[Federal Register Volume 84, Number 159 (Friday, August 16, 2019)]
[Proposed Rules]
[Pages 41942-41944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17667]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2019-0362; FRL-9998-32-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
District of Columbia; Infrastructure Requirements for the 2015 Ozone 
National Ambient Air Quality Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a state implementation plan (SIP) revision from the District of 
Columbia (the District). This SIP revision addresses certain 
infrastructure requirements to implement, maintain, and enforce the 
2015 ozone national ambient air quality standards (NAAQS), including 
the requirements for interstate transport. This action is being taken 
under the Clean Air Act (CAA).

DATES: Written comments must be received on or before September 16, 
2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
OAR-2019-0362 at https://www.regulations.gov, or via email to 
spielberger.susan@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, 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. 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://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Emlyn V[eacute]lez-Rosa, Planning & 
Implementation Branch (3AD30), Air & Radiation Division, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-
2038. Ms. V[eacute]lez-Rosa can also be reached via electronic mail at 
velez-rosa.emlyn@epa.gov.

SUPPLEMENTARY INFORMATION: On August 24, 2018, the District Department 
of Environment and Energy (DOEE) submitted a revision to its SIP 
addressing infrastructure requirements for the 2015 ozone NAAQS.

I. Background

    On October 26, 2015, EPA issued a final rule strengthening both the 
primary and secondary ozone NAAQS for ground-level ozone to 70 parts 
per billion (ppb), based on the fourth-highest maximum daily 8-hour 
ozone concentration per year (hereafter the 2015 ozone NAAQS). 80 FR 
65292.
    Whenever EPA promulgates a new or revised NAAQS, CAA section 
110(a)(1) requires states to make SIP submissions to provide for the 
implementation, maintenance, and enforcement of the NAAQS. This 
particular type of SIP revision is commonly referred to as an 
``infrastructure SIP revision.'' Infrastructure SIP revisions must meet 
the various requirements of CAA section 110(a)(2), as applicable. 
Section 110(a)(2) includes a list of specific elements that each 
infrastructure SIP revision must address. The infrastructure 
requirements of section 110(a)(2) are designed to ensure that the 
structural components of each state's air quality management program 
are adequate to meet the state's responsibilities under the CAA for 
implementation of a particular NAAQS.
    Due to ambiguity in some of the language of CAA section 110(a)(2), 
EPA believes that it is appropriate to interpret these provisions in 
the specific context of acting on infrastructure SIP revisions.\1\ EPA 
has previously provided comprehensive guidance on the application of 
these provisions through a guidance document for infrastructure SIP 
submissions and through regional actions on infrastructure submissions. 
Unless otherwise noted below, EPA is following that existing approach 
in acting on the District's infrastructure SIP revision. In addition, 
in the context of acting on such infrastructure SIP revision, EPA 
evaluates the submitting state's overall SIP for facial compliance with 
statutory and regulatory requirements, not for the state's 
implementation of its SIP.\2\ EPA has other authority to address any 
issues concerning a state's implementation of the rules, regulations, 
consent orders, etc. that comprise its SIP.
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    \1\ EPA explains and elaborates on these ambiguities and its 
approach to address them in its September 13, 2013 guidance document 
titled ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' 
(``the 2013 Infrastructure SIP Guidance''), as well as in numerous 
agency actions, including EPA's prior action on the District's 
infrastructure SIP revision to address the 2012 fine particulate 
matter (PM2.5) NAAQS. See 81 FR 54504 (August 16, 2016). 
A copy of the 2013 Infrastructure Guidance can be found in the 
docket for this rulemaking action.
    \2\ See U.S. Court of Appeals for the Ninth Circuit decision in 
Montana Environmental Information Center v. EPA, No. 16-71933 
(August 30, 2018).
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II. Summary of SIP Revision and EPA Analysis

    On August 24, 2018, DOEE submitted a formal SIP revision to EPA to 
satisfy the infrastructure requirements of CAA section 110(a)(2) for 
the 2015 ozone NAAQS. This SIP revision addresses the following 
infrastructure elements, or portions thereof, for the 2015 ozone NAAQS: 
CAA section 110(a)(2)(A), (B), (C), (D)(i)(I), D(i)(II), D(ii), (E), 
(F), (G), (H), (J), (K), (L), and (M). The August 24, 2018 SIP revision 
addresses the interstate transport requirements of CAA section 
110(a)(2)(D)(i)(I) for the 2015 ozone NAAQS (also known as good 
neighbor provisions). The SIP revision provides technical information 
supporting the conclusion that the emissions from the District do not 
significantly contribute to nonattainment or interfere with maintenance 
of the 2015 ozone NAAQS in any other state.
    The August 24, 2018 SIP revision did not address the portion of 
element (C) or element (I) referring to the nonattainment requirements 
of part D, title I of the CAA. Part D, title I of the CAA addresses SIP 
requirements and submission deadlines for designated nonattainment 
areas for each NAAQS. Such nonattainment SIP revisions are required if 
an area is designated nonattainment and would be due to EPA by the 
dates statutorily prescribed in subparts 1 through 5 under part D, 
title I of the CAA. EPA believes that because the CAA directs states to 
submit these nonattainment SIP requirements on a separate schedule, it 
is not necessary for states to include neither element (I) nor the 
portion of element (C) referring to part D as part of the 
infrastructure SIP revisions due three years after adoption or revision 
of any NAAQS.\3\
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    \3\ See EPA's 2013 Infrastructure SIP Guidance.

