Approval and Promulgation of Air Quality Implementation Plans; New Hampshire; Regional Haze State Implementation Plan for the Second Implementation Period

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Table of Contents

I. Background and Purpose

II. Response to Comments

III. Final Action

IV. Incorporation by Reference

V. Statutory and Executive Order Reviews

I. Background and Purpose

On May 5, 2022, supplemented on September 21, 2023, the New Hampshire Department of Environmental Services (NHDES) submitted a revision to its SIP to address regional haze for the second implementation period. NHDES made this SIP submission to satisfy the requirements of the CAA's regional haze program pursuant to CAA sections 169A and 169B and 40 CFR 51.308. This submission included an updated version of Env-A 2300, Mitigation of Regional Haze.

On November 20, 2023, EPA published a Notice of Proposed Rulemaking (NPRM) in which EPA proposed to approve New Hampshire's May 5, 2022, SIP submission (supplemented on September 21, 2023) as satisfying the regional haze requirements for the second implementation period contained in the CAA and 40 CFR 51.308. EPA is now determining that the New Hampshire regional haze SIP submission for the second implementation period meets the applicable statutory and regulatory requirements and is thus approving New Hampshire's submission into its SIP.

Other specific requirements of the New Hampshire submittal and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here.

II. Response to Comments

In response to the NPRM, EPA received four sets of comments, including a comment letter signed by the National Parks Conservation Association, the Sierra Club, the Appalachian Mountain Club, and the Coalition to Protect America's National Parks (collectively, the “Conservation Groups” or the “Groups”), an anonymous comment, a comment letter from the Mid-Atlantic/Northeast Visibility Union (MANEVU), and a comment letter from the North Carolina Department of Environmental Quality's Division of Air Quality. Below, EPA summarizes significant comments and provides responses. The verbatim comments may be viewed under Docket ID Number EPA-R01-OAR-2023-0187 on the https://www.regulations.gov website.

Comment 1: The Conservation Groups comment that EPA improperly relied on the fact that the Class I areas impacted by New Hampshire sources are below their respective Uniform Rate of Progress (URP) glidepaths to allow New Hampshire to avoid a “rigorous analysis,” and that EPA allows New Hampshire to use being below the URP as a “safe harbor” to avoid Regional Haze and Clean Air Act requirements.

Response 1: The comment appears to conflate two issues regarding rule requirements related to the URP glidepath. EPA has said that a Class I area's position below the URP glidepath is not a safe harbor—that is, being below the glidepath cannot be a basis for justifying a particular set of controls or decision not to require any controls. EPA did not “rely on the fact that the Class I areas impacted by New Hampshire sources are below their respective URP glidepaths” or consider the URP glidepaths in the context of New Hampshire's source selection or control measure determinations. Rather, on the only page of the NPRM the comment cites for support, EPA noted that the fact that the RPGs for the Class I areas are below their respective URP glidepaths means that the demonstrations that would otherwise be required under 51.308(f)(3)(ii)(A) and (B) are not triggered. These regulatory sections are, by their very terms, only applicable where a state establishes RPGs above the URP glidepath(s) for its Class I area(s). Thus, considering whether a particular Class I area is below the glidepath is entirely appropriate and, in fact, required in this context.

Comment 2: The Conservation Groups contend that the MANEVU visibility modeling and source selection threshold “used a 2% contribution threshold (or 3.0 Mm⁻¹ visibility impact threshold) to target the largest sources of visibility impairment in the state.” Based on this threshold, New Hampshire identified only one unit at one source in the state for a four-factor analysis, and the Groups argue that EPA cannot rely on this source review to conduct a rigorous and meaningful source selection process. The Groups further comment that “EPA states multiple times in its proposed approval of New Hampshire's SIP Revision that it does not agree with the State's reliance on MANE-VU's source selection threshold . . . [y]et . . . attempts to excuse New Hampshire's flawed source selection process and approve the State's SIP Revision anyway by claiming that New Hampshire analyzed additional sources of visibility pollution in its SIP.”

