Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Infrastructure Requirements for the 2008 Ozone and 2010 Sulfur Dioxide National Ambient Air Quality Standards, 46494-46508 [2015-19090]
Download as PDF
<![CDATA[
46494
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
operating schedule immediately at the
end of this temporary deviation’s
effective period. This deviation from the
operating regulations is authorized
under 33 CFR 117.35.
Dated: July 24, 2015.
Barry Dragon,
Bridge Administrator, U.S. Coast Guard,
Seventh Coast Guard District.
[FR Doc. 2015–19112 Filed 8–4–15; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2014–0910; FRL–9931–80–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans;
Pennsylvania; Infrastructure
Requirements for the 2008 Ozone and
2010 Sulfur Dioxide National Ambient
Air Quality Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving portions of
two State Implementation Plan (SIP)
revisions submitted by the
Commonwealth of Pennsylvania
through the Pennsylvania Department of
Environmental Protection (PADEP)
pursuant to the Clean Air Act (CAA).
Whenever new or revised National
Ambient Air Quality Standards
(NAAQS) are promulgated, the CAA
requires states to submit a plan for the
implementation, maintenance, and
enforcement of such NAAQS. The plan
is required to address basic program
elements, including but not limited to
regulatory structure, monitoring,
modeling, legal authority, and adequate
resources necessary to assure
implementation, maintenance, and
enforcement of the NAAQS. These
elements are referred to as infrastructure
requirements. PADEP made submittals
addressing the infrastructure
requirements for the 2008 ozone
NAAQS and the 2010 sulfur dioxide
(SO2) primary NAAQS.
DATES: This final rule is effective on
September 4, 2015.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R03–OAR–2014–0910. All
documents in the docket are listed in
the www.regulations.gov Web site.
Although listed in the electronic docket,
some information is not publicly
available, i.e., confidential business
Lhorne on DSK7TPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy for
public inspection during normal
business hours at the Air Protection
Division, U.S. Environmental Protection
Agency, Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
Copies of the State submittal are
available at the Pennsylvania
Department of Environmental
Protection, Bureau of Air Quality
Control, P. O. Box 8468, 400 Market
Street, Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT:
Ruth Knapp, (215) 814–2191, or by
email at knapp.ruth@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Summary of SIP Revision
On March 27, 2008 (73 FR 16436),
EPA promulgated a revised ozone
NAAQS based on 8-hour average
concentrations. EPA revised the level of
the 8-hour ozone NAAQS from 0.08
parts per million (ppm) to 0.075 ppm.
On June 22, 2010 (75 FR 35520), EPA
promulgated a 1-hour primary SO2
NAAQS at a level of 75 parts per billion
(ppb), based on a 3-year average of the
annual 99th percentile of 1-hour daily
maximum concentrations. Pursuant to
section 110(a)(1) of the CAA, states are
required to submit SIPs meeting the
applicable requirements of section
110(a)(2) within three years after
promulgation of a new or revised
NAAQS or within such shorter period
as EPA may prescribe.
On July 15, 2014, the Commonwealth
of Pennsylvania, through the PADEP,
submitted SIP revisions that address the
infrastructure elements specified in
section 110(a)(2) of the CAA necessary
to implement, maintain, and enforce the
2008 ozone NAAQS and the 2010 SO2
NAAQS. On February 6, 2015 (80 FR
6672), EPA published a notice of
proposed rulemaking (NPR) for
Pennsylvania proposing approval of
portions of both SIP revisions as well as
portions of SIP submittals for other
NAAQS.1 In the NPR, EPA proposed
1 On July 15, 2014, PADEP also submitted SIP
revisions addressing the infrastructure requirements
for the 2010 nitrogen dioxide (NO2) NAAQS and the
2012 fine particulate matter (PM2.5) NAAQS. In the
February 6, 2015 NPR, EPA also proposed approval
of portions of these infrastructure SIPs. Because
EPA did not receive adverse comments applicable
to Pennsylvania’s infrastructure SIPs for the 2010
NO2 NAAQS or the 2012 PM2.5 NAAQS or
applicable to EPA’s proposed approval of those
PO 00000
Frm 00010
Fmt 4700
Sfmt 4700
approval of Pennsylvania’s submissions
addressing the following infrastructure
elements: Section 110(a)(2)(A), (B), (C),
(D)(i)(II) (prevention of significant
deterioration), (D)(ii), (E), (F), (G), (H),
(J), (K), (L), and (M).
Pennsylvania’s July 15, 2014
infrastructure SIP submittals for the
2008 ozone NAAQS and the 2010 SO2
NAAQS did not contain any provisions
addressing section 110(a)(2)(I) which
pertains to the nonattainment
requirements of part D, Title I of the
CAA, because this element is not
required to be submitted by the 3-year
submission deadline of section 110(a)(1)
and will be addressed in a separate
process. In addition, Pennsylvania’s July
15, 2014 infrastructure SIP submittals
for the 2008 ozone NAAQS and the
2010 SO2 NAAQS did not contain any
provisions addressing CAA section
110(a)(2)(D)(i)(I), and therefore EPA’s
February 6, 2015 NPR did not propose
any action on the SIP submittals for
section 110(a)(2)(D)(i)(I) for either SIP
submittal. Thus, this rulemaking action
likewise does not include action on
CAA section 110(a)(2)(D)(i)(I) for either
the 2008 ozone NAAQS or the 2010 SO2
NAAQS because PADEP’s July 15, 2014
infrastructure SIP submittals did not
include provisions for this element.
Finally, at this time, EPA is not taking
action on section 110(a)(2)(D)(i)(II)
(which addresses visibility protection)
for the 2008 ozone or 2010 SO2 NAAQS
as explained in the NPR. Although
Pennsylvania’s July 15, 2014
infrastructure SIP submittals for the
2008 ozone NAAQS and the 2010 SO2
NAAQS referred to Pennsylvania’s
regional haze SIP to address section
110(a)(2)(D)(i)(II) for visibility
protection, EPA intends to take later,
separate action on Pennsylvania’s SIP
submittals for these elements as
explained in the NPR and the Technical
Support Document (TSD) which
accompanied the NPR.
The rationale supporting EPA’s
proposed rulemaking action approving
portions of the July 15, 2014
infrastructure SIP submittals for the
2008 ozone and 2010 SO2 NAAQS,
including the scope of infrastructure
SIPs in general, is explained in the NPR
and the TSD accompanying the NPR
and will not be restated here. The NPR
and TSD are available in the docket for
this rulemaking at www.regulations.gov,
Docket ID Number EPA–R03–OAR–
specific SIPs, EPA took final action to approve
portions of the infrastructure SIPs for the 2010 NO2
NAAQS and 2012 PM2.5 NAAQS on May 8, 2015.
80 FR 26461. Thus, this final action only addresses
the July 15, 2014 infrastructure SIPs PADEP
submitted addressing the 2008 ozone NAAQS and
the 2010 SO2 NAAQS.
E:\FR\FM\05AUR1.SGM
05AUR1
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
2014–0910.2 EPA received public
comments on the NPR. Summaries of
the comments as well as EPA’s
responses are in section II of this
rulemaking notice. EPA’s responses
provide further explanation and
rationale where appropriate to support
the final action approving portions of
the July 15, 2014 infrastructure SIPs.
II. Public Comments and EPA’s
Responses
EPA received substantive comments
from two commenters, the State of New
Jersey Department of Environmental
Protection (NJDEP) and the Sierra Club,
on the February 6, 2015 proposed
rulemaking action on Pennsylvania’s
2008 ozone and 2010 SO2 infrastructure
SIP revisions. The Sierra Club’s
comments on the NPR include general
comments on infrastructure SIP
requirements for emission limitations
and specific comments on emission
limitations to address the 2010 SO2
NAAQS and the 2008 ozone NAAQS. A
full set of all comments is provided in
the docket for today’s final rulemaking
action.
Lhorne on DSK7TPTVN1PROD with RULES
A. NJDEP
Comment: NJDEP asserts that
Pennsylvania’s infrastructure SIP is
deficient because it does not include
any information relating to
Pennsylvania’s ‘‘good neighbor’’
obligation to address CAA section
110(a)(2)(D).3 NJDEP asserts the ability
of downwind states including New
Jersey to attain the 2008 ozone NAAQS
is substantially impacted by interstate
transport of pollution from
Pennsylvania. NJDEP asserts recent EPA
modeling for the 2008 ozone NAAQS
demonstrates Pennsylvania significantly
contributes to ozone nonattainment
areas in New Jersey and other states.
New Jersey further asserts that EPA
must ‘‘make a finding that Pennsylvania
has failed to submit a SIP that complies
with Section 110(a)(2)(D) of the Clean
Air Act’’ because Pennsylvania did not
make a submission to address
110(a)(2)(D).
Response: In this rulemaking EPA is
not taking any final action with respect
to the provisions in section
110(a)(2)(D)(i)(I)—the portion of the
good neighbor provision which
2 EPA’s final rulemaking action on Pennsylvania’s
infrastructure SIP revisions for the 2010 NO2
NAAQS and the 2012 PM2.5 NAAQS can also be
found in this docket with Docket ID Number EPA–
R03–OAR–2014–0910.
3 EPA believes NJDEP refers specifically to CAA
section 110(a)(2)(D)(i)(I) which addresses interstate
transport of pollution and not to section
110(a)(2)(D)(i)(II) which addresses visibility
protection and prevention of significant
deterioration.
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
addresses emissions that significantly
contribute to nonattainment or interfere
with maintenance of the NAAQS in
another state. In its July 15, 2014
infrastructure SIP revisions for several
NAAQS, the Commonwealth of
Pennsylvania did not include any
provisions in its SIP revision submittals
to address the requirements of section
110(a)(2)(D)(i)(I). In the NPR, EPA did
not propose to take any action with
respect to Pennsylvania’s obligations
pursuant to section 110(a)(2)(D)(i)(I) for
the July 15, 2014 infrastructure SIP
submittals and is not, in this rulemaking
action, taking any final action on the
110(a)(2)(D)(i)(I) obligations.
Because Pennsylvania did not make a
submission in its July 15, 2014 SIP
submittals to address the requirements
of section 110(a)(2)(D)(i)(I), EPA is not
required to have proposed or to take
final SIP approval or disapproval action
on this element under section 110(k) of
the CAA. In this case, there has been no
substantive submission for EPA to
evaluate under section 110(k). EPA
interprets its authority under section
110(k)(3) of the CAA as affording EPA
the discretion to approve, or
conditionally approve, individual
elements of Pennsylvania’s
infrastructure SIP submissions, separate
and apart from any action with respect
to the requirements of section
110(a)(2)(D)(i)(I) of the CAA. EPA views
discrete infrastructure SIP requirements
in section 110(a)(2), such as the
requirements of 110(a)(2)(D)(i)(I), as
severable from the other infrastructure
elements and interprets section
110(k)(3) as allowing it to act on
individual severable measures in a plan
submission.
EPA acknowledges NJDEP’s concern
for the interstate transport of air
pollutants and agrees in general that
sections 110(a)(1) and (a)(2) of the CAA
require states to submit, within three
years of promulgation of a new or
revised NAAQS, a plan which addresses
cross-state air pollution under section
110(a)(2)(D)(i)(I). However, in this
rulemaking, EPA is only approving
portions of Pennsylvania’s
infrastructure SIP submissions for the
2008 ozone and 2010 SO2 NAAQS
which did not include provisions for
110(a)(2)(D)(i)(I) for interstate transport.
Findings of failure to submit a SIP
submission for a NAAQS addressing a
specific element, such as CAA section
110(a)(2)(D)(i)(I), would need to occur in
separate rulemakings. As that issue was
not addressed in the February 6, 2015
NPR and is therefore not pertinent to
this rulemaking, EPA provides no
further response. Pennsylvania’s
obligations regarding interstate transport
PO 00000
Frm 00011
Fmt 4700
Sfmt 4700
46495
of ozone pollution for the 2008 ozone
NAAQS will be addressed in another
rulemaking.
B. Sierra Club General Comments on
Emission Limitations
1. The Plain Language of the CAA
Comment 1: Sierra Club (hereafter
referred to as Commenter) contends that
the plain language of section
110(a)(2)(A) of the CAA, legislative
history of the CAA, case law, EPA
regulations such as 40 CFR 51.112(a),
and EPA interpretations in rulemakings
require the inclusion of enforceable
emission limits in an infrastructure SIP
to aid in attaining and maintaining the
NAAQS and contends an infrastructure
SIP must be disapproved where
emission limits are inadequate to
prevent exceedances of the NAAQS.
The Commenter states EPA may not
approve an infrastructure SIP that fails
to ensure attainment and maintenance
of the NAAQS.
The Commenter states that the main
objective of the infrastructure SIP
process ‘‘is to ensure that all areas of the
country meet the NAAQS’’ and states
that nonattainment areas are addressed
through ‘‘nonattainment SIPs.’’ The
Commenter asserts the NAAQS ‘‘are the
foundation upon which air emission
standards for the entire country are set’’
including specific emission limitations
for most large stationary sources, such
as coal-fired power plants. The
Commenter discusses the CAA’s
framework whereby states have primary
responsibility to assure air quality
within the state pursuant to CAA
section 107(a) which the states carry out
through SIPs such as infrastructure SIPs
required by section 110(a)(2). The
Commenter also states that on its face
the CAA requires infrastructure SIPs ‘‘to
be adequate to prevent exceedances of
the NAAQS.’’ In support, the
Commenter quotes the language in
section 110(a)(1) which requires states
to adopt a plan for implementation,
maintenance, and enforcement of the
NAAQS and the language in section
110(a)(2)(A) which requires SIPs to
include enforceable emissions
limitations as may be necessary to meet
the requirements of the CAA which the
Commenter claims includes attainment
and maintenance of the NAAQS. The
Commenter notes the CAA definition of
emission limit and reads these CAA
provisions together to require
‘‘enforceable emission limits on source
emissions sufficient to ensure
maintenance of the NAAQS.’’
Response 1: EPA disagrees that
section 110 is clear ‘‘on its face’’ and
must be interpreted in the manner
E:\FR\FM\05AUR1.SGM
05AUR1
46496
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
Lhorne on DSK7TPTVN1PROD with RULES
suggested by the Commenter. As we
have previously explained in response
to the Commenter’s similar comments
on EPA’s action approving other states’
infrastructure SIPs, section 110 is only
one provision that is part of the
complicated structure governing
implementation of the NAAQS program
under the CAA, as amended in 1990,
and it must be interpreted in the context
of not only that structure, but also of the
historical evolution of that structure.4
EPA interprets infrastructure SIPs as
more general planning SIPs, consistent
with the CAA as understood in light of
its history and structure. When Congress
enacted the CAA in 1970, it did not
include provisions requiring states and
the EPA to label areas as attainment or
nonattainment. Rather, states were
required to include all areas of the state
in ‘‘air quality control regions’’ (AQCRs)
and section 110 set forth the core
substantive planning provisions for
these AQCRs. At that time, Congress
anticipated that states would be able to
address air pollution quickly pursuant
to the very general planning provisions
in section 110 and could bring all areas
into compliance with a new NAAQS
within five years. Moreover, at that
time, section 110(a)(2)(A)(i) specified
that the section 110 plan provide for
‘‘attainment’’ of the NAAQS and section
110(a)(2)(B) specified that the plan must
include ‘‘emission limitations,
schedules, and timetables for
compliance with such limitations, and
such other measures as may be
necessary to insure attainment and
maintenance [of the NAAQS].’’
In 1977, Congress recognized that the
existing structure was not sufficient and
many areas were still violating the
NAAQS. At that time, Congress for the
first time added provisions requiring
states and EPA to identify whether areas
of a state were violating the NAAQS
(i.e., were nonattainment) or were
meeting the NAAQS (i.e., were
attainment) and established specific
planning requirements in section 172
for areas not meeting the NAAQS. In
1990, many areas still had air quality
not meeting the NAAQS and Congress
again amended the CAA and added yet
another layer of more prescriptive
planning requirements for each of the
NAAQS. At that same time, Congress
modified section 110 to remove
references to the section 110 SIP
providing for attainment, including
4 See 80 FR 11557 (March 4, 2015) (approval of
Virginia SO2 infrastructure SIP); 79 FR 62022
(October 16, 2014) (approval of West Virginia SO2
infrastructure SIP); 79 FR 19001 (April 7, 2014)
(approval of West Virginia ozone infrastructure
SIP); and 79 FR 17043 (March 27, 2014) (approval
of Virginia ozone infrastructure SIP).
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
removing pre-existing section
110(a)(2)(A) in its entirety and
renumbering subparagraph (B) as
section 110(a)(2)(A). Additionally,
Congress replaced the clause ‘‘as may be
necessary to insure attainment and
maintenance [of the NAAQS]’’ with ‘‘as
may be necessary or appropriate to meet
the applicable requirements of this
chapter.’’ Thus, the CAA has
significantly evolved in the more than
40 years since it was originally enacted.
While at one time section 110 of the
CAA did provide the only detailed SIP
planning provisions for states and
specified that such plans must provide
for attainment of the NAAQS, under the
structure of the current CAA, section
110 is only the initial stepping-stone in
the planning process for a specific
NAAQS. More detailed, later-enacted
provisions govern the substantive
planning process, including planning
for attainment of the NAAQS.
Thus, EPA believes that section 110 of
the CAA is only one provision that is
part of the complicated structure
governing implementation of the
NAAQS program under the CAA, as
amended in 1990, and it must be
interpreted in the context of that
structure and the historical evolution of
that structure. In light of the revisions
to section 110 since 1970 and the laterpromulgated and more specific planning
requirements of the CAA, EPA
reasonably interprets the requirement in
section 110(a)(2)(A) of the CAA that the
plan provide for ‘‘implementation,
maintenance and enforcement’’ to mean
that the SIP must contain enforceable
emission limits that will aid in attaining
and/or maintaining the NAAQS and that
the state demonstrate that it has the
necessary tools to implement and
enforce a NAAQS, such as adequate
state personnel and an enforcement
program. EPA has interpreted the
requirement for emission limitations in
section 110 to mean that the state may
rely on measures already in place to
address the pollutant at issue or any
new control measures that the state may
choose to submit. Finally, as EPA stated
in the Infrastructure SIP Guidance
which specifically provides guidance to
states in addressing the 2008 ozone and
2010 SO2 NAAQS, ‘‘[t]he conceptual
purpose of an infrastructure SIP
submission is to assure that the air
agency’s SIP contains the necessary
structural requirements for the new or
revised NAAQS, whether by
establishing that the SIP already
contains the necessary provisions, by
making a substantive SIP revision to
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
update the SIP, or both.’’ Infrastructure
SIP Guidance at p. 2.5
The Commenter makes general
allegations that Pennsylvania does not
have sufficient protective measures to
prevent ozone violations/exceedances
and SO2 NAAQS exceedances. EPA
addressed the adequacy of
Pennsylvania’s infrastructure SIP for
110(a)(2)(A) purposes to meet applicable
requirements of the CAA in the TSD
accompanying the February 6, 2015
NPR and explained why the SIP
includes enforceable emission
limitations and other control measures
necessary for maintenance of the 2008
ozone and 2010 SO2 NAAQS throughout
the Commonwealth.6
2. The Legislative History of the CAA
Comment 2: The Commenter cites two
excerpts from the legislative history of
the 1970 CAA claiming they support an
interpretation that SIP revisions under
CAA section 110 must include
emissions limitations sufficient to show
maintenance of the NAAQS in all areas
of the state. The Commenter also
contends that the legislative history of
the CAA supports the interpretation that
infrastructure SIPs under section
110(a)(2) must include enforceable
emission limitations, citing the Senate
Committee Report and the subsequent
Senate Conference Report
accompanying the 1970 CAA.
Response 2: As provided in the
previous response, the CAA, as enacted
in 1970, including its legislative history,
cannot be interpreted in isolation from
the later amendments that refined that
structure and deleted relevant language
from section 110 concerning
demonstrating attainment. See also 79
FR at 17046 (responding to comments
on Virginia’s ozone infrastructure SIP).
In any event, the two excerpts of
legislative history the Commenter cites
merely provide that states should
include enforceable emission limits in
their SIPs, and they do not mention or
otherwise address whether states are
required to include maintenance plans
for all areas of the state as part of the
infrastructure SIP. As provided in
5 Thus, EPA disagrees with the Commenter’s
general assertion that the main objective of
infrastructure SIPs is to ensure all areas of the
country meet the NAAQS, as we believe the
infrastructure SIP process is the opportunity to
review the structural requirements of a state’s air
program. While the NAAQS can be a foundation
upon which emission limitations are set, as
explained in responses to subsequent comments,
these emission limitations are generally set in the
attainment planning process envisioned by part D
of title I of the CAA, including, but not limited to,
CAA sections 172, 181–182, and 191–192.
6 The TSD for this action is available on line at
www.regulations.gov, Docket ID Number EPA–R03–
OAR–2014–0910.
E:\FR\FM\05AUR1.SGM
05AUR1
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
response to another comment in this
rulemaking, the TSD for the proposed
rule explains why the Pennsylvania SIP
includes enforceable emissions
limitations for ozone precursors and for
SO2 for the relevant areas.
Lhorne on DSK7TPTVN1PROD with RULES
3. Case Law
Comment 3: The Commenter also
discusses several cases applying the
CAA which the Commenter claims
support its contention that courts have
been clear that section 110(a)(2)(A)
requires enforceable emissions limits in
infrastructure SIPs to prevent
exceedances of the NAAQS. The
Commenter first cites to language in
Train v. NRDC, 421 U.S. 60, 78 (1975),
addressing the requirement for
‘‘emission limitations’’ and stating that
emission limitations ‘‘are specific rules
to which operators of pollution sources
are subject, and which, if enforced,
should result in ambient air which meet
the national standards.’’ The
Commenter also cites to Pennsylvania
Dept. of Envtl. Resources v. EPA, 932
F.2d 269, 272 (3d Cir. 1991) for the
proposition that the CAA directs EPA to
withhold approval of a SIP where it
does not ensure maintenance of the
NAAQS, and to Mision Industrial, Inc.
v. EPA, 547 F.2d 123, 129 (1st Cir.
1976), which quoted section 110(a)(2)(B)
of the CAA of 1970. The Commenter
contends that the 1990 Amendments do
not alter how courts have interpreted
the requirements of section 110, quoting
Alaska Dept. of Envtl. Conservation v.
EPA, 540 U.S. 461, 470 (2004) which in
turn quoted section 110(a)(2)(A) of the
CAA and also stated that ‘‘SIPs must
include certain measures Congress
specified’’ to ensure attainment of the
NAAQS. The Commenter also quotes
several additional opinions in this vein.
Mont. Sulphur & Chem. Co. v. EPA, 666
F.3d 1174, 1180 (9th Cir. 2012) (‘‘The
Clean Air Act directs states to develop
implementation plans—SIPs—that
‘assure’ attainment and maintenance of
[NAAQS] through enforceable emissions
limitations’’); Hall v. EPA 273 F.3d
1146, 1153 (9th Cir. 2001) (‘‘Each State
must submit a [SIP] that specif[ies] the
manner in which [NAAQS] will be
achieved and maintained within each
air quality control region in the State’’);
Conn. Fund for Env’t, Inc. v. EPA, 696
F.2d 169, 172 (D.C. Cir. 1982) (CAA
requires SIPs to contain ‘‘measures
necessary to ensure attainment and
maintenance of NAAQS’’). Finally, the
Commenter cites Mich. Dept. of Envtl.
Quality v. Browner, 230 F.3d 181 (6th
Cir. 2000) for the proposition that EPA
may not approve a SIP revision that
does not demonstrate how the rules
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
would not interfere with attainment and
maintenance of the NAAQS.
