[Federal Register Volume 83, Number 222 (Friday, November 16, 2018)]
[Proposed Rules]
[Pages 57701-57704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-24873]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2007-0314; FRL-9985-97-Region 6]


Air Plan Approval; Oklahoma; Interstate Transport Requirements 
for the 1997 Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule, withdrawal of proposed rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is proposing to approve a portion 
of an Oklahoma State Implementation Plan (SIP) submittal that pertains 
to the good neighbor provision requirements of the CAA with respect to 
interstate transport of air pollution which will interfere with 
maintenance of the 1997 ozone National Ambient Air Quality Standards 
(NAAQS). The good neighbor provision requires, in part, that each 
state, in its SIP, prohibit emissions that will interfere with 
maintenance of a new or revised NAAQS in another state. In this action, 
EPA is proposing to approve the Oklahoma SIP submittal as having met 
the interfere with maintenance requirement of the good neighbor 
provision for the 1997 ozone NAAQS in accordance with section 110 of 
the CAA. EPA is also withdrawing its October 17, 2011 proposed rule to 
disapprove this portion of Oklahoma SIP submittal.

DATES: Written comments must be received on or before December 17, 
2018.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2007-0314, at https://www.regulations.gov or via email to 
[email protected]. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not

[[Page 57702]]

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 Carl Young, 214-665-6645, [email protected]. 
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.
    Docket: The index to the docket for this action is available 
electronically at www.regulations.gov and in hard copy at the EPA 
Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all 
documents in the docket are listed in the index, some information may 
be publicly available only at the hard copy location (e.g., copyrighted 
material), and some may not be publicly available at either location 
(e.g., CBI).

FOR FURTHER INFORMATION CONTACT: Carl Young, 214-665-6645, 
[email protected]. To inspect the hard copy materials, please schedule 
an appointment with Mr. Young or Mr. Bill Deese at 214-665-7253.

