Air Plan Approval; Indiana and Ohio; Infrastructure SIP Requirements for the 2010 NO2, 48733-48743 [2015-20020]
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EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES
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Air Quality Maintenance
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BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2012–0991; EPA–R05–
OAR–2013–0435; FRL–9932–15-Region 5]
Air Plan Approval; Indiana and Ohio;
Infrastructure SIP Requirements for
the 2010 NO2 and SO2 NAAQS
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
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This final rule is effective on
September 14, 2015.
DATES:
EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2012–0991 (2010
NO2 infrastructure elements) or EPA–
R05–OAR–2013–0435 (2010 SO2
infrastructure elements). All documents
in the docket are listed in the
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., Confidential
Business Information or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly-available only in hard
copy. Publicly-available docket
materials are available either
electronically in www.regulations.gov or
in hard copy at the U.S. Environmental
Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This
facility is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding
Federal holidays. We recommend that
ADDRESSES:
The Environmental Protection
Agency (EPA) is taking final action to
approve elements of state
implementation plan (SIP) submissions
by Indiana regarding the infrastructure
requirements of section 110 of the Clean
Air Act (CAA) for the 2010 nitrogen
dioxide (NO2) and sulfur dioxide (SO2)
national ambient air quality standards
(NAAQS), and by Ohio regarding the
infrastructure requirements of section
110 of the CAA for the 2010 SO2
NAAQS. The infrastructure
requirements are designed to ensure that
the structural components of each
state’s air quality management program
are adequate to meet the requirements of
the CAA. The proposed rulemaking for
Ohio’s 2010 SO2 infrastructure
submittal associated with today’s final
action was published on July 25, 2014,
and EPA received one comment letter
during the comment period, which
ended on August 25, 2015. In the July
SUMMARY:
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List of maintenance areas
Northern Virginia localities
matter (PM2.5).
List of nonattainment areas
Northern Virginia localities
matter (PM2.5).
25, 2014 rulemaking, EPA also proposed
approval for Ohio’s 2008 lead, 2008
ozone, and 2010 NO2 infrastructure
submittals. Those approvals have been
finalized in separate rulemakings. The
proposed rulemaking for Indiana’s 2010
NO2 and SO2 infrastructure submittals
associated with today’s final action was
published on February 27, 2015, and
EPA received one comment letter during
the comment period, which ended on
March 30, 2015. The concerns raised in
these letters, as well as EPA’s responses,
are addressed in this final action.
[FR Doc. 2015–20023 Filed 8–13–15; 8:45 am]
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Air Quality Programs
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General Provisions
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Explanation [former SIP citation]
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revised to include
for fine particulate
revised to exclude
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you telephone Sarah Arra at (312) 886–
9401 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
U.S. Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–9401,
arra.sarah@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:
I. What is the background of these SIP
submissions?
II. What is our response to comments
received on the proposed rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of these SIP
submissions?
A. What does this rulemaking address?
This rulemaking addresses
infrastructure SIP submissions from the
Indiana Department of Environmental
Management (IDEM) submitted on
January 15, 2013, for the 2010 NO2
NAAQS and on May 22, 2013, for the
2010 SO2 NAAQS. This rulemaking also
addresses infrastructure SIP
submissions from the Ohio
Environmental Protection Agency
(OEPA) submitted on June 7, 2013, for
the 2010 SO2 NAAQS.
B. Why did the state make this SIP
submission?
Under sections 110(a)(1) and (2) of the
CAA, states are required to submit
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infrastructure SIPs to ensure that their
SIPs provide for implementation,
maintenance, and enforcement of the
NAAQS. These submissions must
contain any revisions needed for
meeting the applicable SIP requirements
of section 110(a)(2), or certifications that
their existing SIPs for NO2 and SO2
already meet those requirements.
EPA has highlighted this statutory
requirement in multiple guidance
documents, including the most recent
guidance document entitled ‘‘Guidance
on Infrastructure State Implementation
Plan (SIP) Elements under CAA
Sections 110(a)(1) and (2)’’ issued on
September 13, 2013.
C. What is the scope of this rulemaking?
EPA is acting upon Indiana and
Ohio’s SIP submissions that address the
infrastructure requirements of CAA
sections 110(a)(1) and 110(a)(2) for the
2010 SO2 NAAQS and also the 2010
NO2 NAAQS for Indiana. The
requirement for states to make SIP
submissions of this type arises out of
CAA section 110(a)(1). Pursuant to
section 110(a)(1), states must make SIP
submissions ‘‘within 3 years (or such
shorter period as the Administrator may
prescribe) after the promulgation of a
national primary ambient air quality
standard (or any revision thereof),’’ and
these SIP submissions are to provide for
the ‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
visibility protection requirements of
CAA section 169A, and nonattainment
new source review (NNSR) permit
program submissions to address the
permit requirements of CAA, title I, part
D.
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This rulemaking will not cover three
substantive areas that are not integral to
acting on a state’s infrastructure SIP
submission: (i) Existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction (‘‘SSM’’) at sources, that
may be contrary to the CAA and EPA’s
policies addressing such excess
emissions; (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that purport to
permit revisions to SIP approved
emissions limits with limited public
process or without requiring further
approval by EPA, that may be contrary
to the CAA (collectively referred to as
‘‘director’s discretion’’); and, (iii)
existing provisions for Prevention of
Significant Deterioration (PSD)
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
NSR Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). Instead, EPA has the
authority to address each one of these
substantive areas in separate
rulemaking. A detailed rationale,
history, and interpretation related to
infrastructure SIP requirements can be
found in our May 13, 2014, proposed
rule entitled, ‘‘Infrastructure SIP
Requirements for the 2008 Lead
NAAQS’’ in the section, ‘‘What is the
scope of this rulemaking?’’ (see 79 FR
27241 at 27242–27245).
In addition, EPA is not acting on
section 110(a)(2)(D)(i)(I), interstate
transport significant contribution and
interference with maintenance for the
Indiana and Ohio 2010 SO2 submittals,
a portion of section 110(a)(2)(D)(i)(II)
with respect to visibility, and
110(a)(2)(J) with respect to visibility for
the 2010 NO2 and SO2 submittals for
Indiana and the 2010 SO2 submittal for
Ohio, and portions of 110(a)(2)(C),
110(a)(2)(D)(i)(II), and 110(a)(2)(J) with
respect to PSD for Ohio’s 2010 SO2
submittal. EPA has already taken action
on the portion related to PSD for Ohio’s
2010 SO2 infrastructure submittal in the
February 27, 2015 rulemaking (see 80
FR 10591). EPA is also not acting on
section 110(a)(2)(I)—Nonattainment
Area Plan or Plan Revisions Under Part
D, in its entirety. The rationale for not
acting on elements of these
requirements was included in EPA’s
August 19, 2013, proposed rulemaking
or is discussed below in today’s
response to comments.
II. What is our response to comments
received on the proposed rulemaking?