Response 3: None of the cases the
Commenter cites support its contention
that section 110(a)(2)(A) is clear that
infrastructure SIPs must include
detailed plans providing for attainment
and maintenance of the NAAQS in all
areas of the state, nor do they shed light
on how section 110(a)(2)(A) may
reasonably be interpreted. With the
exception of Train, none of the cases the
Commenter cites concerned the
interpretation of CAA section
110(a)(2)(A) (or section 110(a)(2)(B) of
the pre-1990 Act). Rather, the courts
reference section 110(a)(2)(A) (or section
110(a)(2)(B) of the pre-1990 CAA) in the
background sections of decisions in the
context of a challenge to an EPA action
on revisions to a SIP that was required
and approved or disapproved as
meeting other provisions of the CAA or
in the context of an enforcement action.
In Train, 421 U.S. 60, the Court was
addressing a state revision to an
attainment plan submission made
pursuant to section 110 of the CAA, the
sole statutory provision at that time
regulating such submissions. The issue
in that case concerned whether changes
to requirements that would occur before
attainment was required were variances
that should be addressed pursuant to
the provision governing SIP revisions or
were ‘‘postponements’’ that must be
addressed under section 110(f) of the
CAA of 1970, which contained
prescriptive criteria. The Court
concluded that EPA reasonably
interpreted section 110(f) not to restrict
a state’s choice of the mix of control
measures needed to attain the NAAQS
and that revisions to SIPs that would
not impact attainment of the NAAQS by
the attainment date were not subject to
the limits of section 110(f). Thus the
issue was not whether a section 110 SIP
needs to provide for attainment or
whether emissions limits providing
such are needed as part of the SIP;
rather the issue was which statutory
provision governed when the state
wanted to revise the emission limits in
its SIP if such revision would not
impact attainment or maintenance of the
NAAQS. To the extent the holding in
the case has any bearing on how section
110(a)(2)(A) might be interpreted, it is
important to realize that in 1975, when
the opinion was issued, section
110(a)(2)(B) (the predecessor to section
110(a)(2)(A)) expressly referenced the
requirement to attain the NAAQS, a
reference that was removed in 1990.
The decision in Pennsylvania Dept. of
Envtl. Resources was also decided based
on the pre-1990 provision of the CAA.
At issue was whether EPA properly
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
46497
rejected a revision to an approved plan
where the inventories relied on by the
state for the updated submission had
gaps. The Court quoted section
110(a)(2)(B) of the pre-1990 CAA in
support of EPA’s disapproval, but did
not provide any interpretation of that
provision. Yet, even if the Court had
interpreted that provision, EPA notes
that it was modified by Congress in
1990; thus, this decision has little
bearing on the issue here.
At issue in Mision Industrial, 547
F.2d 123, was the definition of
‘‘emissions limitation,’’ not whether
section 110 requires the state to
demonstrate how all areas of the state
will attain and maintain the NAAQS as
part of their infrastructure SIPs. The
language from the opinion the
Commenter quotes does not interpret
but rather merely describes section
110(a)(2)(A). The Commenter does not
raise any concerns about whether the
measures relied on by the
Commonwealth in the infrastructure
SIPs are ‘‘emissions limitations’’ and the
decision in this case has no bearing
here.7 In Mont. Sulphur & Chem. Co.,
666 F.3d 1174, the Court was not
reviewing an infrastructure SIP, but
rather EPA’s disapproval of a SIP and
promulgation of a federal
implementation plan (FIP) after a long
history of the state failing to submit an
adequate SIP in response to EPA’s
finding under section 110(k)(5) that the
previously approved SIP was
substantially inadequate to attain or
maintain the NAAQS. The Court cited
generally to sections 107 and
110(a)(2)(A) of the CAA for the
proposition that SIPs should assure
attainment and maintenance of NAAQS
through emission limitations, but this
language was not part of the Court’s
holding in the case, which focused
instead on whether EPA’s finding of SIP
inadequacy, disapproval of the state’s
required responsive attainment
demonstration under section 110(k)(5),
and adoption of a remedial FIP under
section 110(c) were lawful. The
Commenter suggests that Alaska Dept.
of Envtl. Conservation, 540 U.S. 461,
stands for the proposition that the 1990
CAA Amendments do not alter how
courts interpret section 110. This claim
is inaccurate. Rather, the Court quoted
section 110(a)(2)(A), which, as noted
previously, differs from the pre-1990
version of that provision and the Court
7 While the Commenter does contend that the
Commonwealth shouldn’t be allowed to rely on
emission reductions that were developed for the
prior standards (which we address herein), it does
not claim that any of the measures are not
‘‘emissions limitations’’ within the definition of the
CAA.
E:\FR\FM\05AUR1.SGM
05AUR1
46498
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
Lhorne on DSK7TPTVN1PROD with RULES
made no mention of the changed
language. Furthermore, the Commenter
also quotes the Court’s statement that
‘‘SIPs must include certain measures
Congress specified,’’ but that statement
specifically referenced the requirement
in section 110(a)(2)(C), which requires
an enforcement program and a program
for the regulation of the modification
and construction of new sources.
Notably, at issue in that case was the
state’s ‘‘new source’’ permitting
program, not its infrastructure SIP.
Two of the other cases the Commenter
cites, Mich. Dept. of Envtl. Quality, 230
F.3d 181, and Hall, 273 F.3d 1146,
interpret CAA section 110(l), the
provision governing ‘‘revisions’’ to
plans, and not the initial plan
submission requirement under section
110(a)(2) for a new or revised NAAQS,
such as the infrastructure SIP at issue in
this instance. In those cases, the courts
cited to section 110(a)(2)(A) solely for
the purpose of providing a brief
background of the CAA.
EPA does not believe any of these
court decisions addressed required
measures for infrastructure SIPs and
believes nothing in the opinions
addressed whether infrastructure SIPs
need to contain measures to ensure
attainment and maintenance of the
NAAQS.
4. EPA Regulations, Such as 40 CFR
51.112(a)
Comment 4: The Commenter cites to
40 CFR 51.112(a), providing that ‘‘[e]ach
plan must demonstrate that the
measures, rules and regulations
contained in it are adequate to provide
for the timely attainment and
maintenance of the [NAAQS].’’ The
Commenter asserts that this regulation
requires infrastructure SIPs to include
emissions limits necessary to ensure
attainment and maintenance of the
NAAQS. The Commenter states that the
provisions of 40 CFR 51.112 are not
limited to nonattainment SIPs and
instead applies to infrastructure SIPs
which are required to attain and
maintain the NAAQS in areas not
designated nonattainment. The
Commenter relies on a statement in the
preamble to the 1986 action
restructuring and consolidating
provisions in part 51, in which EPA
stated that ‘‘[i]t is beyond the scope of
th[is] rulemaking to address the
provisions of Part D of the Act . . .’’ 51
FR 40656, 40656 (November 7, 1986).
The Commenter asserts 40 CFR
51.112(a) identifies the plans to which
it applies as those that implement the
NAAQS.
Response 4: The Commenter’s
reliance on 40 CFR 51.112 to support its
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
argument that infrastructure SIPs must
contain emission limits adequate to
ensure attainment and maintenance of
the NAAQS is not supported. As an
initial matter, EPA notes this regulatory
provision was initially promulgated and
later restructured and consolidated prior
to the CAA Amendments of 1990, in
which Congress removed all references
to ‘‘attainment’’ in section 110(a)(2)(A).
And, it is clear on its face that 40 CFR
51.112 applies to plans specifically
designed to attain the NAAQS. EPA
interprets these provisions to apply
when states are developing ‘‘control
strategy’’ SIPs such as the detailed
attainment and maintenance plans
required under other provisions of the
CAA, as amended in 1977 and again in
1990, such as sections 175A, 181–182,
and 191–192. The Commenter suggests
that these provisions must apply to
section 110 SIPs because in the
preamble to EPA’s action ‘‘restructuring
and consolidating’’ provisions in part
51, EPA stated that the new attainment
demonstration provisions in the 1977
Amendments to the CAA were ‘‘beyond
the scope’’ of the rulemaking. It is
important to note, however, that EPA’s
action in 1986 was not to establish new
substantive planning requirements, but
rather was meant merely to consolidate
and restructure provisions that had
previously been promulgated. EPA
noted that it had already issued
guidance addressing the new ‘‘Part D’’
attainment planning obligations. Also,
as to maintenance regulations, EPA
expressly stated that it was not making
any revisions other than to re-number
those provisions. 51 FR 40657.
Although EPA was explicit that it was
not establishing requirements
interpreting the provisions of new ‘‘Part
D’’ of the CAA, it is clear that the
regulations being restructured and
consolidated were intended to address
control strategy plans. In the preamble,
EPA clearly stated that 40 CFR 51.112
was replacing 40 CFR 51.13 (‘‘Control
strategy: SOx and PM (portion)’’), 51.14
(‘‘Control strategy: CO, HC, Ox and NO2
(portion)’’), 51.80 (‘‘Demonstration of
attainment: Pb (portion)’’), and 51.82
(‘‘Air quality data (portion)’’). Id. at
40660. Thus, the present-day 40 CFR
51.112 contains consolidated provisions
that are focused on control strategy SIPs,
and the infrastructure SIP is not such a
plan.
5. EPA Interpretations in Other
Rulemakings
Comment 5: The Commenter also
references a prior EPA rulemaking
action where EPA disapproved a SIP
and claims that action shows EPA relied
on section 110(a)(2)(A) and 40 CFR
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
51.112 to reject the SIP. The Commenter
points to a 2006 partial approval and
partial disapproval of revisions to
Missouri’s existing control strategy
plans addressing the SO2 NAAQS. The
Commenter claims EPA cited section
110(a)(2)(A) for disapproving a revision
to the state plan on the basis that the
State failed to demonstrate the SIP was
sufficient to ensure maintenance of the
SO2 NAAQS after revision of an
emission limit and claims EPA cited to
40 CFR 51.112 as requiring that a plan
demonstrates the rules in a SIP are
adequate to attain the NAAQS. The
Commenter claims the revisions to
Missouri’s control strategy SIP for SO2
were rejected by EPA because the
revised control strategy limits were also
in Missouri’s infrastructure SIP and thus
the weakened limits would have
impacted the infrastructure SIP’s ability
to aid in attaining and maintaining the
NAAQS.
Response 5: EPA does not agree that
the prior Missouri rulemaking action
referenced by the Commenter
establishes how EPA reviews
infrastructure SIPs. It is clear from the
final Missouri rule that EPA was not
reviewing initial infrastructure SIP
submissions under section 110 of the
CAA, but rather reviewing revisions that
would make an already approved SIP
designed to demonstrate attainment of
the NAAQS less stringent. EPA’s partial
approval and partial disapproval of
revisions to restrictions on emissions of
sulfur compounds for the Missouri SIP
in 71 FR 12623 addressed a control
strategy SIP and not an infrastructure
SIP. Nothing in that action addresses the
necessary content of the initial
infrastructure SIP for a new or revised
NAAQS.
C. Sierra Club Comments on
Pennsylvania SIP SO2 Emission Limits
The Commenter contends that the
Pennsylvania 2008 ozone and 2010 SO2
infrastructure SIP revisions did not
revise the existing ozone precursor
emission limits and SO2 emission limits
in response to the 2008 ozone and 2010
SO2 NAAQS and fail to comport with
assorted CAA requirements for SIPs to
establish enforceable emission limits
that are adequate to prohibit NAAQS
exceedances in areas not designated
nonattainment. EPA will address SO2
comments and ozone comments
respectively.
Comment 6: Citing section
110(a)(2)(A) of the CAA, the Commenter
contends that EPA may not approve
Pennsylvania’s proposed 2010 SO2
infrastructure SIP because it does not
include enforceable 1-hour SO2
emission limits for sources currently
E:\FR\FM\05AUR1.SGM
05AUR1
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
Lhorne on DSK7TPTVN1PROD with RULES
allowed to cause ‘‘NAAQS
exceedances.’’ The Commenter asserts
the proposed infrastructure SIP fails to
include enforceable 1-hour SO2
emissions limits or other required
measures to ensure attainment and
maintenance of the SO2 NAAQS in areas
not designated nonattainment as the
Commenter claims is required by
section 110(a)(2)(A). The Commenter
asserts an infrastructure SIP must
ensure, through state-wide regulations
or source specific requirements, proper
mass limitations and emissions rates
with short term averaging on specific
large sources of pollutants such as
power plants. The Commenter asserts
that emission limits are especially
important for meeting the 1-hour SO2
NAAQS because SO2 impacts are
strongly source-oriented. The
Commenter states coal-fired electric
generating units (EGUs) are large
contributors to SO2 emissions but
contends Pennsylvania did not
demonstrate that emissions allowed by
the proposed infrastructure SIP from
such large sources of SO2 will ensure
compliance with the 2010 1-hour SO2
NAAQS. The Commenter claims the
proposed infrastructure SIP would
allow major sources to continue
operating with present emission limits.8
The Commenter then refers to air
dispersion modeling it conducted for
five coal-fired EGUs in Pennsylvania,
including Brunner Island Steam Electric
Station, Montour Steam Electric Station,
Cheswick Power Station, New Castle
Power Plant, and Shawville Coal Plant.
The Commenter asserts the results of the
air dispersion modeling it conducted
employing EPA’s AERMOD program for
modeling used the plants’ allowable
emissions and showed the plants could
cause exceedances of the 2010 SO2
NAAQS with allowable emissions.9
Based on the modeling, the Commenter
asserts the Pennsylvania SO2
infrastructure SIP submittal authorizes
the EGUs to cause exceedances of the
NAAQS with allowable emission rates
and therefore the infrastructure SIP fails
to include adequate enforceable
emission limitations or other required
measures for sources of SO2 sufficient to
ensure attainment and maintenance of
the 2010 SO2 NAAQS.10 The
8 The Commenter provides a chart in its
comments claiming 80 percent of SO2 emissions in
Pennsylvania are from coal-electric generating units
based on 2011 data.
9 The Commenter asserts its modeling followed
protocols pursuant to 40 CFR part 51, Appendix W
and EPA’s modeling guidance issued March 2011
and December 2013.
10 The Commenter again references 40 CFR
51.112 in support of its position that the
infrastructure SIP must include emission limits for
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
Commenter therefore asserts EPA must
disapprove Pennsylvania’s proposed
2010 SO2 infrastructure SIP revision. In
addition, the Commenter asserts ‘‘EPA
may only approve an I–SIP that
incorporates enforceable emission
limitations on major sources of SO2
pollution in the state, including coalfired power plants, with one-hour
averaging times that are no less stringent
than the modeling based limits . . .
necessary to protect the one-hour SO2
NAAQS and attain and maintain the
standard in Pennsylvania. These
emission limits must apply at all times
. . . to ensure that Pennsylvania is able
to attain and maintain the 2010 SO2
NAAQS.’’ The Commenter claimed
additional modeling for two EGUs,
Brunner Island and Montour, done with
actual historical hourly SO2 emissions
show these facilities have actually been
causing ‘‘exceedances of the NAAQS’’
while operating pursuant to existing
emission limits which the Commenter
claims Pennsylvania included as part of
the SO2 infrastructure SIP submission.
The Commenter also asserts that any
coal-fired units slated for retirement
should be incorporated into the
infrastructure SIP with an enforceable
emission limit or control measure.
Response 6: EPA disagrees with the
Commenter that EPA must disapprove
Pennsylvania’s SO2 infrastructure SIP
for the reasons provided by the
Commenter including the Commenter’s
modeling results and insufficient SO2
emission limits. EPA is not in this
action making a determination regarding
the Commonwealth’s current air quality
status or regarding whether its control
strategy is sufficient to attain and
maintain the NAAQS. Therefore, EPA is
not making any judgment on whether
the Commenter’s submitted modeling
demonstrates the NAAQS exceedances
that the Commenter claims. EPA
believes that section 110(a)(2)(A) of the
CAA is reasonably interpreted to require
states to submit infrastructure SIPs that
reflect the first step in their planning for
attainment and maintenance of a new or
revised NAAQS. These SIP revisions
should contain a demonstration that the
state has the available tools and
authority to develop and implement
plans to attain and maintain the NAAQS
and show that the SIP has enforceable
control measures. In light of the
structure of the CAA, EPA’s longstanding position regarding
infrastructure SIPs is that they are
general planning SIPs to ensure that the
state has adequate resources and
authority to implement a NAAQS in
attainment and maintenance of the 2010 SO2
NAAQS.
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
46499
general throughout the state and not
detailed attainment and maintenance
plans for each individual area of the
state. As mentioned above, EPA has
interpreted this to mean, with regard to
the requirement for emission limitations
that states may rely on measures already
in place to address the pollutant at issue
or any new control measures that the
state may choose to submit.
As stated in response to a previous
more general comment, section 110 of
the CAA is only one provision that is
part of the complicated structure
governing implementation of the
NAAQS program under the CAA, as
amended in 1990, and it must be
interpreted in the context of not only
that structure, but also of the historical
evolution of that structure. In light of
the revisions to section 110 since 1970
and the later-promulgated and more
specific planning requirements of the
CAA, EPA reasonably interprets the
requirement in section 110(a)(2)(A) of
the CAA that the plan provide for
‘‘implementation, maintenance and
enforcement’’ to mean that the SIP must
contain enforceable emission limits that
will aid in attaining and/or maintaining
the NAAQS and that the
Commonwealth demonstrate that it has
the necessary tools to implement and
enforce a NAAQS, such as adequate
state personnel and an enforcement
program. As discussed above, EPA has
interpreted the requirement for emission
limitations in section 110 to mean that
the state may rely on measures already
in place to address the pollutant at issue
or any new control measures that the
state may choose to submit. Finally, as
EPA stated in the Infrastructure SIP
Guidance which specifically provides
guidance to states in addressing the
2010 SO2 NAAQS and the 2008 Ozone
NAAQS, ‘‘[t]he conceptual purpose of
an infrastructure SIP submission is to
assure that the air agency’s SIP contains
the necessary structural requirements
for the new or revised NAAQS, whether
by establishing that the SIP already
contains the necessary provisions, by
making a substantive SIP revision to
update the SIP, or both.’’ Infrastructure
SIP Guidance at p. 2.
On April 12, 2012, EPA explained its
expectations regarding implementation
of the 2010 SO2 NAAQS via letters to
each of the states. EPA communicated
in the April 2012 letters that all states
were expected to submit SIPs meeting
the ‘‘infrastructure’’ SIP requirements
under section 110(a)(2) of the CAA by
June 2013. At the time, EPA was
undertaking a stakeholder outreach
process to continue to develop possible
approaches for determining attainment
status under the SO2 NAAQS and
E:\FR\FM\05AUR1.SGM
05AUR1
46500
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
Lhorne on DSK7TPTVN1PROD with RULES
implementing this NAAQS. EPA was
abundantly clear in the April 2012
letters that EPA did not expect states to
submit substantive attainment
demonstrations or modeling
demonstrations showing attainment for
areas not designated nonattainment in
infrastructure SIPs due in June 2013.
Although EPA had previously suggested
in its 2010 SO2 NAAQS preamble and
in prior draft implementation guidance
in 2011 that states should, in the unique
SO2 context, use the section 110(a) SIP
process as the vehicle for demonstrating
attainment of the NAAQS, this approach
was never adopted as a binding
requirement and was subsequently
discarded in the April 2012 letters to
states. The April 2012 letters
recommended states focus infrastructure
SIPs due in June 2013, such as
Pennsylvania’s SO2 infrastructure SIP,
on traditional ‘‘infrastructure elements’’
in section 110(a)(1) and (2) rather than
on modeling demonstrations for future
attainment for areas not designated as
nonattainment.11
Therefore, EPA asserts that
evaluations of modeling demonstrations
such as those submitted by the
Commenter are more appropriately to be
considered in actions that make
11 In EPA’s final SO NAAQS preamble (75 FR
2
35520 (June 22, 2010)) and subsequent draft
guidance in March and September 2011, EPA had
expressed its expectation that many areas would be
initially designated as unclassifiable due to
limitations in the scope of the ambient monitoring
network and the short time available before which
states could conduct modeling to support their
designations recommendations due in June 2011. In
order to address concerns about potential violations
in these unclassifiable areas, EPA initially
recommended that states submit substantive
attainment demonstration SIPs based on air quality
modeling by June 2013 (under section 110(a)) that
show how their unclassifiable areas would attain
and maintain the NAAQS in the future.
Implementation of the 2010 Primary 1-Hour SO2
NAAQS, Draft White Paper for Discussion, May
2012 (2012 Draft White Paper) (for discussion
purposes with Stakeholders at meetings in May and
June 2012), available at https://www.epa.gov/
airquality/sulfurdioxide/implement.html. However,
EPA clearly stated in this 2012 Draft White Paper
its clarified implementation position that it was no
longer recommending such attainment
demonstrations for unclassifiable areas for June
2013 infrastructure SIPs. Id. EPA had stated in the
preamble to the NAAQS and in the prior 2011 draft
guidance that EPA intended to develop and seek
public comment on guidance for modeling and
development of SIPs for sections 110 and 191 of the
CAA. Section 191 of the CAA requires states to
submit SIPs in accordance with section 172 for
areas designated nonattainment with the SO2
NAAQS. After seeking such comment, EPA has now
issued guidance for the nonattainment area SIPs
due pursuant to sections 191 and 172. See Guidance
for 1-Hour SO2 Nonattainment Area SIP
Submissions, Stephen D. Page, Director, EPA’s
Office of Air Quality Planning and Standards, to
Regional Air Division Directors Regions 1–10, April
23, 2014. In September 2013, EPA had previously
issued specific guidance relevant to infrastructure
SIP submissions due for the NAAQS, including the
2010 SO2 NAAQS. See Infrastructure SIP Guidance.
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
determinations regarding states’ current
air quality status or regarding future air
quality status. EPA also asserts that SIP
revisions for SO2 nonattainment areas
including measures and modeling
demonstrating attainment are due by the
dates statutorily prescribed under
subpart 5 under part D. Those
submissions are due no later than 18
months after an area is designed
nonattainment for SO2, under CAA
section 191(a). Thus, the CAA directs
states to submit these SIP requirements
that are specific for nonattainment areas
on a separate schedule from the
‘‘structural requirements’’ of 110(a)(2)
which are due within three years of
adoption or revision of a NAAQS and
which apply statewide. The
infrastructure SIP submission
requirement does not move up the date
for any required submission of a part D
plan for areas designated nonattainment
for the new NAAQS. Thus, elements
relating to demonstrating attainment for
areas not attaining the NAAQS are not
necessary for infrastructure SIP
submissions, and the CAA does not
provide explicit requirements for
demonstrating attainment for areas that
have not yet been designated regarding
attainment with a particular NAAQS.
As stated previously, EPA believes
that the proper inquiry at this juncture
is whether Pennsylvania has met the
basic structural SIP requirements
appropriate at the point in time EPA is
acting upon the infrastructure submittal.
Emissions limitations and other control
measures needed to attain the NAAQS
in areas designated nonattainment for
that NAAQS are due on a different
schedule from the section 110
infrastructure elements. A state, like
Pennsylvania, may reference preexisting SIP emission limits or other
rules contained in part D plans for
previous NAAQS in an infrastructure
SIP submission. Pennsylvania’s existing
rules and emission reduction measures
in the SIP that control emissions of SO2
were discussed in the TSD. These
provisions have the ability to reduce
SO2 overall. Although the Pennsylvania
SIP relies on measures and programs
used to implement previous SO2
NAAQS, these provisions are not
limited to reducing SO2 levels to meet
one specific NAAQS and will continue
to provide benefits for the 2010 SO2
NAAQS.
Additionally, as discussed in EPA’s
TSD supporting the NPR, Pennsylvania
has the ability to revise its SIP when
necessary (e.g. in the event the
Administrator finds the plan to be
substantially inadequate to attain the
NAAQS or otherwise meet all
applicable CAA requirements) as
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
required under element H of section
110(a)(2). See Section 4(1) of the APCA,
35 P.S. § 4004(1), which empowers
PADEP to implement the provisions of
the CAA. Section 5 of the APCA, 35 P.S.
§ 4005, authorizes the Environmental
Quality Board (EQB) to adopt rules and
regulations for the prevention, control,
reduction and abatement of air pollution
throughout the Commonwealth.