Response 2: This comment also appears to conflate two issues—namely, the 2% contribution threshold MANEVU used to determine whether a state is reasonably anticipated to impact visibility at a Class I area and the 3.0 inverse megameters (Mm⁻¹) threshold used in Ask 2 to target the largest individual sources across a multi-state region. To be clear, MANEVU considered a 2% threshold for use in determining whether emissions from a state as a whole contribute to visibility impairment in a Class I area. Here, New Hampshire concedes that emissions from the State exceed that threshold and therefore, by the State's admission, contribute to visibility impairment in Class I areas in New Hampshire, Maine, and New Brunswick (Canada). Thus, the 2% contribution threshold was of little import to New Hampshire's source selection process, as the State was above the threshold and did select numerous sources for review through the MANEVU Asks and federal land managers (FLMs) consultation process. As for the 3.0 Mm⁻¹ threshold, the MANEVU states used it in one of the six Asks as just one means of selecting sources in a state for four-factor analysis. Other MANEVU Asks examined sources with impacts lower than 3.0 Mm⁻¹ and, in several cases, resulted in New Hampshire considering the four factors for those sources.

As explained in the NPRM, EPA does not necessarily agree that the 3.0 Mm⁻¹ visibility impact is a reasonable threshold for source selection. The RHR recognizes that, due to the nature of regional haze visibility impairment, numerous and sometimes relatively small sources may need to be selected and evaluated for implementation of control measures to make reasonable progress. See 2021 Clarifications Memo at 4. As explained in the 2021 Clarifications Memo, while states have discretion to choose any source selection threshold that is reasonable, “[a] state that relies on a visibility (or proxy for visibility impact) threshold to select sources for four-factor analysis should set the threshold at a level that captures a meaningful portion of the state's total contribution to visibility impairment to Class I areas.”

That said, New Hampshire did not rely on the 3.0 Mm⁻¹ threshold as its sole means of selecting sources for review. As the comment itself concedes, New Hampshire reviewed additional sources under Asks 1, 4, and 5. Moreover, the additional sources reviewed under these Asks had estimated impacts below the 3.0 Mm⁻¹ threshold. And, while the comment generally criticizes these Asks as being “highly limited” in scope and asserts that New Hampshire “fail[ed] to conduct a rigorous and meaningful source selection process,” the comment does not specify any additional sources that New Hampshire should have selected for further analysis. The comment overlooks that the sources New Hampshire examined under Asks 1 and 4 employ an array of NO_X controls and, in the case of SO₂ emissions, generally have SO₂ controls in place or burn low-sulfur fuels. See, e.g., New Hampshire Regional Haze SIP Submittal at 54-55, Table 4-10. Furthermore, the comment does not mention New Hampshire's consideration of the four factors in Ask 5 as well as in Ask 3, which addressed low-sulfur fuel requirements and reduces SO₂ emissions from a host of sources across the state. EPA maintains that New Hampshire examined a reasonable set of sources with the greatest modeled impacts on visibility, including sources captured by the other MANEVU Asks and sources flagged by the FLMs, provided four-factor analyses, and reasonably concluded that additional four-factor analyses for other sources were not necessary because the outcome would be that no further emission reductions would be reasonably achieved.

Comment 3: The Conservation Groups state that EPA “wrongfully endorses New Hampshire's decision not to analyze sources that are `Effectively Controlled' under other Clean Air Act programs.” The comment states “Nowhere in its SIP Revision did New Hampshire conduct any kind of source-specific analysis for the five facilities noted above [Burgess BioPower, Essential Power Newington, Granite Ridge Energy, and Wheelabrator Concord, and GSP Newington] demonstrating that further analysis of these facilities would be futile.” Further, “none of the Title V permit emission limits for these facilities are proposed to be included in New Hampshire's SIP Revision. While the emission limits may be `federally enforceable' for other purposes under the Clean Air Act ( i.e., construction or operating permits), the state-issued permits where those emission limits are found can expire, and so do not meet the SIP requirement for permanence.”