EPA received one comment letter
from the Sierra Club regarding its July
25, 2014, proposed rulemaking (79 FR
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43338) on Ohio’s 2010 SO2 NAAQS
Infrastructure SIP submittal. EPA did
not receive any comments on its
February 27, 2015, proposed rulemaking
(80 FR 10644) on Indiana’s 2010 NO2
NAAQS Infrastructure SIP, but did
receive one comment from the Sierra
Club relevant to the SO2 submittal. The
majority of the SO2-related comments
from the Sierra Club for Indiana and
Ohio are identical. The comments are
summarized and responded to together;
however, the few differences in the
comments are explicitly pointed out.
Comment 1: Sierra Club contends that
the plain language of section
110(a)(2)(A) of the CAA and the
legislative history of the CAA require
the inclusion of enforceable emission
limits in an infrastructure SIP to prevent
NAAQS exceedances in areas not
designated nonattainment. Sierra Club
also asserts that the Ohio and Indiana
2010 SO2 infrastructure SIP revisions
did not revise the existing SO2 emission
limits in response to the 2010 SO2
NAAQS and failed to comport with
CAA requirements for SIPs to establish
enforceable emission limits that are
adequate to prohibit NAAQS
exceedances in areas not designated
nonattainment.
The Sierra Club states that, on its face,
the CAA ‘‘requires I–SIPs to be adequate
to prevent exceedances of the NAAQS.’’
In support, the Sierra Club 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 and which Sierra Club claims
include the maintenance plan
requirement. Sierra Club notes the CAA
definition of emission limit and reads
these 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
suggested by Sierra Club. 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. In
light of the revisions to section 110
since 1970 and the later-promulgated
and more specific planning
requirements of the CAA, EPA
interprets the requirement in section
110(a)(2)(A) that the plan provide for
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‘‘implementation, maintenance and
enforcement’’ to mean that the
infrastructure 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. With regard to
the requirement for emission
limitations, EPA has interpreted this to
mean, for purposes of section 110, 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. As EPA
stated in ‘‘Guidance on Infrastructure
State Implementation Plan (SIP)
Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2),’’ dated
September 13, 2013 (Infrastructure SIP
Guidance), ‘‘[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. Overall, the
infrastructure SIP submission process
provides an opportunity . . . to review
the basic structural requirements of the
air agency’s air quality management
program in light of each new or revised
NAAQS.’’ Infrastructure SIP Guidance
at p. 2.
The Sierra Club makes general
allegations that Ohio and Indiana do not
have sufficient protective measures to
prevent SO2 NAAQS exceedances. EPA
addressed the adequacy of Ohio and
Indiana’s infrastructure SIPs for
110(a)(2)(A) purposes to meet applicable
requirements of the CAA in the
proposed rulemakings and explained
why the SIPs include enforceable
emission limitations and other control
measures necessary for maintenance of
the 2010 SO2 NAAQS throughout the
state. For Ohio, these limits are found in
Chapter 3745–18, Sulfur Dioxide
Limitations, of Ohio’s SIP. For Indiana,
these limits are found in 326 Indiana
Administrative Code (IAC) 7–1.1, 326
IAC 7–4, and 326 IAC 7–4.1. As
discussed in the proposed rulemakings,
EPA finds that these provisions
adequately address section 110(a)(2)(A)
to aid in attaining and/or maintaining
the applicable NAAQS, and finds that
Ohio and Indiana have demonstrated
that they have the necessary tools to
implement and enforce these NAAQS.
Comment 2: The Sierra Club cites 40
CFR 51.112(a), providing that each plan
‘‘must demonstrate that the measures,
rules and regulations contained in it are
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adequate to provide for the timely
attainment and maintenance of the
[NAAQS].’’ It asserts that this regulation
requires all SIPs to include emissions
limits necessary to ensure attainment of
the NAAQS. The Sierra Club states that
‘‘[a]lthough these regulations were
developed before the Clean Air Act
separated infrastructure SIPs from
nonattainment SIPs—a process that
began with the 1977 amendments and
was completed by the 1990
amendments—the regulations apply to
I–SIPs.’’ It 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).
Response 2: The Sierra Club’s reliance
on 40 CFR 51.112 to support its
argument that infrastructure SIPs must
contain emission limits ‘‘adequate to
prohibit NAAQS exceedances’’ and
adequate or sufficient to ensure the
maintenance of the NAAQS is not
supported. As an initial matter, EPA
notes and the Sierra Club recognizes
that this regulatory provision was
initially promulgated and ‘‘restructured
and consolidated’’ prior to the CAA
Amendments of 1990, in which
Congress removed all references to
‘‘attainment’’ in section 110(a)(2)(A). In
addition, 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, 182, and
192. The Sierra Club 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 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 at 40657.
Although EPA was explicit that it was
not establishing requirements
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interpreting the provisions of the new
‘‘Part D’’ of title I 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.
Comment 3: The Sierra Club
references two prior EPA rulemaking
actions where EPA disapproved or
proposed to disapprove SIPs, and claims
that they were actions in which EPA
relied on section 110(a)(2)(A) and 40
CFR 51.112 to reject infrastructure SIPs.
It first points to a 2006 partial approval
and partial disapproval of revisions to
Missouri’s existing plan addressing the
SO2 NAAQS (71 FR 12623). In that
action, EPA cited section 110(a)(2)(A) of
the CAA as a basis 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 cited
to 40 CFR 51.112 as requiring that a
plan demonstrates the rules in a SIP are
adequate to attain the NAAQS. Second,
Sierra Club cites a 2013 disapproval of
a revision to the SO2 SIP for Indiana,
where the revision removed an emission
limit that applied to a specific emissions
source at a facility in the State (78 FR
78721). In its proposed disapproval,
EPA relied on 40 CFR 51.112(a) in
proposing to reject the revision, stating
that the State had not demonstrated that
the emission limit was ‘‘redundant,
unnecessary, or that its removal would
not result in or allow an increase in
actual SO2 emissions.’’ EPA further
stated in that proposed disapproval that
the State had not demonstrated that
removal of the limit would not ‘‘affect
the validity of the emission rates used
in the existing attainment
demonstration.’’
The Sierra Club also asserts that EPA
stated in its 2013 infrastructure SIP
guidance that states could postpone
specific requirements for start-up
shutdown, and malfunction (SSM), but
did not specify the postponement of any
other requirements. The commenter
concludes that emissions limits
ensuring attainment of the standard
cannot be delayed.
Response 3: EPA does not agree that
the two prior actions referenced by the
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Sierra Club establish how EPA reviews
infrastructure SIPs. It is clear from both
the final Missouri rulemaking and the
proposed and final Indiana rulemakings
that EPA was not reviewing initial
infrastructure SIP submissions under
section 110 of the CAA, but rather
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 addressed a control
strategy SIP and not an infrastructure
SIP. The Indiana action provides even
less support for the Sierra Club’s
position. The review in that rule was of
a completely different requirement than
the section 110(a)(2)(A) SIP. In that case,
the State had an approved SO2
attainment plan and was seeking to
remove from the SIP provisions relied
on as part of the modeled attainment
demonstration. EPA proposed that the
State had failed to demonstrate under
section 110(l) of the CAA why the SIP
revision would not result in increased
SO2 emissions and thus interfere with
attainment of the NAAQS. Nothing in
that rulemaking addresses the necessary
content of the initial infrastructure SIP
for a new or revised NAAQS. Rather, it
is simply applying the clear statutory
requirement that a state must
demonstrate why a revision to an
approved attainment plan will not
interfere with attainment of the NAAQS.
