[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Rules and Regulations]
[Pages 40248-40258]
[FR Doc No: 2011-17021]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R01-OAR-2008-0639; EPA-R01-OAR-2008-0641; EPA-R01-OAR-2008-00642;
EPA-R01-OAR-2008-0643; A-1-FRL-9431-2]

Approval and Promulgation of Implementation Plans; Connecticut,
Maine, New Hampshire and Rhode Island; Infrastructure SIPs for the 1997
8-Hour Ozone National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving submittals from the States of Connecticut,
Maine, New Hampshire and Rhode Island. These submittals outline how
each state's State Implementation Plan (SIP) meets the requirements of
the Clean Air Act (CAA) for the 1997 8-hour ozone national ambient air
quality standards (NAAQS). Section 110(a) of the CAA requires that each
state adopt and submit a SIP for the implementation, maintenance and
enforcement of each NAAQS promulgated by the EPA. This SIP is commonly
referred to as an infrastructure SIP. Specifically, EPA is taking final
action to fully approve the submittals from Connecticut, Maine, New
Hampshire and Rhode Island, with one exception. EPA is taking direct
final action to conditionally approve one element of Connecticut's
submittal. These actions are being taken under the Clean Air Act.

DATES: Effective Dates: This rule will be effective August 8, 2011,
with one exception. The conditional approval of one element of
Connecticut's SIP is a direct final rule which will be effective
September 6, 2011, unless EPA receives adverse comments on that action
by August 8, 2011.
    If adverse comments are received, EPA will publish a timely
withdrawal of the direct final rule in the Federal Register informing
the public that the rule will not take effect.

ADDRESSES: Submit your comments, if any, on EPA's direct final
conditional approval for Connecticut, identified by Docket ID Number
EPA-R01-OAR-200-0639 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. E-mail<EMAIL_ADDRESS>Fax:<PHONE_NUMBER>. Mail: ``Docket
Identification Number EPA-R01-OAR-2008-0639'', Anne Arnold, U.S.
Environmental Protection Agency, EPA New England Regional Office,
Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post
Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912
    3. Hand Delivery or Courier. Deliver your comments to: Anne Arnold,
Manager, Air Quality Planning Unit, Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post
Office Square--Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912.
Such deliveries are only accepted during the Regional Office's normal
hours of operation. The Regional Office's official hours of business
are Monday through Friday, 8:30 to 4:30, excluding legal holidays.
    Instructions: Direct your comments for Connecticut to Docket ID No.
EPA-R01-OAR-2008-0639. EPA's policy is that all comments received will
be included in the public docket without change and may be made
available online at http://www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. Do not submit through http://www.regulations.gov, or e-mail, information that you consider to be
CBI or otherwise protected. The http://www.regulations.gov Web site is
an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., 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 either electronically in http://www.regulations.gov or in hard copy at Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
5 Post Office Square, Suite 100, Boston, MA. EPA requests that if at
all possible, you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section to schedule your inspection. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality
Planning Unit, U.S. Environmental Protection Agency, EPA New England
Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-
3912, telephone number<PHONE_NUMBER>, fax number<PHONE_NUMBER>, e-
mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Scope of Action on Infrastructure Submissions
III. EPA's Response to Comments
IV. Final Actions
V. Statutory and Executive Order Reviews

I. Background

    Section 110(a) of the Clean Air Act imposes the obligation upon
states to make a SIP submission to EPA for a new or revised NAAQS, but
the contents of that submission may vary depending upon the facts and
circumstances. In particular, the data and analytical tools available
at the time the state develops and submits the SIP for a new or revised
NAAQS affects the content of the submission. The contents of such SIP
submissions may also vary depending upon what provisions the state's
existing SIP already contains. In the case of the 1997 8-hour ozone
NAAQS, states typically have met the basic program elements required in
section 110(a)(2) through earlier SIP submissions in connection with
previous ozone standards.
    On October 2, 2007, EPA issued a guidance document entitled,
``Guidance on SIP Elements Required Under Sections 110(a)(1) and (2)
for the 1997

8-hour Ozone and fine particle (PM2.5) National Ambient Air
Quality Standards.'' This guidance noted that to the extent an existing
SIP already meets the section 110(a)(2) requirements, states need only
certify that fact via a letter to EPA.
    The States of Connecticut, Maine, New Hampshire, and Rhode Island
each submitted such certification letters to EPA on December 28, 2007,
January 3, 2008, December 14, 2007 and December 14, 2007, respectively.
All four submittals were deemed complete, effective April 28, 2008.
(See 73 FR 16205; March 27, 2008.)
    On March 23, 2011, EPA proposed to approve the Connecticut, Maine,
New Hampshire and Rhode Island infrastructure submissions for the 1997
8-hour ozone NAAQS. See 76 FR 16358. A summary of the background for
today's final actions is provided below. See EPA's March 23, 2011,
proposed rulemaking at 76 FR 16358 for more detail.
    More specifically, section 110(a)(1) provides the procedural and
timing requirements for SIPs. Section 110(a)(2) lists specific elements
that states must meet for ``infrastructure'' SIP requirements related
to a newly established or revised NAAQS. As mentioned above, these
requirements include SIP infrastructure elements such as modeling,
monitoring, and emissions inventories that are designed to assure
attainment and maintenance of the NAAQS. The requirements that are the
subject of this proposed rulemaking are listed below: \1\
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    \1\ Two elements identified in section 110(a)(2) are not
governed by the three year submission deadline of section 110(a)(1)
because SIPs incorporating necessary local nonattainment area
controls are not due within three years after promulgation of a new
or revised NAAQS, but rather due at the time the nonattainment area
plan requirements are due pursuant to section 172. These
requirements are: (1) Submissions required by section 110(a)(2)(C)
to the extent that subsection refers to a permit program as required
in part D Title I of the CAA; and (2) submissions required by
section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA. Today's final rulemaking
does not address infrastructure elements related to section
110(a)(2)(I) but does provide detail, as explained in the notice of
proposed rulemaking, on how the respective states' SIP addresses the
requirements of section 110(a)(2)(C) not related to the part D
permit program for nonattainment areas.
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     110(a)(2)(A): Emission limits and other control measures.
     110(a)(2)(B): Ambient air quality monitoring/data system.
     110(a)(2)(C): Program for enforcement of control
measures.\2\
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    \2\ This rulemaking only addresses requirements for this element
as they relate to attainment areas, if any.
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     110(a)(2)(D)(ii): Interstate transport.
     110(a)(2)(E): Adequate resources.
     110(a)(2)(F): Stationary source monitoring system.
     110(a)(2)(G): Emergency power.
     110(a)(2)(H): Future SIP revisions.
     110(a)(2)(J): Consultation with government officials;
public notification; and PSD and visibility protection.
     110(a)(2)(K): Air quality modeling/data.
     110(a)(2)(L): Permitting fees.
     110(a)(2)(M): Consultation/participation by affected local
entities.

