[Federal Register Volume 86, Number 232 (Tuesday, December 7, 2021)]
[Proposed Rules]
[Pages 69210-69215]
[FR Doc No: 2021-26433]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2017-0558; FRL-9308-01-R6]

Finding of Failure To Attain the Primary 2010 One-Hour Sulfur
Dioxide Standard for the St. Bernard Parish, Louisiana Nonattainment
Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
determine that the St. Bernard Parish sulfur dioxide (SO2)
nonattainment area (``St. Bernard area'' or ``area'') failed to attain
the primary 2010 one-hour SO2 national ambient air quality
standard (NAAQS) under the Clean Air Act (CAA or the Act) by the
applicable attainment date of October 4, 2018. This proposed
determination is based upon review of compliance records for the area's
primary SO2 source, the Rain CII Carbon, LLC (Rain)
facility, in addition to dispersion modeling based on the allowable
limits showing design values close to the SO2 NAAQS. If the
EPA finalizes this determination as proposed, the State of Louisiana
will be required to submit revisions to the Louisiana State
Implementation Plan (SIP) that, among other elements, provide for
expeditious attainment of the 2010 SO2 standard.

DATES: Comments must be received on or before January 6, 2022.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2017-0558, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed. 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.
    Docket: The index to the docket for this action is available
electronically at https://www.regulations.gov. While all documents in
the docket are listed in the index, some information may not be
publicly available due to docket file size restrictions or content
(e.g., CBI). Publicly available docket materials are available
electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ms. Karolina Ruan Lei, EPA Region 6
Office, SO2 and Regional Haze Section (R6-ARSH), 214-665-
7346, [email protected]. Out of an abundance of caution for
members of the public and our staff, the EPA Region 6 office will be
closed to the public to reduce the risk of transmitting COVID-19. We
encourage the public to submit comments via https://www.regulations.gov, as there will be a delay in processing mail and no
courier or hand deliveries will be accepted. Please call or email the
contact listed above if you need alternative access to material indexed
but not provided in the docket.

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

Table of Contents

I. Background
    A. The 2010 SO2 NAAQS
    B. Designations and Attainment Dates for the 2010 SO2
NAAQS
    C. Louisiana's Nonattainment SIP Revision
II. Proposed Determination
    A. Applicable Statutory and Regulatory Provisions
    B. Monitoring Network Considerations
    C. Data Considerations and Proposed Determination
    a. Monitor Data
    b. Modeling Data
    c. Record of Compliance
    d. EPA's Proposed Determination
III. Proposed Action
IV. Statutory and Executive Order Reviews

I. Background

A. The 2010 SO2 NAAQS

    Under section 109 of the Act, the EPA has established primary and
secondary NAAQS for certain pervasive air pollutants (referred to as
``criteria pollutants'') and conducts periodic reviews of the NAAQS to
determine whether they should be revised or whether new NAAQS should be
established. The primary NAAQS represent ambient air quality standards
the attainment and maintenance of which the EPA has determined,
including a margin of safety, are requisite to protect the public
health. The secondary NAAQS represent ambient air quality standards the
attainment and maintenance of which the EPA has determined are
requisite to protect the public welfare from any known or anticipated
adverse effects associated with the presence of such air pollutant in
the ambient air.
    Under the CAA, the EPA must establish NAAQS for criteria
pollutants, including SO2. SO2 is primarily
released to the atmosphere through the burning of fossil fuels by power
plants and other industrial facilities. SO2 is also emitted
from industrial processes including metal extraction from ore and heavy
equipment that burn fuel with a high sulfur content. Short-term
exposure to SO2 can damage the human respiratory system and
increase breathing difficulties. Small children and people with
respiratory conditions, such as asthma, are more sensitive to the
effects of SO2. Sulfur oxides at high concentrations in
ambient air can also react with compounds to form small particulates
that can penetrate deeply into the lungs and cause health problems.
    The EPA first established primary SO2 standards in 1971
at 0.14 parts per million (ppm) over a 24-hour averaging period and 0.3
ppm over an annual averaging period.\1\ In June 2010, the EPA revised
the NAAQS for SO2 to provide increased protection of public
health, providing for revocation of the 1971 primary annual and 24-hour
SO2 standards for most areas of the country following area
designations under the new NAAQS.\2\ The primary 2010 SO2
NAAQS is 75 parts per billion (ppb), or 0.075 ppm, over a one-hour
averaging period.\3\ A violation of the 2010 one-hour SO2
NAAQS occurs when the annual 99th percentile of ambient daily maximum
one-hour average SO2 concentrations, averaged over a 3-year
period, exceeds 75 ppb.\4\
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    \1\ See 36 FR 8186 (April 30, 1971).
    \2\ See 40 CFR 50.4(e).
    \3\ See 75 FR 35520 (June 22, 2010).
    \4\ See 40 CFR 50.17.
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B. Designations and Attainment Dates for the 2010 SO2 NAAQS

    Following promulgation of any new or revised NAAQS, the EPA is
required by CAA section 107(d) to designate areas throughout the nation
as attaining or not attaining the NAAQS. On August 5, 2013, the EPA
finalized its first round of designations for the 2010 primary
SO2 NAAQS.\5\ In this 2013 action, the EPA designated 29
areas in 16 states as nonattainment for the 2010 SO2 NAAQS,
including the St. Bernard area in Louisiana. The EPA designated the St.
Bernard area nonattainment based on certified monitoring data for years
2009 through 2011.\6\ The EPA's initial round of designations for the
2010 SO2 NAAQS including the St. Bernard area became
effective on October 4, 2013. Pursuant to CAA section 192(a), the
maximum attainment date for the St. Bernard area was October 4, 2018,
five years after the effective date of the final action designating the
area as nonattainment for the 2010 SO2 NAAQS.
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    \5\ See 78 FR 47191 (August 5, 2013).
    \6\ See 78 FR 47191, codified at 40 CFR part 81, subpart C.
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C. Louisiana's Nonattainment SIP Revision

    Section 172(c) of the CAA lists the required components of a
nonattainment plan submittal. In addition to an attainment
demonstration, the nonattainment plan addresses the requirements for
meeting reasonable further progress (RFP) toward attainment of the
NAAQS, implementation of reasonably available control measures and
reasonably available control technology (RACM/RACT), base-year and
projection-year emission inventories, a new source review permit
program, enforceable emissions limitations and control measures, and
contingency measures. The attainment demonstration includes a modeling
analysis showing that the enforceable emissions limitations and other
control measures taken by the state will provide for RFP and
expeditious attainment of the NAAQS (section 172(c)(2), (4), (6), and
(7)).
    On November 9, 2017, the Louisiana Department of Environmental
Quality (LDEQ) submitted a nonattainment area SIP for the St. Bernard
Parish area. On February 8, 2018, LDEQ submitted a letter to the EPA,
accompanied by an Administrative Order on Consent (AOC), dated February
2, 2018, executed between LDEQ and the Rain CII Carbon, LLC (Rain)
facility, that included new emissions limits for the Rain facility's
cold stack and hot stack/pyroscrubber, as well as monitoring, testing
and recordkeeping requirements. LDEQ submitted this as a source
specific SIP revision and supplement to the 2017 nonattainment area
SIP. Rain is a coke calcining operation that includes a waste heat
recovery boiler. During normal operations, the exhaust from the
calcining operation is routed through the recovery boiler and then
through a scrubber and finally to the atmosphere through what is termed
the ``cold stack.'' During start up and times when the recovery boiler
is down, emissions are routed to the atmosphere through what is known
as the ``hot stack.'' The modeling covers three operation scenarios:
Cold stack only operation, hot stack only operation, and a transitional
period with emissions through both stacks. The transition period from
hot stack to cold stack occurs in a phased approach, gradually routing
more and more exhaust to the cold stack from the hot stack until all
exhaust is routed to the cold stack. The emission limits in the AOC
included all operation regimes at the facility, with differing emission
limits depending on the stage of operation defined by a minimum or
range of flowrates and stack temperatures of the cold and hot stacks.
On April 19, 2018, we published a proposed rulemaking action to approve
the 2010 SO2 Primary NAAQS Nonattainment Area SIP revision
for St. Bernard Parish.\7\ The April 19, 2018 action proposed approval
of the following CAA SIP elements: The attainment demonstration for the
SO2 NAAQS; enforceable emissions limits including the AOC
dated February 2, 2018, for the Rain facility; RFP plan; RACM and RACT
demonstrations; emission inventories; and contingency