Response 3: EPA's approval of New Hampshire's regional haze SIP is based on its satisfaction of the applicable regulatory requirements for the second planning period in 40 CFR 51.308(f), (g), and (i). Those requirements include that states must evaluate and determine the emission reduction measures that are necessary to make reasonable progress by considering the four statutory factors, and that the measures that are necessary for reasonable progress must be in the SIP. EPA's NPRM explains that New Hampshire's engagement with MANEVU's Asks 1, 2, 3, and 5 adequately satisfy these requirements. EPA's approval is therefore based on its determination that New Hampshire's analysis and actions to address Asks 1, 2, 3, and 5 satisfy the reasonable progress requirements. New Hampshire, in the SIP submittal, did not rely on any measures at these five facilities identified by the Groups as necessary for reasonable progress. As discussed in the NPRM, New Hampshire did, contrary to the comment, provide a specific analysis for each facility that demonstrated that these facilities were already well controlled. Further, as stated in the NPRM, New Hampshire explained that three of these facilities (Burgess BioPower, Essential Power Newington, and Granite Ridge Energy) are subject to Nonattainment New Source Review (NNSR), and thus have limits that were established to meet Lowest Available Emission Rate (LAER) at the time their respective federally enforceable preconstruction permits were issued. While it is true that a facility's title V operating permit expires and requires periodic renewal, the LAER limits established by the preconstruction permit are carried forward into each successive title V permit and do not expire until/unless a permit is rescinded, which may occur after the respective unit is decommissioned. See40 CFR 70.2 (defining “applicable requirement” to include “[a]ny term or condition of any preconstruction permits issued pursuant to regulations approved or promulgated through rulemaking under title I, including parts C or D, of the Act”), 70.6(a)(1) (requiring a title V operating permit issued by a state to include “[e]missions limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements ”) (emphasis added); see also Env-A 609.05(b) (providing in relevant part that “[e]ach title V operating permit issued [by New Hampshire] shall contain all of the elements required by 40 CFR 70.6(a)”). If a title V operating permit expires before the permitting authority can reissue it, the permittee continues to be subject to the permit and all applicable requirements, as long as the permittee has submitted a timely and complete renewal application to the permitting authority. See40 CFR 70.4(b)(10)(i); see also Env-A 609.15(c). If the permittee has not submitted a timely and complete renewal application, the expiration of the title V permit “terminates the source's right to operate.” 40 CFR 70.7(c); see also Env-A 609.15(b). The other two facilities (GSP Newington and Wheelabrator Concord) also have title V operating permits and have permit limits established in New Hampshire's NO_X RACT program, which is in the SIP and, therefore, cannot be changed without a SIP revision. See40 CFR 70.2 (defining “applicable requirements” to include “[a]ny standard or other requirement provided for in the applicable implementation plan approved or promulgated by EPA through rulemaking under title I of the Act that implements the relevant requirements of the Act, including any revisions to that plan promulgated in [40 CFR] part 52”); see also Env-A 609.05(b). New Hampshire provided this analysis as a response to MANEVU Ask 1, and EPA finds New Hampshire provided a reasonable reply to this Ask (which also resulted in more stringent limits for Stored Solar Tamworth).

Comment 4: The Conservation Groups comment that “New Hampshire's SIP Revision embodies a largely status quo approach for the second planning period,” and that “New Hampshire did not require a single source to install new emission control equipment to reduce haze-forming pollution in the second planning period. Instead, New Hampshire's SIP Revision incorporates only (1) a voluntary reduction in the NO_X emission limit for Stored Solar Tamworth and (2) existing NO_X emissions limits for two units (MK1 and MK2) at GSP Merrimack Station previously adopted as part of New Hampshire's most recent ozone SIP revision.”

Response 4: New Hampshire submitted Env-A 2300 for approval into the State's SIP, which contains a reduced NO_X emissions limitation for Stored Solar Tamworth and incorporates by reference Env-A 1300, which also includes lower NO_X emissions limitations for GSP Merrimack Station. To the extent the commenters are criticizing the reduced NO_X limit at Tamworth as “voluntary,” the comment does not explain why an otherwise stringent, enforceable limit is less legitimate when a facility does not oppose it. The limits were deemed necessary for reasonable progress by the State, and thus were submitted to EPA as part of Env-A 2300 for SIP inclusion as required by the Clean Air Act.

As for NO_X emissions at Merrimack Station, the facility currently employs highly effective selective catalytic reduction (SCR) NO_X control devices on both of its coal-fired boilers. New Hampshire also recently lowered the NO_X limits applicable to this facility as part of a reasonably available control technology (RACT) SIP revision (Env-A 1300) submitted to EPA in 2018 (effective in the State on August 15, 2018) and approved by EPA on April 30, 2024 (89 FR 34137). EPA's approval of Env-A 1300 includes an analysis of the state's evaluation of whether additional NO_X control equipment, including a sorbent injection system, should be required to further reduce NO_X emissions from the facility. New Hampshire also amended its regulations at Env-A 2300, “Mitigation of Regional Haze,” to incorporate the more stringent NO_X limits in Env-A 1300 and submitted Env-A 2300 to EPA with its Regional Haze Plan for approval into the SIP. As EPA proposed in the NPRM, EPA is approving the revised state rule Env-A 2300, “Mitigation of Regional Haze,” into the SIP. Additionally, EPA guidance recommends that states evaluate controls from other programs when considering source selection. “It may be reasonable for a state not to select an effectively controlled source. A source may already have effective controls in place as a result of a previous regional haze SIP or to meet another CAA requirement. ” EPA's 2019 Regional Haze Guidance at 22 (emphasis added). That the regulations in Env-A 1300 were originally adopted to provide for control of ozone-forming pollutants to meet requirements for a health-based standard does not make them any less effective in preventing future, or remedying existing, visibility impairment in Class I areas. Indeed, as the commenters themselves recognize, “the same pollutants that mar scenic views at national parks and wilderness areas also cause significant public health impacts.” Comments at 22. In short, EPA finds that New Hampshire adequately evaluated control measures at existing sources and provided a satisfactory demonstration that meets the regional haze requirements.