II. Scope of Action on Infrastructure Submissions

    EPA is taking final action to approve the Connecticut, Maine, New
Hampshire and Rhode Island SIPs as demonstrating that the respective
States meet the requirements of sections 110(a)(1) and (2) of the CAA
for the 1997 8-hour ozone NAAQS. Section 110(a) of the CAA requires
that each state adopt and submit a SIP for the implementation,
maintenance, and enforcement of each NAAQS promulgated by the EPA,
which is commonly referred to as an ``infrastructure'' SIP.
Connecticut, Maine, New Hampshire and Rhode Island certified that the
Connecticut, Maine, New Hampshire and Rhode Island SIPs contain
provisions that ensure the 1997 8-hour ozone NAAQS is implemented,
enforced, and maintained in Connecticut, Maine, New Hampshire and Rhode
Island, respectively. The Connecticut, Maine, New Hampshire and Rhode
Island infrastructure submissions address all the required
infrastructure elements for the 1997 8-hour ozone NAAQS. EPA has
determined that the Connecticut, Maine, New Hampshire and Rhode Island
infrastructure submissions are consistent with section 110 of the CAA,
with the exception of the Connecticut submission with respect to
section 110(a)(2)(D)(ii). Therefore, EPA is taking final action to
fully approve the submittals from Connecticut, Maine, New Hampshire and
Rhode Island, with one exception. EPA is taking direct final action to
conditionally approve Connecticut's submittal with respect to section
110(2)(D)(ii), as discussed further in Section III below. Additionally,
EPA is responding to comments received on EPA's March 23, 2011 proposed
approval of the Connecticut, Maine, New Hampshire and Rhode Island
infrastructure submissions.
    EPA is currently acting upon SIPs that address the infrastructure
requirements of CAA section 110(a)(1) and (2) for ozone and
PM2.5 NAAQS for various states across the country.
Commenters on EPA's recent proposals for some states raised concerns
about EPA statements that it was not addressing certain substantive
issues in the context of acting on the infrastructure SIP
submissions.\3\ The commenters specifically raised concerns involving
provisions in existing SIPs and with EPA's statements that it would
address two issues separately and not as part of actions on the
infrastructure SIP submissions: (i) existing provisions related to
excess emissions during periods of start-up, shutdown, or malfunction
at sources, that may be contrary to the CAA and EPA's policies
addressing such excess emissions (``SSM''); and (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that purport to permit revisions to SIP approved emissions
limits with limited public process or without requiring further
approval by EPA, that may be contrary to the CAA (``director's
discretion''). EPA notes that there are two other substantive issues
for which EPA likewise stated that it would address the issues
separately: (i) existing provisions for minor source new source review
programs that may be inconsistent with the requirements of the CAA and
EPA's regulations that pertain to such programs (``minor source NSR'');
and (ii) existing provisions for Prevention of Significant
Deterioration programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80,186
(December 31, 2002), as amended by 72 FR 32,526 (June 13, 2007) (``NSR
Reform''). In light of the comments, EPA now believes that its
statements in various proposed actions on infrastructure SIPs with
respect to these four individual issues should be explained in greater
depth with respect to these issues.
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    \3\ See, Comments of Midwest Environmental Defense Center, dated
May 31, 2011. Docket  EPA-R05-OAR-2007-1179 (adverse
comments on proposals for three states in Region 5). EPA notes that
these public comments on another proposal are not relevant to this
rulemaking and do not have to be directly addressed in this
rulemaking. EPA will respond to these comments in the appropriate
rulemaking action to which they apply.
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    EPA intended the statements in the proposals concerning these four
issues merely to be informational, and to provide general notice of the
potential existence of provisions within the existing SIPs of some
states that might require future corrective action. EPA did not want
states, regulated entities, or members of the public to be under the
misconception that the Agency's approval of the infrastructure SIP

submission of a given state should be interpreted as a reapproval of
certain types of provisions that might exist buried in the larger
existing SIP for such state. Thus, for example, EPA explicitly noted
that the Agency believes that some states may have existing SIP
approved SSM provisions that are contrary to the CAA and EPA policy,
but that ``in this rulemaking, EPA is not proposing to approve or
disapprove any existing State provisions with regard to excess
emissions during SSM of operations at facilities.'' EPA further
explained, for informational purposes, that ``EPA plans to address such
State regulations in the future.'' EPA made similar statements, for
similar reasons, with respect to the director's discretion, minor
source NSR, and NSR Reform issues. EPA's objective was to make clear
that approval of an infrastructure SIP for these ozone and
PM2.5 NAAQS should not be construed as explicit or implicit
reapproval of any existing provisions that relate to these four
substantive issues.
    Unfortunately, the commenters and others evidently interpreted
these statements to mean that EPA considered action upon the SSM
provisions and the other three substantive issues to be integral parts
of acting on an infrastructure SIP submission, and therefore that EPA
was merely postponing taking final action on the issue in the context
of the infrastructure SIPs. This was not EPA's intention. To the
contrary, EPA only meant to convey its awareness of the potential for
certain types of deficiencies in existing SIPs, and to prevent any
misunderstanding that it was reapproving any such existing provisions.
EPA's intention was to convey its position that the statute does not
require that infrastructure SIPs address these specific substantive
issues in existing SIPs and that these issues may be dealt with
separately, outside the context of acting on the infrastructure SIP
submission of a state. To be clear, EPA did not mean to imply that it
was not taking a full final agency action on the infrastructure SIP
submission with respect to any substantive issue that EPA considers to
be a required part of acting on such submissions under section 110(k)
or under section 110(c). Given the confusion evidently resulting from
EPA's statements, however, we want to explain more fully the Agency's
reasons for concluding that these four potential substantive issues in
existing SIPs may be addressed separately.
    The requirement for the SIP submissions at issue arises out of CAA
section 110(a)(1). That provision requires that states must make a SIP
submission ``within 3 years (or such shorter period as the
Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof)'' and
that these SIPs are to provide for the ``implementation, maintenance,
and enforcement'' of such NAAQS. Section 110(a)(2) includes a list of
specific elements that ``[e]ach such plan'' submission must meet. EPA
has historically referred to these particular submissions that states
must make after the promulgation of a new or revised NAAQS as
``infrastructure SIPs.'' This specific term does not appear in the
statute, but EPA uses the term to distinguish this particular type of
SIP submission designed to address basic structural requirements of a
SIP from other types of SIP submissions designed to address other
different requirements, such as ``nonattainment SIP'' submissions
required to address the nonattainment planning requirements of part D,
``regional haze SIP'' submissions required to address the visibility
protection requirements of CAA section 169A, new source review
permitting program submissions required to address the requirements of
part D, and a host of other specific types of SIP submissions that
address other specific matters.
    Although section 110(a)(1) addresses the timing and general
requirements for these infrastructure SIPs, and section 110(a)(2)
provides more details concerning the required contents of these
infrastructure SIPs, EPA believes that many of the specific statutory
provisions are facially ambiguous. In particular, the list of required
elements provided in section 110(a)(2) contains a wide variety of
disparate provisions, some of which pertain to required legal
authority, some of which pertain to required substantive provisions,
and some of which pertain to requirements for both authority and
substantive provisions.\4\ Some of the elements of section 110(a)(2)
are relatively straightforward, but others clearly require
interpretation by EPA through rulemaking, or recommendations through
guidance, in order to give specific meaning for a particular NAAQS.\5\
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    \4\ For example, section 110(a)(2)(E) provides that states must
provide assurances that they have adequate legal authority under
state and local law to carry out the SIP; section 110(a)(2)(C)
provides that states must have a substantive program to address
certain sources as required by part C of the CAA; section
110(a)(2)(G) provides that states must have both legal authority to
address emergencies and substantive contingency plans in the event
of such an emergency.
    \5\ For example, section 110(a)(2)(D)(i) requires EPA to be sure
that each state's SIP contains adequate provisions to prevent
significant contribution to nonattainment of the NAAQS in other
states. This provision contains numerous terms that require
substantial rulemaking by EPA in order to determine such basic
points as what constitutes significant contribution. See, e.g.,
``Rule To Reduce Interstate Transport of Fine Particulate Matter and
Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOx SIP Call; Final Rule,'' 70 FR 25,162 (May 12,
2005)(defining, among other things, the phrase ``contribute
significantly to nonattainment'').
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    Notwithstanding that section 110(a)(2) states that ``each'' SIP
submission must meet the list of requirements therein, EPA has long
noted that this literal reading of the statute is internally
inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment
SIP requirements that could not be met on the schedule provided for
these SIP submissions in section 110(a)(1).\6\ This illustrates that
EPA must determine which provisions of section 110(a)(2) may be
applicable for a given infrastructure SIP submission. Similarly, EPA
has previously decided that it could take action on different parts of
the larger, general ``infrastructure SIP'' for a given NAAQS without
concurrent action on all subsections, such as section 110(a)(2)(D)(i),
because the Agency bifurcated the action on these latter ``interstate
transport'' provisions within section 110(a)(2) and worked with states
to address each of the four prongs of section 110(a)(2)(D)(i) with
substantive administrative actions proceeding on different tracks with
different schedules.\7\ This illustrates that EPA may conclude that
subdividing the applicable requirements of section 110(a)(2) into
separate SIP actions may sometimes be appropriate for a given NAAQS
where a specific substantive action is necessitated, beyond a mere
submission addressing basic structural aspects of the state's SIP.
Finally, EPA notes that not every element of section 110(a)(2) would be
relevant, or as relevant, or relevant in the same way, for each new or
revised NAAQS and the attendant infrastructure SIP submission for that
NAAQS. For example, the monitoring requirements that might be necessary
for purposes of section 110(a)(2)(B) for one NAAQS could be