EPA believes the requirements for
emission reduction measures for an area
designated nonattainment for the 2010
primary SO2 NAAQS are in sections 172
and 191–192 of the CAA, and therefore,
the appropriate avenue for
implementing requirements for
necessary emission limitations for
demonstrating attainment with the 2010
SO2 NAAQS is through the attainment
planning process contemplated by those
sections of the CAA. On August 5, 2013,
EPA designated as nonattainment most
areas in locations where existing
monitoring data from 2009–2011
indicated violations of the 1-hour SO2
standard. 78 FR 47191. At that time,
four areas in Pennsylvania had
monitoring data from 2009–2011
indicating violations of the 1-hour SO2
standard, and these areas were
designated nonattainment in
Pennsylvania. See 40 CFR 81.339. Also
on March 2, 2015 the United States
District Court for the Northern District
of California entered a Consent Decree
among the EPA, Sierra Club and Natural
Resources Defense Council to resolve
litigation concerning the deadline for
completing designations for the 2010
SO2 NAAQS. Pursuant to the terms of
the Consent Decree, EPA will complete
additional designations for all
remaining areas of the country
including remaining areas in
Pennsylvania.12
For the four areas designated
nonattainment in Pennsylvania in
August 2013, attainment SIPs were due
by April 4, 2015 and must contain
demonstrations that the areas will attain
the 2010 SO2 NAAQS as expeditiously
as practicable, but no later than October
4, 2018 pursuant to sections 172, 191
and 192, including a plan for
enforceable measures to reach
attainment of the NAAQS. Similar
attainment planning SIPs for any
additional areas which EPA
subsequently designates nonattainment
with the 2010 SO2 NAAQS will be due
for such areas within the timeframes
specified in CAA section 191. EPA
12 The Consent Decree, entered March 2, 2015 by
the United States District Court for the Northern
District of California in Sierra Club and NRDC v.
EPA, Case 3:13-cv-03953–SI (N.D. Cal.) is available
at https://www.epa.gov/airquality/sulfurdioxide/
designations/pdfs/201503FinalCourtOrder.pdf.
E:\FR\FM\05AUR1.SGM
05AUR1
Lhorne on DSK7TPTVN1PROD with RULES
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
believes it is not appropriate to interpret
the overall section 110(a)(2)
infrastructure SIP obligation to require
bypassing the attainment planning
process by imposing separate
requirements outside the attainment
planning process. Such actions would
be disruptive and premature absent
exceptional circumstances and would
interfere with a state’s planning process.
See In the Matter of EME Homer City
Generation LP and First Energy
Generation Corp., Order on Petitions
Numbers III–2012–06, III–2012–07, and
III 2013–01 (July 30, 2014) (hereafter,
Homer City/Mansfield Order) at 10–19
(finding Pennsylvania SIP did not
require imposition of 1-hour SO2
emission limits on sources independent
of the part D attainment planning
process contemplated by the CAA). EPA
believes that the history of the CAA and
intent of Congress for the CAA as
described above demonstrate clearly
that it is within the section 172 and
general part D attainment planning
process that Pennsylvania must include
1-hour SO2 emission limits on sources,
where needed, for the four areas
designated nonattainment to reach
attainment with the 2010 1-hour SO2
NAAQS and for any additional areas
EPA may subsequently designate
nonattainment.
The Commenter’s reliance on 40 CFR
51.112 to support its argument that
infrastructure SIPs must contain
emission limits adequate to provide for
timely attainment and maintenance of
the standard is also not supported. As
explained previously in response to the
background comments, EPA notes this
regulatory provision applies to planning
SIPs, such as those demonstrating how
an area will attain a specific NAAQS
and not to infrastructure SIPs which are
intended to support that the states have
in place structural requirements
necessary to implement the NAAQS.
As noted in EPA’s preamble for the
2010 SO2 NAAQS, determining
compliance with the SO2 NAAQS will
likely be a source-driven analysis and
EPA has explored options to ensure that
the SO2 designations process
realistically accounts for anticipated
SO2 reductions at sources that we
expect will be achieved by current and
pending national and regional rules. See
75 FR 35520. As mentioned previously,
EPA will act in accordance with the
entered Consent Decree’s schedule for
conducting additional designations for
the 2010 SO2 NAAQS and any areas
designated nonattainment must meet
the applicable part D requirements for
these areas. However, because the
purpose of an infrastructure SIP
submission is for more general planning
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
purposes, EPA does not believe
Pennsylvania was obligated during this
infrastructure SIP planning process to
account for controlled SO2 levels at
individual sources. See Homer City/
Mansfield Order at 10–19.
Regarding the air dispersion modeling
conducted by the Commenter pursuant
to AERMOD for the coal-fired plants
including the Brunner Island, Montour,
Cheswick, New Castle and Shawville
facilities, EPA does not find the
modeling information relevant at this
time for review of an infrastructure SIP.
While EPA has extensively discussed
the use of modeling for attainment
demonstration purposes and for
designations, EPA has affirmatively
stated such modeling was not needed to
demonstrate attainment for the SO2
infrastructure SIPs under the 2010 SO2
NAAQS. See April 12, 2012 letters to
states regarding SO2 implementation
and Implementation of the 2010 Primary
1-Hour SO2 NAAQS, Draft White Paper
for Discussion, May 2012, available at
https://www.epa.gov/airquality/
sulfurdioxide/implement.html.13
EPA has proposed a Data
Requirements Rule which, if
promulgated, will be relevant to the SO2
designations process. See, e.g., 79 FR
27446 (May 13, 2014) (proposing
process by which state air agencies
would characterize air quality around
SO2 sources through ambient
monitoring and/or air quality modeling
techniques and submit such data to the
EPA). The proposed rule includes a
lengthy discussion of how EPA
anticipates addressing modeling that
informs determinations of states’ air
quality status under the 2010 SO2
NAAQS. As stated above, EPA believes
it is not appropriate to bypass the
attainment planning process by
imposing separate attainment planning
process requirements outside part D and
into the infrastructure SIP process.
Finally, EPA also disagrees with the
Commenter that the Pennsylvania
infrastructure SIP must, to be approved,
incorporate the planned retirement
dates of coal-fired EGUs to ensure
attainment and maintenance of the SO2
NAAQS. Because EPA does not believe
Pennsylvania’s infrastructure SIP
requires at this time 1-hour SO2
emission limits on these sources or
other large stationary sources to ensure
13 EPA has provided draft guidance for states
regarding modeling analyses to support the
designations process for the 2010 SO2 NAAQS. SO2
NAAQS Designations Modeling Technical
Assistance Document (draft), EPA Office of Air and
Radiation and Office of Air Quality Planning and
Standards, December 2013, available at https://
www.epa.gov/airquality/sulfurdioxide/
implement.html.
PO 00000
Frm 00017
Fmt 4700
Sfmt 4700
46501
attainment or maintenance or ‘‘prevent
exceedances’’ of the 2010 SO2 NAAQS,
EPA likewise does not believe
incorporating planned retirement dates
for SO2 emitters is necessary for our
approval of an infrastructure SIP which
we have explained meets the structural
requirements of section 110(a)(2).
Pennsylvania can address any SO2
emission reductions that may be needed
to attain the 2010 SO2 NAAQS,
including reductions through source
retirements, in the separate attainment
planning process of part D of title I of
the CAA for areas designated
nonattainment.
In conclusion, EPA disagrees with the
Commenter’s statements that EPA must
disapprove Pennsylvania’s
infrastructure SIP submission because it
does not establish specific enforceable
SO2 emission limits, either on coal-fired
EGUs or other large SO2 sources, in
order to demonstrate attainment and
maintenance with the NAAQS at this
time.14
Comment 7: The Commenter asserts
that modeling is the appropriate tool for
evaluating adequacy of infrastructure
SIPs and ensuring attainment and
maintenance of the 2010 SO2 NAAQS.
The Commenter refers to EPA’s historic
use of air dispersion modeling for
attainment designations as well as ‘‘SIP
revisions.’’ The Commenter cites to
prior EPA statements that the Agency
has used modeling for designations and
attainment demonstrations, including
statements in the 2010 SO2 NAAQS
preamble, EPA’s 2012 Draft White Paper
for Discussion on Implementing the
2010 SO2 NAAQS, and a 1994 SO2
Guideline Document, as modeling could
better address the source-specific
impacts of SO2 emissions and historic
challenges from monitoring SO2
emissions.15
The Commenter also cited to several
cases upholding EPA’s use of modeling
in NAAQS implementation actions,
including the Montana Sulphur case,
Sierra Club v. Costle, 657 F.2d 298 (D.C.
Cir. 1981), Republic Steel Corp. v.
Costle, 621 F.2d 797 (6th Cir. 1980), and
Catawba County v. EPA, 571 F.3d 20
14 Finally, EPA does not disagree with the
Commenter’s claim that coal fired EGUs are a large
source of SO2 emissions in Pennsylvania based on
the 2011 NEI. However, EPA does not agree that
this information is relevant to our approval of the
infrastructure SIP which EPA has explained meets
requirements in CAA section 110(a)(2).
15 The Commenter also cites to a 1983 EPA
Memorandum on section 107 designations policy
regarding use of modeling for designations and to
the 2012 Mont. Sulphur & Chem. Co. case which
upheld EPA’s finding that the previously approved
SIP for an area in Montana was substantially
inadequate to attain the NAAQS due to modeled
violations of the NAAQS.
E:\FR\FM\05AUR1.SGM
05AUR1
Lhorne on DSK7TPTVN1PROD with RULES
46502
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
(D.C. Cir. 2009).16 The Commenter
discusses statements made by EPA staff
regarding the use of modeling and
monitoring in setting emission
limitations or determining ambient
concentrations as a result of a source’s
emissions, discussing performance of
AERMOD as a model, if AERMOD is
capable of predicting whether the
NAAQS is attained, and whether
individual sources contribute to SO2
NAAQS violations. The Commenter
cites to EPA’s history of employing air
dispersion modeling for increment
compliance verifications in the
permitting process for the Prevention of
Significant Deterioration (PSD) program
required in part C of Title I of the CAA.
The Commenter claims several coalfired EGUs including Brunner Island,
Montour, Cheswick, New Castle, and
Shawville are examples of sources
located in elevated terrain where the
AERMOD model functions
appropriately in evaluating ambient
impacts.
The Commenter asserts EPA’s use of
air dispersion modeling was upheld in
GenOn REMA, LLC v. EPA, 722 F.3d 513
(3rd Cir. 2013) where an EGU
challenged EPA’s use of CAA section
126 to impose SO2 emission limits on a
source due to cross-state impacts. The
Commenter claims the Third Circuit in
GenOn REMA upheld EPA’s actions
after examining the record which
included EPA’s air dispersion modeling
of the one source as well as other data.
The Commenter cites to Vehicle Mfrs.
Ass’n v. State Farm Mut. Auto Ins. Co.,
463 U.S. 29,43 (1983) and NRDC v. EPA,
571 F.3d 1245, 1254 (D.C. Cir. 2009) for
the general proposition that it would be
arbitrary and capricious for an agency to
ignore an aspect of an issue placed
before it and that an agency must
consider information presented during
notice-and-comment rulemaking.17
Finally, the Commenter claims that
Pennsylvania’s proposed SO2
infrastructure SIP lacks emission
limitations informed by air dispersion
modeling and therefore fails to ensure
Pennsylvania will attain and maintain
the 2010 SO2 NAAQS. The Commenter
claims EPA must disapprove the SO2
infrastructure SIP as it does not
‘‘prevent exceedances’’ or ensure
attainment and maintenance of the SO2
NAAQS.
Response 7: EPA agrees with the
Commenter that air dispersion
modeling, such as AERMOD, can be an
16 Montana Sulphur & Chemical Co. v. EPA, 666
F.3d 1174 (9th Cir. 2012).
17 The Commenter also claims it raised similar
arguments to Pennsylvania during the Pennsylvania
proposal process for the infrastructure SIPs.
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
important tool in the CAA section 107
designations process for SO2 and in
developing SIPs for nonattainment areas
as required by sections 172 and 191–
192, including supporting required
attainment demonstrations. EPA agrees
that prior EPA statements, EPA
guidance, and case law support the use
of air dispersion modeling in the SO2
designations process and attainment
demonstration process, as well as in
analyses of the interstate impact of
transported emissions and whether
existing approved SIPs remain adequate
to show attainment and maintenance of
the SO2 NAAQS. However, as provided
in the previous responses, EPA
disagrees with the Commenter that EPA
must disapprove the Pennsylvania SO2
infrastructure SIP for its alleged failure
to include source-specific SO2 emission
limits that show no exceedances of the
NAAQS when modeled or ensure
attainment and maintenance of the
NAAQS.
In acting to approve or disapprove an
infrastructure SIP, EPA is not required
to make findings regarding current air
quality status of areas within the state,
regarding such area’s projected future
air quality status, or regarding whether
existing emissions limits in such area
are sufficient to meet a NAAQS in the
area. All of the actions the Commenter
cites, instead, do make findings
regarding at least one of those issues.
The attainment planning process
detailed in part D of the CAA, including
sections 172 and 191–192 attainment
SIPs, is the appropriate place for the
state to evaluate measures needed to
bring in-state nonattainment areas into
attainment with a NAAQS and to
impose additional emission limitations
such as SO2 emission limits on specific
sources.
EPA had initially recommended that
states submit substantive attainment
demonstration SIPs based on air quality
modeling in the final 2010 SO2 NAAQS
preamble (75 FR 35520) and in
subsequent draft guidance issued in
September 2011 for the section 110(a)
SIPs due in June 2013 in order to show
how areas then-expected to be
designated as unclassifiable would
attain and maintain the NAAQS. These
initial statements in the preamble and
2011 draft guidance, presented only in
the context of the new 1-hour SO2
NAAQS and not suggested as a matter
of general infrastructure SIP policy,
were based on EPA’s expectation at the
time, that by June 2012, most areas
would initially be designated as
unclassifiable due to limitations in the
scope of the ambient monitoring
network and the short time available
before which states could conduct
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
modeling to support designations
recommendations in 2011. However,
after conducting extensive stakeholder
outreach and receiving comments from
the states regarding these initial
statements and the timeline for
implementing the NAAQS, EPA
subsequently stated in the April 12,
2012 letters and in the 2012 Draft White
Paper that EPA was clarifying its 2010
SO2 NAAQS implementation position
and was no longer recommending such
attainment demonstrations supported by
air dispersion modeling for
unclassifiable areas (which had not yet
been designated) for the June 2013
infrastructure SIPs. Instead, EPA
explained that it expected states to
submit infrastructure SIPs that followed
the general policy EPA had applied
under other NAAQS. EPA then
reaffirmed this position in the February
6, 2013 memorandum, ‘‘Next Steps for
Area Designations and Implementation
of the Sulfur Dioxide National Ambient
Air Quality Standard.’’ 18 As previously
mentioned, EPA had stated in the
preamble to the NAAQS and in the prior
2011 draft guidance that EPA intended
to develop and seek public comment on
guidance for modeling and development
of SIPs for sections 110, 172 and 191–
192 of the CAA. After receiving such
further comment, EPA has now issued
guidance for the nonattainment area
SIPs due pursuant to sections 172 and
191–192. See April 23, 2014 Guidance
for 1-Hour SO2 Nonattainment Area SIP
Submissions. In addition, modeling may
be an appropriate consideration for
states and EPA in further designations
for the SO2 NAAQS in accordance with
the Sierra Club and NRDC Consent
Decree and proposed data requirements
rule mentioned previously.19 While the
EPA guidance for attainment SIPs and
for designations for CAA section 107
and proposed process for characterizing
SO2 emissions from larger sources
discuss the use of air dispersion
modeling, EPA’s 2013 Infrastructure SIP
Guidance did not suggest that states use
18 The February 6, 2013 ‘‘Next Steps for Area
Designations and Implementation of the Sulfur
Dioxide National Ambient Air Quality Standard,’’
one of the April 12, 2012 state letters, and the May
2012 Draft White Paper are available at https://
www.epa.gov/airquality/sulfurdioxide/
implement.html.
19 The Consent Decree in Sierra Club and NRDC
v. EPA, Case 3:13–cv–03953–SI (N.D. Cal.) is
available at https://www.epa.gov/airquality/
sulfurdioxide/designations/pdfs/
201503FinalCourtOrder.pdf. See 79 FR 27446
(EPA’s proposed data requirements rule). See also
Updated Guidance for Area Designations for the
2010 Primary Sulfur Dioxide National Ambient Air
Quality Standard, Stephen D. Page, Director, EPA’s
Office of Air Quality Planning Standards, March 20,
2015, available at https://www.epa.gov/airquality/
sulfurdioxide/pdfs/20150320SO2designations.pdf.>
E:\FR\FM\05AUR1.SGM
05AUR1
Lhorne on DSK7TPTVN1PROD with RULES
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
air dispersion modeling for purposes of
the section 110(a)(2) infrastructure SIP.
Therefore, as discussed previously, EPA
believes the Pennsylvania SO2
infrastructure SIP submittal contains the
structural requirements to address
elements in section 110(a)(2) as
discussed in detail in the TSD
accompanying the proposed approval.
EPA believes infrastructure SIPs are
general planning SIPs to ensure that a
state has adequate resources and
authority to implement a NAAQS.
Infrastructure SIP submissions are not
intended to act or fulfill the obligations
of a detailed attainment and/or
maintenance plan for each individual
area of the state that is not attaining the
NAAQS. While infrastructure SIPs must
address modeling authorities in general
for section 110(a)(2)(K), EPA believes
110(a)(2)(K) requires infrastructure SIPs
to provide the state’s authority for air
quality modeling and for submission of
modeling data to EPA, not specific air
dispersion modeling for large stationary
sources of pollutants. In the TSD for this
rulemaking action, EPA provided a
detailed explanation of Pennsylvania’s
ability and authority to conduct air
quality modeling when required and its
authority to submit modeling data to the
EPA.
EPA finds the Commenter’s
discussion of case law, guidance, and
EPA staff statements regarding
advantages of AERMOD as an air
dispersion model for purposes of
demonstrating attainment of the
NAAQS to be irrelevant to the analysis
of Pennsylvania’s infrastructure SIP,
which as we have explained is separate
from the SIP required to demonstrate
attainment of the NAAQS pursuant to
sections 172 or 192. In addition, the
Commenter’s comments relating to
EPA’s use of AERMOD or modeling in
general in designations pursuant to
section 107, including its citation to
Catawba County, are likewise irrelevant
as EPA’s present approval of
Pennsylvania’s infrastructure SIP is
unrelated to the section 107
designations process. Nor is EPA’s
action on this infrastructure SIP related
to any new source review (NSR) or PSD
permit program issue. As outlined in the
August 23, 2010 clarification memo,
‘‘Applicability of Appendix W Modeling
Guidance for the 1-hour SO2 National
Ambient Air Quality Standard’’ (U.S.
EPA, 2010a), AERMOD is the preferred
model for single source modeling to
address the 1-hour SO2 NAAQS as part
of the NSR/PSD permit programs.
Therefore, as attainment SIPs,
designations, and NSR/PSD actions are
outside the scope of a required
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
infrastructure SIP for the 2010 SO2
NAAQS for section 110(a), EPA
provides no further response to the
Commenter’s discussion of air
dispersion modeling for these
applications. If the Commenter
resubmits its air dispersion modeling for
the Pennsylvania EGUs, or updated
modeling information in the appropriate
context, EPA will address the
resubmitted modeling or updated
modeling at that time.
The Commenter correctly noted that
the Third Circuit upheld EPA’s section
126 finding imposing SO2 emissions
limitations on an EGU pursuant to CAA
section 126. GenOn REMA, LLC v. EPA,
722 F.3d 513. Pursuant to section 126,
any state or political subdivision may
petition EPA for a finding that any
major source or group of stationary
sources emits, or would emit, any air
pollutant in violation of the prohibition
of section 110(a)(2)(D)(i) which relates
to significant contributions to
nonattainment or interference with
maintenance of a NAAQS in another
state. The Third Circuit upheld EPA’s
authority under section 126 and found
EPA’s actions neither arbitrary nor
capricious after reviewing EPA’s
supporting docket which included air
dispersion modeling as well as ambient
air monitoring data showing
exceedances of the NAAQS. The
Commenter appears to have cited to this
matter to demonstrate EPA’s use of
modeling for certain aspects of the CAA.
We do not disagree that such modeling
is appropriate for other actions, such as
those under section 126. But, for the
reasons explained above, such modeling
is not required for determining whether
Pennsylvania’s infrastructure SIP has
the required structural requirements
pursuant to section 110(a)(2). As noted
above, EPA is not acting on an interstate
transport SIP in this action because
Pennsylvania has not made such a
submission. The decision in GenOn
Rema does not otherwise speak to the
role of air dispersion modeling as to any
other planning requirements in the
CAA.
In its comments, the Commenter
relies on Motor Vehicle Mfrs. Ass’n and
NRDC v. EPA to support its comments
that EPA must consider the
Commenter’s modeling data on several
Pennsylvania EGUs including Brunner
Island, Montour, Cheswick, New Castle,
and Shawville based on administrative
law principles regarding consideration
of comments provided during a
rulemaking process. For the reasons
previously explained, the purpose for
which the Commenter submitted the
modeling—namely, to assert that
current air quality in the areas in which
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
46503
those sources are located does not meet
the NAAQS—is not relevant to EPA’s
action on this infrastructure SIP, and
consequently EPA is not required to
consider the modeling in evaluating the
approvability of the infrastructure SIP.20
EPA does not believe infrastructure SIPs
must contain emission limitations
informed by air dispersion modeling in
order to meet the requirements of
section 110(a)(2)(A). Thus, EPA has
evaluated the persuasiveness of the
Commenter’s submitted modeling in
finding that it is not relevant to the
approvability of Pennsylvania’s
proposed infrastructure SIP for the 2010
SO2 NAAQS, but EPA has made no
judgment regarding whether the
Commenter’s submitted modeling is
sufficient to show violations of the
NAAQS.
While EPA does not believe that
infrastructure SIP submissions are
required to contain emission limits
assuring in-state attainment of the
NAAQS, as suggested by the
Commenter, EPA does recognize that in
the past, states have, in their discretion,
used infrastructure SIP submittals as a
‘vehicle’ for incorporating regulatory
revisions or source-specific emission
limits into the state’s plan. See 78 FR
73442 (December 6, 2013) (approving
regulations Maryland submitted for
incorporation into the SIP along with
the 2008 ozone infrastructure SIP to
address ethics requirements for State
Boards in sections 128 and
110(a)(2)(E)(ii)). While these SIP
revisions are intended to help the state
meet the requirements of section
110(a)(2), these ‘‘ride-along’’ SIP
revisions are not intended to signify that
all infrastructure SIP submittals must, in
order to be approved by EPA, have
similar regulatory revisions or sourcespecific emission limits. Rather, the
regulatory provisions and sourcespecific emission limits the state relies
on when showing compliance with
section 110(a)(2) have, in many cases,
likely already been incorporated into
the state’s SIP prior to each new
infrastructure SIP submission; in some
cases this was done for entirely separate
CAA requirements, such as attainment
20 EPA notes that PADEP provided similar
responses to the Commenter’s claims regarding
evaluation of modeling data for an infrastructure
SIP as specifically recounted by the Commenter in
its March 9, 2015 comments to EPA on this
rulemaking action. EPA agrees with PADEP’s
responses that emissions limitations for attainment
of the NAAQS are appropriate for consideration in
the part D planning process and not for the
infrastructure SIP process. Thus, EPA provides no
further response on this issue as PADEP responded
to the Commenter in Pennsylvania’s rulemaking
and EPA’s responses are provided in this action.
E:\FR\FM\05AUR1.SGM
05AUR1
46504
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
plans required under section 172, or for
previous NAAQS.
