[Federal Register Volume 84, Number 142 (Wednesday, July 24, 2019)]
[Proposed Rules]
[Pages 35582-35585]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15604]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2019-0382; FRL-9996-83-Region 1]


Air Plan Approval; Rhode Island; Prevention of Significant 
Deterioration; PM10, PM2.5 and NOX

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve revisions to the State of Rhode Island's State Implementation 
Plan (SIP) relating to the regulation of fine particulate matter (that 
is, particles with an aerodynamic diameter less than or equal to a 
nominal 2.5 micrometers, generally referred to as 
``PM2.5''), PM10 (particles with an aerodynamic 
diameter less than or equal to a nominal 10 micrometers), and nitrogen 
oxides (NOX) within the context of Rhode Island's Prevention 
of Significant Deterioration (PSD) permitting program. The EPA is also 
proposing to take action on other minor changes to Rhode Island's PSD 
permitting program. In addition, EPA is proposing to convert several 
conditionally approved infrastructure SIP elements to fully approved 
elements in relation to the 2008 ozone, 2008 lead, 2010 nitrogen 
dioxide and the 1997 and 2006 PM2.5 National Ambient Air 
Quality Standards (NAAQS). These actions are being taken in accordance 
with the Clean Air Act (CAA).

DATES: Written comments must be received on or before August 23, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
OAR-2019-0382 at https://www.regulations.gov, or via email to 
dahl.donald@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 http://www.epa.gov/dockets/commenting-epa-dockets. Publicly 
available docket materials are available at https://www.regulations.gov 
or at the U.S. Environmental Protection Agency, EPA Region 1 Regional 
Office, Air and Radiation Division, 5 Post Office Square--Suite 100, 
Boston, MA. The EPA requests that if at all possible, you contact the 
contact listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
legal holidays.

FOR FURTHER INFORMATION CONTACT: Donald Dahl, Air Permits, Toxics, and 
Indoor Programs Branch, EPA Region 1 Regional Office, 5 Post Office 
Square--Suite 100, Mail Code 5-02, Boston, MA 02109-3912, tel. (617) 
918-1657, email: dahl.donald@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean the EPA.

Table of Contents

I. Background and Purpose
II. Analysis of Rhode Island's SIP Revision
III. Proposed Action
IV. Incorporation by Reference
V. Statutory and Executive Order Reviews

I. Background and Purpose

    The State of Rhode Island's PSD permitting program is established 
in Title 250--Rhode Island Department of Environmental Management, 
Chapter 120--Air Resources, Subchapter 05--Air Pollution Control, Part 
9--Air Pollution Control Permits (Part 9). Revisions to the PSD program 
were last approved into the Rhode Island SIP on October 24, 2013 (78 FR 
63383). Rhode Island has authority to issue and enforce PSD permits 
under its SIP-approved PSD program.

[[Page 35583]]

    On March 26, 2018, the Rhode Island Department of Environmental 
Management (RI DEM) submitted to the EPA a formal revision to its SIP. 
On February 6, 2019, RI DEM submitted to the EPA a letter clarifying 
its intent to only incorporate certain elements of its March 2018 
submittal for inclusion into the Rhode Island SIP. The RI DEM SIP 
submittal, and subsequent clarification letter, were submitted to 
address PM2.5 and PM10 in PSD permitting 
regulations, to specifically address NOX as a precursor for 
ozone, and to revise other minor changes to Rhode Island's PSD 
permitting program. This submittal also sought to satisfy an April 20, 
2016 conditional approval (81 FR 23175) for the 2008 ozone, 2008 lead, 
2010 nitrogen dioxide and the 1997 and 2006 PM2.5 NAAQS 
infrastructure SIPs (I-SIPs) only as it relates to the aspects of the 
PSD program pertaining to NOX as a precursor for ozone and 
changes made to 40 CFR part 51.166 in the EPA's October 20, 2010 
rulemaking (75 FR 64864) concerning emissions of PM2.5.
    In the EPA's April 20, 2016 conditional approval, we cite a 
February 18, 2016 letter from RI DEM which commits to making the 
necessary changes to address the deficiencies in the Rhode Island SIP. 
RI DEM's March 2018 SIP submittal and February 2019 clarification 
letter satisfy the State's earlier commitment.