measures. We also proposed to find that the State had demonstrated that
its current nonattainment new source review (NNSR) program covered the
2010 one-hour SO2 NAAQS; therefore, no revision to the SIP
was required for the NNSR element.
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    \7\ See 83 FR 17349 (April 19, 2018).
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    After the close of the public comment period to the April 19, 2018
proposal, the LDEQ submitted additional information to EPA on August
24, 2018.\8\ The additional information was submitted to EPA partly in
response to a public comment that expressed concern that Rain would
need to modify the February 2018 AOC entered between Rain and LDEQ as
Rain did not believe that it could meet the limits set forth in the AOC
without an additional extension to the compliance dates.\9\ In response
to the comment, and in order to determine feasible emission limits for
operations during transitions from exhaust flow through the hot stack
to the cold stack, LDEQ granted an extension of the deadline of the
February 2018 AOC on April 27, 2018.\10\
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    \8\ See letter from Secretary Chuck Carr Brown to Anne Idsal,
August 24, 2018, St. Bernard 2008 Sulfur Dioxide State
Implementation Plan Supplemental Information and Executed
Administrative Order on Consent (AOC) included in the docket for
this action.
    \9\ See the April 24, 2018 letter (in the docket to this action)
from Senator Cassidy to EPA that referred to Rain's need to modify
the February 2, 2018 AOC.
    \10\ See April 27, 2018 Letter from Secretary Chuck Carr Brown
to Rain in the docket for this action.
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    On August 2, 2018, Rain and LDEQ revised their existing AOC. On
August 24, 2018, LDEQ supplemented their SIP submittal with the revised
AOC and additional modeling analysis. On October 9, 2018, LDEQ again
supplemented their SIP with an updated modeling analysis. The revised
AOC \11\ and the October 9, 2018 modeling files served as a supplement
to the November 9, 2017 and February 8, 2018 SIP submittals and
incorporated certain additional AOC revisions (dated August 2, 2018)
and supporting modeling into the 2010 SO2 NAAQS
Nonattainment Area SIP revision for St. Bernard Parish. On February 8,
2019, EPA proposed to approve LDEQ's August 24, 2018 and October 9,
2018 submittals as a supplement to the prior SIP submittals (84 FR
2801). Please refer to EPA's April 19, 2018 proposed approval and
February 8, 2019 supplemental notice of proposed rulemaking.
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    \11\ AOC signed by LDEQ and Rain on August 2, 2018, and
submitted to EPA on August 24, 2018.
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    In a May 29, 2019 final action, EPA approved the nonattainment SIP
for the St. Bernard area (84 FR 24712). For additional information
concerning the St. Bernard Parish, Louisiana nonattainment SIP revision
see docket ID No. EPA-R06-OAR-2017-0558 available at https://www.regulations.gov.

II. Proposed Determination

A. Applicable Statutory and Regulatory Provisions

    Section 179(c)(1) of the Act requires the EPA to determine whether
a nonattainment area has achieved an applicable attainment date based
on the area's air quality as of the attainment date. A determination of
whether an area's air quality meets applicable standards is generally
based upon the most recent three years of complete, quality-assured
data gathered at established state and local air monitoring stations
(SLAMS) in a nonattainment area and entered into the EPA's Air Quality
System (AQS) database.\12\ Data from ambient air monitors operated by
state and local agencies in compliance with the EPA monitoring
requirements must be submitted to AQS.\13\ Monitoring agencies annually
certify that these data are accurate to the best of their
knowledge.\14\ All SO2 data are reviewed to determine the
area's air quality status in accordance with 40 CFR part 50, Appendix
T.
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    \12\ AQS is the EPA's repository of ambient air quality data.
    \13\ See 40 CFR 58.16.
    \14\ See 40 CFR 58.15.
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    Under EPA regulations in 40 CFR 50.17 and in accordance with 40 CFR
part 50 Appendix T, the 2010 one-hour annual SO2 standard is
met when the design value is less than or equal to 75 ppb. Design
values are calculated by computing the three-year average of the annual
99th percentile daily maximum one-hour average concentrations.\15\ An
SO2 one-hour primary standard design value is valid if it
encompasses three consecutive calendar years of complete data. A year
is considered complete when all four quarters are complete, and a
quarter is complete when at least 75 percent of the sampling days are
complete. A sampling day is considered complete if 75 percent of the
hourly concentration values are reported; this includes data affected
by exceptional events that have been approved for exclusion by the
Administrator.\16\
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    \15\ As defined in 40 CFR part 50, Appendix T section 1(c),
daily maximum 1-hour values refer to the maximum one-hour
SO2 concentration values measured from midnight to
midnight that are used in the NAAQS computations.
    \16\ See 40 CFR part 50, Appendix T sections 1(c), 3(b), 4(c),
and 5(a).
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    We note that when determining the attainment status of
SO2 nonattainment areas, including when making
determinations of attainment by the attainment date, in addition to
ambient monitoring data, the EPA may also consider air quality
dispersion modeling and/or a demonstration that the control strategy in
the SIP has been fully implemented.\17\ With regard to the use of
monitoring data for such determinations, the EPA's SO2
Nonattainment Area Guidance specifically notes that ``[i]f the EPA
determines that the air quality monitors located in the affected area
are located in the area of maximum concentration, the EPA may be able
to use the data from these monitors to make the determination of
attainment without the use of air quality modeling data.'' If there are
no air quality monitors located in the affected area, or there are air
quality monitors located in the area, but analyses show that none of
the monitors are located in the area of maximum concentration,\18\ then
air quality dispersion modeling will generally be needed to estimate
SO2 concentrations in the area. In this case, as discussed
in our proposed actions on the St. Bernard nonattainment plan and
Technical Support Documents (TSDs),\19\ the monitors are not located in
the area of expected maximum concentration, meaning we-must also
consider the available modeling data in determining whether the area
attained by the attainment date. When relying on a modeling
demonstration based on allowable emissions for purposes of determining
attainment by the attainment date, the EPA looks to whether the
emission limit or limits were adopted and whether the relevant source
or sources were complying with those modeled limits prior to the
attainment date. That is, when determining attainment by the attainment
date using air quality modeling of allowable emissions, EPA looks to
whether the state has demonstrated that the control strategy in the SIP
has been fully implemented (compliance records demonstrating that the
control measures have been implemented as required by the approved
SIP). This is necessary because a modeling demonstration based on
allowable emissions is not itself sufficient since, without the
supporting emissions information

reflected in the control strategy, there would be no way to confirm
that the actual emissions were below the modeled limits within the
period under review.
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    \17\ EPA, April 23, 2014 Guidance for 1-Hour SO2
Nonattainment Area SIP Submissions (``SO2 Nonattainment
Area Guidance''), page 49.
    \18\ See section VIII.A of the SO2 Nonattainment Area
Guidance
    \19\ See EPA's April 19, 2018 proposed approval (83 FR 17349),
February 8, 2019 supplemental notice of proposed rulemaking (84 FR
2801) and EPA's Technical Support Documents, available in the docket
for this action.
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B. Monitoring Network Considerations

    Section 110(a)(2)(B)(i) of the CAA requires states to establish and
operate air monitoring networks to compile data on ambient air quality
for all criteria pollutants. The EPA's monitoring requirements are
specified by regulation in 40 CFR part 58. These requirements are
applicable to state, and where delegated, local air monitoring agencies
that operate criteria pollutant monitors. In section 4.5 of Appendix D
to 40 CFR part 58, the EPA specifies the minimum requirements for
SO2 monitoring sites to be classified as state or local air
monitoring stations (SLAMS). SLAMS produce data that are eligible for
comparison with the NAAQS, and therefore, the monitor must be an
approved federal reference method (FRM) or federal equivalent method
(FEM), per section 2 of Appendix C to 40 CFR part 58. In St. Bernard
Parish, LDEQ operates a SLAMS monitor at Chalmette-Vista (EPA Site ID
22-087-0007, 24 E Chalmette Circle). In addition, LDEQ operates a
special purpose monitor (SPM) at Meraux (EPA Site ID 22-087-0004, 4101
Mistrot Drive).