Comment 5: The Conservation Groups state that the NO_X limits applicable to the coal units at GSP Merrimack Station are too high and “inconsistent with Regional Haze requirements” because they “appear to be little more than improper rubberstamping of existing behavior at Merrimack” and are “completely out of step with what other states—and with what EPA—considers to be achievable by SCR-equipped units like those at Merrimack.” The Groups comment that both units at GSP Merrimack Station are fully capable of achieving lower NO_X emission rates.

Response 5: The Conservation Groups copied this portion of their comments (with only nominal change) directly from comments the Sierra Club submitted to EPA during the comment period on EPA's proposal to approve New Hampshire's latest NO_X RACT SIP revision. 88 FR 43483 (July 10, 2023). EPA previously responded to those comments in a final rulemaking for that notice, 89 FR 34137 (April 30, 2024), and incorporates those previous responses herein by reference.

As noted, the new NO_X limits in Env-A 1300 discussed in the comment were developed as part of the RACT program for NO_X control. In the April 30, 2024, final rule, EPA notes that the emissions limits New Hampshire selected for the coal-fired units at Merrimack Station of 0.22 lbs NO_X /MMBtu, on a 24-hour basis, represent emission reductions of 83% and 91% from uncontrolled levels for MK1 and MK2, respectively, which is a high level of control. Given MK2's larger size and emissions, the emissions weighted average reduction from uncontrolled levels for both units combined is 88% based on recent emissions data. This level of control is near the upper end of the emission reduction capability of SCR control systems. In the Regional Haze action, New Hampshire incorporated the new lower NO_X limits for Merrimack into Env-A 2300, which it submitted with its Regional Haze plan for incorporation into the SIP. While the commenters assert that the new limits are also “inconsistent with Regional Haze requirements,” the comment—lifted as it is from one of the commenters' earlier comments related to the RACT program—does not provide an explanation to support this conclusion, claiming only that, from a technical perspective, Merrimack is capable of doing better and that limits applicable to similar sources in other states are lower. EPA has already addressed these technical claims. 89 FR 34137. Furthermore, similar to the new lower limits in Env-A 2300 applicable to Stored Solar Tamworth, it is not inconsistent with Regional Haze requirements for New Hampshire to compare actual emission rates at Merrimack to rates currently allowed and to “lock-in” lower emissions rates. Based on the analysis New Hampshire provided with its Regional Haze submittal, EPA determined those new rates to be reasonable, as explained in EPA's earlier responses. Finally, EPA also notes that, since publication of the NPRM in this Regional Haze action, the Sierra Club, GSP, and EPA executed a settlement agreement in another matter that requires that GSP permanently cease operation of both coal-fired boilers at Merrimack Station by no later than June 1, 2028, or even by June 1, 2027, if certain events occur. While New Hampshire's SIP submittal does not rely on this closure as necessary to make reasonable progress, it is enforceable by the Sierra Club—the original author of this comment.

Comment 6: The Conservation Groups comment that EPA should require New Hampshire to include Schiller Station's current non-operational status as a federally enforceable SIP provision.

