[Federal Register Volume 83, Number 170 (Friday, August 31, 2018)]
[Rules and Regulations]
[Pages 44500-44503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18892]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R08-OAR-2018-0109; FRL-9982-81--Region 8]


Interstate Transport Prongs 1 and 2 for the 2010 Sulfur Dioxide 
(SO2) Standard for Colorado, Montana, North Dakota, South Dakota and 
Wyoming

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
portions of State Implementation Plan (SIP) submissions from Colorado, 
Montana, North Dakota, South Dakota and Wyoming addressing the Clean 
Air Act (CAA or Act) interstate transport SIP requirements for the 2010 
sulfur dioxide (SO2) National Ambient Air Quality Standard 
(NAAQS). These submissions address the requirement that each SIP 
contain adequate provisions prohibiting air emissions that will have 
certain adverse air quality effects in other states. The EPA is 
approving portions of these infrastructure SIPs for the aforementioned 
states as containing adequate provisions to ensure that air emissions 
in the states will not significantly contribute to nonattainment or 
interfere with maintenance of the 2010 SO2 NAAQS in any 
other state.

DATES: This rule is effective on October 1, 2018.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID Number EPA- EPA-R08-OAR-2018-0109. All documents in the 
docket are listed on the http://www.regulations.gov website. Although 
listed in the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available through http://www.regulations.gov, or please 
contact the person identified in the ``For Further Information 
Contact'' section for additional availability information.

FOR FURTHER INFORMATION CONTACT: Adam Clark, Air Program, U.S. EPA 
Region 8, Mailcode 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-
1129, (303) 312-7104, or [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us'' and 
``our'' means the EPA.

I. Background

    On June 4, 2018, the EPA proposed to approve submissions from 
Colorado, Montana, North Dakota, South Dakota and Wyoming as meeting 
the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) 
for the 2010 SO2 NAAQS (83 FR 25617). An explanation of the 
CAA requirements, a detailed analysis of the states' submissions, and 
the EPA's rationale for approval of each submission were all provided 
in the notice of proposed rulemaking, and will not be restated here. 
The public comment period for this proposed rule ended on July 5, 2018. 
The EPA received one comment letter from the North Dakota Department of 
Health (NDDH), one comment letter from the Wyoming Department of 
Environmental Quality (WDEQ) and six anonymous comments on the 
proposal. The six anonymous comments lacked the required specificity to 
the Colorado, Montana, North Dakota, South Dakota or Wyoming SIP 
submissions and the interstate transport requirements of CAA section 
110(a)(2)(D)(i)(I). NDDH and WDEQ's comments are addressed below, while 
the anonymous comments are not addressed because they fall outside the 
scope of our proposed action.

II. Response to Comments

    Comment: NDDH stated that the 2010 and 2016 SO2 
emissions levels for their state listed in the proposal rule's ``Table 
1--SO2 Emission Trends'' (83 FR 25618) appeared too high, 
and that the 2000-2016 SO2 reduction in the table for North 
Dakota should be 79% rather than the 44% listed in this Table 1. In 
addition to this recommended

[[Page 44501]]

correction, NDDH agreed with the EPA's proposed approval of CAA section 
110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS for the state of 
North Dakota, asserting that ``sources in North Dakota do not 
significantly contribute to SO2 concentrations in 
nonattainment or maintenance areas in other states.'' NDDH stated that 
SO2 emissions in North Dakota continue to decrease, 
specifically noting the shutdown of the coal-fired electric generating 
unit Stanton Station in 2017, the forthcoming conversion of the 
University of North Dakota heating plant from coal to natural gas 
(permit currently under review), and the continued replacement of coal-
fired electrical generation by wind electrical generation as a portion 
of total electrical generation in the state between 2012 and 2017. NDDH 
also provided 2017 SO2 monitoring design values, showing 
that these levels continue to be below the 2010 SO2 NAAQS.
    Response: The EPA agrees with the state that the 2010 and 2016 
SO2 emission levels for North Dakota listed in ``Table 1--
SO2 Emission Trends'' require correction. With regard to the 
2016 SO2 emissions, we derived these emissions data from the 
EPA's ``Air Pollutant Emissions Trends'' web page which was updated on 
March 28, 2018,\1\ after the values for Table 1 had been calculated. 
For this reason, the 2016 SO2 emissions levels and the 2000-
2016 SO2 emissions reduction for each state listed in Table 
1 of the proposed rule are not consistent with those currently 
presented on the EPA's ``Air Pollutant Emissions Trends'' web page. 
Therefore, the EPA has recreated ``Table 1--SO2 Emission 
Trends'' below.
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    \1\ As noted at proposal, these values were derived using the 
EPA's web page https://www.epa.gov/air-emissions-inventories/air-pollutant-emissions-trends-data. Specifically, a link on this web 
page titled ``State Average Annual Emissions Trend'' which connected 
to a spreadsheet. As shown on the ``Read Me'' page of this 
spreadsheet, the ``draft state trends'' were updated on March 28, 
2018. This update has caused the 2016 SO2 emissions 
levels in the prior iteration of the spreadsheet to change for all 
states.