very different than what might be necessary for a different pollutant.
Thus, the content of an infrastructure SIP submission to meet this
element from a state might be very different for an entirely new NAAQS,
versus a minor revision to an existing NAAQS.\8\
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    \6\ See, e.g., Id., 70 FR 25,162, at 63-65 (May 12,
2005)(explaining relationship between timing requirement of section
110(a)(2)(D) versus section 110(a)(2)(I)).
    \7\ EPA issued separate guidance to states with respect to SIP
submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and
1997 PM2.5 NAAQS. See, ``Guidance for State
Implementation Plan (SIP) Submissions to Meet Current Outstanding
Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and
PM2.5 National Ambient Air Quality Standards,'' from
William T. Harnett, Director Air Quality Policy Division OAQPS, to
Regional Air Division Director, Regions I-X, dated August 15, 2006.
    \8\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
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    Similarly, EPA notes that other types of SIP submissions required
under the statute also must meet the requirements of section 110(a)(2),
and this also demonstrates the need to identify the applicable elements
for other SIP submissions. For example, nonattainment SIPs required by
part D likewise have to meet the relevant subsections of section
110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear
that nonattainment SIPs would not need to meet the portion of section
110(a)(2)(C) that pertains to part C, i.e., the PSD requirement
applicable in attainment areas. Nonattainment SIPs required by part D
also would not need to address the requirements of section 110(a)(2)(G)
with respect to emergency episodes, as such requirements would not be
limited to nonattainment areas. As this example illustrates, each type
of SIP submission may implicate some subsections of section 110(a)(2)
and not others.
    Given the potential for ambiguity of the statutory language of
section 110(a)(1) and (2), EPA believes that it is appropriate for EPA
to interpret that language in the context of acting on the
infrastructure SIPs for a given NAAQS. Because of the inherent
ambiguity of the list of requirements in section 110(a)(2), EPA has
adopted an approach in which it reviews infrastructure SIPs against
this list of elements ``as applicable.'' In other words, EPA assumes
that Congress could not have intended that each and every SIP
submission, regardless of the purpose of the submission or the NAAQS in
question, would meet each of the requirements, or meet each of them in
the same way. EPA elected to use guidance to make recommendations for
infrastructure SIPs for these NAAQS.
    On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS
and the 1997 PM2.5 NAAQS. \9\ Within this guidance document,
EPA described the duty of states to make these submissions to meet what
the Agency characterized as the ``infrastructure'' elements for SIPs,
which it further described as the ``basic SIP requirements, including
emissions inventories, monitoring, and modeling to assure attainment
and maintenance of the standards.'' \10\ As further identification of
these basic structural SIP requirements, ``attachment A'' to the
guidance document included a short description of the various elements
of section 110(a)(2) and additional information about the types of
issues that EPA considered germane in the context of such
infrastructure SIPs. EPA emphasized that the description of the basic
requirements listed on attachment A was not intended ``to constitute an
interpretation of'' the requirements, and was merely a ``brief
description of the required elements.'' \11\ EPA also stated its belief
that with one exception, these requirements were ``relatively self
explanatory, and past experience with SIPs for other NAAQS should
enable States to meet these requirements with assistance from EPA
Regions.'' \12\ For the one exception to that general assumption,
however, i.e., how states should proceed with respect to the
requirements of section 110(a)(2)(G) for the 1997 PM2.5
NAAQS, EPA gave much more specific recommendations. But for other
infrastructure SIP submittals, and for certain elements of the
submittals for the 1997 PM2.5 NAAQS, EPA assumed that each
state would work with its corresponding EPA regional office to refine
the scope of a state's submittal based on an assessment of how the
requirements of section 110(a)(2) should reasonably apply to the basic
structure of the state's SIP for the NAAQS in question.
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    \9\ See, ``Guidance on SIP Elements Required Under Section
110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5
National Ambient Air Quality Standards,'' from William T. Harnett,
Director Air Quality Policy Division, to Air Division Directors,
Regions I-X, dated October 2, 2007 (the ``2007 Guidance''). EPA
issued comparable guidance for the 2006 PM2.5 NAAQS
entitled ``Guidance on SIP Elements Required Under Sections
110(a)(1) and (2) for the 2006 24-Hour Fine Particle
(PM2.5) National Ambient Air Quality Standards (NAAQS),''
from William T, Harnett, Director Air Quality Policy Division, to
Regional Air Division Directors, Regions I-X, dated September 25,
2009 (the ``2009 Guidance'').
    \10\ Id., at page 2.
    \11\ Id., at attachment A, page 1.
    \12\ Id., at page 4. In retrospect, the concerns raised by
commenters with respect to EPA's approach to some substantive issues
indicates that the statute is not so ``self explanatory,'' and
indeed is sufficiently ambiguous that EPA needs to interpret it in
order to explain why these substantive issues do not need to be
addressed in the context of infrastructure SIPs and may be addressed
at other times and by other means.
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    Significantly, the 2007 Guidance did not explicitly refer to the
SSM, director's discretion, minor source NSR, or NSR Reform issues as
among specific substantive issues EPA expected states to address in the
context of the infrastructure SIPs, nor did EPA give any more specific
recommendations with respect to how states might address such issues
even if they elected to do so. The SSM and director's discretion issues
implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform
issues implicate section 110(a)(2)(C). In the 2007 Guidance, however,
EPA did not indicate to states that it intended to interpret these
provisions as requiring a substantive submission to address these
specific issues in the context of the infrastructure SIPs for these
NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that
the states should make submissions in which they established that they
have the basic SIP structure necessary to implement, maintain, and
enforce the NAAQS. EPA believes that states can establish that they
have the basic SIP structure, notwithstanding that there may be
potential deficiencies within the existing SIP. Thus, EPA's proposals
mentioned these issues not because the Agency considers them issues
that must be addressed in the context of an infrastructure SIP as
required by section 110(a)(1) and (2), but rather because EPA wanted to
be clear that it considers these potential existing SIP problems as
separate from the pending infrastructure SIP actions.
    EPA believes that this approach to the infrastructure SIP
requirement is reasonable, because it would not be feasible to read
section 110(a)(1) and (2) to require a top to bottom, stem to stern,
review of each and every provision of an existing SIP merely for
purposes of assuring that the state in question has the basic
structural elements for a functioning SIP for a new or revised NAAQS.
Because SIPs have grown by accretion over the decades as statutory and
regulatory requirements under the CAA have evolved, they may include
some outmoded provisions and historical artifacts that, while not fully
up to date, nevertheless may not pose a significant problem for the
purposes of ``implementation, maintenance, and enforcement'' of a new
or revised NAAQS when EPA considers the overall effectiveness of the
SIP. To the contrary, EPA believes that a better approach is for EPA to
determine which specific SIP elements from section 110(a)(2) are
applicable to an infrastructure SIP for a given NAAQS, and to focus
attention on those elements that are most likely to need a specific SIP
revision in light of the new or revised NAAQS. Thus, for example, EPA's
2007 Guidance specifically directed states to focus on the requirements
of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of