Response 6: EPA did not rely on Schiller's more than four-year (and counting) outage to approve New Hampshire's SIP submission. Rather, EPA referred to this long-term outage when discussing the State's conclusion that “no additional updates were needed to meet Ask 4,” 88 FR at 80673, which requested that states “pursue updating permits, enforceable agreements, and/or rules to lock-in lower emission rates for sources larger than 250 MMBtu per hour that have switched to lower emitting fuels.” Id. As noted in the NPRM, the only source covered by this Ask in New Hampshire appears to be Schiller, in that one of its three steam units “technically maintains the ability to operate by burning coal.” Id. As EPA also noted in the NPRM, however, this steam unit has not burned coal in over 17 years when it was converted to wood-fired, id. at 80669, 80673, and that, notwithstanding New Hampshire's decision not to lock in the emissions limits associated with burning wood, “it is reasonable to conclude, for a number of reasons—including historic operation, financial viability, fuel availability, and the overall direction of the fuels market—that it is unlikely that this source will ever burn coal again,” id. at 80673. In other words, locking in the wood-burning limits is unlikely to have any impact on actual emissions from Schiller. EPA also noted that the length of Schiller's recent outage and other related events also suggest that it may never run in any capacity again, including using wood. EPA noted all of these facts but, as the comment recognizes, did not agree that New Hampshire had met Ask 4. In this instance, Ask 4 is not necessarily required for New Hampshire's Regional Haze SIP to fulfill the requirements of the Regional Haze Rule. As EPA noted in the NPRM, New Hampshire satisfied the requirements of the Regional Haze Rule through its analysis and actions addressing Asks 1, 2, 3, and 5. 88 FR at 80671. Thus, EPA does not rely on New Hampshire's approach to Ask 4 to approve the Regional Haze SIP submission. Neither New Hampshire nor EPA found that the closure of Unit 5 is necessary for reasonable progress and, therefore, adding a closure date to the SIP is not required. In any event, EPA also notes that Unit 5 and the two coal-only units (Units 4 and 6) are all part of the previously discussed settlement among GSP, EPA, the Sierra Club, and CLF that was reached in another matter after the NPRM issued. Under that agreement, GSP shall permanently cease operation of the boilers at Schiller Unit 4, Unit 5, and Unit 6 by no later than December 31, 2025. See, e.g., CLF Press Release at 1.

Comment 7: The Conservation Groups comment that, for proposed actions on SIPs, CAA § 307(d)(2)-(3) requires EPA to create a docket containing all the information on which the proposal relies. Moreover, to incorporate any rules by reference into a proposed action, EPA must explain “the ways that the materials it proposes to incorporate by reference are reasonably available to interested parties or how it worked to make those materials reasonably available to interested parties.” 1 CFR 51.5(a)(1)-(2). Because EPA relies on, incorporates by reference, and seeks to approve revisions to Env-A 2300, EPA should have made Env-A 2300 publicly available in the electronic docket for this action. EPA also should have included Env-A 1300 in the electronic docket because EPA stated in the NPRM that Env-A 2300 incorporates Env-A 1300 by reference. Further, EPA did not explain in the NPRM whether Env-A 1300 and 2300 include required monitoring, reporting, or recordkeeping requirements, and if not, where those SIP elements can be found. (citing 40 CFR part 51, appendix V). EPA must provide the public with an opportunity to review and comment on Env-A 1300 and 2300 and the SIP provisions New Hampshire will rely on for monitoring, reporting and record keeping to track compliance with the emission limits, to ensure the State's SIP Revision and EPA's proposed approval comply with the CAA and RHR. Because EPA did not include Env-A 1300 and 2300 in the electronic docket, the public, including the commenters, were unable to review these provisions or provide comment on whether they satisfy the CAA or the RHR. EPA must add Env-A 1300 and 2300 to the electronic docket and re-notice the proposed action on the SIP Revision.

Response 7: EPA acknowledges the oversight that Env-A 2300 was not included in the proposal's electronic docket on www.regulations.gov but does not agree that re-noticing the proposal is necessary to remedy that harmless error. In short, EPA disagrees that the inadvertent omission of Env-A 2300 from the electronic docket prevented the commenters or other members of the public from reviewing Env-A 2300 or Env-A 1300 or providing comment on whether they satisfy the requirements of the Clean Air Act or the RHR, because these state regulations are widely available and, therefore, could have been easily obtained through other means during the comment period. Moreover, other documents in the record indicate that at least one of the signatories to the comment letter—Sierra Club—already had Env-A 1300 in its possession.

In the NPRM, EPA stated that the state's Regional Haze submission “included the revised New Hampshire's Code of Administrative Rules Env-A 2300, `Mitigation of Regional Haze,' which contains updated emissions limits for certain facilities located in the State.” 88 FR at 80664; see also id. at 80669. EPA also noted that “Env-A 2300 incorporates by reference NO_X limits in Env-A 1300” that NHDES had revised as part of a SIP submittal for the 2008 and 2015 8-hr ozone standards related to NO_X RACT, limits that are applicable only to Merrimack Station. Id. at 80669 n.63. EPA also noted that it had recently proposed in that NO_X RACT SIP action to approve Env-A 1300 into New Hampshire's SIP. Id. ( citing88 FR 43483 (July 10, 2023)). Finally, EPA proposed to add the revised Env-A 2300 to New Hampshire's SIP. Id. at 80671; see also id. at 80679. While EPA stated that it was making Env-A 2300 available through regulations.gov and at the Region 1 office, the commenters correctly observe that Env-A 2300 was not included in the electronic docket.