                              Revised Table 1--SO2 Emission Trends in Tons per Year
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                                                                                                  SO2 reduction,
              State                    2000            2005            2010            2016        2000-2016 (%)
 
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Arizona.........................         118,528          90,577          73,075          41,415              65
Colorado........................         115,122          80,468          60,459          25,547              78
Idaho...........................          34,525          35,451          14,774          10,016              71
Iowa............................         265,005         222,419         142,738          56,139              79
Kansas..........................         148,416         199,006          80,267          18,624              87
Minnesota.......................         148,899         156,468          85,254          35,480              76
Montana.........................          57,517          42,085          26,869          18,338              68
Nebraska........................          86,894         121,785          77,898          54,934              37
New Mexico......................         164,631          47,671          23,651          17,959              89
North Dakota....................         275,138         159,221         119,322          58,058              79
Oklahoma........................         145,862         169,464         136,348          81,890              44
South Dakota....................          41,120          28,579          16,202           3,081              92
Utah............................          58,040          52,998          29,776          15,512              73
Wyoming.........................         141,439         122,453          91,022          51,769              63
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    The EPA also agrees with NDDH that the 2010 emissions value for 
North Dakota was incorrect in ``Table 1--SO2 Emission 
Trends.'' That value has been corrected in this revised version of the 
table. The 2010 SO2 emissions levels for all other states, 
as well as all 2000 and 2005 emissions levels, remain unchanged from 
those in ``Table 1--SO2 Emission Trends'' in the proposed 
rulemaking. The corrected values for North Dakota illustrate an even 
greater decline in emissions of SO2 than that discussed in 
the proposed rulemaking. The corrected values in this table are 
therefore consistent with the EPA's analysis in its proposed 
determination that emissions from North Dakota are not in violation of 
section 110(a)(2)(D)(i)(I).
    The EPA notes that North Dakota's comment refers to ``nonattainment 
or maintenance areas'' (emphasis added) as part of its reiteration that 
sources within the state do not have certain downwind impacts on other 
states. The EPA has routinely interpreted the obligation to prohibit 
emissions that ``significantly contribute to nonattainment'' of the 
NAAQS in downwind states to be independent of formal designations 
because exceedances can happen in any area. Similarly, the EPA does not 
interpret the reference to ``maintenance'' under section 
110(a)(2)(D)(i)(I) to be limited to maintenance areas, as this 
provision requires evaluation of the potential impact of upwind 
emissions on all areas that are currently measuring clean data, but may 
have issues maintaining that air quality. Nothing in the CAA limits 
states' obligations under section 110(a)(2)(D)(i)(I) to downwind areas 
that have been formally designated.
    Regarding the additional information provided by NDDH to support 
the EPA's proposed conclusion that the state meets the requirements of 
110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS, the EPA agrees 
that this information is supportive of that conclusion.
    Comment: WDEQ expressed support of the EPA's proposed approval of 
their SIP as meeting the interstate transport requirements of CAA 
section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS. However, 
WDEQ disagreed with the EPA's statement in our proposal that 
``Wyoming's analysis does not independently address whether the SIP 
contains adequate provisions prohibiting emissions that will interfere 
with maintenance of the 2010 SO2 NAAQS in any other state.'' 
83 FR 25631. WDEQ asserted that its weight of evidence demonstration 
for prong 1, ``significant contribution to nonattainment,'' also 
adequately addresses the requirements for prong 2, ``interference with 
maintenance.'' WDEQ also stated that there were no other 2010 
SO2 nonattainment or maintenance areas in neighboring states 
to address at the time of its submission apart from the Billings, 
Montana 2010 SO2 maintenance area, which WDEQ addressed in 
that submission when the

[[Page 44502]]