the absence of underlying EPA regulations for emergency episodes for
this NAAQS and an anticipated absence of relevant provisions in
existing SIPs.
    Finally, EPA believes that its approach is a reasonable reading of
section 110(a)(1) and (2) because the statute provides other avenues
and mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow the Agency to take appropriate
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or otherwise to comply with the CAA.\13\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\14\ Significantly, EPA's
determination that an action on the infrastructure SIP is not the
appropriate time and place to address all potential existing SIP
problems does not preclude the Agency's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action at a
later time. For example, although it may not be appropriate to require
a state to eliminate all existing inappropriate director's discretion
provisions in the course of acting on the infrastructure SIP, EPA
believes that section 110(a)(2)(A) may be among the statutory bases
that the Agency cites in the course of addressing the issue in a
subsequent action.\15\
---------------------------------------------------------------------------

    \13\ EPA has recently issued a SIP call to rectify a specific
SIP deficiency related to the SSM issue. See, ``Finding of
Substantial Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revision,'' 74 FR 21,639 (April 18, 2011).
    \14\ EPA has recently utilized this authority to correct errors
in past actions on SIP submissions related to PSD programs. See,
``Limitation of Approval of Prevention of Significant Deterioration
Provisions Concerning Greenhouse Gas Emitting-Sources in State
Implementation Plans; Final Rule,'' 75 FR 82,536 (Dec. 30, 2010).
EPA has previously used its authority under CAA 110(k)(6) to remove
numerous other SIP provisions that the Agency determined it had
approved in error. See, e.g., 61 FR 38,664 (July 25, 1996) and 62 FR
34,641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67,062 (November 16,
2004) (corrections to California SIP); and 74 FR 57,051 (November 3,
2009) (corrections to Arizona and Nevada SIPs).
    \15\ EPA has recently disapproved a SIP submission from Colorado
on the grounds that it would have included a director's discretion
provision inconsistent with CAA requirements, including section
110(a)(2)(A). See, e.g., 75 FR 42,342 at 42,344 (July 21, 2010)
(proposed disapproval of director's discretion provisions); 76 FR
4,540 (Jan. 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

III. EPA's Response to Comments

    EPA received one set of comments (from the Law Office of Robert
Ukeiley, hereinafter referred to as ``the Commenter'') on the March 23,
2011, proposed rulemaking to approve revisions to the Connecticut,
Maine, New Hampshire and Rhode Island infrastructure submissions as
meeting the requirements of sections 110(a)(1) and (2) of the CAA for
the 1997 8-hour ozone NAAQS. Generally, the Commenter's concerns relate
to whether EPA's approval of the Connecticut, Maine, New Hampshire and
Rhode Island infrastructure submissions are in compliance with section
110(l) of the CAA, and whether EPA's approval will interfere with the
states' compliance with the CAA's prevention of significant
deterioration (PSD) requirements. In addition, the commenter has
concerns with how the Connecticut SIP addresses the element required by
section 110(a)(2)(D)(ii). The comments are provided in the docket for
today's final action. A summary of the comments and EPA's responses are
provided below.
    Comment 1: Under the header ``No Clean Air Act Section 110(l)
analysis,'' the Commenter states ``Before providing the technical
analysis for why finalizing this proposed rule would be contrary to the
Clean Air Act, I wish to point out that it is 2011 and EPA has yet to
ensure that these areas have plans to meet the 1997 National Ambient
Air Quality Standard (NAAQS) for ozone.'' The Commenter goes on to
state that ``EPA acknowledged that the science indicates that the 1997
NAAQS, which is effectively 85 parts per billion (ppb), does not
protect people's health or welfare when in 2008, EPA set a new ozone
NAAQS at 75 ppb.''
    Response 1: As noted in EPA's proposed rulemaking on the
Connecticut, Maine, New Hampshire and Rhode Island infrastructure
submissions and in today's final rulemaking, the very action that EPA
is undertaking is a determination that Connecticut, Maine, New
Hampshire and Rhode Island have plans to ensure compliance with the
1997 8-hour ozone NAAQS. The level of the 1997 ozone NAAQS is 0.08
parts per million (ppm) on an 8-hour average basis. The Connecticut,
Maine, New Hampshire and Rhode Island submissions predate the release
of the recent revision to the 8-hour ozone NAAQS on March 12, 2008, and
are distinct from any plans that the States of Connecticut, Maine, New
Hampshire and Rhode Island may provide to ensure compliance of the 2008
NAAQS. Our actions today are meant to address the 1997 ozone
infrastructure requirements under Section 110 of the Act. EPA does not
have before us the Section 110 infrastructure requirements for the 2008
ozone NAAQS. Nevertheless, EPA has considered the 2008 8-hour ozone
NAAQS to the extent that section 110(l) applies to this action and will
expound on this consideration in Response 2 below. Further, EPA agrees
that the Agency has made the determination that the 1997 8-hour ozone
NAAQS is not as protective as needed for public health and welfare, and
as the Commenter mentioned, the Agency established a new ozone NAAQS at
a level of 0.075 ppm on an 8-hour average basis. However, EPA notes
that the Agency is currently reconsidering the 2008 8-hour ozone NAAQS,
and has not yet designated areas for any subsequent NAAQS.
    Finally, while it is not clear which areas the Commenter refers to
in stating ``EPA has yet to ensure these areas have plans to meet'' the
1997 ozone NAAQS, the comment may refer to the requirements under
section 172, Part D, Title I of the Act for states with nonattainment
areas for the 1997 ozone NAAQS to submit nonattainment plans. As
discussed in our notice proposing approval of the Connecticut, Maine,
New Hampshire and Rhode Island infrastructure SIP, submissions required
by section 110(a)(2)(I) which pertain to the nonattainment planning
requirements of part D, Title I of the CAA are outside the scope of
this action, as such plans are not due within three years after
promulgation of a new or revised NAAQS, but rather are due at the time
the nonattainment area plan requirements are due pursuant to section
172.
    In addition, all of Rhode Island (see 75 FR 64949, Oct. 21, 2010),
New Hampshire (see 76 FR 14865, March 18, 2011), and Maine (see 71 FR
71489, Dec. 11, 2006) meet the 1997 ozone NAAQS. The Greater
Connecticut 8-hour ozone nonattainment area also meets the 1997 ozone
NAAQS (see 75 FR 53219, August 31, 2011). The remainder of the State of
Connecticut also meets the 1997 ozone NAAQS based on 2007-2009 ozone
data, but EPA has not yet made the formal determination in the Federal
Register. In summary, all four states have ozone air quality that meets
the 1997 ozone NAAQS.
    Comment 2: Also under the header ``No Clean Air Act Section 110(l)
analysis,'' the Commenter cites the section 110(l) CAA requirement, and
states ``Clean Air Act Sec.  110(l) requires `EPA to evaluate whether
the plan as revised will achieve the pollution reductions required
under the Act, and