C. Data Considerations and Proposed Determination

a. Monitor Data
    Under 40 CFR 58.15, monitoring agencies must certify, on an annual
basis, data collected at all SLAMS by FRM, FEM, and special purpose
monitors (SPMs) that meet EPA quality assurance requirements. In doing
so, monitoring agencies must certify that the previous year of ambient
concentration and quality assurance data are completely submitted to
AQS and that the ambient concentration data are accurate to the best of
their knowledge.
    The one-hour SO2 design values at Chalmette Vista and
Meraux monitoring sites within the St. Bernard area for the 2013-2020
period are shown below.

   Table 1--2013-2020 One-Hour Design Values for the St. Bernard Area
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                                                      Chalmette
                                                        vista     Meraux
                       Years                           design     design
                                                        value     value
                                                        (ppb)     (ppb)
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2013-2015..........................................         114       19
2014-2016..........................................          82       16
2015-2017..........................................          73       13
2016-2018..........................................          59       10
2017-2019..........................................          44        7
2018-2020..........................................          42        8
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    The attainment date for the area was October 4, 2018. In order for
the EPA to determine that the area attained by the October 4, 2018
attainment date based solely on air quality monitoring data, the design
value based upon complete, quality-assured monitored air quality data
from three consecutive years (2015-2017) at each eligible monitoring
site must be equal to or less than 75 ppb for the one-hour standard,
and air quality modeling would need to show that there was an air
quality monitor located in the area of maximum concentration.
    Although the one-hour SO2 design values at the Chalmette
Vista monitoring site located within the St. Bernard area show a
downward trend of SO2 concentrations less than 75 ppb for
the one-hour standard beginning with the 2015-2017 design value, this
monitor is not located in the area of maximum predicted concentration,
and therefore cannot be used, on its own, to determine that the St.
Bernard Parish area attained by the attainment date.
b. Modeling Data
    LDEQ and Rain developed the one-hour SO2 emission limits
contained in the August 2, 2018 AOC to ensure compliance with the
SO2 NAAQS. The emission limits in the AOC were effective
August 2, 2018. The LDEQ undertook an additional modeling analysis
which also incorporated the amended stack parameters and utilized more
recent allowable emission rates from other contributing sources, an
expanded receptor grid, and covered all operating scenarios. The
additional modeling used the most recent version of AERMOD and followed
EPA's guidance for SIP modeling for SO2.\20\ The analysis
included modeling allowable emissions and stack parameters for
different operational stages at the Rain facility, including stand-
alone operations for the waste heat boiler and the pyroscrubber as well
as transition stages between the two modes of operation; a summary of
the results is given in Table 2. The modeling demonstration approved in
the nonattainment SIP demonstrates that compliance with the emission
limits and required stack parameters in the AOC provide for attainment,
with predicted SO2 concentrations near (just below) the
NAAQS if the emission limits and stack parameters are met.\21\
Additional, more detailed discussion of the State's modeling is
contained in the TSD for the EPA's proposed Approval and Promulgation
of Implementation Plans; Louisiana Attainment Demonstration for the St.
Bernard Parish 2010 SO2 Primary National Ambient Air Quality
Standard Nonattainment Area published on February 8, 2019 (84 FR 2801).
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    \20\ See Appendix A, page A-1 of the SO2
Nonattainment Area Guidance.
    \21\ See Table 2.

 Table 2--Summary of LDEQ Supplemental Modeling Results for the St. Bernard Parish SIP Using the Emission Limits
                                        and Stack Parameters From the AOC
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                     Operational stage                                       Model design value
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Waste Heat Boiler Stack Alone.............................  190.8 [micro]g/m\3\ (72.9 ppb).
Pyroscrubber Stack Alone..................................  176.6 [micro]g/m\3\ (67.4 ppb).
Transition between Pyroscrubber Stack to the Waste Heat     185.6 [micro]g/m\3\ (70.9 ppb).
 Boiler Stack (transitional stage with maximum design
 value).
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c. Record of Compliance
    As noted, when relying on modeling of allowable emissions to
support a determination of whether an area has attained by its
attainment date, the EPA must also look at whether the control strategy
in the SIP has been fully implemented and whether the relevant sources
in an area are complying with the emission limits and stack parameters
required in the SIP. As discussed above, the modeling, based on the
August 2, 2018 AOC limits, shows attainment of the NAAQS with maximum
modeled concentrations just below the 75 ppb standard. Emissions higher
than modeled limits and/or

actual stack parameters (flowrate or temperature) below the modeled
stack parameters can result in downwind concentrations higher than
those modeled. We note that Rain's compliance records, Title V
deviation reports, and annual stack tests since August 2, 2018 (the
effective date of AOC) demonstrate a pattern of difficulty complying
with the SIP emission limits at all times and difficulty in estimating
emissions and flowrates from the pyroscrubber to demonstrate
compliance.\22\ During the 9-week period between when the AOC limits
became effective (August 2, 2018) and the attainment date (October 4,
2018), Rain reported that deviations occurred on 7 separate days for a
total duration of 27.2 hours (25.2 hours due to calculated pyroscrubber
flowrates less than the AOC requirements, and 2 hours when cold stack
emissions exceeded the AOC emission limits).\23\ Rain has since
identified the need to revise the limits and potentially adjust the
methodology used to estimate emissions and flowrates in the
pyroscrubber that are contained in the AOC. In March of 2019, Rain
conducted the first annual stack test as required by the August 2, 2018
AOC.\24\ The 2019 stack test report found that ``the AOC hot stack
equation underestimates hot stack emissions during most of the
transition from hot stack to cold stack'' and ``[d]uring no hour did
the combined flue gas flow and temperature meet the description of any
transition stage.'' The report then states ``the AOC limits and
conditions do not reflect actual emissions conditions and it is
difficult to identify the appropriate transition stage,'' before
recommending that the August 2018 AOC's flue gas flow rates,
temperatures, and emissions limits for transitions stages 1, 2, and 3
be replaced with new conditions. Generally, one stack test may not be
determinative, but the EPA believes that it is reasonable to conclude
that the problems identified in the 2019 stack test were significant
and, in conjunction with the 2018 semiannual monitoring report
violations, indicative that the facility not only failed to meet the
AOC requirements during the two days of the stack test, but likely
failed to meet the 2018 AOC's transition stage operational requirements
during the period between the effective date of the AOC and the
attainment date.
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    \22\ See deviations listed in semiannual monitoring reports for
2018. We also note as dicta that the source continued to experience
deviations in 2019 and 2020. The semiannual monitoring reports for
2018, 2019, and 2020 as well as the 2019 and 2020 stack test reports
are available in the docket for this action.
    \23\ See deviations listed in semiannual monitoring report for
July 1-December 31, 2018.
    \24\ Annual stack tests are a requirement of the August 2, 2018
AOC. The 2019 stack test was the first annual stack test performed
pursuant to this requirement.
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    The EPA also notes that the semiannual monitoring report for
January through June 2020, while not the basis or rational for our
decision making, includes additional deviations indicating that the
facility continued to have difficulty complying with the limits in the
SIP after the attainment date had passed. The report further states
that: ``Rain continues to analyze this and similar deviations to
identify a corrective action. The permit requirements do not match
actual start-up conditions. Rain is in negotiations with EPA and LDEQ
to revise the permit requirements to reflect actual start-up
conditions.''
    From the available information, EPA cannot determine with certainty
that the area attained the NAAQS as the emissions and stack parameters
at times fall outside the limits and conditions modeled in the approved
attainment demonstration. The noted violations of the permit limits or
underestimated emissions may have resulted in violations of the one-
hour SO2 NAAQS in areas other than the monitored location.
Furthermore, the data demonstrates a clear need for development of a
new attainment SIP with revised limits that better align with the
source's operations and modeling to demonstrate attainment.