EPA also does not agree that any
requirements related to emission limits
have been postponed. As stated in a
previous response, EPA interprets the
requirements under 110(a)(2)(A) to
include 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.
With regard to the requirement for
emission limitations, EPA has
interpreted this to mean, for purposes of
section 110, 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. Emission limits providing for
attainment of a new standard are
triggered by the designation process and
have a different schedule in the CAA
than the submittal of infrastructure SIPs.
As discussed in detail in the proposed
rules, EPA finds that the Ohio and
Indiana SIPs meet the appropriate and
relevant structural requirements of
section 110(a)(2) of the CAA that will
aid in attaining and/or maintaining the
NAAQS, and that the States have
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demonstrated that they have the
necessary tools to implement and
enforce a NAAQS.
Comment 4: Sierra Club also
discusses several cases applying the
CAA which it claims support its
contention that courts have been clear
that section 110(a)(2)(A) requires
enforceable emissions limits in
infrastructure SIPs to prevent violations
of the NAAQS. Sierra Club 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.’’
Sierra Club 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 Sierra Club
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 4: None of the cases the
Sierra Club cites support its contention
that section 110(a)(2)(A) requires that
infrastructure SIPs must include
detailed plans providing for attainment
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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 CAA). 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 challenges to EPA actions on
revisions to SIPs that were required and
approved 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) to not 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 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
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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 Sierra
Club quotes does not interpret but rather
merely describes section 110(a)(2)(A).
Sierra Club does not raise any concerns
about whether the measures relied on by
the state in the infrastructure SIP are
‘‘emissions limitations,’’ and the
decision in this case has no bearing
here.1
In Mont. Sulphur & Chem. Co., 666
F.3d 1174, the Court was reviewing a
Federal implementation plan (FIP) that
EPA promulgated 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, which triggered the state’s
duty to submit a new SIP to show how
it would remedy that deficiency and
attain the NAAQS. The Court cited
generally 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 portions of
the state’s responsive SIP and
attainment demonstration, and adoption
of a remedial FIP were lawful.
The Sierra Club 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 pre1990 version of that provision, and the
Court makes no mention of the changed
language. Furthermore, the Sierra Club
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
1 While the Sierra Club does contend that the
State shouldn’t be allowed to rely on emission
reductions that were developed for the prior SO2
standards (which we address herein), it does not
claim that any of the measures are not ‘‘emissions
limitations’’ within the definition of the CAA.
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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 cases the Sierra Club 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
section 110(a)(2)(A) solely for the
purpose of providing a brief background
of the CAA.
Finally, in Conn. Fund for Env’t, Inc.
v. EPA, 696 F.2d 169 (D.C. Cir. 1982),
the D.C. Circuit was reviewing EPA
action on a control measure SIP
provision which adjusted the percent of
sulfur permissible in fuel oil. The D.C.
Circuit focused on whether EPA needed
to evaluate effects of the SIP revision on
one pollutant or effects of change on all
possible pollutants; therefore, the D.C.
Circuit did not address required
measures for infrastructure SIPs, and
nothing in the opinion addressed
whether infrastructure SIPs needed to
contain measures to ensure attainment
and maintenance of the NAAQS.
Comment 5: Citing section
110(a)(2)(A) of the CAA, Sierra Club
contends that EPA may not approve the
proposed infrastructure SIPs because
they do not include enforceable one
hour SO2 emission limits for sources
that show NAAQS exceedances through
modeling. Sierra Club asserts the
proposed infrastructure SIPs fail to
include enforceable one hour SO2
emissions limits or other required
measures to ensure attainment and
maintenance of the SO2 NAAQS in areas
not designated nonattainment as
required by section 110(a)(2)(A). Sierra
Club asserts that emission limits are
especially important for meeting the
2010 SO2 NAAQS because SO2 impacts
are strongly source-oriented. Sierra Club
states that coal-fired electric generating
units (EGUs) are large contributors to
SO2 emissions but contends that Ohio
and Indiana did not demonstrate that
emissions allowed by the proposed
infrastructure SIPs from such large
sources of SO2 will ensure compliance
with the 2010 SO2 NAAQS.
For Ohio, the Sierra Club claims that
the proposed infrastructure SIP would
allow major sources to continue
operating with present emission limits.
Sierra Club then refers to air dispersion
modeling it conducted for three coalfired EGUs in Ohio including the
Cardinal Power Plant (Brilliant), the
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48737
Sammis Station (Stratton), and the
Zimmer Plant (Moscow). Sierra Club
asserts that the results of the air
dispersion modeling it conducted
employing EPA’s AERMOD program for
modeling used the plants’ allowable and
actual emissions, and showed that the
plants could cause exceedances of the
2010 SO2 NAAQS with either allowable
emissions at all three facilities or actual
emissions at the Zimmer Plant.2
For Indiana, the Sierra Club also
claims that the proposed infrastructure
SIP would allow major sources to
continue operating with present
emission limits. Sierra Club then refers
to air dispersion modeling it conducted
for three coal-fired EGUs in Indiana,
including the A.B. Brown Plant (Mount
Vernon), the Clifty Creek Plant
(Madison), and the Gibson Plant
(Owensville). Sierra Club asserts that
the results of the air dispersion
modeling it conducted employing EPA’s
AERMOD program for modeling used
the plants’ allowable and actual
emissions, and showed the plants could
cause exceedances of the 2010 SO2
NAAQS with either allowable or actual
emissions at all three facilities.
Based on the modeling, Sierra Club
asserts that the Ohio and Indiana SO2
infrastructure SIP submittals authorize
these EGUs to cause exceedances of the
NAAQS with allowable and actual
emission rates, and therefore that 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. As a result, Sierra Club
claims EPA must disapprove Ohio and
Indiana’s proposed SIP revisions. In
addition, Sierra Club asserts that
additional emission limits should be
imposed on the plants that ensure
attainment and maintenance of the
NAAQS at all times.
Response 5: EPA believes that section
110(a)(2)(A) of the CAA is reasonably
interpreted to require states to submit
SIPs that reflect the first step in their
planning for attainment and
maintenance of a new or revised
NAAQS. These SIP revisions, also
known as infrastructure SIPs, should
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. In light of the
structure of the CAA, EPA’s long2 Sierra Club asserts its modeling followed
protocols pursuant to 40 CFR part 50, Appendix W,
EPA’s March 2011 guidance for implementing the
2010 SO2 NAAQS, and EPA’s December 2013 SO2
NAAQS Designation Technical Assistance
Document for the for both Indiana and Ohio.
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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, with regard
to the requirement for emission
limitations, EPA has interpreted this to
mean 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.
EPA’s interpretation that
infrastructure SIPs are more general
planning SIPs is 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 that
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
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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. In addition, more detailed,
later-enacted provisions govern the
substantive planning process, including
planning for attainment of the NAAQS,
depending upon how air quality status
is judged under other provisions of the
CAA, such as the designations process
under section 107.