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

I. Background

A. The 1997 8-Hour Ozone NAAQS and Interstate Transport of Air 
Pollution

    Under section 109 of the CAA, we are required to establish NAAQS 
that are protective of human health (primary NAAQS) and public welfare 
(secondary NAAQS). In 1997, we established new primary and secondary 8-
hour ozone NAAQS of 0.08 parts per million (July 18, 1997, 62 FR 
38856).\1\ Ground level ozone is formed when nitrogen oxides 
(NOX) and volatile organic compounds (VOCs) react in the 
presence of sunlight.
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    \1\ In 2008, we revised the primary and secondary 8-hour ozone 
NAAQS to 0.075 ppm (73 FR 16436, March 27, 2008) and in 2015 we 
revised the primary and secondary 8-hour ozone NAAQS to 0.070 ppm 
(80 FR 65292, October 26, 2015). This proposal pertains to the 1997 
8-hour ozone NAAQS only.
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    Section 110(a)(1) of the CAA requires states to submit, within 
three years after promulgation of a new or revised standard, SIPs 
meeting the applicable ``infrastructure'' elements of sections 
110(a)(2). One of these applicable infrastructure elements, CAA section 
110(a)(2)(D)(i), requires SIPs to contain ``good neighbor'' provisions 
to prohibit certain adverse air quality effects on neighboring states 
due to interstate transport of pollution. There are four sub-elements 
within CAA section 110(a)(2)(D)(i). The first two sub-elements are to 
prohibit emissions to any other state which would (1) significantly 
contribute to nonattainment or (2) interfere with maintenance of the 
new or revised NAAQS. The State of Oklahoma provided a May 1, 2007 SIP 
submittal to address these two sub-elements. The portion of the 
submittal addressing sub-element 1 (prohibit significant contribution 
to nonattainment in other states) was approved on December 29, 2011 (76 
FR 81838). This action addresses the second sub-element of that 
submittal (prohibit interference with maintenance in other states).
    The EPA has addressed the interstate transport requirements of CAA 
section 110(a)(2)(D)(i)(I) with respect to the 1997 8-hour ozone NAAQS 
in several past regulatory actions. Most relevant to this action, EPA 
promulgated the Clean Air Interstate Rule (CAIR) in 2005 to address the 
requirements of the good neighbor provision for the 1997 (fine 
particulate) (PM2.5) and 1997 ozone NAAQS (70 FR 25162, May 
12, 2005). In the CAIR rulemaking, we did not analyze the contributions 
to downwind ozone nonattainment for Oklahoma and 5 other states along 
the western border of the CAIR modeling domain (70 FR 25162, 25246). 
CAIR was remanded to the EPA by the D.C. Circuit in North Carolina v. 
EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on reh'g, 550 F.3d 1176. 
The court determined that CAIR was ``fundamentally flawed'' and ordered 
EPA to ``redo its analysis from the ground up.'' 531 F.3d at 929.
    In 2011, we promulgated the Cross-State Air Pollution Rule (CSAPR) 
to address the remand of CAIR.\2\ CSAPR addressed the state and federal 
obligations under CAA section 110(a)(2)(D)(i)(I) to prohibit air 
pollution contributing significantly to nonattainment in, or 
interfering with maintenance by, any other state with regard to the 
1997 8-hour ozone NAAQS and the 1997 annual PM2.5 NAAQS, as 
well as the 2006 24-hour PM2.5 NAAQS. To address the 
transport obligation under CAA section 110(a)(2)(D)(i)(I) with regard 
to the 1997 8-hour ozone NAAQS, CSAPR established Federal 
Implementation Plan (FIP) requirements for affected electric generating 
units (EGUs) in 20 states.\3\ The air quality modeling conducted for 
CSAPR projected that emissions from Oklahoma would impact a receptor 
(or monitor) located in Allegan County, Michigan (monitor ID 
260050003), which would have difficulty maintaining the 1997 8-hour 
ozone NAAQS (76 FR 48208, 48213, August 8, 2011). Thus, we issued a 
CSAPR supplemental rule that promulgated similar FIP requirements for 
Oklahoma and four other states (76 FR 80760, December 27, 2011).
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    \2\ Federal Implementation Plans; Interstate Transport of Fine 
Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR 
48208 (August 8, 2011); and Federal Implementation Plans for Iowa, 
Michigan, Missouri, Oklahoma, and Wisconsin and Determination for 
Kansas Regarding Interstate Transport of Ozone, 76 FR 80760 
(December 27, 2011) (codified as amended at 40 CFR 52.38 and 52.39 
and 40 CFR part 97).
    \3\ Including an emissions budget that applied to the EGUs' 
collective ozone-season emissions of NOX.
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    The CSAPR set emissions budgets which were to be implemented in two 
phases, with phase 1 to be implemented beginning with the 2012 ozone 
season and phase 2 to be implemented beginning with the 2014 ozone 
season. However, the CSAPR budgets were stayed by the D.C. Circuit in 
December 2011 pending further litigation. The D.C. Circuit issued a 
decision in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. 
Cir. 2012) (EME Homer City I), vacating CSAPR, but in April 2014, the 
Supreme Court issued an opinion reversing the D.C. Circuit and 
remanding the case for further proceedings. EPA v. EME Homer City 
Generation, L.P., 134 S. Ct. 1584, 1600-01 (2014). After the Supreme 
Court issued its decision, the D.C. Circuit granted our motion to lift 
the stay and toll the compliance timeframes by three years.\4\ Thus, 
phase 1 of CSAPR was implemented beginning in 2015 and phase 2 was set 
to be implemented beginning in 2017(81 FR 13275).
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    \4\ See Respondents' Motion to Lift the Stay Entered on December 
30, 2011, Document #1499505, EME Homer City Generation, L.P. v. EPA, 
No. 11-1302 (D.C. Cir. filed June 26, 2014); Order, Document 
#1518738, EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. 
Cir. issued Oct. 23, 2014).
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    On July 28, 2015, the D.C. Circuit issued its opinion on CSAPR 
regarding the remaining legal issues raised by the petitioners on 
remand from the Supreme Court, EME Homer City Generation, L.P. v. EPA, 
795 F.3d 118 (EME Homer City II). This decision largely upheld our 
approach to

[[Page 57703]]

