563 (Confidential records; penalty), and 
Vermont Executive Order 09-11 (Executive Code of Ethics) into the SIP.

V. What action is EPA taking?

    EPA is proposing to approve most elements of the infrastructure 
SIPs submitted by Vermont for the 1997 PM2.5, 1997 ozone, 
2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, and 
2010 SO2 NAAQS, with the exception of three aspects of these 
SIPs relating to PSD which we are proposing to conditionally approve.
    The state submitted these SIPs on the following dates: 1997 
PM2.5--February 18, 2009; 1997 ozone--February 18, 2009; 
2006 PM2.5--May 21, 2010; 2008 Pb--July 29, 2014; 2008 
ozone--November 2, 2015; 2010 NO2--November 2, 2015; and 
2010 SO2--November 2, 2015.
    Specifically, EPA's proposed actions regarding each infrastructure 
SIP requirement are contained in Table 1 below.

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

    In the above table, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A.........................................  Approve.
A*........................................  Conditionally approve.
+.........................................  Not germane to
                                             infrastructure SIPs.
NI........................................  Not included in the
                                             submittals which are the
                                             subject of today's action.
NA........................................  Not applicable.
NT........................................  Not taking action at this
                                             time.
------------------------------------------------------------------------

    In addition, EPA is proposing to approve, and incorporate into the 
Vermont SIP, the following Vermont statutes which were included for 
approval in Vermont's infrastructure SIP submittals: 10 V.S.A. 
Sec. Sec.  554 and 563, and Vermont Executive Order 09-11, Executive 
Code of Ethics. EPA is further proposing to remove the following 
provisions from Title 40 of the CFR: sections 52.2373, 52.2374, and 
52.2382(a)(1), (2), (4), and (5), for the reasons discussed below.
    As noted in the discussion of section 110(a)(2)(F) above, in 1972, 
EPA found Vermont's SIP inadequate with respect to the requirement to 
make emission data available to the public as required by the Act. See 
40 CFR 52.2373, and 52.2374(a); 37 FR 10842 (May 31, 1972). 
Consequently, EPA promulgated regulations setting forth procedures for 
the release of emission data. See 52.2374(b); 37 FR 11826 (June 14, 
1972). EPA is proposing in today's notice, however, to approve 
Vermont's infrastructure SIP submittals with respect to this section 
110(a)(2)(F) requirement as discussed above. Consequently, EPA proposes 
to remove sections 52.2373 and 52.2374 from Title 40 of the CFR.
    In 1980, EPA, acting on SIP revisions submitted by Vermont relating 
mainly to Part D of the Act (Plan Requirements for Nonattainment 
Areas), determined that, for various reasons, it would not act on a 
handful of what it termed ``Non-Part D Measures'' submitted by the 
State but required by other parts of the Act. See 40 CFR 52.2382(a); 45 
FR 10775 (Feb. 19, 1980). More specifically, EPA took no action on 
revisions related to certain requirements of section 121 (relating to 
intergovernmental consultation), section 126 (relating to interstate 
pollution notification), and section 128 (relating to conflict of 
interest). See 40 CFR 52.2382(a); 45 FR 10775 (Feb. 19, 1980). As 
discussed earlier, these three sections of the Act are made applicable 
to infrastructure SIPs pursuant to sections 110(a)(2)(J), (D)(ii), and 
(E)(ii), respectively. In addition, EPA took no action on the 
requirements of erstwhile section 110(a)(2)(K) (relating to permit 
fees), which was later recodified at 110(a)(2)(L). Since, in today's 
action we are proposing to approve or conditionally approve Vermont's 
infrastructure SIP submittals with respect to the relevant requirements 
in 110(a)(2)(D)(ii), (E)(ii), (J), and (L), we propose to remove 
52.2382(a)(1), (2), (4), and (5) from Title 40 of the CFR as legally 
obsolete.
    As noted in Table 1, we are proposing to conditionally approve 
portions of Vermont's infrastructure SIP submittals pertaining to PSD-
related elements (C)(2), (D)(2), and (J)(3).
    Under section 110(k)(4) of the Act, EPA may conditionally approve a 
plan based on a commitment from the State

[[Page 15683]]

to adopt specific enforceable measures by a date certain, but not later 
than 1 year from the date of approval. If EPA conditionally approves 
the commitment in a final rulemaking action, the State must meet its 
commitment to submit an update to its PSD program that fully remedies 
the deficiencies mentioned above under element C. If the State fails to 
do so, this action will become a disapproval one year from the date of 
final approval. 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 Vermont SIP. EPA subsequently will publish a document in 
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 infrastructure SIP 
elements for all affected pollutants will be disapproved. In addition, 
a final disapproval triggers the Federal Implementation Plan 
requirement under section 110(c). If EPA approves the new submittal, 
the PSD program and relevant infrastructure SIP elements will be fully 
approved and replace the conditionally approved program in the SIP.
    Additionally, we are proposing to update the 40 CFR 52.2371 
classifications for two of Vermont's air quality control regions for 
sulfur dioxide based on recent air quality monitoring data collected by 
the state, which removes state's infrastructure SIP contingency plan 
obligation for sulfur dioxide.
    EPA is soliciting public comments on the issues discussed in this 
proposal or on other relevant matters. These comments will be 
considered before EPA takes final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA New England Regional Office listed in the ADDRESSES 
section of this Federal Register, or by submitting comments 
electronically, by mail, or through hand delivery/courier following the 
directions in the ADDRESSES section of this Federal Register.

VI. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule 
regulatory text that includes incorporation by reference. In accordance 
with requirements of 1 CFR 51.5, EPA is proposing to incorporate by 
reference two Vermont statutes and one Vermont Executive Order, all 
referenced in Section V above. EPA has made, and will continue to make, 
these documents generally available electronically through 
www.regulations.gov and/or in hard copy at the appropriate EPA office 
(see the ADDRESSES section of this preamble for more information).

VII. 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. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the Clean Air Act. Accordingly, 
this proposed 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 proposed action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen 
dioxide, Ozone, Particulate matter, Reporting and recordkeeping 
requirements, Sulfur oxides, Volatile organic compounds.

    Dated: March 16, 2017.
Deborah A. Szaro,
Acting Regional Administrator, EPA New England.
[FR Doc. 2017-06206 Filed 3-29-17; 8:45 am]
 BILLING CODE 6560-50-P