As stated in response to a previous
comment, EPA asserts 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 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
infrastructure SIP must contain
enforceable emission limits that will aid
in attaining and/or maintaining the
NAAQS and that the state must
demonstrate that it has the necessary
tools to implement and enforce a
NAAQS, such as an adequate
monitoring network 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, ‘‘[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
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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 the 2010 SO2
NAAQS infrastructure SIPs 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, the EPA was
undertaking a stakeholder outreach
process to continue to develop possible
approaches for determining attainment
status with the SO2 NAAQS and
implementing this NAAQS. EPA was
abundantly clear in the April 2012
letters to states that EPA did not expect
states to submit substantive attainment
demonstrations or modeling
demonstrations showing attainment for
potentially unclassifiable areas in
infrastructure SIPs due in June 2013, as
EPA had previously suggested in its
2010 SO2 NAAQS preamble based upon
information available at the time and in
prior draft implementation guidance in
2011 while EPA was gathering public
comment. The April 2012 letters to
states recommended states focus
infrastructure SIPs due in June 2013,
such as Ohio and Indiana’s SO2
infrastructure SIP, on ‘‘traditional
infrastructure elements’’ in section
110(a)(1) and (2) rather than on
modeling demonstrations for future
attainment for potentially unclassifiable
areas.3
3 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 potentially 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 (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
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Therefore, EPA continues to believe
that the elements of section 110(a)(2)
which address SIP revisions for
nonattainment areas including measures
and modeling demonstrating attainment
are due by the dates statutorily
prescribed under subparts 2 through 5
under part D of title I. The CAA directs
states to submit these 110(a)(2) elements
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. 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 states to include in the infrastructure
SIP submission, and the CAA does not
provide explicit requirements for
demonstrating attainment for areas
potentially designated as
‘‘unclassifiable’’ (or 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 Ohio and Indiana have 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. States, like
Ohio and Indiana, may reference preexisting SIP emission limits or other
rules contained in part D plans for
previous NAAQS in an infrastructure
SIP submission. For example, Ohio and
Indiana submitted lists of existing
emission reduction measures in the SIP
that control emissions of SO2 as
discussed above in response to a prior
comment and discussed in detail in our
proposed rulemakings. Ohio and
Indiana’s SIP revisions reflect several
provisions that have the ability to
reduce SO2. Although the Ohio and
Indiana SIPs rely on measures and
programs used to implement previous
SO2 NAAQS, these provisions will
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.
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provide benefits for the 2010 SO2
NAAQS. The identified Ohio and
Indiana SIP measures help to reduce
overall SO2 and are not limited to
reducing SO2 levels to meet one specific
NAAQS.
Additionally, as discussed in EPA’s
proposed rules, Ohio and Indiana have
the ability to revise their SIPs when
necessary (e.g, in the event the
Administrator finds their plans 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).
EPA believes the requirements for
emission reduction measures for an area
designated nonattainment to come into
attainment with the 2010 primary SO2
NAAQS are in sections 172 and 192 of
the CAA, and, therefore, the appropriate
time 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 2010 SO2
standard. EPA designated Lake County
and portions of Clermont, Morgan,
Washington, and Jefferson Counties in
Ohio and portions of Marion, Morgan,
Daviess, Pike, and Vigo Counties in
Indiana as nonattainment areas for the
2010 SO2 NAAQS. 78 FR 47191 (August
5, 2013). In separate future actions, EPA
will address the designations for all
other areas for which the Agency has yet
to issue designations. See, e.g., 79 FR
27446 (May 13, 2014) (proposing
process and timetables 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 for future attainment
status determinations under the 2010
SO2 NAAQS). For the areas designated
nonattainment in August 2013 within
Ohio and Indiana, attainment SIPs were
due by April 4, 2015, and must contain
demonstrations that the areas will attain
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. EPA believes
it is not appropriate to bypass 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
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48739
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 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 Ohio and Indiana must
include additional SO2 emission limits
on sources in order to demonstrate
future attainment, where needed.
The Sierra Club’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 clearly on its face
applies to plans specifically designed to
attain the NAAQS and not to
infrastructure SIPs which show the
states have in place structural
requirements necessary to implement
the NAAQS. Therefore, EPA finds 40
CFR 51.112 inapplicable to its analysis
of the Ohio and Indiana SO2
infrastructure SIPs.
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 (June 22, 2010). As
mentioned previously above, EPA has
proposed a process to address
additional areas in states which may not
be attaining the 2010 SO2 NAAQS. See
79 FR 27446 (May, 13, 2014, proposing
process for gather further information
from additional monitoring or modeling
that may be used to inform future
attainment status determinations). In
addition, in response to lawsuits in
district courts seeking to compel EPA’s
remaining designations of undesignated
areas under the NAAQS, EPA has been
placed under a court order to complete
the designations process under section
107. However, because the purpose of
an infrastructure SIP submission is for
more general planning purposes, EPA
does not believe Ohio and Indiana were
obligated during this infrastructure SIP
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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 Sierra Club pursuant to
AERMOD for the coal-fired EGUs, EPA
is not at this stage prepared to opine on
whether it demonstrates violations of
the NAAQS, and 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 and other actions in which
areas’ air quality status is determined,
EPA has recommended that such
modeling was not needed for the SO2
infrastructure SIPs needed for 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. In
contrast, EPA recently discussed
modeling for designations in our May
14, 2014, proposal at 79 FR 27446 and
for nonattainment planning in the April
23, 2014, Guidance for 1-Hour SO2
Nonattainment Area SIP Submissions.
In conclusion, EPA disagrees with
Sierra Club’s statements that EPA must
disapprove Ohio and Indiana’s
infrastructure SIP submissions because
they do not establish at this time
specific enforceable SO2 emission limits
either on coal-fired EGUs or other large
SO2 sources in order to demonstrate
attainment with the NAAQS.
Comment 6: Sierra Club asserts that
modeling is the appropriate tool for
evaluating adequacy of infrastructure
SIPs and ensuring attainment and
maintenance of the 2010 SO2 NAAQS.
It refers to EPA’s historic use of air
dispersion modeling for attainment
designations as well as ‘‘SIP revisions.’’
The Sierra Club 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 for the statement that an
agency must consider information
presented during notice-and-comment
rulemaking.
The Sierra Club cites 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
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Guideline Document, as modeling could
better address the source-specific
impacts of SO2 emissions and historic
challenges from monitoring SO2
emissions. The Sierra Club discusses
EPA’s history of employing air
dispersion modeling for increment
compliance verifications in the
permitting process for the PSD program
and discusses different scenarios where
the AERMOD model functions
appropriately.
The Sierra Club asserts that 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
Sierra Club claims that 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.
Finally, the Sierra Club agrees that
Ohio and Indiana have the authority to
use modeling for attainment
demonstrations, but claims that Ohio
and Indiana’s proposed SO2
infrastructure SIPs lack emission
limitations informed by air dispersion
modeling and therefore fail to ensure
Ohio and Indiana will achieve and
maintain the 2010 SO2 NAAQS. Sierra
Club claims Ohio and Indiana must
require adequate one hour SO2 emission
limits in the infrastructure SIP that
show no exceedances of NAAQS when
modeled.
For Indiana, the Sierra Club
specifically points out the need for
modeling demonstrated by Duke
Energy’s Gibson Plant. It alleges that the
air monitor is not showing the true
picture of the occurring violations. The
Sierra Club states that its model predicts
no impact at the monitor, but violations
nearby.