Comment 8: The Commenter asserts
that EPA may not approve the
Pennsylvania proposed SO2
infrastructure SIP because it fails to
include enforceable emission
limitations with a 1-hour averaging time
that applies at all times. The Commenter
cites to CAA section 302(k) which
requires emission limits to apply on a
continuous basis. The Commenter
claims EPA has stated that 1-hour
averaging times are necessary for the
2010 SO2 NAAQS citing to EPA’s April
23, 2014 Guidance for 1-Hour SO2
Nonattainment Area SIP Submissions, a
February 3, 2011, EPA Region 7 letter to
the Kansas Department of Health and
Environment regarding the need for 1hour SO2 emission limits in a PSD
permit, an EPA Environmental Hearing
Board (EHB) decision rejecting use of a
3-hour averaging time for a SO2 limit in
a PSD permit, and EPA’s disapproval of
a Missouri SIP which relied on annual
averaging for SO2 emission rates.21
Thus, the Commenter contends EPA
must disapprove Pennsylvania’s
infrastructure SIP which the Commenter
claims fails to require emission limits
with adequate averaging times.
Response 8: EPA disagrees that EPA
must disapprove the proposed
Pennsylvania infrastructure SIP because
the SIP does not contain enforceable
SO2 emission limitations with 1-hour
averaging periods that apply at all times,
as this issue is not appropriate for
resolution at this stage. The comment
does not assert that the SO2 emission
limits in Pennsylvania’s SIP are not
enforceable or that they do not apply at
all times, instead the comment focuses
on the lack of 1-hour averaging times.
We do not believe, as suggested by the
Commenter, that the emission limits are
not ‘‘continuous’’ within the meaning of
section 302(k). As EPA has noted
previously, the purpose of the section
110(a)(2) SIP is to ensure that the State
has the necessary structural components
to implement programs for attainment
and maintenance of the NAAQS.22
While EPA does agree that the averaging
Lhorne on DSK7TPTVN1PROD with RULES
21 Sierra
Club cited to In re: Mississippi Lime Co.,
PSDAPLPEAL 11–01, 2011 WL 3557194, at *26–27
(EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March
13, 2006) (EPA disapproval of a control strategy SO2
SIP).
22 As EPA has stated, some areas are designated
nonattainment areas pursuant to CAA section 107
for the 2010 SO2 NAAQS in the Commonwealth.
Thus, while the Commonwealth, at this time, has
an obligation to submit attainment plans for the
2010 SO2 NAAQS for sections 172, 191 and 192,
EPA believes the appropriate time for examining
necessity of the averaging periods within any
submitted SO2 emission limits on specific sources
is within the attainment planning process.
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
time is a critical consideration for
purposes of substantive SIP revisions,
such as attainment demonstrations, the
averaging time of existing rules in the
SIP is not relevant for determining that
the State has met the applicable
requirements of section 110(a)(2) with
respect to the infrastructure elements
addressed in the present SIP action.23
Therefore, because EPA finds
Pennsylvania’s SO2 infrastructure SIP
approvable without the additional SO2
emission limitations showing in-state
attainment of the NAAQS, EPA finds
the issues of appropriate averaging
periods for such future limitations not
relevant at this time. The Commenter
has cited to prior EPA discussion on
emission limitations required in PSD
permits (from an EAB decision and
EPA’s letter to Kansas’ permitting
authority) pursuant to part C of the
CAA, which is neither relevant nor
applicable to the present SIP action. In
addition, as previously discussed, the
EPA disapproval of the 2006 Missouri
SIP was a disapproval relating to a
control strategy SIP required pursuant to
part D attainment planning and is
likewise not relevant to the analysis of
infrastructure SIP requirements.
Comment 9: The Commenter states
that enforceable emission limits in SIPs
or permits are necessary to avoid
nonattainment designations in areas
where modeling or monitoring shows
SO2 levels exceed the 1-hour SO2
NAAQS and cites to a February 6, 2013
EPA document, Next Steps for Area
Designations and Implementation of the
Sulfur Dioxide National Ambient Air
Quality Standard, which the
Commenter contends discusses how
states could avoid future nonattainment
designations. The Commenter asserts
EPA must ensure enforceable emission
limits in the Pennsylvania infrastructure
SIP will not allow ‘‘exceedances’’ of the
SO2 NAAQS. The Commenter claims
the modeling it conducted for Brunner
Island, Montour, Cheswick, New Castle,
and Shawville indicates at least 28
additional counties in Pennsylvania
must be designated nonattainment with
the 2010 SO2 NAAQS without such
23 For a discussion on emission averaging times
for emissions limitations for SO2 attainment SIPs,
see the April 23, 2014 Guidance for 1-Hour SO2
Nonattainment Area SIP Submissions. EPA
explained that it is possible, in specific cases, for
states to develop control strategies that account for
variability in 1-hour emissions rates through
emission limits with averaging times that are longer
than 1-hour, using averaging times as long as 30days, but still provide for attainment of the 2010
SO2 NAAQS as long as the limits are of at least
comparable stringency to a 1-hour limit at the
critical emission value. EPA has not yet evaluated
any specific submission of such a limit, and so is
not at this time prepared to take final action to
implement this concept.
PO 00000
Frm 00020
Fmt 4700
Sfmt 4700
enforceable SO2 limits. In summary, the
Commenter asserts EPA must
disapprove the Pennsylvania
infrastructure SIP and ensure emission
limits will not allow large sources of
SO2 to cause exceedances of the 2010
SO2 NAAQS.
Response 9: EPA appreciates the
Commenter’s concern with avoiding
nonattainment designations in
Pennsylvania for the 2010 SO2 NAAQS.
However, Congress designed the CAA
such that states have the primary
responsibility for achieving and
maintaining the NAAQS within their
geographic area by submitting SIPs
which will specify the details of how
the state will meet the NAAQS.
Pursuant to section 107(d), the states
make initial recommendations of
designations for areas within each state
and EPA then promulgates the
designations after considering the state’s
submission and other information. EPA
promulgated initial designations for the
2010 SO2 NAAQS in August 2013 for
areas in which monitoring at that time
showed violations of the NAAQS, but
has not yet issued designations for other
areas and will complete the required
designations pursuant to the schedule
contained in the recently entered
Consent Decree. EPA will designate
additional areas for the 2010 SO2
NAAQS in accordance with the CAA
section 107 and existing EPA policy and
guidance. Pennsylvania may, on its own
accord, decide to impose additional SO2
emission limitations to avoid future
designations to nonattainment. If
additional Pennsylvania areas are
designated nonattainment, Pennsylvania
will then have the initial opportunity to
develop additional emissions
limitations needed to attain the NAAQS,
and EPA would be charged with
reviewing whether the SIP is adequate
to demonstrate attainment. See
Commonwealth of Virginia, et al., v.
EPA, 108 F.3d 1397, 1410 (D.C. Cir.
1997) (citing Natural Resources Defense
Council, Inc. v. Browner, 57 F.3d 1122,
1123 (DCCir.1995)) (discussing that
states have primary responsibility for
determining an emission reductions
program for its areas subject to EPA
approval dependent upon whether the
SIP as a whole meets applicable
requirements of the CAA). However,
such considerations are not required of
Pennsylvania at the infrastructure SIP
stage of NAAQS implementation, as the
Commenter’s statements concern the
separate designations process under
section 107.24 EPA disagrees that the
24 EPA also notes that in EPA’s final rule
regarding the 2010 SO2 NAAQS, EPA noted that it
anticipates several forthcoming national and
E:\FR\FM\05AUR1.SGM
05AUR1
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
infrastructure SIP must be disapproved
for not including enforceable emissions
limitations to prevent future 1-hour SO2
nonattainment designations.
D. Sierra Club Comments on
Pennsylvania 2008 Ozone Infrastructure
SIP
Lhorne on DSK7TPTVN1PROD with RULES
Comment 10: The Commenter claims
EPA must disapprove the proposed
infrastructure SIP for the 2008 ozone
NAAQS for its failure to include
enforceable measures on sources of
volatile organic compounds (VOCs) and
nitrogen oxides (NOX) to ensure
attainment and maintenance of the
NAAQS in areas not designated
nonattainment and to ensure
compliance with section 110(a)(2)(A) for
the 2008 ozone NAAQS. The
Commenter specifically mentions EGUs
as well as the oil and gas production
industry as sources needing additional
controls as they are major sources of
ozone precursors. The Commenter
claims stringent emission limits must
apply at all times to ensure all areas in
Pennsylvania attain and maintain the
ozone NAAQS. The Commenter claims
the provisions listed by Pennsylvania
for section 110(a)(2)(A) in its 2008
ozone NAAQS infrastructure SIP are
insufficient for attaining and
maintaining the 2008 ozone NAAQS as
evidenced by the Commenter’s review
of air quality monitoring data in areas
which are not presently designated
nonattainment for the 2008 ozone
NAAQS. Specifically, the Commenter
cites air monitoring in a number of
Pennsylvania counties including
Mercer, Indiana, Lebanon, Dauphin,
Erie and York counties indicating
‘‘exceedances’’ of the NAAQS and what
the Commenter asserts are design values
above the NAAQS in 2010–2012, 2011–
2013, and 2012–2014. The Commenter
alleges that these ‘‘exceedances’’
demonstrate that the Pennsylvania 2008
ozone infrastructure SIP with existing
regulations, statutes, source-specific
limits and programs fails to demonstrate
regional rules, such as the Industrial Boilers
standard under CAA section 112, are likely to
require significant reductions in SO2 emissions over
the next several years. See 75 FR 35520. EPA
continues to believe similar national and regional
rules will lead to SO2 reductions that will help
achieve compliance with the 2010 SO2 NAAQS. If
it appears that states with areas designated
nonattainment in 2013 will nevertheless fail to
attain the NAAQS as expeditiously as practicable
(but no later than October 2018) during EPA’s
review of attainment SIPs required by section 172,
the CAA provides authorities and tools for EPA to
solve such failure, including, as appropriate,
disapproving submitted SIPs and promulgating
federal implementation plans. Likewise, for any
areas designated nonattainment after 2013, EPA has
the same authorities and tools available to address
any areas which do not timely attain the NAAQS.
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
the infrastructure SIP will ensure
attainment and maintenance of the 2008
ozone NAAQS. Thus, the Commenter
asserts EPA must disapprove the 2008
ozone infrastructure SIP.
In addition, the Commenter asserts
that the infrastructure SIP required by
section 110(a) must provide assurances
that the NAAQS will be attained and
maintained for areas not designated
nonattainment and asserts that the
Pennsylvania infrastructure SIP must
contain state-wide regulations and
emission limits that ‘‘ensure that the
proper mass limitations and short term
averaging periods are imposed on
certain specific large sources of NOX
such as power plants. These emission
limits must apply at all times . . . to
ensure that all areas of Pennsylvania
attain and maintain the 2008 eight-hour
Ozone NAAQS.’’ The Commenter
suggests limits should be set on a
pounds per hour (lbs/hr) basis for EGUs
to address variation in mass emissions
and ensure protection of the ambient air
quality. The Commenter cites to NOX
limits from PSD permits issued to EGUs
with low NOX emission rates, claiming
such rates and related control
efficiencies are achievable for EGUs.
The Commenter suggests short-term
averaging limits would ensure EGUs
cannot emit NOX at higher rates on days
when ozone levels are worst while
meeting a longer-term average. The
Commenter also contends that adding
control devices and emission limits on
EGUs are a ‘‘cost effective option to
reduce NOX pollution and attain and
maintain the 2008 ozone NAAQS.’’
Finally, the Commenter contends the
proposed ozone infrastructure SIP
cannot ensure Pennsylvania will attain
and maintain the 2008 ozone NAAQS
and contends EPA must disapprove the
SIP for lack of emission limits to attain
and maintain the ozone NAAQS
statewide.
Response 10: EPA disagrees with the
commenter that the infrastructure SIPs
must include detailed attainment and
maintenance plans for all areas of the
state and must be disapproved if ozone
air quality data that became available
late in the process or after the SIP was
due and submitted changes the status of
areas within the state.25 EPA has
addressed in detail in prior responses
above the Commenter’s general
arguments that the statutory language,
legislative history, case law, EPA
25 EPA notes however that the data presented by
the Commenter in table 5 of its March 9, 2015
comments indicates a general improving trend in
ozone air quality for the specific counties the
Commenter included. The data could equally be
used to indicate improving ozone air quality based
on existing measures in the Pennsylvania SIP.
PO 00000
Frm 00021
Fmt 4700
Sfmt 4700
46505
regulations, and prior rulemaking
actions by EPA mandate the
interpretation it advocates—i.e., that
infrastructure SIPs must ensure
attainment and maintenance of the
NAAQS. EPA believes that section
110(a)(2)(A) is reasonably interpreted to
require states to submit SIPs that reflect
the first step in their planning for
attaining and maintaining a new or
revised NAAQS and that they contain
enforceable control measures and a
demonstration that the state has the
available tools and authority to develop
and implement plans to attain and
maintain the NAAQS, including the
2008 ozone NAAQS.
Moreover, the CAA recognizes and
has provisions to address changes in air
quality over time, such as an area
slipping from attainment to
nonattainment or changing from
nonattainment to attainment. These
include provisions providing for
redesignation in section 107(d) and
provisions in section 110(k)(5) allowing
EPA to call on the state to revise its SIP,
as appropriate.
The Commenter suggests that EPA
must disapprove the Pennsylvania
ozone infrastructure SIP because the fact
that a few areas in Pennsylvania
recently had air quality data slightly
above the standard therefore proves that
the infrastructure SIP is inadequate to
demonstrate maintenance of the ozone
NAAQS for those areas. EPA disagrees
with the Commenter because EPA does
not believe that section 110(a)(2)(A)
requires detailed planning SIPs
demonstrating either attainment or
maintenance for specific geographic
areas of the state. The infrastructure SIP
is triggered by promulgation of the
NAAQS, not designation. Moreover,
infrastructure SIPs are due three years
following promulgation of the NAAQS
and designations are not due until two
years (or in some cases three years)
following promulgation of the NAAQS.
Thus, during a significant portion of the
period that a state has available for
developing the infrastructure SIP, it
does not know what the designation
will be for individual areas of the
state.26 In light of the structure of the
CAA, EPA’s long-standing position
regarding infrastructure SIPs is that they
are general planning SIPs to ensure that
the state has adequate resources and
26 While it is true that there may be some
monitors within a state with values so high as to
make a nonattainment designation of the county
with that monitor almost a certainty, the geographic
boundaries of the nonattainment area associated
with that monitor would not be known until EPA
issues final designations. Moreover, the five areas
of concern to the Commenter do not fit that
description in any event.
E:\FR\FM\05AUR1.SGM
05AUR1
Lhorne on DSK7TPTVN1PROD with RULES
46506
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
authority to implement a NAAQS in
general throughout the state and not
detailed attainment and maintenance
plans for each individual area of the
state.
EPA’s interpretation that
infrastructure SIPs are more general
planning SIPs is consistent with the
statute as understood in light of its
history and structure as explained
previously in response to prior
comments. While at one time section
110 did provide the only detailed SIP
planning provisions for states and
specified that such plans must provide
for attainment of the NAAQS, part D of
title I of the CAA (not CAA section 110)
governs the substantive planning
process, including planning for
attainment and maintenance of the
NAAQS.
For the reasons explained by EPA in
this action, EPA disagrees with the
Commenter that EPA must disapprove
an infrastructure SIP revision if there
are monitored violations of the standard
in the state and the section 110(a)(2)(A)
revision does not have detailed plans for
demonstrating how the state will bring
that area into attainment or ensure
maintenance of the NAAQS. Rather,
EPA believes that the proper inquiry at
this juncture is whether the state has
met the basic structural SIP
requirements appropriate at the point in
time EPA is acting upon the submittal.
EPA’s NPR and TSD for this rulemaking
address why the Pennsylvania SIP
meets the basic structural SIP
requirements as to the elements
addressed in section 110(a)(2) in the
NPR for the 2008 ozone NAAQS.
As addressed in EPA’s proposed
approval for this rule, Pennsylvania
submitted a list of existing emission
reduction measures in the SIP that
control emissions of NOX and VOCs.
Pennsylvania’s SIP revision reflects
numerous provisions that have the
ability to reduce ground level ozone and
its precursors. The Pennsylvania SIP
relies on measures and programs used to
implement previous ozone NAAQS.
Because there is no substantive
difference between the previous ozone
NAAQS and the more recent ozone
NAAQS, other than the level of the
standard, the provisions relied on by
Pennsylvania will provide benefits for
the new NAAQS; in other words, the
measures reduce overall ground-level
ozone and its precursors and are not
limited to reducing ozone levels to meet
one specific NAAQS. Although
additional control measures for ozone
precursors such as those mentioned by
the Commenter may be considered by
PADEP and could be submitted with an
infrastructure SIP, these additional
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
measures are not a requirement in order
for Pennsylvania to meet CAA section
110(a)(2)(A). In approving
Pennsylvania’s infrastructure SIP
revision, EPA is affirming that
Pennsylvania has sufficient authority to
take the types of actions required by the
CAA in order to bring such areas back
into attainment.
Finally, EPA appreciates the
Commenter’s information regarding
EGU NOX control measures and
reduction efficiencies as well as
emissions limitations applicable to new
or modified EGUs which were set
during the PSD or NSR permit process.
Additional NOX regulations on
emissions from EGUs would likely
reduce ozone levels further in one or
more areas in Pennsylvania. Congress
established the CAA such that each state
has primary responsibility for assuring
air quality within the state and each
state is first given the opportunity to
determine an emission reduction
program for its areas subject to EPA
approval, with such approval dependent
upon whether the SIP as a whole meets
the applicable requirements of the CAA.
See Virginia v. EPA, 108 F.3d at 1410.
The Commonwealth could choose to
consider additional control measures for
NOX at EGUs to ensure attainment and
maintenance of the ozone NAAQS as
Pennsylvania moves forward to meet the
more prescriptive planning
requirements of the CAA in the future.
However, as we have explained, the
Commonwealth is not required to
regulate such sources for purposes of
meeting the infrastructure SIP
requirements of CAA section 110(a)(2).
In addition, emission limits with the
shorter-term averaging rates suggested
by the Commenter could be considered
within the part D planning process to
ensure attainment and maintenance of
the 2008 ozone NAAQS. As EPA finds
Pennsylvania’s NOX and VOC
provisions presently in the SIP
sufficient for infrastructure SIP
purposes and specifically for CAA
section 110(a)(2)(A), further
consideration of averaging times is not
appropriate or relevant at this time.
Thus, EPA disagrees with the
Commenter that Pennsylvania’s ozone
infrastructure SIP must be disapproved
for failure to contain sufficient measures
to ensure attainment and maintenance
of the NAAQS.
Comment 11: The Commenter states
enforceable emission limits are
necessary to avoid future nonattainment
designations in areas where
Pennsylvania’s monitoring network has
shown ‘‘exceedances’’ with the 2008
ozone NAAQS in recent years. The
Commenter stated EPA must address
PO 00000
Frm 00022
Fmt 4700
Sfmt 4700
inadequacies in enforceable emission
limitations relied upon by Pennsylvania
for its ozone infrastructure SIP to
comply with CAA section 110(a)(2)(A)
and stated EPA must disapprove the
ozone infrastructure SIP to ensure large
sources of NOX and VOCs cannot
contribute to exceedances of the ozone
NAAQS and prohibit attainment and
maintenance of the ozone NAAQS in all
of Pennsylvania.
Response 11: For the reasons
previously discussed, EPA disagrees
with the Commenter that we must
disapprove the Pennsylvania ozone
infrastructure SIP because it does not
demonstrate how areas that may be
newly violating the ozone NAAQS since
the time of designation can be brought
back into attainment. Enforceable
emission limitations to avoid future
nonattainment designations are not
required for EPA to approve an
infrastructure SIP under CAA section
110, and any emission limitations
needed to assure attainment and
maintenance with the ozone NAAQS
will be determined by Pennsylvania and
reviewed by EPA as part of the part D
attainment SIP planning process. Thus,
EPA disagrees with the Commenter that
EPA must disapprove the ozone
infrastructure SIP to ensure large
sources of NOX and VOC do not
contribute to exceedances of the
NAAQS or prohibit implementation,
attainment or maintenance of the ozone
NAAQS. As explained in the NPR and
TSD, Pennsylvania has sufficient
emission limitations and measures to
address NOX and VOC emissions for
CAA section 110(a)(2)(A).
III. Final Action
EPA is approving the following
elements of Pennsylvania’s June 15,
2014 SIP revisions for the 2008 ozone
NAAQS and the 2010 SO2 NAAQS:
Section 110(a)(2)(A), (B), (C), (D)(i)(II)
(PSD requirements), (D)(ii), (E), (F), (G),
(H), (J), (K), (L), and (M). Pennsylvania’s
SIP revisions provide the basic program
elements specified in Section 110(a)(2)
necessary to implement, maintain, and
enforce the 2008 ozone NAAQS and the
2010 SO2 NAAQS. This final
rulemaking action does not include
action on section 110(a)(2)(I) which
pertains to the nonattainment planning
requirements of part D, Title I of the
CAA, because this element is not
required to be submitted by the 3-year
submission deadline of section 110(a)(1)
of the CAA, and will be addressed in a
separate process. This final rulemaking
action also does not include action on
section 110(a)(2)(D)(i)(I) for interstate
transport for the 2008 ozone or the 2010
SO2 NAAQS as Pennsylvania’s July 15,
E:\FR\FM\05AUR1.SGM
05AUR1
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
2014 SIP submissions did not address
this element for either NAAQS nor does
this rulemaking include any action on
section 110(a)(2)(D)(i)(II) for visibility
protection for either NAAQS. While
Pennsylvania’s July 15, 2014 SIP
submissions for the 2008 ozone and
2010 SO2 NAAQS included provisions
addressing visibility protection, EPA
will take later, separate action on this
element for both of these NAAQS.
IV. Statutory and Executive Order
Reviews
A. General Requirements
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA 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
Lhorne on DSK7TPTVN1PROD with RULES
Name of non-regulatory
SIP revision
*
Section 110(a)(2) Infrastructure Requirements for the 2008
ozone NAAQS.
Section 110(a)(2) Infrastructure Requirements for the 2010
SO2 NAAQS.
VerDate Sep<11>2014
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 is
not approved to apply in Indian country
located in the state, and EPA notes that
it will not impose substantial direct
costs on tribal governments or preempt
tribal law.
B. Submission to Congress and the
Comptroller General
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).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Applicable geographic
area
State
submittal
date
Statewide ......................
7/15/14
8/5/15 [Insert Federal
Register citation].
Frm 00023
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Nitrogen dioxide, Ozone, Reporting and
recordkeeping requirements, Sulfur
oxides, Volatile organic compounds.
Dated: July 24, 2015.
William C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart NN—Pennsylvania
2. In § 52.2020, the table in paragraph
(e)(1) is amended by adding two entries
for ‘‘Section 110(a)(2) Infrastructure
Requirements for the 2008 ozone
NAAQS’’ and ‘‘Section 110(a)(2)
Infrastructure Requirements for the 2010
SO2 NAAQS’’ at the end of the table to
read as follows:
■
§ 52.2020
*
Identification of plan.
*
*
(e) * * *
(1) * * *
*
*
*
*
This rulemaking action addresses the following
CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II)
(prevention of significant deterioration), (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M).
This rulemaking action addresses the following
CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II)
(prevention of significant deterioration), (D)(ii),
(E), (F), (G), (H), (J), (K), (L), and (M).
*
*
8/5/15 [Insert Federal
Register citation].
PO 00000
List of Subjects in 40 CFR Part 52
Additional explanation
7/15/14
Jkt 235001
Court of Appeals for the appropriate
circuit by October 5, 2015. 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 pertaining to
Pennsylvania’s section 110(a)(2)
infrastructure elements for the 2008
ozone NAAQS and 2010 SO2 NAAQS
may not be challenged later in
proceedings to enforce its requirements.
(See section 307(b)(2).)
EPA Approval date
*
*
Statewide ......................