d. EPA's Proposed Determination

    Based on our review of the monitor, modeling and compliance data,
EPA proposes to find that the St. Bernard area did not attain the 2010
one-hour SO2 NAAQS by the October 4, 2018 attainment date.
The modeling data demonstrates that the emission limits and stack
parameters in the AOC required of the Rain facility were necessary for
the St. Bernard area to attain the standard. However, review of Rain's
compliance record demonstrates that emissions have exceeded those
limits, and stack temperatures and flowrates have not met the necessary
parameters to demonstrate attainment in the St. Bernard area. As
described in the previous section, Rain reported deviations during the
period between the effective date of the limits and the attainment
date. Rain has also reported underestimation of emissions from the hot
stack when comparing estimated emissions to the measured emissions
during the 2019 stack test indicative that Rain has failed to meet the
AOC limits since the effective date. We also note, without relying
upon, that Rain continued to report deviations in additional stack
tests and deviation reports from 2018, 2019, and 2020. Under CAA
section 179(d)(2), if the EPA determines that an area did not attain
the NAAQS by the applicable deadline, the responsible air agency has up
to 12 months from the effective date of the determination to submit a
revised SIP for the area demonstrating attainment and containing any
additional measures that the EPA may reasonably prescribe that can be
feasibly implemented in the area in light of technological
achievability, costs, and any non-air quality and other air quality-
related health and environmental impacts as required. According to CAA
section 179(d)(3), this revised SIP is to achieve attainment of the
one-hour SO2 NAAQS as expeditiously as practicable, but no
later than 5 years from the effective date of the area's failure to
attain (i.e., 5 years after the EPA publishes a final action in the
Federal Register determining that the nonattainment area failed to
attain the SO2 NAAQS). In addition to triggering
requirements for a new SIP submittal, a final determination that a
nonattainment area failed to attain the NAAQS by the attainment date
would trigger the implementation of contingency measures adopted under
172(c)(9).

III. Proposed Action

    Under CAA section 179(d)(2), the EPA proposes to determine that the
St. Bernard Parish SO2 nonattainment area has failed to
attain the 2010 one-hour SO2 standard of 75 ppb by the
applicable attainment date of October 4, 2018. This determination is
based upon review of (1) the state's air quality modeling
demonstration, which showed the emission limits and stack parameters
required at Rain, the primary source of SO2 emission in the
area, that were necessary to provide for the area's attainment and (2)
Rain's available compliance records. The state's dispersion modeling,
which was based on the allowable limits in the AOC, showed that with
compliance with the limits, modeled design values were close to the
SO2 NAAQS. Rain has demonstrated a pattern of difficulty
meeting its federally enforceable applicable SO2 emission
limits and stack parameters (memorialized in its Title V permit and the
AOC). Emissions have exceeded those limits, and stack temperatures and
flowrates have not met the necessary parameters to demonstrate
attainment in the St. Bernard area, including the deviations noted
above during the period between the effective date of the limits and
the attainment date and reported underestimation of emissions from the

hot stack. If finalized as proposed, the State of Louisiana would be
required under CAA section 179(d) to submit revisions to the SIP for
the St. Bernard area. The required SIP revision for the area must,
among other elements, demonstrate expeditious attainment of the
SO2 standard within the time period prescribed by CAA
section 179(d) and such additional measures as the Administrator may
reasonably prescribe that can be feasibly implemented in the area in
light of technological achievability, costs, and any non-air quality
and other air quality-related health and environmental impacts. If
finalized as proposed, the SIP revisions required under CAA section
179(d) would be due for submittal to the EPA no later than one year
after the publication date of the final action.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review, and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and therefore
was not submitted to the Office of Management and Budget (OMB) for
review.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under
the provisions of the PRA because it does not contain any information
collection activities.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. This
proposed action, if finalized, would require the state to adopt and
submit SIP revisions to satisfy CAA requirements and would not itself
directly regulate any small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate of $100 million
or more, as described in UMRA (2 U.S.C. 1531-1538) and does not
significantly or uniquely affect small governments. This action itself
imposes no enforceable duty on any state, local, or tribal governments,
or the private sector. This action proposes to determine that the St.
Bernard Parish SO2 nonattainment area failed to attain the
SO2 NAAQS by the applicable attainment dates. If finalized,
this determination would trigger existing statutory timeframes for the
State to submit SIP revisions. Such a determination in and of itself
does not impose any federal intergovernmental mandate.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175, Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. The proposed finding of failure to attain the
SO2 NAAQS does not apply to tribal areas, and the proposed
rule would not impose a burden on Indian reservation lands or other
areas where the EPA or an Indian tribe has demonstrated that a tribe
has jurisdiction within the St. Bernard Parish SO2
nonattainment area. Thus, this 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.

G. Executive Order 13045, Protection of Children From Environmental
Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This proposed action is not
subject to Executive Order 13045 because the effect of this proposed
action, if finalized, would be to trigger additional planning
requirements under the CAA. This proposed action does not establish an
environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211, because
it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
effect of this proposed action, if finalized, would be to trigger
additional planning requirements under the CAA.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Pollution, Reporting and
recordkeeping requirements, Sulfur dioxide.

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

    Dated: December 1, 2021.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2021-26433 Filed 12-6-21; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 84, Number 27 (Friday, February 8, 2019)]
[Proposed Rules]
[Pages 2801-2804]
[FR Doc No: 2018-28171]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2017-0558; FRL-9988-27-Region 6]

Approval and Promulgation of State Implementation Plan,
Louisiana; Attainment Demonstration for the St. Bernard Parish 2010 SO2
Primary National Ambient Air Quality Standard Nonattainment Area;
Supplemental Notice of Proposed Rulemaking

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: In this supplemental notice of proposed rulemaking (SNPRM),
the Environmental Protection Agency (EPA) is supplementing our proposed
approval document, concerning the 2010 Sulfur Dioxide (SO2)
Primary National Ambient Air Quality Standard (NAAQS) Nonattainment
Area State Implementation Plan (SIP) revision for St. Bernard Parish.
The EPA is also reopening the public comment period.

DATES: Written comments must be received on or before March 11, 2019.

ADDRESSES: Submit your comments, identified by Docket No. EPA-R06-OAR-
2017-0558, at https://www.regulations.gov. 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 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
Mr. Robert Imhoff,<PHONE_NUMBER><EMAIL_ADDRESS>For the full
EPA public comment policy, information about CBI or multimedia
submissions, and general guidance on making effective comments, please
visit https://www2.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: Mr. Robert Imhoff,<PHONE_NUMBER>;
<EMAIL_ADDRESS>To inspect the hard copy materials, please
schedule an appointment with Mr. Robert Imhoff.

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,'' or
``our'' refer to EPA.