addressing interstate transport in CSAPR, leaving the rule in place and 
affirming the EPA's interpretation of various statutory provisions and 
the EPA's technical decisions. The decision also remanded CSAPR without 
vacatur for reconsideration of the EPA's emission budgets for certain 
states.\5\ The court declared the CSAPR phase 2 ozone season emission 
budgets of 11 states invalid, holding that those budgets over-control 
with respect to the downwind air quality problems to which those states 
were ``linked'' for the 1997 ozone NAAQS, id. at 129-30, 138.\6\ For 10 
of these states, the court found the budgets were invalid because 
modeling conducted as part of the CSAPR rulemaking showed that downwind 
air quality problems to which the states were linked in 2012 would be 
resolved in 2014, id. We addressed the remand of the ozone-season 
emissions budgets in the CSAPR Update.\7\ In doing so, EPA relieved all 
11 states of the obligation to comply with the remanded phase 2 ozone 
season emission budgets, which would have gone into effect in 2017, 40 
CFR 52.38(b)(2)(ii).
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    \5\ The Oklahoma emission budgets were not part of this court 
case and were not addressed in the ruling.
    \6\ States are considered ``linked'' to a downwind air quality 
problem when their emissions contribute more than a threshold amount 
of ozone pollution to a receptor (monitor) projected to have 
problems attaining or maintaining the ozone NAAQS in a future year.
    \7\ Promulgated in 2016 to address the requirements of the good 
neighbor provision for the 2008 ozone NAAQS. CSAPR Update Rule for 
the 2008 ozone NAAQS, 81 FR 74504, October 26, 2016.
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    Various petitioners also filed legal challenges in the D.C. Circuit 
to the 2011 supplemental rule that promulgated a FIP for four states 
including Oklahoma.\8\ Considering the court's decision in EME Homer 
City II, we examined the record supporting this supplemental rule and 
determined that, like the 10 states with remanded budgets, our modeling 
demonstrated that air quality problems at the downwind air quality 
problems to which four of the states added to CSAPR in the supplemental 
rule, including Oklahoma, were linked in 2012 would resolve by 2014 
without further transport regulation (81 FR 74525). Accordingly, we 
removed the FIP requirements associated with the 1997 ozone NAAQS and 
sources in each of the four states are no longer subject to the phase 2 
ozone season budget calculated to address that standard. 40 CFR 
52.38(b)(2)(ii) (relieving sources in these four states, including 
Oklahoma, of the obligation to comply with the CSAPR phase 2 ozone 
season emission budgets after 2016).\9\
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    \8\ See Public Service Company of Oklahoma v. EPA, No. 12-1023 
(D.C. Cir., filed Jan. 13, 2012), the case was held in abeyance 
during the pendency of the litigation in EME Homer City and as of 
the time of this rule making is still held in abeyance.
    \9\ We note that, because Oklahoma was linked to downwind air 
quality problems with respect to the 2008 ozone NAAQS in its 
analysis, we promulgated a new ozone season NOX emission 
budget to address that standard at 40 CFR 97.810(a).
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B. Oklahoma SIP Submittal Pertaining to the 1997 8-Hour Ozone NAAQS and 
Interstate Transport of Air Pollution

    As noted above, relevant to this proposed action, Oklahoma made a 
May 1, 2007 SIP submittal to address CAA requirements to prohibit 
emissions which will significantly contribute to nonattainment or 
interfere with maintenance of the 1997 ozone NAAQS in other states. 
Oklahoma provided additional information pertaining to the requirements 
in a supplemental December 5, 2007 letter. The submittals document the 
State's assessments that Oklahoma emissions will not contribute 
significantly to nonattainment or interfere with maintenance of the 
1997 ozone NAAQS in other states.
    Consistent with EPA guidance at the time and EPA's approach in the 
Clean Air Interstate Rule (CAIR), the State's May 1, 2007 submittal 
focused primarily on whether emissions from Oklahoma sources 
significantly contribute to nonattainment of the 1997 ozone NAAQS in 
other states.\10\ The State did not evaluate whether Oklahoma emissions 
interfere with maintenance of these NAAQS in other states separately 
from significant contribution to nonattainment in other states. Like 
our CAIR approach, the SIP submittal presumed that if Oklahoma sources 
were not significantly contributing to violations of the NAAQS in other 
states, then no further specific evaluation was necessary for purposes 
of the interfere with maintenance sub-element of section 110(a)(2)(D). 
However, CAIR was remanded to EPA, in part because the court found that 
EPA had not correctly addressed whether emissions from sources in a 
state interfere with maintenance of the standards in other states. See 
North Carolina, 531 F.3d at 910-11. Therefore, we evaluated the May 1, 
2007, Oklahoma submittal in light of the decision of the court.
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    \10\ On August 15, 2006, we issued our ``Guidance for State 
Implementation Plan (SIP) Submissions to Meet Current Outstanding 
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and 
PM2.5 National Ambient Air Quality Standards''. The 
document is available in the regulations.gov docket at: https://www.regulations.gov/document?D=EPA-R06-OAR-2007-0314-0030.
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    Because EPA's 2011 CSAPR modeling projected that Oklahoma would be 
linked to a downwind maintenance receptor with respect to the 1997 
ozone NAAQS, but not to a nonattainment receptor, EPA proposed to 
approve the portion of the SIP submittal asserting that Oklahoma 
emissions do not contribute significantly to nonattainment of the 1997 
8-hour ozone NAAQS in other states (76 FR 64065, October 17, 2011).\11\ 
EPA finalized approval of this portion of the SIP submittal on December 
29, 2011 (76 FR 81838).
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    \11\ A maintenance receptor is a monitor projected to have 
difficulty maintaining the ozone NAAQS while a nonattainment is a 
monitor projected to have trouble attaining and maintaining the 
ozone NAAQS. Oklahoma was linked to an Allegan, Michigan maintenance 
receptor as discussed above.
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    Because EPA's CSAPR modeling projected that Oklahoma would be 
linked to a downwind maintenance receptor with respect to the 1997 
ozone NAAQS, we proposed to disapprove, or in the alternative, approve, 
the portion of the May 7, 2007 SIP submittal asserting that Oklahoma 
does not interfere with maintenance of the 1997 8-hour ozone NAAQS in 
other states (76 FR 64065, October 17, 2011). We proposed to finalize 
our approval or disapproval action based on the final action for 
Oklahoma in the then-proposed supplemental CSAPR rule.\12\ We are now 
withdrawing the October 17, 2011 proposal with respect to the 
``interfere with maintenance'' clause of the good neighbor provision 
and instead proposing to approve this portion of the SIP submittal 
based on the rationale described below.
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    \12\ The supplemental CSAPR rule was proposed on July 11, 2011 
(76 FR 40662) and finalized on December 27, 2011 76 FR 80760). It 
added EGUs in Oklahoma, Iowa, Kansas, Michigan, Missouri, and 
Wisconsin to CSAPR.
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II. The EPA's Evaluation