14:23 Aug 04, 2015
46507
Fmt 4700
Sfmt 4700
E:\FR\FM\05AUR1.SGM
05AUR1
46508
Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
[FR Doc. 2015–19090 Filed 8–4–15; 8:45 am]
SUPPLEMENTARY INFORMATION:
BILLING CODE 6560–50–P
Background
DEPARTMENT OF TRANSPORTATION
Office of the Secretary
49 CFR Part 27
RIN 2105–AD91
[Docket No. DOT–OST–2011–0182]
Nondiscrimination on the Basis of
Disability in Programs or Activities
Receiving Federal Financial
Assistance (U.S. Airports)
Office of the Secretary,
Department of Transportation (DOT).
ACTION: Final rule.
AGENCY:
The Department is issuing a
final rule to amend its rules
implementing section 504 of the
Rehabilitation Act of 1973, which
requires accessibility in airport terminal
facilities that receive Federal financial
assistance. The final rule includes new
provisions related to service animal
relief areas and captioning of televisions
and audio-visual displays that are
similar to existing requirements
applicable to U.S. and foreign air
carriers under the Department’s Air
Carrier Access (ACAA) regulations. The
final rule also reorganizes a provision
concerning mechanical lifts for
enplaning and deplaning passengers
with mobility impairments, and amends
this provision to require airports to
work not only with U.S. carriers but also
foreign air carriers to ensure that lifts
are available where level entry loading
bridges are not available. This final rule
applies to airport facilities located in the
United States with 10,000 or more
annual enplanements that receive
Federal financial assistance.
DATES: This rule is effective October 5,
2015.
FOR FURTHER INFORMATION CONTACT:
Maegan L. Johnson, Senior Trial
Attorney, Office of the Assistant General
Counsel for Aviation Enforcement and
Proceedings, Department of
Transportation, 1200 New Jersey
Avenue SE., Room W96–409,
Washington, DC 20590, (202) 366–9342.
You may also contact Blane A. Workie,
Assistant General Counsel for Aviation
Enforcement and Proceedings,
Department of Transportation, 1200
New Jersey Avenue SE., Room W96–
464, Washington, DC 20590, (202) 366–
9342. Arrangements to receive this
notice in an alternative format may be
made by contacting the above named
individuals.
Lhorne on DSK7TPTVN1PROD with RULES
SUMMARY:
VerDate Sep<11>2014
14:23 Aug 04, 2015
Jkt 235001
On November 1, 1996, the U.S.
Department of Transportation amended
its regulation implementing section 504
of the Rehabilitation Act of 1973 to
create a new section, 49 CFR 27.72,
concerning regulatory requirements for
U.S. airports to ensure the availability of
lifts to provide level-entry boarding for
passengers with disabilities flying on
small aircraft.1 See 61 FR 56409. This
requirement paralleled the lift
provisions applicable to U.S. carriers in
the ACAA rule, 14 CFR part 382. On
May 13, 2008, the Department of
Transportation published a final rule
that amended part 382 by making it
applicable to foreign air carriers. See 73
FR 27614. This amendment also
included provisions that require U.S.
and foreign air carriers, in cooperation
with airport operators, to provide
service animal relief areas for service
animals that accompany passengers
departing, connecting, or arriving at
U.S. airports. See 14 CFR 382.51(a)(5).
Part 382 also now requires U.S. and
foreign air carriers to enable captioning
on all televisions and other audio-visual
displays that are capable of displaying
captioning and that are located in any
portion of the airport terminal to which
any passengers have access. See 14 CFR
382.51(a)(6). As a result of the 2008
amendments to Part 382, the
requirements in Part 27 no longer
mirrored the requirements applicable to
airlines set forth in part 382 as had been
intended.
On September 21, 2011, the
Department issued a notice of proposed
rulemaking (NPRM) in Docket OST
2011–0182 titled, ‘‘Nondiscrimination
on the Basis of Disability in Programs or
Activities Receiving Federal Financial
Assistance (U.S. Airports).’’ See 76 FR
60426 et seq. (September 29, 2011). The
Department proposed to amend part 27
by inserting provisions that would
require airport operators to work with
carriers to establish relief areas for
service animals that accompany
passengers with disabilities departing,
connecting, or arriving at U.S. airports;
to enable high-contrast captioning 2 on
1 Recognizing the need for level-entry boarding
for passengers with mobility impairments on larger
aircraft, the Department extended the applicability
of its 1996 rule to aircraft with a seating capacity
of 31 or more passengers in 2001. See 66 FR 22107.
2 High-contrast captioning is defined in 14 CFR
382.3 as ‘‘captioning that is at least as easy to read
as white letters on a consistent black background.’’
As explained in the preamble to Part 382, defining
‘‘high-contrast captioning’’ in such a way not only
ensures that captioning will be effective but also
allows carriers to use existing or future technologies
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
certain televisions and audio-visual
displays in U.S. airports; and to
negotiate in good faith with foreign air
carriers to provide, operate, and
maintain lifts for boarding and
deplaning where level-entry loading
bridges are not available. The
Department also proposed updates in
the NPRM to outdated references that
existed in 49 CFR part 27 by deleting
obsolete references to the Uniform
Federal Accessibility Standards in 49
CFR 27.3(b), and changing the language
‘‘appendix A to part 37 of this title’’ to
‘‘appendices B and D of 36 CFR part
1191, as modified by appendix A to part
37 of this title.’’
The Department asked a series of
questions regarding the proposed
amendments to part 27. We received
481 comments in response to the NPRM,
the majority of which were received
from individual commenters. The
Department also received a number of
comments from disability organizations,
airports, and airport associations. We
have carefully reviewed and considered
these comments. The significant,
relevant issues raised by the public
comments to the NPRM are set forth
below, as is the Department’s response.
Service Animal Relief Areas
In the NPRM, the Department sought
comment on whether it should adopt
requirements regarding the design of
service animal relief areas and what, if
any, provisions the rule should include
concerning the dimensions, materials
used, and maintenance for service
animal relief areas. The Department
explained that commenters should
consider the size and surface material of
the area, maintenance, and distance to
service animal relief areas, which could
vary based on the size and configuration
of the airport. The Department also
sought comment on the compliance date
for these requirements.
Comments
Commenters that indicated that they
are service animal users, and other
individual commenters, favor the
construction of service animal relief
areas on non-cement surfaces. These
commenters also expressed a desire to
see overhangs covering service animal
relief areas to protect service animal
users from the elements. Airport and
airport organization commenters,
however, do not support specific
mandates regarding the design, number,
or location of service animal relief areas,
and encourage the Department to adopt
the general language that appears in part
to achieve captioning that are as effective as white
on black or more so.
E:\FR\FM\05AUR1.SGM
05AUR1
]]>Agencies
[Federal Register Volume 80, Number 150 (Wednesday, August 5, 2015)]
[Rules and Regulations]
[Pages 46494-46508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19090]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R03-OAR-2014-0910; FRL-9931-80-Region 3]
Approval and Promulgation of Air Quality Implementation Plans;
Pennsylvania; Infrastructure Requirements for the 2008 Ozone and 2010
Sulfur Dioxide National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving
portions of two State Implementation Plan (SIP) revisions submitted by
the Commonwealth of Pennsylvania through the Pennsylvania Department of
Environmental Protection (PADEP) pursuant to the Clean Air Act (CAA).
Whenever new or revised National Ambient Air Quality Standards (NAAQS)
are promulgated, the CAA requires states to submit a plan for the
implementation, maintenance, and enforcement of such NAAQS. The plan is
required to address basic program elements, including but not limited
to regulatory structure, monitoring, modeling, legal authority, and
adequate resources necessary to assure implementation, maintenance, and
enforcement of the NAAQS. These elements are referred to as
infrastructure requirements. PADEP made submittals addressing the
infrastructure requirements for the 2008 ozone NAAQS and the 2010
sulfur dioxide (SO2) primary NAAQS.
DATES: This final rule is effective on September 4, 2015.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2014-0910. All documents in the docket are listed in
the www.regulations.gov Web site. Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through www.regulations.gov or in hard
copy for public inspection during normal business hours at the Air
Protection Division, U.S. Environmental Protection Agency, Region III,
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State
submittal are available at the Pennsylvania Department of Environmental
Protection, Bureau of Air Quality Control, P. O. Box 8468, 400 Market
Street, Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Ruth Knapp, (215) 814-2191, or by
email at knapp.ruth@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Summary of SIP Revision
On March 27, 2008 (73 FR 16436), EPA promulgated a revised ozone
NAAQS based on 8-hour average concentrations. EPA revised the level of
the 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm.
On June 22, 2010 (75 FR 35520), EPA promulgated a 1-hour primary
SO2 NAAQS at a level of 75 parts per billion (ppb), based on
a 3-year average of the annual 99th percentile of 1-hour daily maximum
concentrations. Pursuant to section 110(a)(1) of the CAA, states are
required to submit SIPs meeting the applicable requirements of section
110(a)(2) within three years after promulgation of a new or revised
NAAQS or within such shorter period as EPA may prescribe.
On July 15, 2014, the Commonwealth of Pennsylvania, through the
PADEP, submitted SIP revisions that address the infrastructure elements
specified in section 110(a)(2) of the CAA necessary to implement,
maintain, and enforce the 2008 ozone NAAQS and the 2010 SO2
NAAQS. On February 6, 2015 (80 FR 6672), EPA published a notice of
proposed rulemaking (NPR) for Pennsylvania proposing approval of
portions of both SIP revisions as well as portions of SIP submittals
for other NAAQS.\1\ In the NPR, EPA proposed approval of Pennsylvania's
submissions addressing the following infrastructure elements: Section
110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant
deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M).
---------------------------------------------------------------------------
\1\ On July 15, 2014, PADEP also submitted SIP revisions
addressing the infrastructure requirements for the 2010 nitrogen
dioxide (NO2) NAAQS and the 2012 fine particulate matter
(PM2.5) NAAQS. In the February 6, 2015 NPR, EPA also
proposed approval of portions of these infrastructure SIPs. Because
EPA did not receive adverse comments applicable to Pennsylvania's
infrastructure SIPs for the 2010 NO2 NAAQS or the 2012
PM2.5 NAAQS or applicable to EPA's proposed approval of
those specific SIPs, EPA took final action to approve portions of
the infrastructure SIPs for the 2010 NO2 NAAQS and 2012
PM2.5 NAAQS on May 8, 2015. 80 FR 26461. Thus, this final
action only addresses the July 15, 2014 infrastructure SIPs PADEP
submitted addressing the 2008 ozone NAAQS and the 2010
SO2 NAAQS.
---------------------------------------------------------------------------
Pennsylvania's July 15, 2014 infrastructure SIP submittals for the
2008 ozone NAAQS and the 2010 SO2 NAAQS did not contain any
provisions addressing section 110(a)(2)(I) which pertains to the
nonattainment requirements of part D, Title I of the CAA, because this
element is not required to be submitted by the 3-year submission
deadline of section 110(a)(1) and will be addressed in a separate
process. In addition, Pennsylvania's July 15, 2014 infrastructure SIP
submittals for the 2008 ozone NAAQS and the 2010 SO2 NAAQS
did not contain any provisions addressing CAA section
110(a)(2)(D)(i)(I), and therefore EPA's February 6, 2015 NPR did not
propose any action on the SIP submittals for section 110(a)(2)(D)(i)(I)
for either SIP submittal. Thus, this rulemaking action likewise does
not include action on CAA section 110(a)(2)(D)(i)(I) for either the
2008 ozone NAAQS or the 2010 SO2 NAAQS because PADEP's July
15, 2014 infrastructure SIP submittals did not include provisions for
this element. Finally, at this time, EPA is not taking action on
section 110(a)(2)(D)(i)(II) (which addresses visibility protection) for
the 2008 ozone or 2010 SO2 NAAQS as explained in the NPR.
Although Pennsylvania's July 15, 2014 infrastructure SIP submittals for
the 2008 ozone NAAQS and the 2010 SO2 NAAQS referred to
Pennsylvania's regional haze SIP to address section 110(a)(2)(D)(i)(II)
for visibility protection, EPA intends to take later, separate action
on Pennsylvania's SIP submittals for these elements as explained in the
NPR and the Technical Support Document (TSD) which accompanied the NPR.
The rationale supporting EPA's proposed rulemaking action approving
portions of the July 15, 2014 infrastructure SIP submittals for the
2008 ozone and 2010 SO2 NAAQS, including the scope of
infrastructure SIPs in general, is explained in the NPR and the TSD
accompanying the NPR and will not be restated here. The NPR and TSD are
available in the docket for this rulemaking at www.regulations.gov,
Docket ID Number EPA-R03-OAR-
[[Page 46495]]
2014-0910.\2\ EPA received public comments on the NPR. Summaries of the
comments as well as EPA's responses are in section II of this
rulemaking notice. EPA's responses provide further explanation and
rationale where appropriate to support the final action approving
portions of the July 15, 2014 infrastructure SIPs.
---------------------------------------------------------------------------
\2\ EPA's final rulemaking action on Pennsylvania's
infrastructure SIP revisions for the 2010 NO2 NAAQS and
the 2012 PM2.5 NAAQS can also be found in this docket
with Docket ID Number EPA-R03-OAR-2014-0910.
---------------------------------------------------------------------------
II. Public Comments and EPA's Responses
EPA received substantive comments from two commenters, the State of
New Jersey Department of Environmental Protection (NJDEP) and the
Sierra Club, on the February 6, 2015 proposed rulemaking action on
Pennsylvania's 2008 ozone and 2010 SO2 infrastructure SIP
revisions. The Sierra Club's comments on the NPR include general
comments on infrastructure SIP requirements for emission limitations
and specific comments on emission limitations to address the 2010
SO2 NAAQS and the 2008 ozone NAAQS. A full set of all
comments is provided in the docket for today's final rulemaking action.
A. NJDEP
Comment: NJDEP asserts that Pennsylvania's infrastructure SIP is
deficient because it does not include any information relating to
Pennsylvania's ``good neighbor'' obligation to address CAA section
110(a)(2)(D).\3\ NJDEP asserts the ability of downwind states including
New Jersey to attain the 2008 ozone NAAQS is substantially impacted by
interstate transport of pollution from Pennsylvania. NJDEP asserts
recent EPA modeling for the 2008 ozone NAAQS demonstrates Pennsylvania
significantly contributes to ozone nonattainment areas in New Jersey
and other states. New Jersey further asserts that EPA must ``make a
finding that Pennsylvania has failed to submit a SIP that complies with
Section 110(a)(2)(D) of the Clean Air Act'' because Pennsylvania did
not make a submission to address 110(a)(2)(D).
---------------------------------------------------------------------------
\3\ EPA believes NJDEP refers specifically to CAA section
110(a)(2)(D)(i)(I) which addresses interstate transport of pollution
and not to section 110(a)(2)(D)(i)(II) which addresses visibility
protection and prevention of significant deterioration.
---------------------------------------------------------------------------
Response: In this rulemaking EPA is not taking any final action
with respect to the provisions in section 110(a)(2)(D)(i)(I)--the
portion of the good neighbor provision which addresses emissions that
significantly contribute to nonattainment or interfere with maintenance
of the NAAQS in another state. In its July 15, 2014 infrastructure SIP
revisions for several NAAQS, the Commonwealth of Pennsylvania did not
include any provisions in its SIP revision submittals to address the
requirements of section 110(a)(2)(D)(i)(I). In the NPR, EPA did not
propose to take any action with respect to Pennsylvania's obligations
pursuant to section 110(a)(2)(D)(i)(I) for the July 15, 2014
infrastructure SIP submittals and is not, in this rulemaking action,
taking any final action on the 110(a)(2)(D)(i)(I) obligations.
Because Pennsylvania did not make a submission in its July 15, 2014
SIP submittals to address the requirements of section
110(a)(2)(D)(i)(I), EPA is not required to have proposed or to take
final SIP approval or disapproval action on this element under section
110(k) of the CAA. In this case, there has been no substantive
submission for EPA to evaluate under section 110(k). EPA interprets its
authority under section 110(k)(3) of the CAA as affording EPA the
discretion to approve, or conditionally approve, individual elements of
Pennsylvania's infrastructure SIP submissions, separate and apart from
any action with respect to the requirements of section
110(a)(2)(D)(i)(I) of the CAA. EPA views discrete infrastructure SIP
requirements in section 110(a)(2), such as the requirements of
110(a)(2)(D)(i)(I), as severable from the other infrastructure elements
and interprets section 110(k)(3) as allowing it to act on individual
severable measures in a plan submission.
EPA acknowledges NJDEP's concern for the interstate transport of
air pollutants and agrees in general that sections 110(a)(1) and (a)(2)
of the CAA require states to submit, within three years of promulgation
of a new or revised NAAQS, a plan which addresses cross-state air
pollution under section 110(a)(2)(D)(i)(I). However, in this
rulemaking, EPA is only approving portions of Pennsylvania's
infrastructure SIP submissions for the 2008 ozone and 2010
SO2 NAAQS which did not include provisions for
110(a)(2)(D)(i)(I) for interstate transport. Findings of failure to
submit a SIP submission for a NAAQS addressing a specific element, such
as CAA section 110(a)(2)(D)(i)(I), would need to occur in separate
rulemakings. As that issue was not addressed in the February 6, 2015
NPR and is therefore not pertinent to this rulemaking, EPA provides no
further response. Pennsylvania's obligations regarding interstate
transport of ozone pollution for the 2008 ozone NAAQS will be addressed
in another rulemaking.
B. Sierra Club General Comments on Emission Limitations
1. The Plain Language of the CAA
Comment 1: Sierra Club (hereafter referred to as Commenter)
contends that the plain language of section 110(a)(2)(A) of the CAA,
legislative history of the CAA, case law, EPA regulations such as 40
CFR 51.112(a), and EPA interpretations in rulemakings require the
inclusion of enforceable emission limits in an infrastructure SIP to
aid in attaining and maintaining the NAAQS and contends an
infrastructure SIP must be disapproved where emission limits are
inadequate to prevent exceedances of the NAAQS. The Commenter states
EPA may not approve an infrastructure SIP that fails to ensure
attainment and maintenance of the NAAQS.
The Commenter states that the main objective of the infrastructure
SIP process ``is to ensure that all areas of the country meet the
NAAQS'' and states that nonattainment areas are addressed through
``nonattainment SIPs.'' The Commenter asserts the NAAQS ``are the
foundation upon which air emission standards for the entire country are
set'' including specific emission limitations for most large stationary
sources, such as coal-fired power plants. The Commenter discusses the
CAA's framework whereby states have primary responsibility to assure
air quality within the state pursuant to CAA section 107(a) which the
states carry out through SIPs such as infrastructure SIPs required by
section 110(a)(2). The Commenter also states that on its face the CAA
requires infrastructure SIPs ``to be adequate to prevent exceedances of
the NAAQS.'' In support, the Commenter quotes the language in section
110(a)(1) which requires states to adopt a plan for implementation,
maintenance, and enforcement of the NAAQS and the language in section
110(a)(2)(A) which requires SIPs to include enforceable emissions
limitations as may be necessary to meet the requirements of the CAA
which the Commenter claims includes attainment and maintenance of the
NAAQS. The Commenter notes the CAA definition of emission limit and
reads these CAA provisions together to require ``enforceable emission
limits on source emissions sufficient to ensure maintenance of the
NAAQS.''
Response 1: EPA disagrees that section 110 is clear ``on its face''
and must be interpreted in the manner
[[Page 46496]]
suggested by the Commenter. As we have previously explained in response
to the Commenter's similar comments on EPA's action approving other
states' infrastructure SIPs, section 110 is only one provision that is
part of the complicated structure governing implementation of the NAAQS
program under the CAA, as amended in 1990, and it must be interpreted
in the context of not only that structure, but also of the historical
evolution of that structure.\4\
---------------------------------------------------------------------------
\4\ See 80 FR 11557 (March 4, 2015) (approval of Virginia
SO2 infrastructure SIP); 79 FR 62022 (October 16, 2014)
(approval of West Virginia SO2 infrastructure SIP); 79 FR
19001 (April 7, 2014) (approval of West Virginia ozone
infrastructure SIP); and 79 FR 17043 (March 27, 2014) (approval of
Virginia ozone infrastructure SIP).
---------------------------------------------------------------------------
EPA interprets infrastructure SIPs as more general planning SIPs,
consistent with the CAA as understood in light of its history and
structure. When Congress enacted the CAA in 1970, it did not include
provisions requiring states and the EPA to label areas as attainment or
nonattainment. Rather, states were required to include all areas of the
state in ``air quality control regions'' (AQCRs) and section 110 set
forth the core substantive planning provisions for these AQCRs. At that
time, Congress anticipated that states would be able to address air
pollution quickly pursuant to the very general planning provisions in
section 110 and could bring all areas into compliance with a new NAAQS
within five years. Moreover, at that time, section 110(a)(2)(A)(i)
specified that the section 110 plan provide for ``attainment'' of the
NAAQS and section 110(a)(2)(B) specified that the plan must include
``emission limitations, schedules, and timetables for compliance with
such limitations, and such other measures as may be necessary to insure
attainment and maintenance [of the NAAQS].''
In 1977, Congress recognized that the existing structure was not
sufficient and many areas were still violating the NAAQS. At that time,
Congress for the first time added provisions requiring states and EPA
to identify whether areas of a state were violating the NAAQS (i.e.,
were nonattainment) or were meeting the NAAQS (i.e., were attainment)
and established specific planning requirements in section 172 for areas
not meeting the NAAQS. In 1990, many areas still had air quality not
meeting the NAAQS and Congress again amended the CAA and added yet
another layer of more prescriptive planning requirements for each of
the NAAQS. At that same time, Congress modified section 110 to remove
references to the section 110 SIP providing for attainment, including
removing pre-existing section 110(a)(2)(A) in its entirety and
renumbering subparagraph (B) as section 110(a)(2)(A). Additionally,
Congress replaced the clause ``as may be necessary to insure attainment
and maintenance [of the NAAQS]'' with ``as may be necessary or
appropriate to meet the applicable requirements of this chapter.''
Thus, the CAA has significantly evolved in the more than 40 years since
it was originally enacted. While at one time section 110 of the CAA did
provide the only detailed SIP planning provisions for states and
specified that such plans must provide for attainment of the NAAQS,
under the structure of the current CAA, section 110 is only the initial
stepping-stone in the planning process for a specific NAAQS. More
detailed, later-enacted provisions govern the substantive planning
process, including planning for attainment of the NAAQS.
Thus, EPA believes that section 110 of the CAA is only one
provision that is part of the complicated structure governing
implementation of the NAAQS program under the CAA, as amended in 1990,
and it must be interpreted in the context of that structure and the
historical evolution of that structure. In light of the revisions to
section 110 since 1970 and the later-promulgated and more specific
planning requirements of the CAA, EPA reasonably interprets the
requirement in section 110(a)(2)(A) of the CAA that the plan provide
for ``implementation, maintenance and enforcement'' to mean that the
SIP must contain enforceable emission limits that will aid in attaining
and/or maintaining the NAAQS and that the state demonstrate that it has
the necessary tools to implement and enforce a NAAQS, such as adequate
state personnel and an enforcement program. EPA has interpreted the
requirement for emission limitations in section 110 to mean that the
state may rely on measures already in place to address the pollutant at
issue or any new control measures that the state may choose to submit.
Finally, as EPA stated in the Infrastructure SIP Guidance which
specifically provides guidance to states in addressing the 2008 ozone
and 2010 SO2 NAAQS, ``[t]he conceptual purpose of an
infrastructure SIP submission is to assure that the air agency's SIP
contains the necessary structural requirements for the new or revised
NAAQS, whether by establishing that the SIP already contains the
necessary provisions, by making a substantive SIP revision to update
the SIP, or both.'' Infrastructure SIP Guidance at p. 2.\5\
---------------------------------------------------------------------------
\5\ Thus, EPA disagrees with the Commenter's general assertion
that the main objective of infrastructure SIPs is to ensure all
areas of the country meet the NAAQS, as we believe the
infrastructure SIP process is the opportunity to review the
structural requirements of a state's air program. While the NAAQS
can be a foundation upon which emission limitations are set, as
explained in responses to subsequent comments, these emission
limitations are generally set in the attainment planning process
envisioned by part D of title I of the CAA, including, but not
limited to, CAA sections 172, 181-182, and 191-192.