I. Background

    On April 19, 2018, we published a proposed rulemaking action to
approve the 2010 SO2 Primary NAAQS Nonattainment Area SIP
revision for St. Bernard Parish, submitted by the State of Louisiana on
November 9, 2017 and first supplemented on February 8, 2018.\1\ The
April 19, 2018 action proposed approval of the following CAA SIP
elements: The attainment demonstration for the SO2 NAAQS and
enforceable emissions limits, which included an Agreed Order on Consent
(AOC) dated February 2, 2018 for the Rain CII Carbon, LLC. (Rain)
facility; the reasonable further progress (RFP) plan; the reasonably
available control measures (RACM) and reasonably available control
technology (RACT) demonstration; the emission inventories; and the
contingency measures. We also proposed to find that the State had
demonstrated that its current Nonattainment New Source Review (NNSR)
program covered the 2010 SO2 NAAQS; therefore, no revision
to the SIP was required for the NNSR element.
---------------------------------------------------------------------------

    \1\ 83 FR 17349.
---------------------------------------------------------------------------

    Comments on the proposal were required to be received by May 21,
2018. We received timely comments on the proposal, and as stated
further below, we will address all comments received on the original
proposal and on this supplemental action in our final action.\2\
---------------------------------------------------------------------------

    \2\ See our detailed discussion below that involves an
evaluation of the supplemental information submitted by the LDEQ to
EPA, partly in response to a public comment received on the original
Federal Register action at 83 FR 17349, April 19, 2018 proposal.
---------------------------------------------------------------------------

II. Additional Information Submitted by Louisiana

    After the close of the public comment period to the April 19, 2018
proposal, the Louisiana Department of Environmental Quality (LDEQ)
submitted additional information to

EPA on August 24, 2018.\3\ The additional information was submitted to
us partly in response to a public comment received on the April 19,
2018 proposal by United States Senator from Louisiana, Bill Cassidy.\4\
In particular, Senator Cassidy submitted a comment letter that
expressed concern that Rain would need to modify the February 2018 AOC
entered between Rain and LDEQ as Rain did not believe that it could
meet the limits set forth in the AOC without an additional extension to
the compliance dates. In response to the comment, and in order to
determine feasible emission limits for operations during transitions
from exhaust flow through the hot stack to flow through the heat
recovery boiler (referred to as the cold stack), LDEQ granted an
extension of the deadline of the February 2018 AOC on April 27,
2018.\5\ LDEQ then issued a revised AOC on August 2, 2018. A model
analysis was submitted to EPA on August 24, 2018 \6\ to specifically
demonstrate attainment of the NAAQS with the revised limits in the
August 2018 AOC. EPA reviewed the new modeling analysis \7\ and found
some errors and omissions. In response, LDEQ submitted an updated
modeling analysis on October 9, 2018.\8\ The AOC (signed by LDEQ and
Rain August 2, 2018 and submitted to EPA on August 24, 2018), and the
October 9, 2018 modeling files (also submitted by LDEQ) serve as a
supplement to the November 9, 2017 and February 8, 2018 SIP submittals
and are intended to address the public comment by incorporating certain
additional AOC revisions (dated 8/2/2018) and supporting modeling into
the 2010 SO2 Primary NAAQS Nonattainment Area SIP revision
for St. Bernard Parish.
---------------------------------------------------------------------------

    \3\ Letter from Secretary Brown to Anne Idsal, August 24, 2018,
St. Bernard 2008 Sulfur Dioxide State Implementation Plan
Supplemental Information and Executed Administrative Order on
Consent (AOC) included in the docket for this action.
    \4\ See the April 24, 2018 letter (in the docket to this action)
from Senator Cassidy to EPA that referred to Rain's need to modify
the February 2, 2018 AOC.
    \5\ See April 27, 2018 Letter from Secretary Chuck Carr Brown to
Rain in the docket for this action.
    \6\ See Email from Vivian Aucoin to Michael Feldman September
28, 2018 in the docket to this action.
    \7\ See Email Erik Snyder to Vivian Aucoin September 11, 2018
with attachment in the docket to this action
``Chalmette_LDEQ_7_2018_Sources emissions verifications--R6.xlsx''.
    \8\ See Email from Vennetta Hayes to Robert Imhoff October 9,
2018 in the docket to this action.
---------------------------------------------------------------------------

III. Public Comment

    The EPA is reopening the public comment period. Comments are due
March 11, 2019. The reopening of the comment period is strictly limited
to additional supplemental information submitted by Louisiana on August
24, 2018 and October 9, 2018, and our additional analysis contained in
this supplemental action and Supplemental Technical Support Document
(TSD) now available in the docket. The supplemental information
submitted to us seeks to address, in part, a public comment received on
our original April 19, 2018 proposal action. The EPA will address all
comments received on the original April 19, 2018 proposal and on this
SNPRM in our final action.

IV. EPA's Evaluation and Analysis

    We have reviewed the supplemental information submitted by LDEQ on
August 24, 2018, and October 9, 2018 to further assist in our
evaluation of the state's previous November 9, 2017 (as supplemented on
February 8, 2018) SIP submittal and the public comment received by
Senator Cassidy. As explained above, the revised AOC made changes in
response to comments received regarding Rain's ability to meet
transitional emissions limits. We have included our detailed evaluation
and additional analysis of the revisions contained in the August 2,
2018 AOC and supporting modeling in a supplement to the TSD which may
be found in the docket and titled as ``Supplement to Technical Support
Document for Approval and Promulgation of Implementation Plans;
Louisiana; Attainment Demonstration for the St. Bernard Parish 2010
SO2 Primary National Ambient Air Quality Standard
Nonattainment Area.'' The TSD examines LDEQ's supplemental modeling
reflecting the changes in Rain's AOC and the updates to the
contributing sources inventory. See the TSD supplement for a complete
discussion of our evaluation and analysis.

A. Emissions Data and Limits

    There were two main changes in the emissions data and limits used
in the October 9, 2018 supplemental modeling from the original SIP
modeling in the proposal. The first is due to the revision of the AOC
for Rain reflecting conditions consistent with the design throughput
for the facility and the second is to reflect recent revisions to
permits for the contributing sources. The August 2, 2018 AOC
incorporated updated information from the facility regarding the
emission rates, temperatures, and flowrates to be expected from the
facility for the various operating scenarios. Since these parameters
differed from those in the previous AOC, additional modeling to
demonstrate attainment of the NAAQS was conducted. The August 2, 2018
AOC has a compliance date of August 2, 2018.

      Table 1--Control Chart of the SO2 Emission Limits in Pounds per Hour for the Rain Cold and Hot Stacks
----------------------------------------------------------------------------------------------------------------
                                                                        Cold stack SO2
                                    Cold stack conditions for stage as   limits pounds  Hot stack SO2 limits (lb/
              Stage                          measured by CEMS            per hour (lb/   hr) and associated hot
                                                                              hr)           stack parameters
----------------------------------------------------------------------------------------------------------------
Cold Stack Standalone Low........  During normal, steady state                     200  0 lb/hr, Hot Stack flow
                                    operations, and damper to EQT 0004                   rate = 0.
                                    is closed, Stack flow rate
                                    >=46,000 ACFM and <90,000 ACFM,
                                    Temperature >=150 [deg]F.
Cold Stack Standalone Medium Low.  During normal, steady state                     380  0 lb/hr, Hot Stack flow
                                    operations, and damper to EQT 0004                   rate = 0.
                                    is closed, If Stack flow rate
                                    >=90,000 ACFM and <120,000 ACFM,
                                    Temperature >=210 [deg]F.
Cold Stack Standalone Medium High  During normal, steady state                     420  0 lb/hr, Hot Stack flow
                                    operations, and damper to EQT 0004                   rate = 0.
                                    is closed, Stack flow rate
                                    >=120,000 ACFM and <140,000 ACFM,
                                    Temperature >=210 [deg]F.
Cold Stack Standalone High.......  During normal, steady state                     510  0 lb/hr, Hot Stack flow
                                    operations, and damper to EQT 0004                   rate = 0.
                                    is closed, Stack flow rate
                                    >=140,000 ACFM, Stack temperature
                                    >=210 [deg]F.