The comment states that CAA § 307(d)(2)-(3) require that EPA make Env-A 2300 and Env-A 1300 publicly available in the electronic docket because EPA relies on Env-A 2300 and, by reference, Env-A 1300 to approve New Hampshire's Regional Haze SIP with respect to NO_X limits applicable to two facilities—Stored Solar Tamworth and Merrimack Station. The comment further states that, because the state regulations were not included in the electronic docket, EPA must add them and re-notice the proposal to allow the commenters to review the regulations. EPA does not agree that re-noticing is necessary.

First, § 307(d) is not applicable to this SIP action, nor do the commenters explain why they conclude that it is. By its terms, CAA § 307(d) applies only to particular types of actions taken by EPA, none of which expressly include EPA actions to approve a state Regional Haze SIP submission. 42 U.S.C. 7607(d)(1). Section 307(d) may also be applied to “such other actions as the Administrator may determine,” id. § 7607(d)(1)(V), but EPA never indicated in the NPRM that it had determined to apply § 307(d) to this SIP approval action. Thus, the comment's reliance on § 307(d)(2)-(3) is misplaced.

Second, even if § 307(d) were applicable to this action, the inadvertent omission of Env-A 2300 from the electronic docket would be a harmless procedural error and does not necessitate re-noticing and re-opening the comment period, because the state regulations are publicly available. See42 U.S.C. 7607(d)(8), (9)(D)(iii). In contrast, this is not a case where an agency relied on internal information known only to it. See, e.g., Penobscot Indian Nation v. U.S. Dep't of Hous. & Urb. Dev., 539 F. Supp. 2d 40, 48-51 (D.D.C. 2008). The commenters could have obtained the state regulations through a number of publicly available methods, including, for instance, a simple internet search, visiting the New Hampshire Department of Environmental Services' (NHDES) web page, or contacting the FOR FURTHER INFORMATION CONTACT EPA listed in the NPRM. See 88 FR at 80655, 80679. The regulations' absence from the electronic docket therefore did not preclude the commenters from providing meaningful comment on EPA's proposed approval.

Moreover, the Sierra Club (one of the signatories to the comment letter on the NPRM for New Hampshire's Regional Haze SIP) submitted detailed comments to EPA on Env-A 1300 in the context of the above-referenced NO_X RACT SIP action—comments that demonstrate the Sierra Club had reviewed Env-A 1300 for that action. See “Sierra Club Comments on U.S. EPA, Air Plan Approval; New Hampshire; Reasonably Available Control Technology for the 2008 and 2015 Ozone Standards [EPA-R01-OAR-2023-0188]” (August 9, 2023), hereinafter “Sierra Club's NO_X RACT Comments.” Notably, the commenters on today's Regional Haze SIP action copied a portion of these earlier Sierra Club comments relating to Env-A 1300 and pasted it directly into their comments on the Regional Haze NPRM, altering them only slightly, including by correcting typos and, notably, removing the citations to Env-A 1300. Compare Conservation Groups' Regional Haze Comments at 12-19 with Sierra Club's NO_X RACT Comments at 4-12. Thus, to the extent EPA committed any error by not including Env-A 1300 in the electronic docket, it would be harmless for the additional reason that the commenters already had Env-A 1300. See Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 549 (D.C. Cir. 1983) (“Our cases recognize that even if the agency has not given notice in the statutorily prescribed fashion, actual notice will render the error harmless.”) (citing Sierra Club v. Costle, 657 F.2d at 355, 360, 398-99). In short, we disagree that the omission of widely available state regulations rendered the commenters “unable to review the revised administrative code or provide comment on whether that code satisfies the requirements of the Clean Air Act or the RHR.” Re-opening the comment period so that the commenters can review state regulations only via a copy posted to the electronic docket is, therefore, unnecessary. Cf. Pharm. Research & Mfrs. of Am. v. FTC, 790 F.3d 198, 211 (D.C. Cir. 2015) (rejecting as “spurious” a plaintiff's claim that it did not have access to certain information that was publicly available and that it had “actually used” in formulating its comments).