    More recent information provides support for our proposed approval 
of the conclusion in the SIP submittals that the State will not 
interfere with maintenance of the 1997 ozone NAAQS in any other state. 
As discussed above, air quality modeling conducted for the 2011 CSAPR 
rulemaking projected that emissions from Oklahoma would be linked to a 
maintenance receptor in Allegan County, Michigan, in 2012. In CSAPR, we 
used air quality projections for the year 2012, which was also the 
intended start year for implementation of the CSAPR Phase 1 EGU 
emission budgets, to identify receptors projected to have air quality 
problems. The CSAPR final rule record also contained air quality 
projections for 2014, which was the intended start year for

[[Page 57704]]

implementation of the CSAPR Phase 2 EGU emission budgets. The 2014 
modeling results projected that the Allegan County receptor would have 
a maximum 8-hour ozone ``design value'' of 83.6 part per billion (ppb) 
before considering the emissions reductions anticipated from 
implementation of CSAPR.\13\ This value is below the value of 85 ppb 
that we used to determine whether a particular ozone receptor should be 
identified as having air quality problems that may trigger transport 
obligations in upwind states with regard to the 1997 ozone NAAQS (76 FR 
48208, 48236). The 2014 modeling results show that the Allegan County, 
Michigan monitor to which Oklahoma was linked in the 2012 modeling was 
projected to no longer have air quality problems sufficient to trigger 
transport obligations with regard to the 1997 8-hour ozone NAAQS. Thus, 
Oklahoma would no longer interfere with maintenance of the 1997 ozone 
NAAQS at the Allegan County receptor in 2014.
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    \13\ Design values are used to determine whether a NAAQS is 
being met. See projected 2014 base case maximum design value for 
Allegan County, Michigan receptor 26005003 at page B-16 of the June 
2011 Air Quality Modeling Final Rule Technical Support Document for 
CSAPR, Document ID No. EPA-HQ-OAR-2009-0491-4140, available in 
regulations.gov.
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    As discussed above, in light of the remand of 10 other states' 
CSAPR phase 2 ozone season budgets by the D.C. Circuit in EME Homer 
City II, we also evaluated the validity of the emissions budget 
promulgated for Oklahoma in the supplemental CSAPR rule, and determined 
that Oklahoma's emissions would no longer contribute significantly to 
nonattainment in, or interfere with maintenance by, any other state 
with respect to the 1997 ozone NAAQS at either receptor or in any other 
state. (81 FR 74524-25). This conclusion is based on EPA's most recent 
modeling analysis.

III. Proposed Action

    We are proposing to approve the portion of a May 1, 2007 Oklahoma 
SIP submittal pertaining to the interfere with maintenance requirement 
of CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS. 
We propose to find that the state's conclusion that Oklahoma emissions 
do not interfere with maintenance of the 1997 ozone NAAQS in another 
state is consistent with our conclusion regarding this good neighbor 
obligation.

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 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 CAA. Accordingly, this 
action merely proposes to approve state law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by state law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive 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, 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 
proposed 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, Ozone.

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

    Dated: November 7, 2018.
Anne Idsal,
Regional Administrator, Region 6.
[FR Doc. 2018-24873 Filed 11-15-18; 8:45 am]
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