1................................  Stack flow rate is >0 ACFM and                  4.5  1,600 lb/hr, Hot Stack
                                    <45,000 ACFM or Temperature <60                      flow rate >=400,000
                                    [deg]F.                                              ACFM, Temperature
                                                                                >=1,600 [deg]F.
2................................  Stack gas flow rate >=45,000 ACFM              49.5  1,400 lb/hr, Hot Stack
                                    and <60,000 ACFM, Temperature                        flow rate >=375,000
                                    >=110 [deg]F.                                        ACFM, Temperature
                                                                                >=1,600 [deg]F.
3................................  Stack gas flow rate >=60,000 ACFM                90  1,200 lb/hr, Hot Stack
                                    and <85,000 ACFM, Temperature                        flow rate >=375,000
                                    >=150 [deg]F.                                        ACFM, Temperature
                                                                                >=1,600 [deg]F.
4................................  Transition Stage 4: When the flue               108  <=1,000 lb/hr, Hot Stack
                                    gas flow rate >=85,000 ACFM and                      flow rate >=310,000
                                    <110,000 ACFM: Temperature >=160                     ACFM, Temperature
                                    [deg]F.                                              >=1,600 [deg]F.
5................................  Transition Stage 5: When the flue               171  900 lb/hr, Hot Stack
                                    gas flow rate >=110,000 ACFM and                     flow rate >=310,000
                                    <140,000 ACFM: Temperature >=210                     ACFM, Temperature
                                    [deg]F.                                              >=1,600 [deg]F.
6................................  Transition Stage 6: When the flue               189  800 lb/hr, Hot Stack
                                    gas flow rate >=140,000 ACFM:                        flow rate >=220,000
                                    Temperature >=210 [deg]F.                            ACFM, Temperature
                                                                                >=1,400 [deg]F.
Hot Stack Standalone.............  Non-transition operations: When the               0  2,020 lb/hr.
                                    damper to EQT 0003 is closed.
----------------------------------------------------------------------------------------------------------------

    The emission rates used in the previous modeling for contributing
sources were accurate and complete at the time they were compiled in
2017. Because of subsequent permit modifications in 2018 for the Valero
and Chalmette refineries, the do not accurately reflect current
allowable emission rates. EPA and LDEQ consulted on updates to the
original allowable rates for the contributing sources.\9\ LDEQ used the
updated current allowable emission rates in their modeling. The revised
contributing source inventory contained sources, not including Rain,
totaling 4,435 tons per year compared to the previous inventory which
contained 6,382 tons per year.
---------------------------------------------------------------------------

    \9\ September 11, 2018 Email From: Snyder, Erik to Vivian.
Aucoin with attachment ``Chalmette_LDEQ_7_2018_Sources emissions
verifications--R6.xlsx'' in the docket for this action.
---------------------------------------------------------------------------

B. Summary of Results

    LDEQ's October 2018 modeling analysis, including the revised August
2, 2018 AOC emission limits for the Rain facility, resulted in
concentrations below the level of the 1-hour primary SO2
NAAQS. The EPA has reviewed Louisiana's supplemental modeling and
agrees that Louisiana's supplemental materials, along with the new AOC
limits (August 2, 2018), result in demonstrating attainment of the 1-
hour SO2 primary NAAQS before the attainment deadline of
October 4, 2018.

Table 2--Summary of EPA Model Results With Number of Operating Scenarios
                                Modeled,
                           if Greater Than One
------------------------------------------------------------------------
                                                           Design value
                   Operational status                        [mu]g/m3
------------------------------------------------------------------------
Cold Stack Normal Operations (Low)......................           189.8
Cold Stack Normal Operations (Medium Low)...............           189.8
Cold Stack Normal Operations (Medium High)..............           183.9
Cold Stack Normal Operations (High).....................           190.8
Hot Stack Normal Operations.............................           176.6
Transition (Six Scenarios)..............................           185.6
Rain Property...........................................           160.5
Valero Property.........................................           147.7
Chalmette Refinery Property.............................           130.3
------------------------------------------------------------------------

    The result of our evaluation and analysis of the supplemental
information continues to support the proposed approval of the SIP
revisions identified in the Federal Register at 83 FR 17349, April 19,
2018, proposal.

V. Supplemental Proposal Action

    On April 19, 2018, EPA originally proposed to approve the 2010
SO2 Nonattainment Area SIP revision for St. Bernard Parish,
as submitted by the State of Louisiana on November 9, 2017 and
supplemented on February 8, 2018. In this supplemental proposal, EPA is
proposing to approve LDEQ's August 24, 2018 and October 9, 2018
supplements to the November 9, 2017 SIP and February 8, 2018 submittals
that were provided partly in response to a comment received on our
April 19, 2018 proposal (83 FR 17349). Specifically, we are proposing
to approve the August 2, 2018 AOC as a source-specific SIP revision
that serves to replace the original February 2018 AOC. We propose to
find that the supplemental October 9, 2018 modeling provides continued
support for a proposed approval of the attainment demonstration that
was originally submitted in November 2017. EPA solicits comments on
this SNPRM, with

respect to only the specific information raised in this supplemental
proposal--that being (a) the modifications from the original modeling
required for the supplemental October 9, 2018 modeling, i.e., the
revised stack parameters and emissions for Rain and the contributing
source inventory and (b) the revised August 2018 AOC. EPA is not
reopening the comment period on any other aspect of the April 19, 2018
proposal, as there was an opportunity to comment provided at the time
of that proposal on all other elements of the submittals and those
elements remain unchanged from the original proposal. The purpose of
this SNPRM is limited to an evaluation of LDEQ's August 24, 2018
submission of the AOC and supporting October 2018 modeling, as well as
the supplement to the TSD, all of which are contained in the docket for
this rulemaking. We are reopening the comment period until March 11,
2019. The scope of this supplemental document and the reopening of the
comment period is strictly limited to only the supplemental
information. The EPA will not respond to comments received during the
reopened comment period outside the above-defined scope. This action
will allow interested persons additional time to review the
supplemental information to prepare and submit relevant comments. The
EPA will address all comments received on the original proposal and on
this supplemental action in our final action.

VI. Incorporation by Reference

    In this action, we are proposing to include in a final rule
regulatory text that includes incorporation by reference. In accordance
with the requirements of 1 CFR 51.5, we are proposing to incorporate by
reference revisions to the Louisiana source-specific requirements as
described in the Proposed Action section above. We have made, and will
continue to make, these documents generally available electronically
through www.regulations.gov and in hard copy at the EPA Region 6 office
(please contact Mr. Robert Imhoff for more information).

VII. Statutory and Executive Order Reviews

    Under the 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, EPA's role is to approve state choices,
provided that they meet the criteria of the Act. 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 Order
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 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 proposed rulemaking 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, Reporting and recordkeeping
requirements, Sulfur oxides.

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

    Dated: December 20, 2018.
Anne Idsal,
Regional Administrator, Region 6.
[FR Doc. 2018-28171 Filed 2-7-19; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 84, Number 132 (Wednesday, July 10, 2019)]
[Rules and Regulations]
[Pages 32841-32845]
[FR Doc No: 2019-14612]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 81

[EPA-R09-OAR-2019-0840; FRL-9996-12-Region 9]

Designation of Areas for Air Quality Planning Purposes;
California; Coachella Valley 8-Hour Ozone Nonattainment Area;
Reclassification to Extreme

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Under the Clean Air Act (CAA or the ``Act''), the
Environmental Protection Agency (EPA) is granting a request from the
State of California to reclassify the Coachella Valley ozone
nonattainment area from ``Severe-15'' to ``Extreme'' for the 1997 8-
hour ozone national ambient air quality standards (NAAQS). This action
does not reclassify any areas of Indian country within the boundaries
of the Coachella Valley 1997 ozone nonattainment area.