II. Analysis of Rhode Island's SIP Revision

    The EPA performed a review of Rhode Island's proposed revisions and 
has determined that they are consistent with EPA's PSD program 
regulations and also rectify the deficiencies indicated in our April 
20, 2016 conditional approvals.
    Since the EPA's last approval of amendments to RI DEM's Part 9, the 
State has undertaken a new codification system that results in 
different citations between the current state regulations and the Rhode 
Island SIP. Due to the State's new codification system, there are 
instances where the state regulation being submitted for approval into 
the SIP at this time does not mesh precisely within the existing 
codification structure of the Rhode Island SIP. As a matter of 
substantive legal requirements, however, the regulations approved into 
the Rhode Island SIP, including those we are approving today, are 
harmonious and clear.
    Below, we describe exactly how each definition and provision within 
Part 9, as adopted by Rhode Island and in effect on April 5, 2018, and 
that we are approving into Rhode Island's SIP through this notice, is 
consistent with the EPA's regulations and how it will be incorporated 
into the SIP. In most instances, the proposed amendments to the SIP are 
straightforward, aligning with existing provisions in EPA's PSD 
regulations at 40 CFR part 51.166 and thus need no detailed explanation 
other than clarification as to how the proposed amendments will mesh 
with the existing SIP's structure and codification. Our analysis of 
each proposed amendment is provided below:
    1. Amendment to the definition of ``Baseline concentration'' in 
Section 9.5.C.2., which corresponds to Section 9.5.l(b) in the 
currently approved Rhode Island SIP. This amendment restructures the 
definition and is consistent with the definition of ``Baseline 
concentration'' in 40 CFR 51.166(b)(13).
    2. Amendment to the definition of ``Increment'' in Section 
9.5.C.3., which corresponds to Section 9.5.1(d) in the currently 
approved Rhode Island SIP. This amendment adds Class II increment 
values for both annual and 24-hr maximum PM10 and 
PM2.5. The State's new Class II increments are consistent 
with the increment values for these pollutants in 40 CFR 51.166(c).
    3. Amendment to the definition of ``Major Source Baseline Date'' in 
Section 9.5.C.4., which corresponds to Section 9.5.l(e) in the 
currently approved Rhode Island SIP. This amendment adds a major source 
baseline date for PM10 and PM2.5 consistent with 
40 CFR 51.166(b)(14)(i) and adds language for establishing the baseline 
date consistent with 40 CFR 51.166(b)(14)(iii).
    4. Amendment to the definition of ``Major Stationary Source'' in 
Section 9.5.C.6., which corresponds to Section 9.5.l(g) in the 
currently approved Rhode Island SIP. This amendment adds language 
stating that a source that is major for NOX is also major 
for ozone, which is consistent with 40 CFR 51.166(b)(1)(ii).
    5. Amendment to the definition of ``Minor Source Baseline Date'' in 
Section 9.5.C.5., which corresponds to Section 9.5.l(f) in the 
currently approved Rhode Island SIP. This amendment adds a specific 
minor source baseline date for PM2.5 and is consistent with 
40 CFR 51.166(b)(14)(ii)(c).
    RI DEM's PSD regulations are structured in a way that uses actual 
specific dates based on submission of a first complete PSD application 
to set the minor source baseline date for a particular pollutant. The 
approach contained in EPA's regulations is somewhat different in the 
sense that instead of using actual specific dates, EPA articulates the 
concept of a first complete PSD application as the minor source 
baseline date after a specified trigger date and does not reference any 
one specific date. The minor source baseline date for PM2.5 
in RI DEM's regulations is explicitly stated as March 29, 2016, which 
corresponds to the date when the RI DEM received the first complete PSD 
permit application that was significant for PM2.5. 
Additionally, there can only be one minor source baseline date 
statewide since Rhode Island's SIP defines the baseline area as the 
entire State.
    6. Amendment to the definition of ``Regulated NSR Pollutant'' in 
Section 9.5.A.36., which corresponds to Section 9.1.36 in the currently 
approved Rhode Island SIP. This amendment adds the gaseous form of 
PM10 and PM2.5 emissions, that condense into 
particulates at ambient temperatures, as direct emissions of 
PM10 and PM2.5. This amendment is consistent with 
40 CFR 51.166(b)(49)(i)(a).
    7. Amendment to the definition ``Subject to Regulation'' in Section 
9.5.A.41., which corresponds to Section 9.1.41 in the currently 
approved Rhode Island SIP. This amendment removes sources, referred to 
as ``step 2'' sources of greenhouse gases (GHG), from having to obtain 
a PSD permit solely due to its GHG emissions and is consistent with 40 
CFR 51.166(b)(48)(iv).
    In Step 2 of the GHG Tailoring Rule, which applied as of July 1, 
2011, the PSD and title V permitting program requirements applied to 
some sources that were classified as major sources based solely on 
their GHG emissions or potential to emit GHGs. Step 2 also applied PSD 
permitting requirements to modifications of otherwise major sources 
that would increase only GHG emissions above the level in the EPA 
regulations. The EPA generally described the sources covered by PSD 
during Step 2 of the GHG Tailoring Rule as ``Step 2 sources'' or ``GHG-
only sources.'' The United States Supreme Court invalidated the EPA's 
regulation of Step 2 sources in Utility Air Regulatory Group (UARG) v. 
EPA, 134 S. Ct. 2427 (2014). In accordance with that decision, the 
United States Court of Appeals for the District of Columbia Circuit 
vacated the federal regulations that implemented Step 2 of the GHG 
Tailoring Rule. See Coalition for Responsible Regulation, Inc. v. EPA, 
606 Fed. Appx. 6, 7 (D.C. Cir. 2015). Subsequently, the EPA removed the 
vacated elements from its rules. See 80 FR 50199 (August 19, 2015). The 
EPA therefore has the authority to approve a state's request to remove 
Step 2 sources from the SIP. EPA finds that removing Step 2 sources 
from the SIP is also