the absence of exacerbation of the existing situation does not assure
this result.' Hall v. EPA, 273 F.3d 1146, 1152 (9th Cir. 2001).'' The
Commenter goes on to state that ``* * * the Federal Register notices
are devoid of any analysis of how these rule makings will or will not
interfere with attaining, making reasonable further progress on
attaining and maintaining the 75 ppb ozone NAAQS as well as the 1-hour
100 ppb nitrogen oxides NAAQS.''
    Response 2: EPA agrees with the Commenter's assertion that
consideration of section 110(l) of the CAA is necessary for EPA's
action with regard to approving the states' submissions. However, EPA
disagrees with the Commenter's assertion that EPA did not consider
110(l) in terms of the March 23, 2011, proposed action. Further, EPA
disagrees with the Commenter's assertion that EPA's proposed March 23,
2011 action does not comply with the requirements of section 110(l).
Section 110(l) provides in part that: ``[t]he Administrator shall not
approve a revision of a plan if the revision would interfere with any
applicable requirement concerning attainment and reasonable further
progress * * *, or any other applicable requirement of this chapter.''
EPA has consistently interpreted section 110(l) as not requiring a new
attainment demonstration for every SIP submission. EPA has further
concluded that preservation of the status quo air quality during the
time new attainment demonstrations are being prepared will not
interfere with a state meeting its obligations to develop timely
attainment demonstrations. The following actions are examples of where
EPA has addressed 110(l) in previous rulemakings: See 70 FR 53, 57
(January 3, 2005); 70 FR 17029, 17033 (April 4, 2005); 70 FR 28429,
28431 (May 18, 2005); and 70 FR 58119, 58134 (October 5, 2005). The
Connecticut, Maine, New Hampshire and Rhode Island infrastructure
submissions do not revise or remove any existing emissions limit for
any NAAQS or any other existing substantive SIP provisions relevant to
the 1997 8-hour ozone NAAQS or the 2010 nitrogen dioxide
(NO2) NAAQS. Simply put, the submissions do not make any
substantive revision that could result in any change in emissions. As a
result, the submissions do not relax any existing requirements or alter
the status quo air quality. Therefore, approval of the Connecticut,
Maine, New Hampshire and Rhode Island infrastructure submissions will
not interfere with attainment or maintenance of any NAAQS.
    Comment 3: Under the header ``No Clean Air Act Section 110(l)
analysis,'' the Commenter states that ``We are not required to guess
what EPA's Clean Air Act 110(l) analysis would be. Rather, EPA must
approve in part and disapprove in part these action and re-propose to
approve the disapproved part with a Clean Air Act Sec.  110(l)
analysis.'' Further, the Commenter states that ``EPA cannot include its
analysis in its response to comments and approve the actions without
providing the public with an opportunity to comment on EPA's Clean Air
Act Sec.  110(l) analysis.''
    Response 3: Please see Response 2 for a fuller explanation
regarding EPA's response to the Commenter's assertion that EPA's action
is not in compliance with section 110(l) of the CAA. EPA does not agree
with the Commenter's assertion that EPA's analysis did not somehow
consider section 110(l) and so, therefore, ``EPA must approve in part
and disapprove in part these action [sic] and re-propose to approve the
disapproved part with a Clean Air Act Sec.  110(l) analysis.'' Every
action that EPA takes to approve a SIP revision is subject to 110(l)
and thus EPA's consideration of whether a state's submission ``* * *
would interfere with any applicable requirement concerning attainment
and reasonable further progress * * *, or any other applicable
requirement of this chapter'' is inherent in EPA's action to approve or
disapprove a submission from a state. In the ``Proposed Action''
section of the March 23, 2010, rulemaking, EPA notes that EPA is
proposing to approve the Connecticut, Maine, New Hampshire and Rhode
Island infrastructure submissions for the 1997 8-hour ozone NAAQS
because these submissions are consistent with section 110 of the CAA.
Section 110(l) is a component of section 110, so EPA believes that this
provides sufficient notice that EPA considered section 110(l) for the
proposed action and concluded that section 110(l) was not violated.
Further, EPA does not agree with the Commenter's assertion that the
Agency cannot provide additional clarification in response to a comment
and take a final approval action without ``* * * providing the public
with an opportunity to comment on EPA's Clean Air Act Sec.  110(l)
analysis.'' The Commenter does not cite any provision of the Act or
other authority for the Commenter's assertion. In fact, the proposition
that providing an analysis for the first time in response to a comment
on a rulemaking somehow violates the public's opportunity to comment
has been rejected by the DC Circuit Court of Appeals. See Int'l
Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 n.51 (D.C. Cir. 1973).
Furthermore, as mentioned above, EPA's approval of the Connecticut,
Maine, New Hampshire and Rhode Island infrastructure submissions does
not make any substantive revision that could result in any change in
emissions, so there is no further ``analysis'' beyond whether the state
has adequate provisions in their SIPs to address the infrastructure
requirements for the 1997 8-hour ozone NAAQS. EPA's March 23, 2011,
proposed rulemaking goes through each of the relevant infrastructure
requirements and provides detailed information on how the Connecticut,
Maine, New Hampshire and Rhode Island SIPs address the relevant
infrastructure requirements. Beyond making a general statement
indicating that the Connecticut, Maine, New Hampshire and Rhode Island
submissions are somehow not in compliance with section 110(l) of the
CAA, the Commenter does not provide comments on EPA's detailed analysis
of each infrastructure requirement to indicate that the Connecticut,
Maine, New Hampshire and Rhode Island infrastructure submissions for
the 1997 8-hour ozone NAAQS are deficient in meeting these individual
requirements. Therefore, EPA has no basis to question the Agency's
determination that the Connecticut, Maine, New Hampshire and Rhode
Island infrastructure submissions meet the requirements for the
infrastructure submission for the 1997 8-hour ozone NAAQS, including
section 110(l) of the CAA.
    Comment 4: Under the header ``No Clean Air Act Section 110(l)
analysis,'' the Commenter further asserts that ``EPA's analysis must
conclude that this proposed action would violation [sic] Sec.  110(l)
if finalized.'' An example given by the Commenter is as follows; ``For
example, a 42 U.S.C. Sec.  7502(a)(2)(J) public notification program
based on a 85 [parts per billion (ppb)] ozone level interferes with a
public notification program that should exist for a 75 ppb ozone level.
At its worst, the public notification system would be notifying people
that the air is safe when in reality, based on the latest science, the
air is not safe. Thus, EPA would be condoning the states providing
information that can physical[ly] hurt people.''
    Response 4: EPA disagrees with the Commenter's statement that
``EPA's analysis must conclude that this proposed action would
violation [sic] Sec.  110(l) if finalized.'' As mentioned above, the
Connecticut, Maine, New Hampshire and Rhode Island