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    Upon receipt, EPA evaluated the District's August 24, 2018 SIP 
revision submittal for technical and administrative completeness, in 
accordance with 40 CFR part 51, appendix V. EPA determined that the 
submittal was technically incomplete with respect to the portions of 
the infrastructure elements in CAA section 110(a)(2)(C), (D)(i)(II), 
(D)(ii), and (J) relating to the Prevention of Significant 
Deterioration (PSD) permitting program under part C, title I of the 
CAA, because the District has not adequately addressed its part C 
requirement of having a SIP-approved PSD program. By contrast, EPA 
found the remainder of the August 24, 2018 SIP revision submittal to be 
administratively and technically complete in accordance with 40 CFR 
part 51, appendix V.
    On February 27, 2019, EPA sent a letter to DOEE notifying the 
District of this completeness determination. As a result of this 
finding, EPA can only proceed in taking rulemaking action on the 
complete portions of the District's August 24, 2018 submittal, and 
cannot take rulemaking action on the PSD-related portions of CAA 
section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J) for the 2015 ozone 
NAAQS, until DOEE submits a SIP revision to address the PSD permit 
requirements of part C, title I of the CAA.
    EPA recognizes, however, that the District is already subject to a 
Federal implementation plan (FIP) containing the Federal PSD 
program,\4\ which EPA issued to correct the District's PSD SIP 
deficiency, and that DOEE does not have to take further action for the 
FIP-based permitting program to be implemented. Notably, EPA does not 
anticipate any adverse consequences to DOEE from the February 27, 2019 
incompleteness finding for the PSD-related portions of the elements 
listed above for the District's 2015 ozone NAAQS submission. Mandatory 
sanctions would not apply to the District under CAA section 179, 
because the failure to submit a PSD SIP revision is neither with 
respect to a submission that is required under CAA title I part D, nor 
in response to a SIP call under CAA section 110(k)(5). In addition, EPA 
is not subject to any further FIP duties from this incompleteness 
finding, because there is already a PSD FIP for the District, which 
addresses the District's SIP deficiency. This rulemaking action is only 
addressing the complete portions of the District's August 24, 2018 
infrastructure SIP revision submittal for the 2015 ozone NAAQS.
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    \4\ EPA promulgated the PSD FIP in 1980, and later amended it in 
2003. The PSD FIP for the District is incorporated by reference in 
the District's SIP in 40 CFR 52.499, and it contains the provisions 
of 40 CFR 52.21, with the exception of paragraph (a)(1). See 45 FR 
52676, at 52741 (August 7, 1980), 68 FR 11316, at 11322 (March 10, 
2003), and 68 FR 74483, at 74488 (December 24, 2003).
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    Based upon EPA's review of the District's August 24, 2018 SIP 
revision, EPA believes that the District has met its obligations under 
CAA section 110(a)(2)(A), (B), (C), (D)(i)(I), D(i)(II), D(ii), (E), 
(F), (G), (H), (J), (K), (L), and (M), with exception of the PSD-
related portions of section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J), 
for the reasons discussed earlier. Thus, EPA determines that the August 
24, 2018 SIP revision adequately satisfies the District's applicable 
infrastructure requirements, or portions thereof, listed above for the 
2015 ozone NAAQS. A detailed summary of EPA's review and rationale for 
taking rulemaking action on the District's infrastructure SIP revision 
may be found in the technical support document (TSD) for this proposed 
rulemaking action which is available online at www.regulations.gov, 
docket number EPA-R03-OAR-2019-0362.

III. Proposed Action

    EPA is proposing to approve the District's August 24, 2018 SIP 
revision as meeting the requirements of section 110(a)(2) of the CAA to 
implement, maintain, and enforce the 2015 ozone NAAQS, including 
specifically section 110(a)(2)(A), (B), (C), (D)(i)(I), (D)(i)(II), 
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) for this NAAQS, 
with exception of those portions addressing requirements related to the 
PSD permitting program of part C, title I of the CAA in section 
110(a)(2)(C), (D)(i)(II), (D)(ii), and (J), which EPA has deemed 
incomplete pursuant to 40 CFR part 51, appendix V. This proposed 
rulemaking action does not include action on section 110(a)(2)(I) or 
portions of section 110(a)(2)(C) referring to the permit program under 
part D, title I of the CAA. EPA is soliciting public comments on the 
issues discussed in this document which will be considered before 
taking final rulemaking action.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this 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);
     Is not an Executive Order 13771 (82 FR 9339, February 2, 
2017) regulatory action because SIP approvals are exempted 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 CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed rule, pertaining to the District of 
Columbia's infrastructure requirements for the 2015 ozone NAAQS under 
CAA section 110(a)(2), does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the state, 
and EPA notes that it will not impose substantial direct costs on 
tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations,

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Nitrogen dioxide, Ozone, Volatile organic compounds.

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

    Dated: August 5, 2019.
Diana Esher,
Acting Regional Administrator, Region III.
[FR Doc. 2019-17667 Filed 8-15-19; 8:45 am]
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