[[Page 35584]]

consistent with Section 110(l) of the CAA, which states that the EPA 
shall not approve a revision to the SIP if the revision would interfere 
with any applicable requirement concerning attainment (of the NAAQS) 
and reasonable further progress (as defined in CAA section 7501) or any 
other requirement of the CAA.
    8. Elimination of the restriction on increment consumption in 
Section 9.9.2 which corresponds to Section 9.5.3(a) in the currently 
approved Rhode Island SIP. This amendment allows a new major stationary 
source or a major modification to a stationary source to consume all 
available increment. This amendment is consistent with 40 CFR 
51.166(k)(1)(ii).
    The removal of the restriction on increment consumption is also 
consistent with Section 110(l) of the CAA, which states that the EPA 
shall not approve a revision to the SIP if the revision would interfere 
with any applicable requirement concerning attainment (of the NAAQS) 
and reasonable further progress (as defined in CAA section 7501) or any 
other requirement of the CAA. Prior to this amendment, the Rhode Island 
SIP limited the amount of increment that a new major stationary source 
or major modification could consume to 75% of the remaining 24-hr 
increment and 25% of the remaining annual increment. Although the 
State's amendment removes these limits on the amount of available 
increment that can be consumed, the amendment does not allow a source 
to consume more increment than is available. See Subchapter 05, Part 9, 
Section 9.9.1.A.2.a(2) of Rhode Island's Air Resources Regulations.
    9. Amendment to the provisions in Section 9.9.2.A.5.e(3), which 
corresponds to Section 9.5.3(c)(5)c in the currently approved Rhode 
Island SIP. This amendment prohibits emissions from temporary sources 
of sulfur dioxide, nitrogen oxides, and particulate matter to be 
excluded from increment consumption if the temporary emissions would 
impact a Class I area. The State's amended regulation is consistent 
with 40 CFR 51.166(f)(4)(iii)(a).
    10. Amendment to the table in Section 9.9.4.A., which corresponds 
to the table at Section 5.5 in the currently approved Rhode Island SIP. 
This amendment adds thresholds for annual and 24-hr PM2.5 
emissions that, if exceeded, requires a new major stationary source or 
a source making a major modification to comply with nonattainment new 
source review requirements. This amendment is consistent with and, in 
certain respects, more stringent than 40 CFR 51.165(b)(2).

III. Proposed Action

    Based on our analysis, the EPA is proposing to approve the Rhode 
Island SIP revision, submitted by RI DEM to EPA on March 26, 2018 and 
clarified by a letter dated February 6, 2019. The EPA is also proposing 
to convert its April 20, 2016 conditional approval to a full approval 
for the 2008 ozone, 2008 lead, 2010 nitrogen dioxide and the 1997 and 
2006 PM2.5 NAAQS I-SIPs as it relates to the aspects of the 
PSD program pertaining to NOX as a precursor for ozone and 
changes made to 40 CFR part 51.166 in the EPA's October 20, 2010 
rulemaking concerning emissions of PM2.5.
    The EPA is soliciting public comments on the issues discussed in 
this notice or on other relevant matters. These comments will be 
considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to this proposed rule by following the instructions listed in 
the ADDRESSES section of this Federal Register.

IV. Incorporation by Reference

    In this rule, the 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, the EPA is proposing to incorporate by 
reference the Rhode Island rules regarding definitions and permitting 
requirements discussed in section II of this preamble. The EPA has 
made, and will continue to make, these documents generally available 
through https://www.regulations.gov and at the EPA Region 1 Office 
(please contact the person identified in the FOR FURTHER INFORMATION 
CONTACT section of this preamble for more information).

V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Act and 
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, the 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 Orders12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Is not expected to be an Executive Order 13771 regulatory 
action because this action is not significant under Executive Order 
12866;
     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 the 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, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Sulfur oxides, Volatile organic compounds.


[[Page 35585]]


    Dated: July 16, 2019.
Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
[FR Doc. 2019-15604 Filed 7-23-19; 8:45 am]
BILLING CODE 6560-50-P