infrastructure submissions do not revise or remove any existing
emissions limit for any NAAQS, nor do they make any substantive
revision that could result in any change in emissions. EPA has
concluded that the Connecticut, Maine, New Hampshire and Rhode Island
infrastructure submissions do not relax any existing requirements or
alter the status quo air quality. Therefore, approval of the
Connecticut, Maine, New Hampshire and Rhode Island infrastructure
submissions will not interfere with attainment or maintenance of any
NAAQS. See Response 2 and Response 3 above for a fuller discussion.
Further, EPA disagrees with the Commenter's assertion that the section
110(a)(2)(J) requirement for public notification for the 1997 8-hour
ozone NAAQS based on 85 ppb interferes with a public notification
program that should exist for a 75 ppb ozone level, and * * * ``EPA
would be condoning the states providing information that can
physical[ly] hurt people.'' First, the 1997 8-hour ozone NAAQS is 0.08
ppm, which is effectively 0.084 ppm or 84 ppb due to the rounding
convention, and not ``85 ppb'' as the Commenter mentioned. Second, EPA
establishes the health-based NAAQS and provides extensive resources,
technical analyses and support to the states to ensure compliance with
the NAAQS to protect human health and the environment. As noted in
Response 1, the Connecticut, Maine, New Hampshire and Rhode Island
infrastructure submissions were provided to address the 1997 8-hour
ozone NAAQS and were submitted prior to EPA's promulgation of the 2008
8-hour ozone in March 2008. Thus, the States of Connecticut, Maine, New
Hampshire and Rhode Island provided sufficient information at that time
to meet the requirement for the 1997 8-hour ozone NAAQS which is the
subject of this action.
    As mentioned, in 2008, EPA issued revised 8-hour ozone NAAQS, which
are currently under reconsideration. Infrastructure requirements for
the 2008 (or a subsequent) NAAQS are distinct from these requirements
for the 1997 8-hour ozone NAAQS. EPA continues to implement the 2008
ozone NAAQS for the purposes of health based air quality notification.
When EPA promulgated the 2008 NAAQS (73 FR 16436, March 27, 2008), we
revised the Air Quality Index (AQI) for ozone to show that at the level
of the 2008 ozone NAAQS (0.075 ppm) the AQI is set to 100, which
indicates ozone levels that are unhealthful for sensitive groups. It is
this revised AQI that EPA uses to both forecast ozone levels and to
provide notice to the public of current air quality. The EPA AIRNOW
system uses the revised AQI as its basis for ozone. (See http://www.airnow.gov.) In addition when the States of Connecticut, Maine, New
Hampshire and Rhode Island forecast ozone air quality and provide real-
time ozone air quality information to the public, either through the
AIRNOW system, or through their own (state-based) Internet system, the
four states use the revised ozone AQI keyed to the 2008 revised ozone
NAAQS.
    Comment 5: Lastly, under the header ``No Clean Air Act Section
110(l) analysis,'' the Commenter asserts that ``if a SIP provides an
ozone NAAQS of 85 ppb for PSD purposes, this interferes with the
requirement that PSD programs require sources to demonstrate that they
will not cause or contribute to a violation of a NAAQS because this
requirement includes the current 75 ppb ozone NAAQS.''
    Response 5: EPA believes that this comment gives no basis for
concluding that EPA approval of the Connecticut, Maine, New Hampshire
and Rhode Island infrastructure SIPs violate the requirements of
section 110(l). EPA assumes that the comment refers to the requirement
that owners and operators of sources subject to PSD demonstrate that
the allowable emissions increases from the proposed source or
modification, in conjunction with all other applicable emissions
increases or reductions (including secondary emissions), will not cause
or contribute to a violation of the NAAQS. 40 CFR 51.166(k)(1).
    EPA further assumes that the Commenter's language ``if a SIP
provides an ozone NAAQS of 85 ppb for PSD purposes'' refers to a
hypothetical SIP-approved PSD program that only requires owners and
operators of sources subject to PSD to make the demonstration discussed
above for the 1997 ozone NAAQS, and not for the 2008 ozone NAAQS.
However, the Commenter gives no indication that Connecticut, Maine, New
Hampshire and Rhode Island's SIP-approved PSD program suffers from this
alleged defect.
    Furthermore, as discussed in detail above, the infrastructure SIP
makes no substantive change to any provision of the Connecticut, Maine,
New Hampshire and Rhode Island SIP-approved PSD programs, and therefore
does not violate the requirements of section 110(l). Had these states
submitted SIP revisions that substantively modified their PSD program
to limit the required demonstration to just the 1997 ozone NAAQS, then
the comment might have been relevant to a 110(l) analysis of that
hypothetical SIP revision. However, in this case, the comment gives no
basis for EPA to conclude that the four states' infrastructure SIPs
would interfere with any applicable requirement of the Act.
    In addition, all of Connecticut, Rhode Island, New Hampshire and
Maine are in the Ozone Transport Region (OTR) (see CAA Section 184).
For ozone and ozone precursors, all new or modified major sources in
the OTR are covered by nonattainment new source review (NSR)
regulations and must obtain offsets (at a greater than 1 to 1 ratio)
for ozone precursors.\16\ In summary, for OTR states, the PSD
regulations for ozone do not apply and nonattainment NSR regulations
require offsets consistent with the CAA's requirements to address the
ambient impact of new source construction in these areas.
---------------------------------------------------------------------------

    \16\ For portions of northern and downeast Maine EPA has granted
a waiver for the ozone precursor oxides of nitrogen. (see 71 FR
5791, 2/3/06). This waiver was based on a finding that additional
reductions in oxides of nitrogen in these areas would not produce
net ozone air quality benefits in the ozone transport region. See 42
U.S.C. 7511a(f)(1)(B).
---------------------------------------------------------------------------

    EPA concludes that approval of the Connecticut, Maine, New
Hampshire and Rhode Island infrastructure submissions will not make the
status quo air quality worse and is in fact consistent with the
development of an overall plan capable of meeting the Act's
requirements. Accordingly, when applying section 110(l) to this
submission, EPA finds that approval of Connecticut, Maine, New
Hampshire and Rhode Island's infrastructure submissions is consistent
with section 110 (including section 110(l)) of the CAA.
    Comment 6: The Commenter provided comments on the lack of a
designated air quality model to demonstrate that a PSD source will not
cause or contribute to a violation of the ozone NAAQS. Specifically,
the commenter stated:

    The SIP submittals do not comply with Clean Air Act
110(a)(2)(J), (K), and (D)(i)(II) because the SIP submittals do not
identify a specific model to use in PSD permitting to demonstrate
that a proposed source [or] modification will not cause or
contribute to a violation of the ozone NAAQS. Many states abuse this
lack of an explicitly named model by claiming that because no model
is explicitly named, no modeling is required or use of completely
irrelevant modeling (e.g. Kentucky using modeling from Georgia for
the J.K. Smith proposed facility) is allowed.

    To support the position as to the necessity of ``[w]hy and which
model should be designated,'' the Commenter

attached a petition \17\ and incorporated this petition, and the
exhibits to this petition, by reference in the submitted comments.
---------------------------------------------------------------------------

    \17\ The Commenter attached the July 28, 2010, ``Petition for
Rulemaking to Designate Air Quality Models to use for PSD Permit
Applications with Regard to Ozone and PM2.5,'' from
Robert Ukeiley on behalf of the Sierra Club. That petition and the
attached exhibits are available in the docket supporting this
action.
---------------------------------------------------------------------------

    Response 6: The Commenter referred to the petition for rulemaking
from Robert Ukeiley on behalf of the Sierra Club to designate air
quality models to use for PSD permit applications with regard to ozone
and PM2.5. EPA is separately reviewing the July 28, 2010,
``Petition for Rulemaking to Designate Air Quality Models to Use for
PSD Permit Applications with Regard to Ozone and PM2.5,''
which requests that the EPA Administrator designate computer models to
determine whether major sources of air pollution cause or contribute to
violations of the ozone NAAQS and the PM2.5 NAAQS and
increments. Although the Commenter purports to incorporate the July 28,
2010 petition by reference, that petition arises in a different
context, requests different relief, and raises distinct issues from
those raised by the comment. EPA believes that the appropriate place to
respond to the issues raised in the petition is in a direct response to
the petition. Accordingly, this Response to the Comment is not a
response to the July 28, 2010 petition, and the issues raised in that
petition are being addressed under separate consideration.
    Furthermore, the states included in this action are Connecticut,
Maine, New Hampshire and Rhode Island. Since these states are in the
Ozone Transport Region (OTR), they are required to, under Sections
182(f)(1) and 184(b) of the Clean Air Act, and in fact do, conduct
nonattainment NSR for new major and modified major sources of ozone
precursors.\18\ Section 184(b)(2) requires major stationary sources of
volatile organic compounds at the 50 ton per year level in the OTR to
meet all ``the requirements which would be applicable to major
stationary sources if the area were classified as a Moderate
nonattainment area.'' Section 182(f)(1) has the effect of extending
that requirement to major sources of nitrogen oxides at the 100 ton per
year level in the OTR. Under the nonattainment NSR program, sources are
not required to predict their ambient impacts using modeling. Rather,
the program assumes the new or modified sources will contribute to
nonattainment in the area. Accordingly, the program requires that these
sources secure offsets for their new emissions at a ratio of at least
1.15 to 1 in the OTR. Thus, the offset requirement addresses the
ambient impact element of NSR in these states for ozone precursors
without reliance on any predictive modeling. Therefore, this comment
regarding which model to use in the PSD modeling of single source's
ozone precursors is not relevant to this action.
---------------------------------------------------------------------------