Response 6: EPA agrees with the
Sierra Club that air dispersion
modeling, such as AERMOD, can be an
important tool in the CAA section 107
designations process, in the attainment
SIP process pursuant to sections 172
and 192, including supporting required
attainment demonstrations, and in other
actions in which areas’ air quality status
is determined. EPA agrees that prior
EPA statements, EPA guidance, and case
law support the use of air dispersion
modeling in these processes, as well as
in analyses of whether existing
approved SIPs remain adequate to show
attainment and maintenance of the SO2
NAAQS. However, EPA disagrees with
the Sierra Club that EPA must
disapprove Ohio’s and Indiana’s SO2
infrastructure SIPs for their alleged
failure to include source-specific SO2
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emission limits that show no
exceedances of the NAAQS when
modeled, since this is not an action in
which air quality status is being
determined or for which there is a duty
for the States to demonstrate future
attainment of the NAAQS in areas that
may be violating it.
As discussed previously and in the
Infrastructure SIP Guidance, EPA
believes the 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 and that
the infrastructure SIP submission
process provides an opportunity to
review the basic structural requirements
of the air agency’s air quality
management program in light of the new
or revised NAAQS. See Infrastructure
SIP Guidance at p. 2. EPA believes the
attainment planning process detailed in
part D of the CAA, including attainment
SIPs required by sections 172 and 192
for areas not attaining the NAAQS, is
the appropriate place for the state to
evaluate measures needed to bring
nonattainment areas into attainment
with a NAAQS and to impose additional
emission limitations such as SO2
emission limits on specific sources as
needed to achieve such future
attainment. While EPA had initially
suggested in the final 2010 SO2 NAAQS
preamble (75 FR 35520) and subsequent
draft guidance in March and September
2011 that EPA recommended states
submit substantive attainment
demonstration SIPs based on air quality
modeling in section 110(a) SIPs due in
June 2013 to show how areas expected
to be designated as unclassifiable would
attain and maintain the NAAQS, these
initial statements in the preamble and
2011 draft guidance were based on
EPA’s initial expectation that most areas
would by June 2012 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
designations recommendations in 2011.
However, after 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 to the states and in the May
2012 Implementation of the 2010
Primary 1-Hour SO2 NAAQS, Draft
White Paper for Discussion that EPA
was clarifying its implementation
position and that EPA was no longer
recommending such attainment
demonstrations supported by air
dispersion modeling for unclassifiable
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areas (which had not yet been
designated) for June 2013 infrastructure
SIPs. EPA reaffirmed this position that
EPA did not expect attainment
demonstrations for areas not designated
nonattainment for infrastructure SIPs in
the February 6, 2013, memorandum,
‘‘Next Steps for Area Designations and
Implementation of the Sulfur Dioxide
National Ambient Air Quality
Standard.’’ 4 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 191–192 and 172
and proposed a process for further
designations for the 2010 SO2 NAAQS,
which could include use of air
dispersion modeling. See April 23,
2014, Guidance for 1-Hour SO2
Nonattainment Area SIP Submissions
and 79 FR 27446 (proposing process and
timetables for additional gathering of
information to support future
attainment status determinations
informed through ambient monitoring
and/or air quality modeling). While the
EPA guidance for attainment SIPs and
the proposed process for additional
information gathering discusses use of
air dispersion modeling, EPA’s 2013
Infrastructure SIP Guidance did not
require use of air dispersion modeling to
inform emission limitations for section
110(a)(2)(A) to ensure no exceedances of
the NAAQS when sources are modeled.
Therefore, as discussed previously, EPA
believes the Ohio and Indiana SO2
infrastructure SIP submittals contains
the structural requirements to address
elements in section 110(a)(2) as
discussed in detail in our proposed
approval and in our response to a prior
comment. 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
4 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.
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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 such as SO2 in a
SO2 infrastructure SIP. In the proposed
rules for this action, EPA provided a
detailed explanation of Ohio’s and
Indiana’s abilities and authorities to
conduct air quality modeling when
required and their authority to submit
modeling data to the EPA.
EPA finds Sierra Club’s discussion of
case law and guidance to be irrelevant
to our analysis here of the Ohio and
Indiana infrastructure SIPs, as this SIP
for section 110(a) is not an attainment
SIP required to demonstrate attainment
of the NAAQS pursuant to section 172.
In addition, Sierra Club’s comments
relating to EPA’s use of AERMOD or
modeling in general in designations
pursuant to section 107 are likewise
irrelevant as EPA’s present approval of
Ohio’s and Indiana’s infrastructure SIPs
are unrelated to the section 107
designations process. Nor is our 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 2010 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 Sierra Club resubmits its
air dispersion modeling for the Ohio
and Indiana EGUs, or updated modeling
information in the appropriate context
where an evaluation of areas’ air quality
status is being conducted, including the
Gibson Plant referenced in this
comment, EPA will address the
resubmitted modeling or updated
modeling in the appropriate future
context when an analysis of whether
Ohio and Indiana’s emissions limits are
adequate to show attainment and
maintenance of the NAAQS is
warranted.
The Sierra Club correctly noted that
the Third Circuit upheld EPA’s section
126 Order 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
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48741
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)(I), which
relates to significant contributions to
nonattainment or maintenance 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 violations
of the NAAQS. The Sierra Club appears
to have cited this matter to demonstrate
again EPA’s use of modeling for certain
aspects of the CAA. EPA agrees with the
Sierra Club regarding the appropriate
role air dispersion modeling has for
designations, attainment SIPs, and
demonstrating significant contributions
to interstate transport. However, EPA’s
approval of Ohio and Indiana’s
infrastructure SIPs is based on our
determination that Ohio and Indiana
have the required structural
requirements pursuant to section
110(a)(2) in accordance with our
explanation of the intent for
infrastructure SIPs as discussed in the
2013 Infrastructure SIP Guidance.
Therefore, while air dispersion
modeling may be appropriate for
consideration in certain circumstances,
EPA does not find air dispersion
modeling demonstrating no exceedances
of the NAAQS to be a required element
before approval of infrastructure SIPs
for section 110(a) or specifically for
110(a)(2)(A). Thus, EPA disagrees with
the Sierra Club that EPA must require
additional emission limitations in the
Ohio and Indiana SO2 infrastructure
SIPs informed by air dispersion
modeling and demonstrating attainment
and maintenance of the 2010 NAAQS.
In its comments, Sierra Club relies on
Motor Vehicle Mfrs. Ass’n and NRDC v.
EPA to support its comments that EPA
must now consider the Sierra Club’s
modeling data based on administrative
law principles regarding consideration
of comments provided during a
rulemaking process. EPA notes that it
has considered the modeling submitted
by the Sierra Club, as well as all of its
submitted comments, to the extent that
they are germane to the action being
undertaken here. This action is not, in
addition to being the traditional action
on infrastructure SIPs described above,
a response to a separate administrative
petition to determine the air quality
status of Ohio and Indiana generally.