area was still designated as nonattainment.\2\
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    \2\ As noted at proposal, the Billings 2010 SO2 
maintenance area was in nonattainment status at the time of 
Wyoming's March 6, 2015 submission, and was redesignated to 
attainment on May 10, 2016.
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    Response: The EPA disagrees that WDEQ's analysis of potential 
impact on the Billings area represents an independent analysis of 
110(a)(2)(D)(i)(I) prong 2. WDEQ's March 6, 2015 submission analyzed 
Wyoming's potential impact on the Billings area and the lack of 
additional nonattainment areas in surrounding states to determine 
whether the Wyoming SIP meets the requirements of prong 1 and prong 2. 
However, the court in North Carolina v. EPA, (531 F.3d 896, DC Cir. 
2008) was specifically concerned with areas not designated 
nonattainment when it rejected the view that ``a state can never 
`interfere with maintenance' unless the EPA determines that at one 
point it `contribute[d] significantly to nonattainment.' '' 531 F.3d at 
910. The court pointed out that areas barely attaining the standard due 
in part to emissions from upwind sources would have ``no recourse'' 
pursuant to such an interpretation. Id. In accordance with the court's 
decision and as noted in our proposal, ``the EPA interprets CAA section 
110(a)(2)(D)(i)(I) prong 2 to require an evaluation of the potential 
impact of a state's emissions on areas that are currently measuring 
clean data, but that may have issues maintaining that air quality, 
rather than only former nonattainment, and thus current maintenance, 
areas.'' 83 FR 25621. For this reason, Wyoming's analysis of the 
Billings area alone would not independently address 110(a)(2)(D)(i)(I) 
prong 2, based on the EPA's longstanding interpretation of this 
provision. Because WDEQ did not conduct such an analysis as part of its 
weight of evidence, the EPA supplemented the state's analysis (see 
proposal at 83 FR 25631) and proposed to find that Wyoming does not 
interfere with maintenance of the 2010 SO2 NAAQS in any 
other state.
    With respect to the assertions WDEQ makes in its comments regarding 
maintenance areas, the EPA does not interpret the reference to 
``maintenance'' under section 110(a)(2)(D)(i)(I) to be limited to 
maintenance areas. As previously described, this provision requires 
evaluation of the potential impact of upwind emissions on all areas 
that are currently measuring clean data, but may have issues 
maintaining that air quality. Nothing in the CAA limits states' 
obligations under section 110(a)(2)(D)(i)(I) to downwind areas that 
have been formally designated.

III. Final Action

    The EPA is approving the following submission as meeting the 
interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for 
the 2010 SO2 NAAQS: Colorado's July 17, 2013 and February 
16, 2018 submissions; Montana's July 15, 2013 submission; North 
Dakota's March 7, 2013 submission; South Dakota's December 20, 2013 
submission; and Wyoming's March 6, 2015 submission. This action is 
being taken under section 110 of the CAA.

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 approves state law as meeting federal requirements and do 
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, 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 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, these SIPs are 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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. The EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by October 30, 2018. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed, and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Particulate 
matter, Reporting and recordkeeping

[[Page 44503]]

requirements, Sulfur dioxide, Volatile organic compounds.

    Dated: August 27, 2018.
Debra Thomas,
Acting Regional Administrator, Region 8.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart G--Colorado

0
2. Section 52.352 is amended by adding paragraph (f) to read as 
follows:


Sec.  52.352  Interstate transport.

* * * * *
    (f) Addition to the Colorado State Implementation Plan of the 
Colorado Interstate Transport SIP regarding 2010 Standards, submitted 
to EPA on July 17, 2013, and February 16, 2018, for both elements of 
CAA section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS.

Subpart BB--Montana

0
3. Section 52.1393 is amended by adding paragraph (e) to read as 
follows:


Sec.  52.1393  Interstate transport requirements.

* * * * *
    (e) EPA is approving the Montana 2010 SO2 NAAQS 
Infrastructure Certification, submitted to EPA on July 15, 2013, for 
both elements of CAA section 110(a)(2)(D)(i)(I) for the 2010 
SO2 NAAQS.

Subpart JJ--North Dakota

0
4. Section 52.1833 is amended by adding paragraph (h) to read as 
follows:


Sec.  52.1833  Section 110(a)(2) infrastructure requirements.

* * * * *
    (h) EPA is approving the North Dakota 2010 SO2 NAAQS 
Infrastructure Certification, submitted to EPA on March 7, 2013, for 
both elements of CAA section 110(a)(2)(D)(i)(I) for the 2010 
SO2 NAAQS.

Subpart QQ--South Dakota

0
5. Section 52.2170, paragraph (e), is amended by adding table entry 
XXII. to read as follows:


Sec.  52.2170  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                            EPA effective   Final rule citation,
            Rule title               State effective date       date                date             Comments
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
XXII. Section 110(a)(2)(D)(i)(I)    Submitted: 12/20/2013       10/1/2018  [Insert Federal
 Interstate Transport Requirements                                          Register citation],
 for the 2010 SO2 NAAQS.                                                    8/31/2018.
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Subpart ZZ--Wyoming

0
6. Section 52.2620, paragraph (e), is amended by adding table entry 
(31) to read as follows:


Sec.  52.2620  Identification of plan.

* * * * *
    (e) * * *

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                                                                                  State       EPA effective
                 Rule No.                             Rule title             effective date       date        Final rule citation, date      Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
(31) XXXI................................  Interstate transport SIP for            3/6/2015       10/1/2018  [Insert Federal Register
                                            Section 110(a)(2)(D)(i)(I)                                        citation], 8/31/2018.
                                            prongs 1 and 2 for the 2010 SO2
                                            NAAQS..
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[FR Doc. 2018-18892 Filed 8-30-18; 8:45 am]
BILLING CODE 6560-50-P