    \18\ Note that EPA has granted a waiver from the requirements of
182(f) for the northern-most counties in Maine. EPA granted this
waiver based on the finding required under 182(f)(1)(B) that
``additional reductions of oxides of nitrogen would not produce net
ozone air quality benefits in [the OTR].'' EPA has determined for
northern Maine that NOx emissions reductions are not necessary to
attain or maintain the ozone NAAQS in the OTR. Therefore, EPA does
not believe that the absence of a specified model in the PSD program
for predicting ozone impacts from a NOx source in this particular
area of the OTR is problematic.
---------------------------------------------------------------------------

    Comment 7: Under the heading ``CT's SIP must require notice to
affected states,'' the Commenter states, ``CT's SIP is defective
because its PSD regulations fail to require CT to give notice of PSD
sources to affected states. 76 FR 16358, 16362 (Mar. 23, 2011). EPA
must disapprove this defective provision. The fact that neighboring
states have consistently obtained draft permits in the past does not
justify approving an illegal SIP. It does not even make sense. To begin
with, it is unlikely that EPA actually reviewed all PSD permits issued
in the past to actually determine that proper notice was actually given
by CT. In any event, CT could change its informal policy in the future,
especially if there is a change in management in the agency or state.''
    Response 7: Section 110(a)(2)(D)(ii) of the CAA requires SIPs to
include provisions insuring compliance with the applicable requirements
of sections 126 and 115 (relating to interstate and international
pollution abatement). Specifically, section 126(a) requires new or
modified major sources to notify neighboring states of potential
impacts from the source. As noted in EPA's proposed approval (see 76 FR
16362), Connecticut's PSD regulations provide for notice to most of the
parties consistent with the requirements in the EPA PSD program,
although there is no specific mandate that affected states receive
notice. As also noted in the proposed approval, Connecticut in fact
issues extensive notice of its draft permits, and neighboring states
consistently get copies on those drafts. However, EPA agrees with the
commenter that the current Connecticut SIP does not explicitly require
notice to affected states for some sources of air pollution. Subsequent
to EPA's proposal, on May 2, 2011, EPA received a written commitment
from the State of Connecticut to pursue regulatory revisions to
Connecticut's PSD program to adopt a formal requirement to notify
nearby states. Connecticut's letter also committed to continue to
provide notice to nearby states while shepherding these regulatory
revisions through the state process. Therefore, taking all of this
information into consideration, EPA has decided to take direct final
action to conditionally approve this element of the Connecticut SIP.
Conditional approval is appropriate in this circumstance because the
State has explicitly committed to continuing its practice of notifying
affected states while it conforms its regulations to mandate that
practice.

IV. Final Action

    As described above, the Connecticut, Maine, New Hampshire and Rhode
Island ozone infrastructure SIP submissions have addressed the elements
of the CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October
2, 2007 guidance to ensure that the 1997 8-hour ozone NAAQS are
implemented, enforced, and maintained in the respective state, except
for one element in Connecticut. EPA is taking final action to approve
the Connecticut, Maine, New Hampshire and Rhode Island infrastructure
submissions for the 1997 8-hour ozone NAAQS because these submissions
are consistent with section 110 of the CAA, except for the element
required by section 110(a)(2)(D)(ii) in Connecticut.
    EPA is conditionally approving the Connecticut submittal with
respect to the requirement of CAA section 110(a)(2)(D)(ii). The State
must submit to EPA by July 9, 2012 the revised PSD regulations
requiring notification of nearby states. If the State fails to do so,
this approval will become a disapproval on that date. EPA will notify
the State by letter that this action has occurred. At that time, this
commitment will no longer be a part of the approved Connecticut SIP.
EPA subsequently will publish a notice in the notice section of the
Federal Register notifying the public that the conditional approval
automatically converted to a disapproval. If the State meets its
commitment, within the applicable time frame, the conditionally
approved submission will remain a part of the SIP until EPA takes final
action approving or disapproving the new submittal. If EPA disapproves
the new submittal, the conditionally approved submittal will also be
disapproved at that time. If EPA approves the new submittal,
Connecticut's infrastructure SIP will be fully approved in its entirety
and

replace the conditionally approved element in the SIP.
    If the conditional approval is converted to a disapproval, the
final disapproval triggers the Federal Implementation Plan (FIP)
requirement under section 110(c).
    The EPA is publishing this conditional approval without prior
proposal because the Agency views this as a noncontroversial amendment
and anticipates no adverse comments. However, in the proposed rules
section of this Federal Register publication, EPA is publishing a
separate document that will serve as the proposal to conditionally
approve the Connecticut submittal with respect to CAA section
110(a)(2)(D)(ii) should relevant adverse comments be filed. This rule
will be effective September 6, 2011 without further notice unless the
Agency receives relevant adverse comments by August 8, 2011.
    If the EPA receives such comments, then EPA will publish a notice
withdrawing the final conditional approval and informing the public
that the conditional approval will not take effect. All public comments
received will then be addressed in a subsequent final rule based on the
proposed rule. The EPA will not institute a second comment period on
the proposed rule. All parties interested in commenting on the proposed
rule should do so at this time. If no such comments are received, the
public is advised that the conditional approval will be effective on
September 6, 2011 and no further action will be taken on the proposed
rule. Please note that if EPA receives adverse comment on an amendment,
paragraph, or section of this rule and if that provision may be severed
from the remainder of the rule, EPA may adopt as final those provisions
of the rule that are not the subject of an adverse comment.

V. 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, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this 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);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP either is not approved to apply in Indian country
located in the state or does not alter the requirements of any state
law that may already apply in Indian country. EPA notes that this
approval will not impose substantial direct costs on Tribal governments
or preempt Tribal law.
    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. 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 CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 6, 2011. 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, Carbon monoxide,
Incorporation by reference, Intergovernmental relations, Lead, Nitrogen
dioxide, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile organic compounds.

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

    Dated: June 28, 2011.
Ira W. Leighton,
Acting, Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations,
is amended as follows:

PART 52--[AMENDED]

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

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

Subpart H--Connecticut

0
2. Section 52.377 is amended by adding paragraphs (g) and (h) to read
as follows:

Sec.  52.377  Control strategy: Ozone.

* * * * *
    (g) Approval--Submittal from the Connecticut Department of
Environmental Protection, dated December 28, 2007, to address the Clean
Air Act (CAA) infrastructure requirements for the 1997 ozone National
Ambient Air Quality Standard (NAAQS). This submittal satisfies the
requirements of CAA sections 110(a)(2)(A), (B), (C), (E), (F), (G),
(H), (J), (K), (L), and (M).
    (h) Conditional Approval--Submittal from the Connecticut Department
of Environmental Protection, dated December 28, 2007, to address the
Clean Air Act (CAA) infrastructure

requirements for the 1997 ozone National Ambient Air Quality Standard
(NAAQS). On May 2, 2011, the State of Connecticut supplemented this
submittal with a commitment to address the requirements of section
110(a)(2)(D)(ii) of the CAA that requires notification of affected
states for Prevention of Significant Deterioration purposes. EPA is
conditionally approving Connecticut's submittal with respect to CAA
section 110(a)(2)(D)(ii).

Subpart U--Maine

0
3. In Sec.  52.1020, Table (e) is amended by adding a new entry at the
end of the table to read as follows:

Sec.  52.1020  Identification of plan.