---------------------------------------------------------------------------
The Commenter makes general allegations that Pennsylvania does not
have sufficient protective measures to prevent ozone violations/
exceedances and SO2 NAAQS exceedances. EPA addressed the
adequacy of Pennsylvania's infrastructure SIP for 110(a)(2)(A) purposes
to meet applicable requirements of the CAA in the TSD accompanying the
February 6, 2015 NPR and explained why the SIP includes enforceable
emission limitations and other control measures necessary for
maintenance of the 2008 ozone and 2010 SO2 NAAQS throughout
the Commonwealth.\6\
---------------------------------------------------------------------------
\6\ The TSD for this action is available on line at
www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-0910.
---------------------------------------------------------------------------
2. The Legislative History of the CAA
Comment 2: The Commenter cites two excerpts from the legislative
history of the 1970 CAA claiming they support an interpretation that
SIP revisions under CAA section 110 must include emissions limitations
sufficient to show maintenance of the NAAQS in all areas of the state.
The Commenter also contends that the legislative history of the CAA
supports the interpretation that infrastructure SIPs under section
110(a)(2) must include enforceable emission limitations, citing the
Senate Committee Report and the subsequent Senate Conference Report
accompanying the 1970 CAA.
Response 2: As provided in the previous response, the CAA, as
enacted in 1970, including its legislative history, cannot be
interpreted in isolation from the later amendments that refined that
structure and deleted relevant language from section 110 concerning
demonstrating attainment. See also 79 FR at 17046 (responding to
comments on Virginia's ozone infrastructure SIP). In any event, the two
excerpts of legislative history the Commenter cites merely provide that
states should include enforceable emission limits in their SIPs, and
they do not mention or otherwise address whether states are required to
include maintenance plans for all areas of the state as part of the
infrastructure SIP. As provided in
[[Page 46497]]
response to another comment in this rulemaking, the TSD for the
proposed rule explains why the Pennsylvania SIP includes enforceable
emissions limitations for ozone precursors and for SO2 for
the relevant areas.
3. Case Law
Comment 3: The Commenter also discusses several cases applying the
CAA which the Commenter claims support its contention that courts have
been clear that section 110(a)(2)(A) requires enforceable emissions
limits in infrastructure SIPs to prevent exceedances of the NAAQS. The
Commenter first cites to language in Train v. NRDC, 421 U.S. 60, 78
(1975), addressing the requirement for ``emission limitations'' and
stating that emission limitations ``are specific rules to which
operators of pollution sources are subject, and which, if enforced,
should result in ambient air which meet the national standards.'' The
Commenter also cites to Pennsylvania Dept. of Envtl. Resources v. EPA,
932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA
directs EPA to withhold approval of a SIP where it does not ensure
maintenance of the NAAQS, and to Mision Industrial, Inc. v. EPA, 547
F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the
CAA of 1970. The Commenter contends that the 1990 Amendments do not
alter how courts have interpreted the requirements of section 110,
quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470
(2004) which in turn quoted section 110(a)(2)(A) of the CAA and also
stated that ``SIPs must include certain measures Congress specified''
to ensure attainment of the NAAQS. The Commenter also quotes several
additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666
F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to
develop implementation plans--SIPs--that `assure' attainment and
maintenance of [NAAQS] through enforceable emissions limitations'');
Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must
submit a [SIP] that specif[ies] the manner in which [NAAQS] will be
achieved and maintained within each air quality control region in the
State''); Conn. Fund for Env't, Inc. v. EPA, 696 F.2d 169, 172 (D.C.
Cir. 1982) (CAA requires SIPs to contain ``measures necessary to ensure
attainment and maintenance of NAAQS''). Finally, the Commenter cites
Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000)
for the proposition that EPA may not approve a SIP revision that does
not demonstrate how the rules would not interfere with attainment and
maintenance of the NAAQS.
Response 3: None of the cases the Commenter cites support its
contention that section 110(a)(2)(A) is clear that infrastructure SIPs
must include detailed plans providing for attainment and maintenance of
the NAAQS in all areas of the state, nor do they shed light on how
section 110(a)(2)(A) may reasonably be interpreted. With the exception
of Train, none of the cases the Commenter cites concerned the
interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of
the pre-1990 Act). Rather, the courts reference section 110(a)(2)(A)
(or section 110(a)(2)(B) of the pre-1990 CAA) in the background
sections of decisions in the context of a challenge to an EPA action on
revisions to a SIP that was required and approved or disapproved as
meeting other provisions of the CAA or in the context of an enforcement
action.
In Train, 421 U.S. 60, the Court was addressing a state revision to
an attainment plan submission made pursuant to section 110 of the CAA,
the sole statutory provision at that time regulating such submissions.
The issue in that case concerned whether changes to requirements that
would occur before attainment was required were variances that should
be addressed pursuant to the provision governing SIP revisions or were
``postponements'' that must be addressed under section 110(f) of the
CAA of 1970, which contained prescriptive criteria. The Court concluded
that EPA reasonably interpreted section 110(f) not to restrict a
state's choice of the mix of control measures needed to attain the
NAAQS and that revisions to SIPs that would not impact attainment of
the NAAQS by the attainment date were not subject to the limits of
section 110(f). Thus the issue was not whether a section 110 SIP needs
to provide for attainment or whether emissions limits providing such
are needed as part of the SIP; rather the issue was which statutory
provision governed when the state wanted to revise the emission limits
in its SIP if such revision would not impact attainment or maintenance
of the NAAQS. To the extent the holding in the case has any bearing on
how section 110(a)(2)(A) might be interpreted, it is important to
realize that in 1975, when the opinion was issued, section 110(a)(2)(B)
(the predecessor to section 110(a)(2)(A)) expressly referenced the
requirement to attain the NAAQS, a reference that was removed in 1990.
The decision in Pennsylvania Dept. of Envtl. Resources was also
decided based on the pre-1990 provision of the CAA. At issue was
whether EPA properly rejected a revision to an approved plan where the
inventories relied on by the state for the updated submission had gaps.
The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of
EPA's disapproval, but did not provide any interpretation of that
provision. Yet, even if the Court had interpreted that provision, EPA
notes that it was modified by Congress in 1990; thus, this decision has
little bearing on the issue here.
At issue in Mision Industrial, 547 F.2d 123, was the definition of
``emissions limitation,'' not whether section 110 requires the state to
demonstrate how all areas of the state will attain and maintain the
NAAQS as part of their infrastructure SIPs. The language from the
opinion the Commenter quotes does not interpret but rather merely
describes section 110(a)(2)(A). The Commenter does not raise any
concerns about whether the measures relied on by the Commonwealth in
the infrastructure SIPs are ``emissions limitations'' and the decision
in this case has no bearing here.\7\ In Mont. Sulphur & Chem. Co., 666
F.3d 1174, the Court was not reviewing an infrastructure SIP, but
rather EPA's disapproval of a SIP and promulgation of a federal
implementation plan (FIP) after a long history of the state failing to
submit an adequate SIP in response to EPA's finding under section
110(k)(5) that the previously approved SIP was substantially inadequate
to attain or maintain the NAAQS. The Court cited generally to sections
107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should
assure attainment and maintenance of NAAQS through emission
limitations, but this language was not part of the Court's holding in
the case, which focused instead on whether EPA's finding of SIP
inadequacy, disapproval of the state's required responsive attainment
demonstration under section 110(k)(5), and adoption of a remedial FIP
under section 110(c) were lawful. The Commenter suggests that Alaska
Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition
that the 1990 CAA Amendments do not alter how courts interpret section
110. This claim is inaccurate. Rather, the Court quoted section
110(a)(2)(A), which, as noted previously, differs from the pre-1990
version of that provision and the Court
[[Page 46498]]
made no mention of the changed language. Furthermore, the Commenter
also quotes the Court's statement that ``SIPs must include certain
measures Congress specified,'' but that statement specifically
referenced the requirement in section 110(a)(2)(C), which requires an
enforcement program and a program for the regulation of the
modification and construction of new sources. Notably, at issue in that
case was the state's ``new source'' permitting program, not its
infrastructure SIP.
---------------------------------------------------------------------------
\7\ While the Commenter does contend that the Commonwealth
shouldn't be allowed to rely on emission reductions that were
developed for the prior standards (which we address herein), it does
not claim that any of the measures are not ``emissions limitations''
within the definition of the CAA.
---------------------------------------------------------------------------
Two of the other cases the Commenter cites, Mich. Dept. of Envtl.
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section
110(l), the provision governing ``revisions'' to plans, and not the
initial plan submission requirement under section 110(a)(2) for a new
or revised NAAQS, such as the infrastructure SIP at issue in this
instance. In those cases, the courts cited to section 110(a)(2)(A)
solely for the purpose of providing a brief background of the CAA.
EPA does not believe any of these court decisions addressed
required measures for infrastructure SIPs and believes nothing in the
opinions addressed whether infrastructure SIPs need to contain measures
to ensure attainment and maintenance of the NAAQS.
4. EPA Regulations, Such as 40 CFR 51.112(a)
Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that
``[e]ach plan must demonstrate that the measures, rules and regulations
contained in it are adequate to provide for the timely attainment and
maintenance of the [NAAQS].'' The Commenter asserts that this
regulation requires infrastructure SIPs to include emissions limits
necessary to ensure attainment and maintenance of the NAAQS. The
Commenter states that the provisions of 40 CFR 51.112 are not limited
to nonattainment SIPs and instead applies to infrastructure SIPs which
are required to attain and maintain the NAAQS in areas not designated
nonattainment. The Commenter relies on a statement in the preamble to
the 1986 action restructuring and consolidating provisions in part 51,
in which EPA stated that ``[i]t is beyond the scope of th[is]
rulemaking to address the provisions of Part D of the Act . . .'' 51 FR
40656, 40656 (November 7, 1986). The Commenter asserts 40 CFR 51.112(a)
identifies the plans to which it applies as those that implement the
NAAQS.
Response 4: The Commenter's reliance on 40 CFR 51.112 to support
its argument that infrastructure SIPs must contain emission limits
adequate to ensure attainment and maintenance of the NAAQS is not
supported. As an initial matter, EPA notes this regulatory provision
was initially promulgated and later restructured and consolidated prior
to the CAA Amendments of 1990, in which Congress removed all references
to ``attainment'' in section 110(a)(2)(A). And, it is clear on its face
that 40 CFR 51.112 applies to plans specifically designed to attain the
NAAQS. EPA interprets these provisions to apply when states are
developing ``control strategy'' SIPs such as the detailed attainment
and maintenance plans required under other provisions of the CAA, as
amended in 1977 and again in 1990, such as sections 175A, 181-182, and
191-192. The Commenter suggests that these provisions must apply to
section 110 SIPs because in the preamble to EPA's action
``restructuring and consolidating'' provisions in part 51, EPA stated
that the new attainment demonstration provisions in the 1977 Amendments
to the CAA were ``beyond the scope'' of the rulemaking. It is important
to note, however, that EPA's action in 1986 was not to establish new
substantive planning requirements, but rather was meant merely to
consolidate and restructure provisions that had previously been
promulgated. EPA noted that it had already issued guidance addressing
the new ``Part D'' attainment planning obligations. Also, as to
maintenance regulations, EPA expressly stated that it was not making
any revisions other than to re-number those provisions. 51 FR 40657.
Although EPA was explicit that it was not establishing requirements
interpreting the provisions of new ``Part D'' of the CAA, it is clear
that the regulations being restructured and consolidated were intended
to address control strategy plans. In the preamble, EPA clearly stated
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy:
SOx and PM (portion)''), 51.14 (``Control strategy: CO, HC,
Ox and NO2 (portion)''), 51.80 (``Demonstration
of attainment: Pb (portion)''), and 51.82 (``Air quality data
(portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112
contains consolidated provisions that are focused on control strategy
SIPs, and the infrastructure SIP is not such a plan.
5. EPA Interpretations in Other Rulemakings
Comment 5: The Commenter also references a prior EPA rulemaking
action where EPA disapproved a SIP and claims that action shows EPA
relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject the SIP. The
Commenter points to a 2006 partial approval and partial disapproval of
revisions to Missouri's existing control strategy plans addressing the
SO2 NAAQS. The Commenter claims EPA cited section
110(a)(2)(A) for disapproving a revision to the state plan on the basis
that the State failed to demonstrate the SIP was sufficient to ensure
maintenance of the SO2 NAAQS after revision of an emission
limit and claims EPA cited to 40 CFR 51.112 as requiring that a plan
demonstrates the rules in a SIP are adequate to attain the NAAQS. The
Commenter claims the revisions to Missouri's control strategy SIP for
SO2 were rejected by EPA because the revised control
strategy limits were also in Missouri's infrastructure SIP and thus the
weakened limits would have impacted the infrastructure SIP's ability to
aid in attaining and maintaining the NAAQS.
Response 5: EPA does not agree that the prior Missouri rulemaking
action referenced by the Commenter establishes how EPA reviews
infrastructure SIPs. It is clear from the final Missouri rule that EPA
was not reviewing initial infrastructure SIP submissions under section
110 of the CAA, but rather reviewing revisions that would make an
already approved SIP designed to demonstrate attainment of the NAAQS
less stringent. EPA's partial approval and partial disapproval of
revisions to restrictions on emissions of sulfur compounds for the
Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an
infrastructure SIP. Nothing in that action addresses the necessary
content of the initial infrastructure SIP for a new or revised NAAQS.
C. Sierra Club Comments on Pennsylvania SIP SO2 Emission
Limits
The Commenter contends that the Pennsylvania 2008 ozone and 2010
SO2 infrastructure SIP revisions did not revise the existing
ozone precursor emission limits and SO2 emission limits in
response to the 2008 ozone and 2010 SO2 NAAQS and fail to
comport with assorted CAA requirements for SIPs to establish
enforceable emission limits that are adequate to prohibit NAAQS
exceedances in areas not designated nonattainment. EPA will address
SO2 comments and ozone comments respectively.
Comment 6: Citing section 110(a)(2)(A) of the CAA, the Commenter
contends that EPA may not approve Pennsylvania's proposed 2010
SO2 infrastructure SIP because it does not include
enforceable 1-hour SO2 emission limits for sources currently
[[Page 46499]]
allowed to cause ``NAAQS exceedances.'' The Commenter asserts the
proposed infrastructure SIP fails to include enforceable 1-hour
SO2 emissions limits or other required measures to ensure
attainment and maintenance of the SO2 NAAQS in areas not
designated nonattainment as the Commenter claims is required by section
110(a)(2)(A). The Commenter asserts an infrastructure SIP must ensure,
through state-wide regulations or source specific requirements, proper
mass limitations and emissions rates with short term averaging on
specific large sources of pollutants such as power plants. The
Commenter asserts that emission limits are especially important for
meeting the 1-hour SO2 NAAQS because SO2 impacts
are strongly source-oriented. The Commenter states coal-fired electric
generating units (EGUs) are large contributors to SO2
emissions but contends Pennsylvania did not demonstrate that emissions
allowed by the proposed infrastructure SIP from such large sources of
SO2 will ensure compliance with the 2010 1-hour
SO2 NAAQS. The Commenter claims the proposed infrastructure
SIP would allow major sources to continue operating with present
emission limits.\8\ The Commenter then refers to air dispersion
modeling it conducted for five coal-fired EGUs in Pennsylvania,
including Brunner Island Steam Electric Station, Montour Steam Electric
Station, Cheswick Power Station, New Castle Power Plant, and Shawville
Coal Plant. The Commenter asserts the results of the air dispersion
modeling it conducted employing EPA's AERMOD program for modeling used
the plants' allowable emissions and showed the plants could cause
exceedances of the 2010 SO2 NAAQS with allowable
emissions.\9\ Based on the modeling, the Commenter asserts the
Pennsylvania SO2 infrastructure SIP submittal authorizes the
EGUs to cause exceedances of the NAAQS with allowable emission rates
and therefore the infrastructure SIP fails to include adequate
enforceable emission limitations or other required measures for sources
of SO2 sufficient to ensure attainment and maintenance of
the 2010 SO2 NAAQS.\10\ The Commenter therefore asserts EPA
must disapprove Pennsylvania's proposed 2010 SO2
infrastructure SIP revision. In addition, the Commenter asserts ``EPA
may only approve an I-SIP that incorporates enforceable emission
limitations on major sources of SO2 pollution in the state,
including coal-fired power plants, with one-hour averaging times that
are no less stringent than the modeling based limits . . . necessary to
protect the one-hour SO2 NAAQS and attain and maintain the
standard in Pennsylvania. These emission limits must apply at all times
. . . to ensure that Pennsylvania is able to attain and maintain the
2010 SO2 NAAQS.'' The Commenter claimed additional modeling
for two EGUs, Brunner Island and Montour, done with actual historical
hourly SO2 emissions show these facilities have actually
been causing ``exceedances of the NAAQS'' while operating pursuant to
existing emission limits which the Commenter claims Pennsylvania
included as part of the SO2 infrastructure SIP submission.
The Commenter also asserts that any coal-fired units slated for
retirement should be incorporated into the infrastructure SIP with an
enforceable emission limit or control measure.
---------------------------------------------------------------------------
\8\ The Commenter provides a chart in its comments claiming 80
percent of SO2 emissions in Pennsylvania are from coal-
electric generating units based on 2011 data.
\9\ The Commenter asserts its modeling followed protocols
pursuant to 40 CFR part 51, Appendix W and EPA's modeling guidance
issued March 2011 and December 2013.
\10\ The Commenter again references 40 CFR 51.112 in support of
its position that the infrastructure SIP must include emission
limits for attainment and maintenance of the 2010 SO2
NAAQS.
---------------------------------------------------------------------------
Response 6: EPA disagrees with the Commenter that EPA must
disapprove Pennsylvania's SO2 infrastructure SIP for the
reasons provided by the Commenter including the Commenter's modeling
results and insufficient SO2 emission limits. EPA is not in
this action making a determination regarding the Commonwealth's current
air quality status or regarding whether its control strategy is
sufficient to attain and maintain the NAAQS. Therefore, EPA is not
making any judgment on whether the Commenter's submitted modeling
demonstrates the NAAQS exceedances that the Commenter claims. EPA
believes that section 110(a)(2)(A) of the CAA is reasonably interpreted
to require states to submit infrastructure SIPs that reflect the first
step in their planning for attainment and maintenance of a new or
revised NAAQS. These SIP revisions should contain a demonstration that
the state has the available tools and authority to develop and
implement plans to attain and maintain the NAAQS and show that the SIP
has enforceable control measures. In light of the structure of the CAA,
EPA's long-standing position regarding infrastructure SIPs is that they
are general planning SIPs to ensure that the state has adequate
resources and authority to implement a NAAQS in general throughout the
state and not detailed attainment and maintenance plans for each
individual area of the state. As mentioned above, EPA has interpreted
this to mean, with regard to the requirement for emission limitations
that states may rely on measures already in place to address the
pollutant at issue or any new control measures that the state may
choose to submit.
As stated in response to a previous more general comment, section
110 of the CAA is only one provision that is part of the complicated
structure governing implementation of the NAAQS program under the CAA,
as amended in 1990, and it must be interpreted in the context of not
only that structure, but also of the historical evolution of that
structure. In light of the revisions to section 110 since 1970 and the
later-promulgated and more specific planning requirements of the CAA,
EPA reasonably interprets the requirement in section 110(a)(2)(A) of
the CAA that the plan provide for ``implementation, maintenance and
enforcement'' to mean that the SIP must contain enforceable emission
limits that will aid in attaining and/or maintaining the NAAQS and that
the Commonwealth demonstrate that it has the necessary tools to
implement and enforce a NAAQS, such as adequate state personnel and an
enforcement program. As discussed above, EPA has interpreted the
requirement for emission limitations in section 110 to mean that the
state may rely on measures already in place to address the pollutant at
issue or any new control measures that the state may choose to submit.
Finally, as EPA stated in the Infrastructure SIP Guidance which
specifically provides guidance to states in addressing the 2010
SO2 NAAQS and the 2008 Ozone NAAQS, ``[t]he conceptual
purpose of an infrastructure SIP submission is to assure that the air
agency's SIP contains the necessary structural requirements for the new
or revised NAAQS, whether by establishing that the SIP already contains
the necessary provisions, by making a substantive SIP revision to
update the SIP, or both.'' Infrastructure SIP Guidance at p. 2.
On April 12, 2012, EPA explained its expectations regarding
implementation of the 2010 SO2 NAAQS via letters to each of
the states. EPA communicated in the April 2012 letters that all states
were expected to submit SIPs meeting the ``infrastructure'' SIP
requirements under section 110(a)(2) of the CAA by June 2013. At the
time, EPA was undertaking a stakeholder outreach process to continue to
develop possible approaches for determining attainment status under the
SO2 NAAQS and
[[Page 46500]]
implementing this NAAQS. EPA was abundantly clear in the April 2012
letters that EPA did not expect states to submit substantive attainment
demonstrations or modeling demonstrations showing attainment for areas
not designated nonattainment in infrastructure SIPs due in June 2013.
Although EPA had previously suggested in its 2010 SO2 NAAQS
preamble and in prior draft implementation guidance in 2011 that states
should, in the unique SO2 context, use the section 110(a)
SIP process as the vehicle for demonstrating attainment of the NAAQS,
this approach was never adopted as a binding requirement and was
subsequently discarded in the April 2012 letters to states. The April
2012 letters recommended states focus infrastructure SIPs due in June
2013, such as Pennsylvania's SO2 infrastructure SIP, on
traditional ``infrastructure elements'' in section 110(a)(1) and (2)
rather than on modeling demonstrations for future attainment for areas
not designated as nonattainment.\11\
---------------------------------------------------------------------------
\11\ In EPA's final SO2 NAAQS preamble (75 FR 35520
(June 22, 2010)) and subsequent draft guidance in March and
September 2011, EPA had expressed its expectation that many areas
would be initially designated as unclassifiable due to limitations
in the scope of the ambient monitoring network and the short time
available before which states could conduct modeling to support
their designations recommendations due in June 2011. In order to
address concerns about potential violations in these unclassifiable
areas, EPA initially recommended that states submit substantive
attainment demonstration SIPs based on air quality modeling by June
2013 (under section 110(a)) that show how their unclassifiable areas
would attain and maintain the NAAQS in the future. Implementation of
the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper for
Discussion, May 2012 (2012 Draft White Paper) (for discussion
purposes with Stakeholders at meetings in May and June 2012),
available at https://www.epa.gov/airquality/sulfurdioxide/implement.html. However, EPA clearly stated in this 2012 Draft White
Paper its clarified implementation position that it was no longer
recommending such attainment demonstrations for unclassifiable areas
for June 2013 infrastructure SIPs. Id. EPA had stated in the
preamble to the NAAQS and in the prior 2011 draft guidance that EPA
intended to develop and seek public comment on guidance for modeling
and development of SIPs for sections 110 and 191 of the CAA. Section
191 of the CAA requires states to submit SIPs in accordance with
section 172 for areas designated nonattainment with the
SO2 NAAQS. After seeking such comment, EPA has now issued
guidance for the nonattainment area SIPs due pursuant to sections
191 and 172. See Guidance for 1-Hour SO2 Nonattainment
Area SIP Submissions, Stephen D. Page, Director, EPA's Office of Air
Quality Planning and Standards, to Regional Air Division Directors
Regions 1-10, April 23, 2014. In September 2013, EPA had previously
issued specific guidance relevant to infrastructure SIP submissions
due for the NAAQS, including the 2010 SO2 NAAQS. See
Infrastructure SIP Guidance.