DATES: This rule is effective on July 10, 2019.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R09-OAR-2019-0840. All documents in the docket are
listed on the https://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 https://www.regulations.gov, or please
contact the person identified in the FOR FURTHER INFORMATION CONTACT
section for additional information.
    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.

FOR FURTHER INFORMATION CONTACT: Tom Kelly, EPA Region IX, 75 Hawthorne
St., San Francisco, CA 94105. By phone:<PHONE_NUMBER> or by email at
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us'' and
``our'' refer to the EPA.

Table of Contents

I. Reclassification of Coachella Valley to Extreme Ozone
Nonattainment
II. Statutory and Executive Order Reviews

I. Reclassification of Coachella Valley to Extreme Ozone Nonattainment

    Effective June 15, 2004, we classified a portion of Riverside
County (Coachella Valley) under the CAA as ``Serious'' for the 1997 8-
hour ozone NAAQS.\1\ Our classification of Coachella Valley as a
Serious ozone nonattainment area established a requirement that the
area attain the 1997 ozone NAAQS as expeditiously as practicable, but
no later than eight years from designation, i.e., June 15, 2012. On
November 28, 2007, the California Air Resources Board (CARB) requested
that the EPA reclassify the Coachella Valley nonattainment area from
Serious to Severe-15. The EPA granted the reclassification, effective
June 4, 2010, with an attainment date of not later than June 15,
2019.\2\ On June 11, 2019, CARB submitted a request that the EPA
reclassify the Coachella Valley area from Severe-15 to Extreme for the
1997 ozone NAAQS.
---------------------------------------------------------------------------

    \1\ See 69 FR 23858 (April 30, 2004).
    \2\ See 75 FR 24409 (May 5, 2010).
---------------------------------------------------------------------------

    We are approving CARB's reclassification request under section
181(b)(3) of the Act, which provides for ``voluntary
reclassification.'' \3\ The provision for voluntary reclassification
has been brought forward as part of the transition from the 1-hour
ozone standard to the 1997 8-hour ozone standard.\4\ Because the plain
language of section 181(b)(3) mandates that we approve such a request,
the EPA is granting CARB's request for voluntary reclassification under
section 181(b)(3) for the Coachella Valley nonattainment area for the
1997 ozone NAAQS, and the EPA is reclassifying the area from Severe-15
to Extreme. Because of this action, the Coachella Valley must now
attain the 1997 ozone NAAQS as expeditiously as practicable, but no
later than twenty years from the date of designation as nonattainment,
i.e., June 15, 2024. We will propose a schedule for required plan
submittals for Coachella Valley under the new classification in a
separate action.
---------------------------------------------------------------------------

    \3\ 42 U.S.C. 7511(b)(3).
    \4\ See 40 CFR 51.903(b) (``A State may request a higher
classification for any reason in accordance with section 181(b)(3)
of the CAA'') and 40 CFR 51.903(a), Table 1.
---------------------------------------------------------------------------

    The EPA revoked the 1997 ozone NAAQS with the promulgation of the
2008 ozone NAAQS,\5\ and certain requirements of the 1997 ozone NAAQS
continue to apply as anti-backsliding measures under CAA section
172(e). The United States Court of Appeals for the District of Columbia
Circuit's decision in South Coast Air Quality Management District v.
EPA, 882 F.3d 1138 (D.C. Cir. 2018) (``South Coast II'') recently
addressed the EPA's obligation to reclassify areas for the revoked 1997
ozone NAAQS where those areas failed to attain by their attainment
date.\6\ The Court held that the EPA is required to continue to
reclassify areas that fail to attain by the relevant attainment
deadlines because mandatory reclassification under CAA section
181(b)(2) must be retained as an anti-backsliding control after
revocation.\7\ The Court did not address voluntary reclassifications
requested by states, but such reclassifications are consistent with the
general scheme for implementing CAA emissions controls to achieve
attainment and taking this action will serve to clarify the area's
anti-backsliding obligations with respect to the revoked 1997
standards.
---------------------------------------------------------------------------

    \5\ 80 FR 12263 (March 6, 2015).
    \6\ South Coast Air Quality Management Dist. v. EPA, 882 F.3d
1138, 1147-48 (D.C. Cir. 2018). The term ``South Coast II'' is used
in reference to the 2018 court decision to distinguish it from a
decision published in 2006 also referred to as ``South Coast.'' The
earlier decision involved a challenge to the EPA's Phase 1
implementation rule for the 1997 ozone standard. South Coast Air
Quality Management Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006).
    \7\ South Coast II, 882 F.3d at 1147-48.
---------------------------------------------------------------------------

    Within the geographic boundaries of Coachella Valley is Indian
country under the jurisdiction of the Agua Caliente Band of Cahuilla
Indians, the Augustine Band of Cahuilla Mission Indians, the Cabazon
Band of Mission Indians, the Santa Rosa Band of Cahuilla Indians, the
Torres Martinez Desert Cahuilla Indians, and the Twenty-Nine Palms Band
of Mission Indians. Because the State of California does not have
jurisdiction over Indian country located within its borders, CARB's
request to reclassify the Coachella Valley does not apply to these
areas of Indian country. The EPA implements federal CAA programs,
including reclassifications, in Indian country consistent with our
discretionary authority under sections 301(a) and 301(d)(4) of the CAA.
The EPA has not received a reclassification request from any tribe with
jurisdiction within the Coachella Valley, and this action does not
reclassify any areas of Indian country within the Coachella Valley.\8\
In this action, we are adding regulatory text to 40 CFR part 81 to
distinguish the areas of Indian country that will retain the Severe-15
classification from the state areas that are included in the
reclassification to Extreme.
---------------------------------------------------------------------------

    \8\ The EPA has notified the Agua Caliente Band of Cahuilla
Indians, the Augustine Band of Cahuilla Mission Indians, the Cabazon
Band of Mission Indians, the Santa Rosa Band of Cahuilla Indians,
the Torres Martinez Desert Cahuilla Indians, and the Twenty-Nine
Palms Band of Mission Indians of CARB's intention to seek a
voluntary reclassification, and we clarified that CARB's
reclassification request includes only state lands and that the
EPA's approval of the request will not apply to Indian country.
---------------------------------------------------------------------------

    The EPA has determined that this action falls under the ``good
cause'' exemption in section 553(b)(3)(B) of the Administrative
Procedure Act (APA) which, upon finding ``good cause,'' authorizes
agencies to dispense with

public participation where public notice and comment procedures are
``impracticable, unnecessary or contrary to the public interest.'' The
EPA has determined that public notice and comment for this action is
unnecessary because our action to approve voluntary reclassification
requests under CAA section 181(b)(3) is nondiscretionary both in its
issuance and in its content. As such, notice and comment rulemaking
procedures would serve no useful purpose.
    The EPA also finds that there is good cause under APA section
553(d)(3) for this reclassification to become effective on the date of
publication. Section 553(d)(3) of the APA allows an effective date of
less than 30 days after publication ``as otherwise provided by the
agency for good cause found and published with the rule.'' 5 U.S.C.
553(d)(3). The purpose of the 30-day waiting period prescribed in APA
section 553(d)(3) is to give affected parties a reasonable time to
adjust their behavior and prepare before the final rule takes effect.
This rule, however, does not create any new regulatory requirements
such that affected parties would need time to prepare before the rule
takes effect. The schedule for required plan submittals for Coachella
Valley under the new classification will be proposed in a separate
action. For this reason, the EPA finds good cause under APA section
553(d)(3) for this reclassification to become effective on the date of
publication.

II. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
final action is not a ``significant regulatory action'' and therefore
is not subject to Executive Order 12866. This action is not an
Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action
because it is not significant under Executive Order 12866. With respect
to lands under state jurisdiction, voluntary reclassifications under
CAA section 181(b)(3) of the CAA are based solely upon requests by the
state, and the EPA is required under the CAA to grant them. These
actions do not, in and of themselves, impose any new requirements on
any sectors of the economy. In addition, because the statutory
requirements are clearly defined with respect to the differently
classified areas, and because those requirements are automatically
triggered by reclassification, reclassification does not impose a
materially adverse impact under Executive Order 12866. For these
reasons, this final action is also not subject to Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001).
    In addition, I certify that this final rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and that
this final rule 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), because the EPA is
required to grant requests by states for voluntary reclassifications
and such reclassifications in and of themselves do not impose any
federal intergovernmental mandate, and because tribes are not subject
to implementation plan submittal deadlines that apply to states as a
result of reclassifications.
    This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the federal government and Indian tribes, or
on the distribution of power and responsibilities between the federal
government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. This reclassification action relates
to ozone, a pollutant that is regional in nature, and is not the type
of action that could result in the types of local impacts addressed in
Executive Order 12898.
    This final action also does not have Federalism implications
because it does not have substantial direct effects on the states, on
the relationship between the national government and the states, nor on
the distribution of power and responsibilities among the various levels
of government, as specified in Executive Order 13132 (64 FR 43255,
August 10, 1999). This final action does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
    This rule also is not subject to Executive Order 13045,
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because EPA interprets Executive
Order 13045 as applying only to those regulatory actions that concern
health or safety risks, such that the analysis required under section
5-501 of the Executive Order has the potential to influence the
regulation.
    Reclassification actions do not involve technical standards and
thus, the requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
    The Congressional Review Act (CRA), 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. This action is subject to the CRA, and
the EPA will submit a rule report to each House of the Congress and to
the Comptroller General of the United States. The CRA allows the
issuing agency to make a rule effective sooner than otherwise provided
by the CRA if the agency makes a good cause finding that notice and
comment rulemaking procedures are impracticable, unnecessary or
contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a
good cause finding for this rule as discussed in section I of this
preamble, including the basis for that finding. 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 September 9, 2019. 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 81

    Environmental protection, Air pollution control, Intergovernmental
relations, Ozone.

    Dated: June 12, 2019.
Michael Stoker,
Regional Administrator, Region IX.

    Chapter I, title 40 of the Code of Federal Regulations is amended
as follows:

PART 81--DESIGNATION FOR AREAS FOR AIR QUALITY PLANNING PURPOSES

0
1. The authority citation for part 81 continues to read as follows:

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

Subpart C--[Amended]

0
2. In Sec.  81.305 the table entitled ``California--1997 8-Hour Ozone
NAAQS (Primary and Secondary)'' is amended by revising the entry for
``Riverside Co. (Coachella Valley), CA'' and adding footnote g to read
as follows:

Sec.  81.305  California.

* * * * *

                           California--1997 8-Hour Ozone NAAQS (Primary and Secondary)
----------------------------------------------------------------------------------------------------------------
                                             Designation \a\                     Category/classification
         Designated area         -------------------------------------------------------------------------------
                                    Date \1\             Type             Date \1\               Type
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
Riverside Co. (Coachella
 Valley), CA:
    Riverside County (part) \g\.  ...........  Nonattainment..........      6/12/19  Subpart 2/Extreme.
        That portion of
         Riverside County which
         lies to the east of a
         line described as
         follows: Beginning at
         the Riverside-San Diego
         County boundary and
         running north along the
         range line common to
         Range 4 East and Range
         3 East, San Bernardino
         Base and Meridian; then
         east along the Township
         line common to Township
         8 South and Township 7
         South; then north along
         the range line common
         to Range 5 East and
         Range 4 East; then west
         along the Township line
         common to Township 6
         South and Township 7
         South to the southwest
         corner of Section 34,
         Township 6 South, Range
         4 East; then north
         along the west
         boundaries of Sections
         34, 27, 22, 15, 10, and
         3, Township 6 South,
         Range 4 East; then west
         along the Township line
         common to Township 5
         South and Township 6
         South; then north along
         the range line common
         to Range 4 East and
         Range 3 East; then west
         along the south
         boundaries of Sections
         13, 14, 15, 16, 17, and
         18, Township 5 South,
         Range 3 East; then
         north along the range
         line common to Range 2
         East and Range 3 East;
         to the Riverside-San
         Bernardino County line.
        And that portion of
         Riverside County which
         lies to the west of a
         line described as
         follows: That segment
         of the southwestern
         boundary line of
         Hydrologic Unit Number
         18100100 within
         Riverside County,
         further described as
         follows: Beginning at
         the Riverside-Imperial
         County boundary and
         running north along the
         range line common to
         Range 17 East and Range
         16 East, San Bernardino
         Base and Meridian; then
         northwest along the
         ridge line of the
         Chuckwalla Mountains,
         through Township 8
         South, Range 16 East
         and Township 7 South,
         Range 16 East, until
         the Black Butte
         Mountain, elevation
         4504'; then west and
         northwest along the
         ridge line to the
         southwest corner of
         Township 5 South, Range
         14 East; then north
         along the range line
         common to Range 14 East
         and Range 13 East; then
         west and northwest
         along the ridge line to
         Monument Mountain,
         elevation 4834'; then
         southwest and then
         northwest along the
         ridge line of the
         Little San Bernardino
         Mountains to Quail
         Mountain, elev. 5814';
         then northwest along
         the ridge line to the
         Riverside-San
         Bernardino County line.
    Agua Caliente Band of         ...........  Nonattainment..........        (\2\)  Subpart 2/Severe-15.
     Cahuilla Indians of the
     Agua Caliente Indian
     Reservation \e\.
    Augustine Band of Cahuilla    ...........  Nonattainment..........        (\2\)  Subpart 2/Severe-15.
     Indians \e\.
    Cabazon Band of Mission       ...........  Nonattainment..........        (\2\)  Subpart 2/Severe-15.
     Indians \e\.
    Santa Rosa Band of Cahuilla   ...........  Nonattainment..........        (\2\)  Subpart 2/Severe-15.
     Indians \e\.
    Torres Martinez Desert        ...........  Nonattainment..........        (\2\)  Subpart 2/Severe-15.
     Cahuilla Indians \e\.
    Twenty-Nine Palms Band of     ...........  Nonattainment..........        (\2\)  Subpart 2/Severe-15.
     Mission Indians of
     California \e\.

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as otherwise specified.
 * * * * * * *
\e\ Includes Indian country of the tribe listed in this table. Information pertaining to areas of Indian country
  in this table is intended for CAA planning purposes only and is not an EPA determination of Indian country
  status or any Indian country boundary. The EPA lacks the authority to establish Indian country land status,
  and is making no determination of Indian country boundaries, in this table.
 * * * * * * *
\g\ Excludes Indian country of the Agua Caliente Band of Cahuilla Indians, the Augustine Band of Cahuilla
  Mission Indians, the Cabazon Band of Mission Indians, the Santa Rosa Band of Cahuilla Indians, the Torres
  Martinez Desert Cahuilla Indians, and the Twenty-Nine Palms Band of Mission Indians in Riverside County.
\1\ This date is 30 days after November 13, 2009, unless otherwise noted.
\2\ This date is July 2, 2014, unless otherwise noted.

* * * * *
[FR Doc. 2019-14612 Filed 7-9-19; 8:45 am]
BILLING CODE 6560-50-P