* * * * *
    (e) * * *

                                                                  Maine Non Regulatory
--------------------------------------------------------------------------------------------------------------------------------------------------------
     Name of non regulatory SIP           Applicable geographic or        State submittal date/effective
             provision                       nonattainment area                        date                 EPA approved date \3\       Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
Submittal to meet Clean Air Act      State of Maine...................  January 3, 2008..................  July 8, 2011..........  This action addresses
 Section 110(a)(2) Infrastructure                                                                          [Insert Federal          the following Clean
 Requirements for the 1997 8-Hour                                                                           Register page number    Air Act
 Ozone National Ambient Air Quality                                                                         where the document      requirements:
 Standard.                                                                                begins].                110(a)(2)(A), (B),
                                                                                (C), (D)(ii), (E),
                                                                                (F), (G), (H), (J),
                                                                                (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column
  for the particular provision.

Subpart EE--New Hampshire

0
4. In Sec.  52.1520, Table (e) is amended by adding a new entry at the
end of the table to read as follows:

Sec.  52.1520  Identification of plan.

* * * * *
    (e) * * *

                                                              New Hampshire Non Regulatory
--------------------------------------------------------------------------------------------------------------------------------------------------------
     Name of non regulatory SIP           Applicable geographic or        State submittal date/effective
             provision                       nonattainment area                        date                 EPA approved date \3\       Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
Submittal to meet Clean Air Act      State of New Hampshire...........  December 14, 2007................  July 8, 2011..........  This action addresses
 Section 110(a)(2) Infrastructure                                                                          [Insert Federal          the following Clean
 Requirements for the 1997 8-Hour                                                                           Register page number    Air Act
 Ozone National Ambient Air Quality                                                                         where the document      requirements:
 Standard.                                                                                begins].                110(a)(2)(A), (B),
                                                                                (C), (D)(ii), (E),
                                                                                (F), (G), (H), (J),
                                                                                (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column
  for the particular provision.

Subpart OO--Rhode Island

0
5. In Sec.  52.2070, Table (e) is amended by adding a new entry at the
end of the table to read as follows:

Sec.  52.2070  Identification of plan.

* * * * *
    (e) * * *

                                                               Rhode Island Non Regulatory
--------------------------------------------------------------------------------------------------------------------------------------------------------
     Name of non regulatory SIP           Applicable geographic or        State submittal date/effective
             provision                       nonattainment area                        date                   EPA approved date         Explanations
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
Submittal to meet Clean Air Act      State of Rhode Island............  December 14, 2007................  July 8, 2011..........  This action addresses
 Section 110(a)(2) Infrastructure                                                                          [Insert Federal          the following Clean
 Requirements for the 1997 8-Hour                                                                           Register page number    Air Act
 Ozone National Ambient Air Quality                                                                         where the document      requirements:
 Standard.                                                                                begins].                110(a)(2)(A), (B),
                                                                                (C), (D)(ii), (E),
                                                                                (F), (G), (H), (J),
                                                                                (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-17021 Filed 7-7-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 19 (Friday, January 28, 2022)]
[Notices]
[Pages 4582-4583]
[FR Doc No: 2022-01683]

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

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2188-263]

Northwestern Corporation; Notice of Application Accepted for
Filing and Soliciting Comments, Motions To Intervene, and Protests

    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Application Type: Temporary Variance of Article 420.
    b. Project No: 2188-263.
    c. Date Filed: January 7, 2022.
    d. Applicant: Northwestern Corporation (licensee).
    e. Name of Project: Missouri-Madison Hydroelectric Project.
    f. Location: The project consists of nine hydroelectric
developments located on the Madison and Missouri Rivers in Gallatin,
Madison, Lewis and Clark, and Cascade counties, Montana.
    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.
    h. Applicant Contact: Mary Gail Sullivan, Director, Environmental
and Lands; Northwestern Corporation; 11 East Park Street; Butte,
Montana 59701;<PHONE_NUMBER>; [email protected].
    i. FERC Contact: Joy Kurtz,<PHONE_NUMBER>, [email protected].
    j. Deadline for filing comments, motions to intervene, and
protests: February 10, 2022.
    The Commission strongly encourages electronic filing. Please file
comments, motions to intervene, and protests using the Commission's
eFiling system at http://www.ferc.gov/docs-filing/efiling.asp.
Commenters can submit brief comments up to 6,000 characters, without
prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact
information at the end of your comments. For assistance, please contact
FERC Online Support at [email protected],<PHONE_NUMBER> (toll
free), or<PHONE_NUMBER> (TTY). In lieu of electronic filing, you may
submit a paper copy. Submissions sent via the U.S. Postal Service must
be addressed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory
Commission, 888 First Street NE, Room 1A, Washington, DC 20426.
Submissions sent via any other carrier must be addressed to: Kimberly
D. Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins
Avenue, Rockville, Maryland 20852. The first page of any filing should
include the docket number P-2188-263. Comments emailed to Commission
staff are not considered part of the Commission record.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person whose name appears on the official service
list for the project. Further, if an intervenor files comments or
documents with the Commission relating to the merits of an issue that
may affect the responsibilities of a particular resource agency, they
must also serve a copy of the document on that resource agency.
    k. Description of Request: The licensee requests a temporary
variance from the its River Flow Restoration Plan (Plan), required by
Article 420 of the project license and approved by the Commission on
February 7, 2014. The proposed variance would occur from March 1, 2022
to November 30, 2022 in support of the initial phase of a spill gate
replacement project at Morony Dam. The replacement project in its
entirety entails replacing the dam's nine radial spill gates with
vertical slide gates over a three-year period. During the proposed
variance period, the licensee would replace spill gates 4-7, and would
therefore be unable to use them to restore flows during full plant
trips, as required by the Plan. The licensee proposes to use a
combination of spill gates 1-3 for flow restoration during any full
plant trips while spill gates 4-7 are out of service. Consistent with
the Plan, during the variance period, the licensee will provide a 7-
minute long warning siren to alert the public that the spill gates are
opening

and to allow the public time to relocate to a safe location.
    l. Locations of the Application: This filing may be viewed on the
Commission's website at http://www.ferc.gov using the ``eLibrary''
link. Enter the docket number excluding the last three digits in the
docket number field to access the document. You may also register
online at http://www.ferc.gov/docs-filing/esubscription.asp to be
notified via email of new filings and issuances related to this or
other pending projects. At this time, the Commission has suspended
access to the Commission's Public Reference Room, due to the
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19), issued by the President on March 13,
2020. For assistance, call 1-866-208-3676 or email
[email protected], for TTY, call<PHONE_NUMBER>. Agencies may
obtain copies of the application directly from the applicant.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214, respectively. In determining the appropriate action to take, the
Commission will consider all protests or other comments filed, but only
those who file a motion to intervene in accordance with the
Commission's Rules may become a party to the proceeding. Any comments,
protests, or motions to intervene must be received on or before the
specified comment date for the particular application.
    o. Filing and Service of Documents: Any filing must (1) bear in all
capital letters the title ``COMMENTS'', ``PROTEST'', or ``MOTION TO
INTERVENE'' as applicable; (2) set forth in the heading the name of the
applicant and the project number of the application to which the filing
responds; (3) furnish the name, address, and telephone number of the
person commenting, protesting or intervening; and (4) otherwise comply
with the requirements of 18 CFR 385.2001 through 385.2005. All
comments, motions to intervene, or protests must set forth their
evidentiary basis. Any filing made by an intervenor must be accompanied
by proof of service on all persons listed in the service list prepared
by the Commission in this proceeding, in accordance with 18 CFR
385.2010.

    Dated: January 21, 2022.
Kimberly D. Bose,
Secretary.
[FR Doc. 2022-01683 Filed 1-27-22; 8:45 am]
BILLING CODE 6717-01-P