---------------------------------------------------------------------------
Therefore, EPA asserts that evaluations of modeling demonstrations
such as those submitted by the Commenter are more appropriately to be
considered in actions that make determinations regarding states'
current air quality status or regarding future air quality status. EPA
also asserts that SIP revisions for SO2 nonattainment areas
including measures and modeling demonstrating attainment are due by the
dates statutorily prescribed under subpart 5 under part D. Those
submissions are due no later than 18 months after an area is designed
nonattainment for SO2, under CAA section 191(a). Thus, the
CAA directs states to submit these SIP requirements that are specific
for nonattainment areas on a separate schedule from the ``structural
requirements'' of 110(a)(2) which are due within three years of
adoption or revision of a NAAQS and which apply statewide. The
infrastructure SIP submission requirement does not move up the date for
any required submission of a part D plan for areas designated
nonattainment for the new NAAQS. Thus, elements relating to
demonstrating attainment for areas not attaining the NAAQS are not
necessary for infrastructure SIP submissions, and the CAA does not
provide explicit requirements for demonstrating attainment for areas
that have not yet been designated regarding attainment with a
particular NAAQS.
As stated previously, EPA believes that the proper inquiry at this
juncture is whether Pennsylvania has met the basic structural SIP
requirements appropriate at the point in time EPA is acting upon the
infrastructure submittal. Emissions limitations and other control
measures needed to attain the NAAQS in areas designated nonattainment
for that NAAQS are due on a different schedule from the section 110
infrastructure elements. A state, like Pennsylvania, may reference pre-
existing SIP emission limits or other rules contained in part D plans
for previous NAAQS in an infrastructure SIP submission. Pennsylvania's
existing rules and emission reduction measures in the SIP that control
emissions of SO2 were discussed in the TSD. These provisions
have the ability to reduce SO2 overall. Although the
Pennsylvania SIP relies on measures and programs used to implement
previous SO2 NAAQS, these provisions are not limited to
reducing SO2 levels to meet one specific NAAQS and will
continue to provide benefits for the 2010 SO2 NAAQS.
Additionally, as discussed in EPA's TSD supporting the NPR,
Pennsylvania has the ability to revise its SIP when necessary (e.g. in
the event the Administrator finds the plan to be substantially
inadequate to attain the NAAQS or otherwise meet all applicable CAA
requirements) as required under element H of section 110(a)(2). See
Section 4(1) of the APCA, 35 P.S. Sec. 4004(1), which empowers PADEP
to implement the provisions of the CAA. Section 5 of the APCA, 35 P.S.
Sec. 4005, authorizes the Environmental Quality Board (EQB) to adopt
rules and regulations for the prevention, control, reduction and
abatement of air pollution throughout the Commonwealth.
EPA believes the requirements for emission reduction measures for
an area designated nonattainment for the 2010 primary SO2
NAAQS are in sections 172 and 191-192 of the CAA, and therefore, the
appropriate avenue for implementing requirements for necessary emission
limitations for demonstrating attainment with the 2010 SO2
NAAQS is through the attainment planning process contemplated by those
sections of the CAA. On August 5, 2013, EPA designated as nonattainment
most areas in locations where existing monitoring data from 2009-2011
indicated violations of the 1-hour SO2 standard. 78 FR
47191. At that time, four areas in Pennsylvania had monitoring data
from 2009-2011 indicating violations of the 1-hour SO2
standard, and these areas were designated nonattainment in
Pennsylvania. See 40 CFR 81.339. Also on March 2, 2015 the United
States District Court for the Northern District of California entered a
Consent Decree among the EPA, Sierra Club and Natural Resources Defense
Council to resolve litigation concerning the deadline for completing
designations for the 2010 SO2 NAAQS. Pursuant to the terms
of the Consent Decree, EPA will complete additional designations for
all remaining areas of the country including remaining areas in
Pennsylvania.\12\
---------------------------------------------------------------------------
\12\ The Consent Decree, entered March 2, 2015 by the United
States District Court for the Northern District of California in
Sierra Club and NRDC v. EPA, Case 3:13-cv-03953-SI (N.D. Cal.) is
available at https://www.epa.gov/airquality/sulfurdioxide/designations/pdfs/201503FinalCourtOrder.pdf.
---------------------------------------------------------------------------
For the four areas designated nonattainment in Pennsylvania in
August 2013, attainment SIPs were due by April 4, 2015 and must contain
demonstrations that the areas will attain the 2010 SO2 NAAQS
as expeditiously as practicable, but no later than October 4, 2018
pursuant to sections 172, 191 and 192, including a plan for enforceable
measures to reach attainment of the NAAQS. Similar attainment planning
SIPs for any additional areas which EPA subsequently designates
nonattainment with the 2010 SO2 NAAQS will be due for such
areas within the timeframes specified in CAA section 191. EPA
[[Page 46501]]
believes it is not appropriate to interpret the overall section
110(a)(2) infrastructure SIP obligation to require bypassing the
attainment planning process by imposing separate requirements outside
the attainment planning process. Such actions would be disruptive and
premature absent exceptional circumstances and would interfere with a
state's planning process. See In the Matter of EME Homer City
Generation LP and First Energy Generation Corp., Order on Petitions
Numbers III-2012-06, III-2012-07, and III 2013-01 (July 30, 2014)
(hereafter, Homer City/Mansfield Order) at 10-19 (finding Pennsylvania
SIP did not require imposition of 1-hour SO2 emission limits
on sources independent of the part D attainment planning process
contemplated by the CAA). EPA believes that the history of the CAA and
intent of Congress for the CAA as described above demonstrate clearly
that it is within the section 172 and general part D attainment
planning process that Pennsylvania must include 1-hour SO2
emission limits on sources, where needed, for the four areas designated
nonattainment to reach attainment with the 2010 1-hour SO2
NAAQS and for any additional areas EPA may subsequently designate
nonattainment.
The Commenter's reliance on 40 CFR 51.112 to support its argument
that infrastructure SIPs must contain emission limits adequate to
provide for timely attainment and maintenance of the standard is also
not supported. As explained previously in response to the background
comments, EPA notes this regulatory provision applies to planning SIPs,
such as those demonstrating how an area will attain a specific NAAQS
and not to infrastructure SIPs which are intended to support that the
states have in place structural requirements necessary to implement the
NAAQS.
As noted in EPA's preamble for the 2010 SO2 NAAQS,
determining compliance with the SO2 NAAQS will likely be a
source-driven analysis and EPA has explored options to ensure that the
SO2 designations process realistically accounts for
anticipated SO2 reductions at sources that we expect will be
achieved by current and pending national and regional rules. See 75 FR
35520. As mentioned previously, EPA will act in accordance with the
entered Consent Decree's schedule for conducting additional
designations for the 2010 SO2 NAAQS and any areas designated
nonattainment must meet the applicable part D requirements for these
areas. However, because the purpose of an infrastructure SIP submission
is for more general planning purposes, EPA does not believe
Pennsylvania was obligated during this infrastructure SIP planning
process to account for controlled SO2 levels at individual
sources. See Homer City/Mansfield Order at 10-19.
Regarding the air dispersion modeling conducted by the Commenter
pursuant to AERMOD for the coal-fired plants including the Brunner
Island, Montour, Cheswick, New Castle and Shawville facilities, EPA
does not find the modeling information relevant at this time for review
of an infrastructure SIP. While EPA has extensively discussed the use
of modeling for attainment demonstration purposes and for designations,
EPA has affirmatively stated such modeling was not needed to
demonstrate attainment for the SO2 infrastructure SIPs under
the 2010 SO2 NAAQS. See April 12, 2012 letters to states
regarding SO2 implementation and Implementation of the 2010
Primary 1-Hour SO2 NAAQS, Draft White Paper for Discussion,
May 2012, available at https://www.epa.gov/airquality/sulfurdioxide/implement.html.\13\
---------------------------------------------------------------------------
\13\ EPA has provided draft guidance for states regarding
modeling analyses to support the designations process for the 2010
SO2 NAAQS. SO2 NAAQS Designations Modeling
Technical Assistance Document (draft), EPA Office of Air and
Radiation and Office of Air Quality Planning and Standards, December
2013, available at https://www.epa.gov/airquality/sulfurdioxide/implement.html.
---------------------------------------------------------------------------
EPA has proposed a Data Requirements Rule which, if promulgated,
will be relevant to the SO2 designations process. See, e.g.,
79 FR 27446 (May 13, 2014) (proposing process by which state air
agencies would characterize air quality around SO2 sources
through ambient monitoring and/or air quality modeling techniques and
submit such data to the EPA). The proposed rule includes a lengthy
discussion of how EPA anticipates addressing modeling that informs
determinations of states' air quality status under the 2010
SO2 NAAQS. As stated above, EPA believes it is not
appropriate to bypass the attainment planning process by imposing
separate attainment planning process requirements outside part D and
into the infrastructure SIP process.
Finally, EPA also disagrees with the Commenter that the
Pennsylvania infrastructure SIP must, to be approved, incorporate the
planned retirement dates of coal-fired EGUs to ensure attainment and
maintenance of the SO2 NAAQS. Because EPA does not believe
Pennsylvania's infrastructure SIP requires at this time 1-hour
SO2 emission limits on these sources or other large
stationary sources to ensure attainment or maintenance or ``prevent
exceedances'' of the 2010 SO2 NAAQS, EPA likewise does not
believe incorporating planned retirement dates for SO2
emitters is necessary for our approval of an infrastructure SIP which
we have explained meets the structural requirements of section
110(a)(2). Pennsylvania can address any SO2 emission
reductions that may be needed to attain the 2010 SO2 NAAQS,
including reductions through source retirements, in the separate
attainment planning process of part D of title I of the CAA for areas
designated nonattainment.
In conclusion, EPA disagrees with the Commenter's statements that
EPA must disapprove Pennsylvania's infrastructure SIP submission
because it does not establish specific enforceable SO2
emission limits, either on coal-fired EGUs or other large
SO2 sources, in order to demonstrate attainment and
maintenance with the NAAQS at this time.\14\
---------------------------------------------------------------------------
\14\ Finally, EPA does not disagree with the Commenter's claim
that coal fired EGUs are a large source of SO2 emissions
in Pennsylvania based on the 2011 NEI. However, EPA does not agree
that this information is relevant to our approval of the
infrastructure SIP which EPA has explained meets requirements in CAA
section 110(a)(2).
---------------------------------------------------------------------------
Comment 7: The Commenter asserts that modeling is the appropriate
tool for evaluating adequacy of infrastructure SIPs and ensuring
attainment and maintenance of the 2010 SO2 NAAQS. The
Commenter refers to EPA's historic use of air dispersion modeling for
attainment designations as well as ``SIP revisions.'' The Commenter
cites to prior EPA statements that the Agency has used modeling for
designations and attainment demonstrations, including statements in the
2010 SO2 NAAQS preamble, EPA's 2012 Draft White Paper for
Discussion on Implementing the 2010 SO2 NAAQS, and a 1994
SO2 Guideline Document, as modeling could better address the
source-specific impacts of SO2 emissions and historic
challenges from monitoring SO2 emissions.\15\
---------------------------------------------------------------------------
\15\ The Commenter also cites to a 1983 EPA Memorandum on
section 107 designations policy regarding use of modeling for
designations and to the 2012 Mont. Sulphur & Chem. Co. case which
upheld EPA's finding that the previously approved SIP for an area in
Montana was substantially inadequate to attain the NAAQS due to
modeled violations of the NAAQS.
---------------------------------------------------------------------------
The Commenter also cited to several cases upholding EPA's use of
modeling in NAAQS implementation actions, including the Montana Sulphur
case, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), Republic
Steel Corp. v. Costle, 621 F.2d 797 (6th Cir. 1980), and Catawba County
v. EPA, 571 F.3d 20
[[Page 46502]]
(D.C. Cir. 2009).\16\ The Commenter discusses statements made by EPA
staff regarding the use of modeling and monitoring in setting emission
limitations or determining ambient concentrations as a result of a
source's emissions, discussing performance of AERMOD as a model, if
AERMOD is capable of predicting whether the NAAQS is attained, and
whether individual sources contribute to SO2 NAAQS
violations. The Commenter cites to EPA's history of employing air
dispersion modeling for increment compliance verifications in the
permitting process for the Prevention of Significant Deterioration
(PSD) program required in part C of Title I of the CAA. The Commenter
claims several coal-fired EGUs including Brunner Island, Montour,
Cheswick, New Castle, and Shawville are examples of sources located in
elevated terrain where the AERMOD model functions appropriately in
evaluating ambient impacts.
---------------------------------------------------------------------------
\16\ Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174 (9th
Cir. 2012).
---------------------------------------------------------------------------
The Commenter asserts EPA's use of air dispersion modeling was
upheld in GenOn REMA, LLC v. EPA, 722 F.3d 513 (3rd Cir. 2013) where an
EGU challenged EPA's use of CAA section 126 to impose SO2
emission limits on a source due to cross-state impacts. The Commenter
claims the Third Circuit in GenOn REMA upheld EPA's actions after
examining the record which included EPA's air dispersion modeling of
the one source as well as other data.
The Commenter cites to Vehicle Mfrs. Ass'n v. State Farm Mut. Auto
Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254
(D.C. Cir. 2009) for the general proposition that it would be arbitrary
and capricious for an agency to ignore an aspect of an issue placed
before it and that an agency must consider information presented during
notice-and-comment rulemaking.\17\
---------------------------------------------------------------------------
\17\ The Commenter also claims it raised similar arguments to
Pennsylvania during the Pennsylvania proposal process for the
infrastructure SIPs.
---------------------------------------------------------------------------
Finally, the Commenter claims that Pennsylvania's proposed
SO2 infrastructure SIP lacks emission limitations informed
by air dispersion modeling and therefore fails to ensure Pennsylvania
will attain and maintain the 2010 SO2 NAAQS. The Commenter
claims EPA must disapprove the SO2 infrastructure SIP as it
does not ``prevent exceedances'' or ensure attainment and maintenance
of the SO2 NAAQS.
Response 7: EPA agrees with the Commenter that air dispersion
modeling, such as AERMOD, can be an important tool in the CAA section
107 designations process for SO2 and in developing SIPs for
nonattainment areas as required by sections 172 and 191-192, including
supporting required attainment demonstrations. EPA agrees that prior
EPA statements, EPA guidance, and case law support the use of air
dispersion modeling in the SO2 designations process and
attainment demonstration process, as well as in analyses of the
interstate impact of transported emissions and whether existing
approved SIPs remain adequate to show attainment and maintenance of the
SO2 NAAQS. However, as provided in the previous responses,
EPA disagrees with the Commenter that EPA must disapprove the
Pennsylvania SO2 infrastructure SIP for its alleged failure
to include source-specific SO2 emission limits that show no
exceedances of the NAAQS when modeled or ensure attainment and
maintenance of the NAAQS.
In acting to approve or disapprove an infrastructure SIP, EPA is
not required to make findings regarding current air quality status of
areas within the state, regarding such area's projected future air
quality status, or regarding whether existing emissions limits in such
area are sufficient to meet a NAAQS in the area. All of the actions the
Commenter cites, instead, do make findings regarding at least one of
those issues. The attainment planning process detailed in part D of the
CAA, including sections 172 and 191-192 attainment SIPs, is the
appropriate place for the state to evaluate measures needed to bring
in-state nonattainment areas into attainment with a NAAQS and to impose
additional emission limitations such as SO2 emission limits
on specific sources.
EPA had initially recommended that states submit substantive
attainment demonstration SIPs based on air quality modeling in the
final 2010 SO2 NAAQS preamble (75 FR 35520) and in
subsequent draft guidance issued in September 2011 for the section
110(a) SIPs due in June 2013 in order to show how areas then-expected
to be designated as unclassifiable would attain and maintain the NAAQS.
These initial statements in the preamble and 2011 draft guidance,
presented only in the context of the new 1-hour SO2 NAAQS
and not suggested as a matter of general infrastructure SIP policy,
were based on EPA's expectation at the time, that by June 2012, most
areas would initially be designated as unclassifiable due to
limitations in the scope of the ambient monitoring network and the
short time available before which states could conduct modeling to
support designations recommendations in 2011. However, after conducting
extensive stakeholder outreach and receiving comments from the states
regarding these initial statements and the timeline for implementing
the NAAQS, EPA subsequently stated in the April 12, 2012 letters and in
the 2012 Draft White Paper that EPA was clarifying its 2010
SO2 NAAQS implementation position and was no longer
recommending such attainment demonstrations supported by air dispersion
modeling for unclassifiable areas (which had not yet been designated)
for the June 2013 infrastructure SIPs. Instead, EPA explained that it
expected states to submit infrastructure SIPs that followed the general
policy EPA had applied under other NAAQS. EPA then reaffirmed this
position in the February 6, 2013 memorandum, ``Next Steps for Area
Designations and Implementation of the Sulfur Dioxide National Ambient
Air Quality Standard.'' \18\ As previously mentioned, EPA had stated in
the preamble to the NAAQS and in the prior 2011 draft guidance that EPA
intended to develop and seek public comment on guidance for modeling
and development of SIPs for sections 110, 172 and 191-192 of the CAA.
After receiving such further comment, EPA has now issued guidance for
the nonattainment area SIPs due pursuant to sections 172 and 191-192.
See April 23, 2014 Guidance for 1-Hour SO2 Nonattainment
Area SIP Submissions. In addition, modeling may be an appropriate
consideration for states and EPA in further designations for the
SO2 NAAQS in accordance with the Sierra Club and NRDC
Consent Decree and proposed data requirements rule mentioned
previously.\19\ While the EPA guidance for attainment SIPs and for
designations for CAA section 107 and proposed process for
characterizing SO2 emissions from larger sources discuss the
use of air dispersion modeling, EPA's 2013 Infrastructure SIP Guidance
did not suggest that states use
[[Page 46503]]
air dispersion modeling for purposes of the section 110(a)(2)
infrastructure SIP. Therefore, as discussed previously, EPA believes
the Pennsylvania SO2 infrastructure SIP submittal contains
the structural requirements to address elements in section 110(a)(2) as
discussed in detail in the TSD accompanying the proposed approval. EPA
believes infrastructure SIPs are general planning SIPs to ensure that a
state has adequate resources and authority to implement a NAAQS.
Infrastructure SIP submissions are not intended to act or fulfill the
obligations of a detailed attainment and/or maintenance plan for each
individual area of the state that is not attaining the NAAQS. While
infrastructure SIPs must address modeling authorities in general for
section 110(a)(2)(K), EPA believes 110(a)(2)(K) requires infrastructure
SIPs to provide the state's authority for air quality modeling and for
submission of modeling data to EPA, not specific air dispersion
modeling for large stationary sources of pollutants. In the TSD for
this rulemaking action, EPA provided a detailed explanation of
Pennsylvania's ability and authority to conduct air quality modeling
when required and its authority to submit modeling data to the EPA.
---------------------------------------------------------------------------
\18\ The February 6, 2013 ``Next Steps for Area Designations and
Implementation of the Sulfur Dioxide National Ambient Air Quality
Standard,'' one of the April 12, 2012 state letters, and the May
2012 Draft White Paper are available at https://www.epa.gov/airquality/sulfurdioxide/implement.html.
\19\ The Consent Decree in Sierra Club and NRDC v. EPA, Case
3:13-cv-03953-SI (N.D. Cal.) is available at https://www.epa.gov/airquality/sulfurdioxide/designations/pdfs/201503FinalCourtOrder.pdf. See 79 FR 27446 (EPA's proposed data
requirements rule). See also Updated Guidance for Area Designations
for the 2010 Primary Sulfur Dioxide National Ambient Air Quality
Standard, Stephen D. Page, Director, EPA's Office of Air Quality
Planning Standards, March 20, 2015, available at https://www.epa.gov/airquality/sulfurdioxide/pdfs/20150320SO2designations.pdf.>
---------------------------------------------------------------------------
EPA finds the Commenter's discussion of case law, guidance, and EPA
staff statements regarding advantages of AERMOD as an air dispersion
model for purposes of demonstrating attainment of the NAAQS to be
irrelevant to the analysis of Pennsylvania's infrastructure SIP, which
as we have explained is separate from the SIP required to demonstrate
attainment of the NAAQS pursuant to sections 172 or 192. In addition,
the Commenter's comments relating to EPA's use of AERMOD or modeling in
general in designations pursuant to section 107, including its citation
to Catawba County, are likewise irrelevant as EPA's present approval of
Pennsylvania's infrastructure SIP is unrelated to the section 107
designations process. Nor is EPA's action on this infrastructure SIP
related to any new source review (NSR) or PSD permit program issue. As
outlined in the August 23, 2010 clarification memo, ``Applicability of
Appendix W Modeling Guidance for the 1-hour SO2 National
Ambient Air Quality Standard'' (U.S. EPA, 2010a), AERMOD is the
preferred model for single source modeling to address the 1-hour
SO2 NAAQS as part of the NSR/PSD permit programs. Therefore,
as attainment SIPs, designations, and NSR/PSD actions are outside the
scope of a required infrastructure SIP for the 2010 SO2
NAAQS for section 110(a), EPA provides no further response to the
Commenter's discussion of air dispersion modeling for these
applications. If the Commenter resubmits its air dispersion modeling
for the Pennsylvania EGUs, or updated modeling information in the
appropriate context, EPA will address the resubmitted modeling or
updated modeling at that time.
The Commenter correctly noted that the Third Circuit upheld EPA's
section 126 finding imposing SO2 emissions limitations on an
EGU pursuant to CAA section 126. GenOn REMA, LLC v. EPA, 722 F.3d 513.
Pursuant to section 126, any state or political subdivision may
petition EPA for a finding that any major source or group of stationary
sources emits, or would emit, any air pollutant in violation of the
prohibition of section 110(a)(2)(D)(i) which relates to significant
contributions to nonattainment or interference with maintenance of a
NAAQS in another state. The Third Circuit upheld EPA's authority under
section 126 and found EPA's actions neither arbitrary nor capricious
after reviewing EPA's supporting docket which included air dispersion
modeling as well as ambient air monitoring data showing exceedances of
the NAAQS. The Commenter appears to have cited to this matter to
demonstrate EPA's use of modeling for certain aspects of the CAA. We do
not disagree that such modeling is appropriate for other actions, such
as those under section 126. But, for the reasons explained above, such
modeling is not required for determining whether Pennsylvania's
infrastructure SIP has the required structural requirements pursuant to
section 110(a)(2). As noted above, EPA is not acting on an interstate
transport SIP in this action because Pennsylvania has not made such a
submission. The decision in GenOn Rema does not otherwise speak to the
role of air dispersion modeling as to any other planning requirements
in the CAA.
In its comments, the Commenter relies on Motor Vehicle Mfrs. Ass'n
and NRDC v. EPA to support its comments that EPA must consider the
Commenter's modeling data on several Pennsylvania EGUs including
Brunner Island, Montour, Cheswick, New Castle, and Shawville based on
administrative law principles regarding consideration of comments
provided during a rulemaking process. For the reasons previously
explained, the purpose for which the Commenter submitted the modeling--
namely, to assert that current air quality in the areas in which those
sources are located does not meet the NAAQS--is not relevant to EPA's
action on this infrastructure SIP, and consequently EPA is not required
to consider the modeling in evaluating the approvability of the
infrastructure SIP.\20\ EPA does not believe infrastructure SIPs must
contain emission limitations informed by air dispersion modeling in
order to meet the requirements of section 110(a)(2)(A). Thus, EPA has
evaluated the persuasiveness of the Commenter's submitted modeling in
finding that it is not relevant to the approvability of Pennsylvania's
proposed infrastructure SIP for the 2010 SO2 NAAQS, but EPA
has made no judgment regarding whether the Commenter's submitted
modeling is sufficient to show violations of the NAAQS.
---------------------------------------------------------------------------
\20\ EPA notes that PADEP provided similar responses to the
Commenter's claims regarding evaluation of modeling data for an
infrastructure SIP as specifically recounted by the Commenter in its
March 9, 2015 comments to EPA on this rulemaking action. EPA agrees
with PADEP's responses that emissions limitations for attainment of
the NAAQS are appropriate for consideration in the part D planning
process and not for the infrastructure SIP process. Thus, EPA
provides no further response on this issue as PADEP responded to the
Commenter in Pennsylvania's rulemaking and EPA's responses are
provided in this action.