Therefore, the information Sierra Club
has submitted regarding such a potential
determination is not germane to this
action. As discussed in detail in the
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Responses above, EPA does not believe
the infrastructure SIPs required by
section 110(a) must contain emission
limits demonstrating future attainment
with a NAAQS. Part D of the CAA
contains numerous requirements for the
NAAQS attainment planning process
including requirements for attainment
demonstrations in section 172
supported by appropriate modeling. As
also discussed previously, section 107
supports EPA’s use of modeling in the
designations process. In Catawba, the
D.C. Circuit upheld EPA’s consideration
of data or factors for designations other
than ambient monitoring. EPA does not
believe state infrastructure SIPs must
contain emission limitations informed
by air dispersion modeling
demonstrating current future NAAQS
attainment in order to meet the
requirements of section 110(a)(2)(A).
Thus, EPA has not evaluated the
persuasiveness of the Commenter’s
submitted modeling for that purpose,
and finds that it is not relevant to the
approvability of Ohio’s and Indiana’s
proposed infrastructure SIPs for the
2010 SO2 NAAQS.
III. What action is EPA taking?
For the reasons discussed in our
February 27, 2015, proposed rulemaking
and in the above responses to public
comments, EPA is taking final action to
approve Indiana’s infrastructure SIP for
the 2010 NO2 and SO2 NAAQS as
proposed.
For the reasons discussed in our July
25, 2014, proposed rulemaking, EPA is
taking final action to approve Ohio’s
infrastructure SIP for the 2010 SO2
NAAQS as proposed. In the July 25,
2014, rulemaking, EPA also proposed
approval for Ohio’s 2008 lead, 2008
ozone, and 2010 NO2 infrastructure
submittals. Those approvals have been
finalized in separate rulemakings (see
79 FR 60075, October 6, 2014, and 79
FR 62019, October 16, 2014). In today’s
rulemaking, we are taking final action
on only the infrastructure SIP
requirements for the 2010 SO2 NAAQS
for Ohio. Our final actions by element
of section 110(a)(2) and NAAQS, are
contained in the table below.5
Element
2010 NO2
NAAQS for
Indiana
2010 SO2
NAAQS for
Indiana
2010 SO2
NAAQS for
Ohio
(A): Emission limits and other control measures ........................................................................
(B): Ambient air quality monitoring and data system ..................................................................
(C)1: Enforcement of SIP measures ...........................................................................................
(C)2: PSD ....................................................................................................................................
(D)1: Contribute to nonattainment/interfere with maintenance of NAAQS .................................
(D)2: PSD ....................................................................................................................................
(D)3: Visibility Protection .............................................................................................................
(D)4: Interstate Pollution Abatement ...........................................................................................
(D)5: International Pollution Abatement ......................................................................................
(E)1: Adequate resources ............................................................................................................
(E)2: State boards .......................................................................................................................
(F): Stationary source monitoring system ...................................................................................
(G): Emergency power ................................................................................................................
(H): Future SIP revisions .............................................................................................................
(I): Nonattainment area plan or plan revisions under part D ......................................................
(J)1: Consultation with government officials ................................................................................
(J)2: Public notification ................................................................................................................
(J)3: PSD .....................................................................................................................................
(J)4: Visibility protection (Regional Haze) ...................................................................................
(K): Air quality modeling and data ...............................................................................................
(L): Permitting fees ......................................................................................................................
(M): Consultation and participation by affected local entities .....................................................
A
A
A
A
A
A
NA
A
A
A
A
A
A
A
NA
A
A
A
NA
A
A
A
A
A
A
A
NA
A
NA
A
A
A
A
A
A
A
NA
A
A
A
NA
A
A
A
A
A
A
A
NA
A
NA
A
A
A
A
A
A
A
NA
A
A
A
NA
A
A
A
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 Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified 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
5 As stated previously, EPA will take later,
separate action on portions of Ohio and Indiana’s
SO2 infrastructure SIP submittal including the
portions of the SIP submittal addressing section
110(a)(2)(D)(i)(I) and the visibility portion of
110(a)(2)(D)(i)(II).
In the table above, the key is as
follows:
A ...................
a ....................
NA ................
Approve.
Approved in a previous
Rulemaking.
No Action/Separate Rulemaking.
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IV. Statutory and Executive Order
Reviews
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Federal Register / Vol. 80, No. 157 / Friday, August 14, 2015 / Rules and Regulations
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, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, the rule does not have
tribal implications and will not impose
substantial direct costs on tribal
governments or preempt tribal law as
specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by October 13, 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 may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
reference, Intergovernmental relations,
sulfur dioxide, nitrogen dioxide,
Reporting and recordkeeping
requirements.
Dated: August 3, 2015.
Susan Hedman,
Regional Administrator, Region 5.
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.
2. In § 52.770 the table in paragraph
(e) is amended by adding entries in
alphabetical order for ‘‘Section 110(a)(2)
Infrastructure Requirements for the 2010
NO2 NAAQS’’ and ‘‘Section 110(a)(2)
Infrastructure Requirements for the 2010
SO2 NAAQS’’ to read as follows:
■
§ 52.770
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Title
Indiana date
*
*
Section 110(a)(2) Infrastructure
Requirements for the 2010
NO2 NAAQS.
Section 110(a)(2) Infrastructure
Requirements for the 2010
SO2 NAAQS.
*
EPA Approval
Explanation
1/15/2013
*
*
8/14/2015, [insert Federal
Register citation].
5/22/2013
8/14/2015, [insert Federal
Register citation].
*
*
*
*
*
This action addresses the following CAA elements:
110(a)(2)(A), (B), (C), (D)(i)(I), (D)(i)(II) except visibility,
(D)(ii), (E), (F), (G), (H), (J) except visibility, (K), (L), and
(M).
This action addresses the following CAA elements:
110(a)(2)(A), (B), (C), (D)(i)(II) except visibility, (D)(ii), (E),
(F), (G), (H), (J) except visibility, (K), (L), and (M).
*
*
*
*
3. Section 52.1891 is amended by
revising paragraph (h) to read as
follows:
ENVIRONMENTAL PROTECTION
AGENCY
Federal Food, Drug, and Cosmetic Act
(FFDCA).
40 CFR Part 180
DATES:
§ 52.1891 Section 110(a)(2) Infrastructure
Requirements.
[EPA–HQ–OPP–2014–0496; FRL–9931–06]
*
Fludioxonil; Pesticide Tolerances
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■
*
*
*
*
(h) Approval—In a June 7, 2013,
submittal, Ohio certified that the State
has satisfied the infrastructure SIP
requirements of section 110(a)(2)(A)
through (H), and (J) through (M) for the
2010 SO2 NAAQS. We are not finalizing
action on section 110(a)(2)(D)(i)(I)—
Interstate transport prongs 1 and 2 or
visibility portions of section
110(a)(2)(D)(i)(II) and 110(a)(2)(J).
[FR Doc. 2015–20020 Filed 8–13–15; 8:45 am]
BILLING CODE 6560–50–P
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Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
This regulation establishes
tolerances for residues of fludioxonil in
or on carrots, the stone fruit group 12–
12, and the rapeseed subgroup 20A,
except flax seed. Interregional Research
Project Number 4 (IR–4) requested the
tolerances for carrots and the stone fruit
group 12–12, and Syngenta Crop
Protection requested the tolerance for
the rapeseed subgroup 20A under the
SUMMARY:
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This regulation is effective
August 14, 2015. Objections and
requests for hearings must be received
on or before October 13, 2015, and must
be filed in accordance with the
instructions provided in 40 CFR part
178 (see also Unit I.C. of the
SUPPLEMENTARY INFORMATION).