EPA does not contend that Env-A 2300 does not belong in the administrative record for this action—indeed, we have since placed it in the electronic docket. EPA observes only that the Region's oversight in not placing it in the electronic docket in time for the public comment period does not necessitate re-noticing the proposed approval for additional public comment. The purpose of the notice-and-comment requirement is to “allow interested members of the public to communicate information, concerns, and criticisms to the agency during the rule-making process.” Conn. Light & Power Co. v. Nuclear Regul. Comm'n, 673 F.2d 525, 530 (D.C. Cir. 1982). That purpose is served if “interested parties [are afforded] a reasonable opportunity to participate in the rulemaking process and if the parties have not been deprived of the opportunity to present relevant information by lack of notice that the issue was there.” WJG Tel. Co. v. FCC, 675 F.2d 386, 389 (D.C. Cir. 1982) (internal citations and quotation marks omitted). Here, as the comment itself notes, EPA informed the public that the agency was proposing to approve the state's plan based in part on Env-A 2300 and that the agency would add the regulations to New Hampshire's SIP. Because the state regulations are easily obtainable through public means and at least in the case of Env-A 1300 already in the possession of the commenters, the commenters have not been deprived of the opportunity to participate meaningfully in the rulemaking process or to present relevant information to the agency regarding the state regulations. That the commenters chose not to submit specific comments on Env-A 2300 when they easily could have does not require re-opening the comment period.

Finally, the comment also asserts that EPA must re-notice the proposal because, according to the commenters “it is unclear whether Env-A 2300 also sets out the required monitoring, reporting, and recordkeeping requirements for the SIP Revision” with respect to Stored Solar Tamworth and Merrimack Station. For both facilities, Env-A 2300 requires that NO_X emissions be recorded by a continuous emissions monitoring system (CEMS) and provides for monitoring, reporting, and recordkeeping by referencing the requirements of Env-A 800, Testing and Monitoring Procedures, and Env-A 900, Owner or Operator Recordkeeping and Reporting Obligations, both of which regulations are already in New Hampshire's SIP. See Env-A 2302.01, 2302.03, 2303.01. In addition, New Hampshire included in the submission, and EPA included in the electronic docket, title V permits for both facilities, which include detailed monitoring, reporting, and recordkeeping requirements. See NH Reg'l Haze SIP Sub, App. V (Stored Solar Tamworth Title V Operating Permit, at 12-33) (Merrimack Station Title V Operating Permit, at 30-72). EPA does not agree that re-noticing is necessary for this purpose, because, as already discussed, the omission of Env-A 2300 from the electronic docket did not prevent the commenters or other members of the public from reviewing the monitoring, reporting, and recordkeeping requirements in the state regulations or such requirements in the title V permits, which were included in the electronic docket.

Comment 8: The Conservation Groups argue that EPA must consider the environmental justice implications of New Hampshire's SIP revision. The Groups cite EPA Regional Haze guidance and 1994 and 2023 Executive Orders addressing environmental justice and use EPA EJ Screen tool to identify communities near the Merrimack and Schiller facilities that may have higher percentages of low-income populations and people of color than the rest of the state as a whole.

Response 8: The regional haze statutory provisions do not explicitly address considerations of environmental justice, and neither do the regulatory requirements of the second planning period in 40 CFR 51.308(f), (g), and (i). However, the lack of explicit direction does not preclude the State from addressing EJ in the State's SIP submission. As explained in “EPA Legal Tools to Advance Environmental Justice” and EPA Regional Haze guidance, see 2021 Clarifications Memo at 21, the CAA provides states with the discretion to consider environmental justice in developing rules and measures related to regional haze. While a State may consider environmental justice under the reasonable progress factors, neither the statute nor the regulation compels states or EPA to conduct an environmental justice analysis in developing or evaluating a SIP submission. Therefore, environmental justice considerations do not serve as a basis for the EPA's decision to approve New Hampshire's SIP.

In this instance, New Hampshire explained that its SIP submission “does not specifically add new climate change or environmental justice initiatives. The regional haze long-term strategy includes measures that will ultimately reduce greenhouse gas emissions and improve air quality in environmental justice regions.” NHDES noted that the State has more appropriate programs to address environmental justice issues, such as the State's “participation in a cap and trade program for greenhouse gas emissions . . . and creation of a NHDES environmental justice team. In 2021, the Title VI Nondiscrimination/Environmental Justice Team was formed to ensure compliance with Title VI nondiscrimination legal requirements and in incorporating the non-regulatory environmental justice principles of fair and equitable treatment that encourages meaningful involvement of impacted communities into agency programs, practices, and policies. Through its efforts, the team seeks to reduce disparities that result in vulnerable populations in NH bearing a disproportionate impact relative to the implementation of programs, policies and practices related to the environment.” NH Regional Haze Submittal, App. W, Response to Comments.