---------------------------------------------------------------------------
While EPA does not believe that infrastructure SIP submissions are
required to contain emission limits assuring in-state attainment of the
NAAQS, as suggested by the Commenter, EPA does recognize that in the
past, states have, in their discretion, used infrastructure SIP
submittals as a `vehicle' for incorporating regulatory revisions or
source-specific emission limits into the state's plan. See 78 FR 73442
(December 6, 2013) (approving regulations Maryland submitted for
incorporation into the SIP along with the 2008 ozone infrastructure SIP
to address ethics requirements for State Boards in sections 128 and
110(a)(2)(E)(ii)). While these SIP revisions are intended to help the
state meet the requirements of section 110(a)(2), these ``ride-along''
SIP revisions are not intended to signify that all infrastructure SIP
submittals must, in order to be approved by EPA, have similar
regulatory revisions or source-specific emission limits. Rather, the
regulatory provisions and source-specific emission limits the state
relies on when showing compliance with section 110(a)(2) have, in many
cases, likely already been incorporated into the state's SIP prior to
each new infrastructure SIP submission; in some cases this was done for
entirely separate CAA requirements, such as attainment
[[Page 46504]]
plans required under section 172, or for previous NAAQS.
Comment 8: The Commenter asserts that EPA may not approve the
Pennsylvania proposed SO2 infrastructure SIP because it
fails to include enforceable emission limitations with a 1-hour
averaging time that applies at all times. The Commenter cites to CAA
section 302(k) which requires emission limits to apply on a continuous
basis. The Commenter claims EPA has stated that 1-hour averaging times
are necessary for the 2010 SO2 NAAQS citing to EPA's April
23, 2014 Guidance for 1-Hour SO2 Nonattainment Area SIP
Submissions, a February 3, 2011, EPA Region 7 letter to the Kansas
Department of Health and Environment regarding the need for 1-hour
SO2 emission limits in a PSD permit, an EPA Environmental
Hearing Board (EHB) decision rejecting use of a 3-hour averaging time
for a SO2 limit in a PSD permit, and EPA's disapproval of a
Missouri SIP which relied on annual averaging for SO2
emission rates.\21\
---------------------------------------------------------------------------
\21\ Sierra Club cited to In re: Mississippi Lime Co.,
PSDAPLPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and
71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control
strategy SO2 SIP).
---------------------------------------------------------------------------
Thus, the Commenter contends EPA must disapprove Pennsylvania's
infrastructure SIP which the Commenter claims fails to require emission
limits with adequate averaging times.
Response 8: EPA disagrees that EPA must disapprove the proposed
Pennsylvania infrastructure SIP because the SIP does not contain
enforceable SO2 emission limitations with 1-hour averaging
periods that apply at all times, as this issue is not appropriate for
resolution at this stage. The comment does not assert that the
SO2 emission limits in Pennsylvania's SIP are not
enforceable or that they do not apply at all times, instead the comment
focuses on the lack of 1-hour averaging times. We do not believe, as
suggested by the Commenter, that the emission limits are not
``continuous'' within the meaning of section 302(k). As EPA has noted
previously, the purpose of the section 110(a)(2) SIP is to ensure that
the State has the necessary structural components to implement programs
for attainment and maintenance of the NAAQS.\22\ While EPA does agree
that the averaging time is a critical consideration for purposes of
substantive SIP revisions, such as attainment demonstrations, the
averaging time of existing rules in the SIP is not relevant for
determining that the State has met the applicable requirements of
section 110(a)(2) with respect to the infrastructure elements addressed
in the present SIP action.\23\ Therefore, because EPA finds
Pennsylvania's SO2 infrastructure SIP approvable without the
additional SO2 emission limitations showing in-state
attainment of the NAAQS, EPA finds the issues of appropriate averaging
periods for such future limitations not relevant at this time. The
Commenter has cited to prior EPA discussion on emission limitations
required in PSD permits (from an EAB decision and EPA's letter to
Kansas' permitting authority) pursuant to part C of the CAA, which is
neither relevant nor applicable to the present SIP action. In addition,
as previously discussed, the EPA disapproval of the 2006 Missouri SIP
was a disapproval relating to a control strategy SIP required pursuant
to part D attainment planning and is likewise not relevant to the
analysis of infrastructure SIP requirements.
---------------------------------------------------------------------------
\22\ As EPA has stated, some areas are designated nonattainment
areas pursuant to CAA section 107 for the 2010 SO2 NAAQS
in the Commonwealth. Thus, while the Commonwealth, at this time, has
an obligation to submit attainment plans for the 2010 SO2
NAAQS for sections 172, 191 and 192, EPA believes the appropriate
time for examining necessity of the averaging periods within any
submitted SO2 emission limits on specific sources is
within the attainment planning process.
\23\ For a discussion on emission averaging times for emissions
limitations for SO2 attainment SIPs, see the April 23,
2014 Guidance for 1-Hour SO2 Nonattainment Area SIP
Submissions. EPA explained that it is possible, in specific cases,
for states to develop control strategies that account for
variability in 1-hour emissions rates through emission limits with
averaging times that are longer than 1-hour, using averaging times
as long as 30-days, but still provide for attainment of the 2010
SO2 NAAQS as long as the limits are of at least
comparable stringency to a 1-hour limit at the critical emission
value. EPA has not yet evaluated any specific submission of such a
limit, and so is not at this time prepared to take final action to
implement this concept.
---------------------------------------------------------------------------
Comment 9: The Commenter states that enforceable emission limits in
SIPs or permits are necessary to avoid nonattainment designations in
areas where modeling or monitoring shows SO2 levels exceed
the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA
document, Next Steps for Area Designations and Implementation of the
Sulfur Dioxide National Ambient Air Quality Standard, which the
Commenter contends discusses how states could avoid future
nonattainment designations. The Commenter asserts EPA must ensure
enforceable emission limits in the Pennsylvania infrastructure SIP will
not allow ``exceedances'' of the SO2 NAAQS. The Commenter
claims the modeling it conducted for Brunner Island, Montour, Cheswick,
New Castle, and Shawville indicates at least 28 additional counties in
Pennsylvania must be designated nonattainment with the 2010
SO2 NAAQS without such enforceable SO2 limits. In
summary, the Commenter asserts EPA must disapprove the Pennsylvania
infrastructure SIP and ensure emission limits will not allow large
sources of SO2 to cause exceedances of the 2010
SO2 NAAQS.
Response 9: EPA appreciates the Commenter's concern with avoiding
nonattainment designations in Pennsylvania for the 2010 SO2
NAAQS. However, Congress designed the CAA such that states have the
primary responsibility for achieving and maintaining the NAAQS within
their geographic area by submitting SIPs which will specify the details
of how the state will meet the NAAQS. Pursuant to section 107(d), the
states make initial recommendations of designations for areas within
each state and EPA then promulgates the designations after considering
the state's submission and other information. EPA promulgated initial
designations for the 2010 SO2 NAAQS in August 2013 for areas
in which monitoring at that time showed violations of the NAAQS, but
has not yet issued designations for other areas and will complete the
required designations pursuant to the schedule contained in the
recently entered Consent Decree. EPA will designate additional areas
for the 2010 SO2 NAAQS in accordance with the CAA section
107 and existing EPA policy and guidance. Pennsylvania may, on its own
accord, decide to impose additional SO2 emission limitations
to avoid future designations to nonattainment. If additional
Pennsylvania areas are designated nonattainment, Pennsylvania will then
have the initial opportunity to develop additional emissions
limitations needed to attain the NAAQS, and EPA would be charged with
reviewing whether the SIP is adequate to demonstrate attainment. See
Commonwealth of Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C.
Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner,
57 F.3d 1122, 1123 (DCCir.1995)) (discussing that states have primary
responsibility for determining an emission reductions program for its
areas subject to EPA approval dependent upon whether the SIP as a whole
meets applicable requirements of the CAA). However, such considerations
are not required of Pennsylvania at the infrastructure SIP stage of
NAAQS implementation, as the Commenter's statements concern the
separate designations process under section 107.\24\ EPA disagrees that
the
[[Page 46505]]
infrastructure SIP must be disapproved for not including enforceable
emissions limitations to prevent future 1-hour SO2
nonattainment designations.
---------------------------------------------------------------------------
\24\ EPA also notes that in EPA's final rule regarding the 2010
SO2 NAAQS, EPA noted that it anticipates several
forthcoming national and regional rules, such as the Industrial
Boilers standard under CAA section 112, are likely to require
significant reductions in SO2 emissions over the next
several years. See 75 FR 35520. EPA continues to believe similar
national and regional rules will lead to SO2 reductions
that will help achieve compliance with the 2010 SO2
NAAQS. If it appears that states with areas designated nonattainment
in 2013 will nevertheless fail to attain the NAAQS as expeditiously
as practicable (but no later than October 2018) during EPA's review
of attainment SIPs required by section 172, the CAA provides
authorities and tools for EPA to solve such failure, including, as
appropriate, disapproving submitted SIPs and promulgating federal
implementation plans. Likewise, for any areas designated
nonattainment after 2013, EPA has the same authorities and tools
available to address any areas which do not timely attain the NAAQS.
---------------------------------------------------------------------------
D. Sierra Club Comments on Pennsylvania 2008 Ozone Infrastructure SIP
Comment 10: The Commenter claims EPA must disapprove the proposed
infrastructure SIP for the 2008 ozone NAAQS for its failure to include
enforceable measures on sources of volatile organic compounds (VOCs)
and nitrogen oxides (NOX) to ensure attainment and
maintenance of the NAAQS in areas not designated nonattainment and to
ensure compliance with section 110(a)(2)(A) for the 2008 ozone NAAQS.
The Commenter specifically mentions EGUs as well as the oil and gas
production industry as sources needing additional controls as they are
major sources of ozone precursors. The Commenter claims stringent
emission limits must apply at all times to ensure all areas in
Pennsylvania attain and maintain the ozone NAAQS. The Commenter claims
the provisions listed by Pennsylvania for section 110(a)(2)(A) in its
2008 ozone NAAQS infrastructure SIP are insufficient for attaining and
maintaining the 2008 ozone NAAQS as evidenced by the Commenter's review
of air quality monitoring data in areas which are not presently
designated nonattainment for the 2008 ozone NAAQS. Specifically, the
Commenter cites air monitoring in a number of Pennsylvania counties
including Mercer, Indiana, Lebanon, Dauphin, Erie and York counties
indicating ``exceedances'' of the NAAQS and what the Commenter asserts
are design values above the NAAQS in 2010-2012, 2011-2013, and 2012-
2014. The Commenter alleges that these ``exceedances'' demonstrate that
the Pennsylvania 2008 ozone infrastructure SIP with existing
regulations, statutes, source-specific limits and programs fails to
demonstrate the infrastructure SIP will ensure attainment and
maintenance of the 2008 ozone NAAQS. Thus, the Commenter asserts EPA
must disapprove the 2008 ozone infrastructure SIP.
In addition, the Commenter asserts that the infrastructure SIP
required by section 110(a) must provide assurances that the NAAQS will
be attained and maintained for areas not designated nonattainment and
asserts that the Pennsylvania infrastructure SIP must contain state-
wide regulations and emission limits that ``ensure that the proper mass
limitations and short term averaging periods are imposed on certain
specific large sources of NOX such as power plants. These
emission limits must apply at all times . . . to ensure that all areas
of Pennsylvania attain and maintain the 2008 eight-hour Ozone NAAQS.''
The Commenter suggests limits should be set on a pounds per hour (lbs/
hr) basis for EGUs to address variation in mass emissions and ensure
protection of the ambient air quality. The Commenter cites to
NOX limits from PSD permits issued to EGUs with low
NOX emission rates, claiming such rates and related control
efficiencies are achievable for EGUs. The Commenter suggests short-term
averaging limits would ensure EGUs cannot emit NOX at higher
rates on days when ozone levels are worst while meeting a longer-term
average. The Commenter also contends that adding control devices and
emission limits on EGUs are a ``cost effective option to reduce
NOX pollution and attain and maintain the 2008 ozone
NAAQS.''
Finally, the Commenter contends the proposed ozone infrastructure
SIP cannot ensure Pennsylvania will attain and maintain the 2008 ozone
NAAQS and contends EPA must disapprove the SIP for lack of emission
limits to attain and maintain the ozone NAAQS statewide.
Response 10: EPA disagrees with the commenter that the
infrastructure SIPs must include detailed attainment and maintenance
plans for all areas of the state and must be disapproved if ozone air
quality data that became available late in the process or after the SIP
was due and submitted changes the status of areas within the state.\25\
EPA has addressed in detail in prior responses above the Commenter's
general arguments that the statutory language, legislative history,
case law, EPA regulations, and prior rulemaking actions by EPA mandate
the interpretation it advocates--i.e., that infrastructure SIPs must
ensure attainment and maintenance of the NAAQS. EPA believes that
section 110(a)(2)(A) is reasonably interpreted to require states to
submit SIPs that reflect the first step in their planning for attaining
and maintaining a new or revised NAAQS and that they contain
enforceable control measures and a demonstration that the state has the
available tools and authority to develop and implement plans to attain
and maintain the NAAQS, including the 2008 ozone NAAQS.
---------------------------------------------------------------------------
\25\ EPA notes however that the data presented by the Commenter
in table 5 of its March 9, 2015 comments indicates a general
improving trend in ozone air quality for the specific counties the
Commenter included. The data could equally be used to indicate
improving ozone air quality based on existing measures in the
Pennsylvania SIP.
---------------------------------------------------------------------------
Moreover, the CAA recognizes and has provisions to address changes
in air quality over time, such as an area slipping from attainment to
nonattainment or changing from nonattainment to attainment. These
include provisions providing for redesignation in section 107(d) and
provisions in section 110(k)(5) allowing EPA to call on the state to
revise its SIP, as appropriate.
The Commenter suggests that EPA must disapprove the Pennsylvania
ozone infrastructure SIP because the fact that a few areas in
Pennsylvania recently had air quality data slightly above the standard
therefore proves that the infrastructure SIP is inadequate to
demonstrate maintenance of the ozone NAAQS for those areas. EPA
disagrees with the Commenter because EPA does not believe that section
110(a)(2)(A) requires detailed planning SIPs demonstrating either
attainment or maintenance for specific geographic areas of the state.
The infrastructure SIP is triggered by promulgation of the NAAQS, not
designation. Moreover, infrastructure SIPs are due three years
following promulgation of the NAAQS and designations are not due until
two years (or in some cases three years) following promulgation of the
NAAQS. Thus, during a significant portion of the period that a state
has available for developing the infrastructure SIP, it does not know
what the designation will be for individual areas of the state.\26\ In
light of the structure of the CAA, EPA's long-standing position
regarding infrastructure SIPs is that they are general planning SIPs to
ensure that the state has adequate resources and
[[Page 46506]]
authority to implement a NAAQS in general throughout the state and not
detailed attainment and maintenance plans for each individual area of
the state.
---------------------------------------------------------------------------
\26\ While it is true that there may be some monitors within a
state with values so high as to make a nonattainment designation of
the county with that monitor almost a certainty, the geographic
boundaries of the nonattainment area associated with that monitor
would not be known until EPA issues final designations. Moreover,
the five areas of concern to the Commenter do not fit that
description in any event.
---------------------------------------------------------------------------
EPA's interpretation that infrastructure SIPs are more general
planning SIPs is consistent with the statute as understood in light of
its history and structure as explained previously in response to prior
comments. While at one time section 110 did provide the only detailed
SIP planning provisions for states and specified that such plans must
provide for attainment of the NAAQS, part D of title I of the CAA (not
CAA section 110) governs the substantive planning process, including
planning for attainment and maintenance of the NAAQS.
For the reasons explained by EPA in this action, EPA disagrees with
the Commenter that EPA must disapprove an infrastructure SIP revision
if there are monitored violations of the standard in the state and the
section 110(a)(2)(A) revision does not have detailed plans for
demonstrating how the state will bring that area into attainment or
ensure maintenance of the NAAQS. Rather, EPA believes that the proper
inquiry at this juncture is whether the state has met the basic
structural SIP requirements appropriate at the point in time EPA is
acting upon the submittal. EPA's NPR and TSD for this rulemaking
address why the Pennsylvania SIP meets the basic structural SIP
requirements as to the elements addressed in section 110(a)(2) in the
NPR for the 2008 ozone NAAQS.
As addressed in EPA's proposed approval for this rule, Pennsylvania
submitted a list of existing emission reduction measures in the SIP
that control emissions of NOX and VOCs. Pennsylvania's SIP
revision reflects numerous provisions that have the ability to reduce
ground level ozone and its precursors. The Pennsylvania SIP relies on
measures and programs used to implement previous ozone NAAQS. Because
there is no substantive difference between the previous ozone NAAQS and
the more recent ozone NAAQS, other than the level of the standard, the
provisions relied on by Pennsylvania will provide benefits for the new
NAAQS; in other words, the measures reduce overall ground-level ozone
and its precursors and are not limited to reducing ozone levels to meet
one specific NAAQS. Although additional control measures for ozone
precursors such as those mentioned by the Commenter may be considered
by PADEP and could be submitted with an infrastructure SIP, these
additional measures are not a requirement in order for Pennsylvania to
meet CAA section 110(a)(2)(A). In approving Pennsylvania's
infrastructure SIP revision, EPA is affirming that Pennsylvania has
sufficient authority to take the types of actions required by the CAA
in order to bring such areas back into attainment.
Finally, EPA appreciates the Commenter's information regarding EGU
NOX control measures and reduction efficiencies as well as
emissions limitations applicable to new or modified EGUs which were set
during the PSD or NSR permit process. Additional NOX
regulations on emissions from EGUs would likely reduce ozone levels
further in one or more areas in Pennsylvania. Congress established the
CAA such that each state has primary responsibility for assuring air
quality within the state and each state is first given the opportunity
to determine an emission reduction program for its areas subject to EPA
approval, with such approval dependent upon whether the SIP as a whole
meets the applicable requirements of the CAA. See Virginia v. EPA, 108
F.3d at 1410. The Commonwealth could choose to consider additional
control measures for NOX at EGUs to ensure attainment and
maintenance of the ozone NAAQS as Pennsylvania moves forward to meet
the more prescriptive planning requirements of the CAA in the future.
However, as we have explained, the Commonwealth is not required to
regulate such sources for purposes of meeting the infrastructure SIP
requirements of CAA section 110(a)(2).
In addition, emission limits with the shorter-term averaging rates
suggested by the Commenter could be considered within the part D
planning process to ensure attainment and maintenance of the 2008 ozone
NAAQS. As EPA finds Pennsylvania's NOX and VOC provisions
presently in the SIP sufficient for infrastructure SIP purposes and
specifically for CAA section 110(a)(2)(A), further consideration of
averaging times is not appropriate or relevant at this time. Thus, EPA
disagrees with the Commenter that Pennsylvania's ozone infrastructure
SIP must be disapproved for failure to contain sufficient measures to
ensure attainment and maintenance of the NAAQS.
Comment 11: The Commenter states enforceable emission limits are
necessary to avoid future nonattainment designations in areas where
Pennsylvania's monitoring network has shown ``exceedances'' with the
2008 ozone NAAQS in recent years. The Commenter stated EPA must address
inadequacies in enforceable emission limitations relied upon by
Pennsylvania for its ozone infrastructure SIP to comply with CAA
section 110(a)(2)(A) and stated EPA must disapprove the ozone
infrastructure SIP to ensure large sources of NOX and VOCs
cannot contribute to exceedances of the ozone NAAQS and prohibit
attainment and maintenance of the ozone NAAQS in all of Pennsylvania.
Response 11: For the reasons previously discussed, EPA disagrees
with the Commenter that we must disapprove the Pennsylvania ozone
infrastructure SIP because it does not demonstrate how areas that may
be newly violating the ozone NAAQS since the time of designation can be
brought back into attainment. Enforceable emission limitations to avoid
future nonattainment designations are not required for EPA to approve
an infrastructure SIP under CAA section 110, and any emission
limitations needed to assure attainment and maintenance with the ozone
NAAQS will be determined by Pennsylvania and reviewed by EPA as part of
the part D attainment SIP planning process. Thus, EPA disagrees with
the Commenter that EPA must disapprove the ozone infrastructure SIP to
ensure large sources of NOX and VOC do not contribute to
exceedances of the NAAQS or prohibit implementation, attainment or
maintenance of the ozone NAAQS. As explained in the NPR and TSD,
Pennsylvania has sufficient emission limitations and measures to
address NOX and VOC emissions for CAA section 110(a)(2)(A).
III. Final Action
EPA is approving the following elements of Pennsylvania's June 15,
2014 SIP revisions for the 2008 ozone NAAQS and the 2010 SO2
NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (PSD requirements),
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Pennsylvania's SIP
revisions provide the basic program elements specified in Section
110(a)(2) necessary to implement, maintain, and enforce the 2008 ozone
NAAQS and the 2010 SO2 NAAQS. This final rulemaking action
does not include action on section 110(a)(2)(I) which pertains to the
nonattainment planning requirements of part D, Title I of the CAA,
because this element is not required to be submitted by the 3-year
submission deadline of section 110(a)(1) of the CAA, and will be
addressed in a separate process. This final rulemaking action also does
not include action on section 110(a)(2)(D)(i)(I) for interstate
transport for the 2008 ozone or the 2010 SO2 NAAQS as
Pennsylvania's July 15,
[[Page 46507]]
2014 SIP submissions did not address this element for either NAAQS nor
does this rulemaking include any action on section 110(a)(2)(D)(i)(II)
for visibility protection for either NAAQS. While Pennsylvania's July
15, 2014 SIP submissions for the 2008 ozone and 2010 SO2
NAAQS included provisions addressing visibility protection, EPA will
take later, separate action on this element for both of these NAAQS.
IV. Statutory and Executive Order Reviews
A. General Requirements
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA 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 is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
B. Submission to Congress and the Comptroller General
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).
C. Petitions for Judicial Review
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 October 5, 2015. 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 pertaining to Pennsylvania's section 110(a)(2)
infrastructure elements for the 2008 ozone NAAQS and 2010
SO2 NAAQS may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Sulfur oxides, Volatile
organic compounds.
Dated: July 24, 2015.
William C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart NN--Pennsylvania
0
2. In Sec. 52.2020, the table in paragraph (e)(1) is amended by adding
two entries for ``Section 110(a)(2) Infrastructure Requirements for the
2008 ozone NAAQS'' and ``Section 110(a)(2) Infrastructure Requirements
for the 2010 SO2 NAAQS'' at the end of the table to read as
follows:
Sec. 52.2020 Identification of plan.
* * * * *
(e) * * *
(1) * * *
----------------------------------------------------------------------------------------------------------------
State
Name of non-regulatory SIP Applicable submittal EPA Approval date Additional explanation
revision geographic area date
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Infrastructure Statewide.......... 7/15/14 8/5/15 [Insert This rulemaking action
Requirements for the 2008 ozone Federal Register addresses the
NAAQS. citation]. following CAA
elements:
110(a)(2)(A), (B),
(C), (D)(i)(II)
(prevention of
significant
deterioration),
(D)(ii), (E), (F),
(G), (H), (J), (K),
(L), and (M).
Section 110(a)(2) Infrastructure Statewide.......... 7/15/14 8/5/15 [Insert This rulemaking action
Requirements for the 2010 SO2 Federal Register addresses the
NAAQS. citation]. following CAA
elements:
110(a)(2)(A), (B),
(C), (D)(i)(II)
(prevention of
significant
deterioration),
(D)(ii), (E), (F),
(G), (H), (J), (K),
(L), and (M).
----------------------------------------------------------------------------------------------------------------
[[Page 46508]]
[FR Doc. 2015-19090 Filed 8-4-15; 8:45 am]
BILLING CODE 6560-50-P