The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPP–2014–0496, is
available at https://www.regulations.gov
or at the Office of Pesticide Programs
Regulatory Public Docket (OPP Docket)
in the Environmental Protection Agency
Docket Center (EPA/DC), West William
Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW., Washington, DC
20460–0001. The Public Reading Room
ADDRESSES:
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]]>Agencies
[Federal Register Volume 80, Number 157 (Friday, August 14, 2015)]
[Rules and Regulations]
[Pages 48733-48743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20020]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2012-0991; EPA-R05-OAR-2013-0435; FRL-9932-15-Region 5]
Air Plan Approval; Indiana and Ohio; Infrastructure SIP
Requirements for the 2010 NO2 and SO2 NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve elements of state implementation plan (SIP)
submissions by Indiana regarding the infrastructure requirements of
section 110 of the Clean Air Act (CAA) for the 2010 nitrogen dioxide
(NO2) and sulfur dioxide (SO2) national ambient
air quality standards (NAAQS), and by Ohio regarding the infrastructure
requirements of section 110 of the CAA for the 2010 SO2
NAAQS. The infrastructure requirements are designed to ensure that the
structural components of each state's air quality management program
are adequate to meet the requirements of the CAA. The proposed
rulemaking for Ohio's 2010 SO2 infrastructure submittal
associated with today's final action was published on July 25, 2014,
and EPA received one comment letter during the comment period, which
ended on August 25, 2015. In the July 25, 2014 rulemaking, EPA also
proposed approval for Ohio's 2008 lead, 2008 ozone, and 2010
NO2 infrastructure submittals. Those approvals have been
finalized in separate rulemakings. The proposed rulemaking for
Indiana's 2010 NO2 and SO2 infrastructure
submittals associated with today's final action was published on
February 27, 2015, and EPA received one comment letter during the
comment period, which ended on March 30, 2015. The concerns raised in
these letters, as well as EPA's responses, are addressed in this final
action.
DATES: This final rule is effective on September 14, 2015.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2012-0991 (2010 NO2 infrastructure elements)
or EPA-R05-OAR-2013-0435 (2010 SO2 infrastructure elements).
All documents in the docket are listed in the www.regulations.gov
index. Although listed in the index, some information is not publicly
available, e.g., Confidential Business Information or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly-available only in hard copy.
Publicly-available docket materials are available either electronically
in www.regulations.gov or in hard copy at the U.S. Environmental
Protection Agency, Region 5, Air and Radiation Division, 77 West
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal
holidays. We recommend that you telephone Sarah Arra at (312) 886-9401
before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-9401, arra.sarah@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:
I. What is the background of these SIP submissions?
II. What is our response to comments received on the proposed
rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of these SIP submissions?
A. What does this rulemaking address?
This rulemaking addresses infrastructure SIP submissions from the
Indiana Department of Environmental Management (IDEM) submitted on
January 15, 2013, for the 2010 NO2 NAAQS and on May 22,
2013, for the 2010 SO2 NAAQS. This rulemaking also addresses
infrastructure SIP submissions from the Ohio Environmental Protection
Agency (OEPA) submitted on June 7, 2013, for the 2010 SO2
NAAQS.
B. Why did the state make this SIP submission?
Under sections 110(a)(1) and (2) of the CAA, states are required to
submit
[[Page 48734]]
infrastructure SIPs to ensure that their SIPs provide for
implementation, maintenance, and enforcement of the NAAQS. These
submissions must contain any revisions needed for meeting the
applicable SIP requirements of section 110(a)(2), or certifications
that their existing SIPs for NO2 and SO2 already
meet those requirements.
EPA has highlighted this statutory requirement in multiple guidance
documents, including the most recent guidance document entitled
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under CAA Sections 110(a)(1) and (2)'' issued on September 13, 2013.
C. What is the scope of this rulemaking?
EPA is acting upon Indiana and Ohio's SIP submissions that address
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2)
for the 2010 SO2 NAAQS and also the 2010 NO2
NAAQS for Indiana. The requirement for states to make SIP submissions
of this type arises out of CAA section 110(a)(1). Pursuant to section
110(a)(1), states must make SIP submissions ``within 3 years (or such
shorter period as the Administrator may prescribe) after the
promulgation of a national primary ambient air quality standard (or any
revision thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon EPA's taking any action other than promulgating a new
or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review (NNSR) permit program submissions to
address the permit requirements of CAA, title I, part D.
This rulemaking will not cover three substantive areas that are not
integral to acting on a state's infrastructure SIP submission: (i)
Existing provisions related to excess emissions during periods of
start-up, shutdown, or malfunction (``SSM'') at sources, that may be
contrary to the CAA and EPA's policies addressing such excess
emissions; (ii) existing provisions related to ``director's variance''
or ``director's discretion'' that purport to permit revisions to SIP
approved emissions limits with limited public process or without
requiring further approval by EPA, that may be contrary to the CAA
(collectively referred to as ``director's discretion''); and, (iii)
existing provisions for Prevention of Significant Deterioration (PSD)
programs that may be inconsistent with current requirements of EPA's
``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as
amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, EPA
has the authority to address each one of these substantive areas in
separate rulemaking. A detailed rationale, history, and interpretation
related to infrastructure SIP requirements can be found in our May 13,
2014, proposed rule entitled, ``Infrastructure SIP Requirements for the
2008 Lead NAAQS'' in the section, ``What is the scope of this
rulemaking?'' (see 79 FR 27241 at 27242-27245).
In addition, EPA is not acting on section 110(a)(2)(D)(i)(I),
interstate transport significant contribution and interference with
maintenance for the Indiana and Ohio 2010 SO2 submittals, a
portion of section 110(a)(2)(D)(i)(II) with respect to visibility, and
110(a)(2)(J) with respect to visibility for the 2010 NO2 and
SO2 submittals for Indiana and the 2010 SO2
submittal for Ohio, and portions of 110(a)(2)(C), 110(a)(2)(D)(i)(II),
and 110(a)(2)(J) with respect to PSD for Ohio's 2010 SO2
submittal. EPA has already taken action on the portion related to PSD
for Ohio's 2010 SO2 infrastructure submittal in the February
27, 2015 rulemaking (see 80 FR 10591). EPA is also not acting on
section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions Under
Part D, in its entirety. The rationale for not acting on elements of
these requirements was included in EPA's August 19, 2013, proposed
rulemaking or is discussed below in today's response to comments.
II. What is our response to comments received on the proposed
rulemaking?
EPA received one comment letter from the Sierra Club regarding its
July 25, 2014, proposed rulemaking (79 FR 43338) on Ohio's 2010
SO2 NAAQS Infrastructure SIP submittal. EPA did not receive
any comments on its February 27, 2015, proposed rulemaking (80 FR
10644) on Indiana's 2010 NO2 NAAQS Infrastructure SIP, but
did receive one comment from the Sierra Club relevant to the
SO2 submittal. The majority of the SO2-related
comments from the Sierra Club for Indiana and Ohio are identical. The
comments are summarized and responded to together; however, the few
differences in the comments are explicitly pointed out.