The commenter also refers to additional information it provided to New Hampshire from an EJ Screen analysis that the State did not consider as part of its regional haze decision making. EPA acknowledges the EJ Screen information provided as part of the comment during the State public participation process, which identifies certain demographic and environmental information regarding areas across New Hampshire. The focus of the SIP at issue here, the regional haze SIP for New Hampshire, is SO₂ and NO_X emissions and their impacts on visibility impairment at the 156 mandatory federal Class I areas. This action addresses New Hampshire's choices to reduce these emissions at several EGUs and other sources of air pollution across the State. As discussed in the NPRM and in this notice of final rulemaking, EPA has evaluated New Hampshire's SIP submission against the statutory and regulatory regional haze requirements and determined that it satisfies those minimum requirements. As stated below, due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. The CAA and applicable implementing regulations neither prohibit nor require an evaluation of environmental justice with a SIP. EPA reiterates that it is not identifying environmental justice as a basis for its decision to approve New Hampshire's SIP. With respect to EPA's adherence with the Executive Orders, see Section V below.

Comment 9: An anonymous commenter supported the proposed rule, but stated: “The only thing that I would change is making the goal of improving air quality not be focused on reducing regional [h]aze, but on the other massive health and environmental improvements that would naturally arise from this proposal.”

Response 9: EPA acknowledges the commenter's support and notes that Congress created the regional haze program with the goal of improving visibility at Class 1 Federal areas. Thus, the Clean Air Act requires the SIP submittal to focus on reducing regional haze. EPA agrees, however, that reductions in emissions for the regional haze program have the benefit of improving public health, too, and that many of the state regulations included in the New Hampshire submittal provide public health and environmental benefits.

Comment 10: MANEVU commented in support of EPA's proposal to approve New Hampshire's regional haze SIP. MANEVU also stated that it supports EPA's thorough approach in reviewing New Hampshire's SIP, including its response to each MANEVU Ask.

Response 10: EPA acknowledges the comment.

Comment 11: The North Carolina Division of Air Quality commented to acknowledge EPA's assessment and agree with EPA's determination that the Reasonable Progress Goals (RPGs) cannot include strategies for upwind states that those upwind states have not adopted.

Response 11: As noted in the NPRM, § 51.308(f)(3)(i) specifies that RPGs must reflect “enforceable emissions limitations, compliance schedules, and other measures r equired under paragraph (f)(2) of this section” (emphasis added). RPGs are intended to provide a snapshot of projected visibility conditions at the end of the implementation period, assuming all measures that are necessary to make reasonable progress at a given class I area are being implemented. The emission reduction measures that must be reflected in RPGs include adopted regulations and measures that both the downwind and upwind states have identified as necessary and that will be implemented by 2028. However, EPA interprets this provision to exclude emission reduction measures that downwind states believe are necessary to make reasonable progress but that upwind states have not, at the time of plan submission, determined are necessary pursuant to § 51.308(f)(2). This ensures that RPGs include only those measures that are reasonably certain to be implemented. EPA also notes that New Hampshire clarified (in a response to comment) that the State's RPGs do not include reductions from emissions from upwind states.

III. Final Action

EPA is approving New Hampshire's May 5, 2022, supplemented on September 21, 2023, SIP submission as satisfying the regional haze requirements for the second implementation period contained in 40 CFR 51.308(f), (g), and (i). Additionally, EPA is approving the revised state rule Env-A 2300, “Mitigation of Regional Haze,” into the SIP.

IV. Incorporation by Reference

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the New Hampshire Department of Environmental Services Env-A 2300 in its entirety for updates to the Regional Haze program, described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.

V. Statutory and Executive Order Reviews

Under the Clean Air 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 Clean Air Act. 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 Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• 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 inExecutive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject toExecutive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject toExecutive Order 13211 (66 FR 28355, May 22, 2001); and
• 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 Clean Air Act.

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 rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. EPA defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The New Hampshire Department of Environmental Services did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for communities with EJ concerns.

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 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 January 6, 2025. 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).)

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

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

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

2. In § 52.1520:

a. Amend the table in paragraph (c) by revising the entry “Env-A 2300”.

b. Amend the table in paragraph (e) by adding an entry for “New Hampshire Regional Haze Plan Periodic Comprehensive Revision” at the end of the table.

The revision and addition read as follows:

(c) * * *