Comment 1: Sierra Club contends that the plain language of section
110(a)(2)(A) of the CAA and the legislative history of the CAA require
the inclusion of enforceable emission limits in an infrastructure SIP
to prevent NAAQS exceedances in areas not designated nonattainment.
Sierra Club also asserts that the Ohio and Indiana 2010 SO2
infrastructure SIP revisions did not revise the existing SO2
emission limits in response to the 2010 SO2 NAAQS and failed
to comport with CAA requirements for SIPs to establish enforceable
emission limits that are adequate to prohibit NAAQS exceedances in
areas not designated nonattainment.
The Sierra Club states that, on its face, the CAA ``requires I-SIPs
to be adequate to prevent exceedances of the NAAQS.'' In support, the
Sierra Club 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 and which Sierra Club claims
include the maintenance plan requirement. Sierra Club notes the CAA
definition of emission limit and reads these 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 suggested by Sierra Club. 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. In
light of the revisions to section 110 since 1970 and the later-
promulgated and more specific planning requirements of the CAA, EPA
interprets the requirement in section 110(a)(2)(A) that the plan
provide for
[[Page 48735]]
``implementation, maintenance and enforcement'' to mean that the
infrastructure 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.
With regard to the requirement for emission limitations, EPA has
interpreted this to mean, for purposes of section 110, 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. As EPA
stated in ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated
September 13, 2013 (Infrastructure SIP Guidance), ``[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. Overall, the infrastructure SIP submission
process provides an opportunity . . . to review the basic structural
requirements of the air agency's air quality management program in
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p.
2.
The Sierra Club makes general allegations that Ohio and Indiana do
not have sufficient protective measures to prevent SO2 NAAQS
exceedances. EPA addressed the adequacy of Ohio and Indiana's
infrastructure SIPs for 110(a)(2)(A) purposes to meet applicable
requirements of the CAA in the proposed rulemakings and explained why
the SIPs include enforceable emission limitations and other control
measures necessary for maintenance of the 2010 SO2 NAAQS
throughout the state. For Ohio, these limits are found in Chapter 3745-
18, Sulfur Dioxide Limitations, of Ohio's SIP. For Indiana, these
limits are found in 326 Indiana Administrative Code (IAC) 7-1.1, 326
IAC 7-4, and 326 IAC 7-4.1. As discussed in the proposed rulemakings,
EPA finds that these provisions adequately address section 110(a)(2)(A)
to aid in attaining and/or maintaining the applicable NAAQS, and finds
that Ohio and Indiana have demonstrated that they have the necessary
tools to implement and enforce these NAAQS.
Comment 2: The Sierra Club cites 40 CFR 51.112(a), providing that
each 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].'' It asserts that this regulation requires
all SIPs to include emissions limits necessary to ensure attainment of
the NAAQS. The Sierra Club states that ``[a]lthough these regulations
were developed before the Clean Air Act separated infrastructure SIPs
from nonattainment SIPs--a process that began with the 1977 amendments
and was completed by the 1990 amendments--the regulations apply to I-
SIPs.'' It 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).
Response 2: The Sierra Club's reliance on 40 CFR 51.112 to support
its argument that infrastructure SIPs must contain emission limits
``adequate to prohibit NAAQS exceedances'' and adequate or sufficient
to ensure the maintenance of the NAAQS is not supported. As an initial
matter, EPA notes and the Sierra Club recognizes that this regulatory
provision was initially promulgated and ``restructured and
consolidated'' prior to the CAA Amendments of 1990, in which Congress
removed all references to ``attainment'' in section 110(a)(2)(A). In
addition, 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, 182, and 192. The Sierra Club 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 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 at 40657.
Although EPA was explicit that it was not establishing requirements
interpreting the provisions of the new ``Part D'' of title I 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.
Comment 3: The Sierra Club references two prior EPA rulemaking
actions where EPA disapproved or proposed to disapprove SIPs, and
claims that they were actions in which EPA relied on section
110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. It first
points to a 2006 partial approval and partial disapproval of revisions
to Missouri's existing plan addressing the SO2 NAAQS (71 FR
12623). In that action, EPA cited section 110(a)(2)(A) of the CAA as a
basis 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 cited to 40 CFR 51.112 as requiring that a plan demonstrates
the rules in a SIP are adequate to attain the NAAQS. Second, Sierra
Club cites a 2013 disapproval of a revision to the SO2 SIP
for Indiana, where the revision removed an emission limit that applied
to a specific emissions source at a facility in the State (78 FR
78721). In its proposed disapproval, EPA relied on 40 CFR 51.112(a) in
proposing to reject the revision, stating that the State had not
demonstrated that the emission limit was ``redundant, unnecessary, or
that its removal would not result in or allow an increase in actual
SO2 emissions.'' EPA further stated in that proposed
disapproval that the State had not demonstrated that removal of the
limit would not ``affect the validity of the emission rates used in the
existing attainment demonstration.''
The Sierra Club also asserts that EPA stated in its 2013
infrastructure SIP guidance that states could postpone specific
requirements for start-up shutdown, and malfunction (SSM), but did not
specify the postponement of any other requirements. The commenter
concludes that emissions limits ensuring attainment of the standard
cannot be delayed.
Response 3: EPA does not agree that the two prior actions
referenced by the
[[Page 48736]]
Sierra Club establish how EPA reviews infrastructure SIPs. It is clear
from both the final Missouri rulemaking and the proposed and final
Indiana rulemakings that EPA was not reviewing initial infrastructure
SIP submissions under section 110 of the CAA, but rather 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 addressed a control strategy SIP and not
an infrastructure SIP. The Indiana action provides even less support
for the Sierra Club's position. The review in that rule was of a
completely different requirement than the section 110(a)(2)(A) SIP. In
that case, the State had an approved SO2 attainment plan and
was seeking to remove from the SIP provisions relied on as part of the
modeled attainment demonstration. EPA proposed that the State had
failed to demonstrate under section 110(l) of the CAA why the SIP
revision would not result in increased SO2 emissions and
thus interfere with attainment of the NAAQS. Nothing in that rulemaking
addresses the necessary content of the initial infrastructure SIP for a
new or revised NAAQS. Rather, it is simply applying the clear statutory
requirement that a state must demonstrate why a revision to an approved
attainment plan will not interfere with attainment of the NAAQS.
EPA also does not agree that any requirements related to emission
limits have been postponed. As stated in a previous response, EPA
interprets the requirements under 110(a)(2)(A) to include 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. With regard to the requirement for emission
limitations, EPA has interpreted this to mean, for purposes of section
110, 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. Emission limits providing for attainment of a new
standard are triggered by the designation process and have a different
schedule in the CAA than the submittal of infrastructure SIPs.
As discussed in detail in the proposed rules, EPA finds that the
Ohio and Indiana SIPs meet the appropriate and relevant structural
requirements of section 110(a)(2) of the CAA that will aid in attaining
and/or maintaining the NAAQS, and that the States have demonstrated
that they have the necessary tools to implement and enforce a NAAQS.
Comment 4: Sierra Club also discusses several cases applying the
CAA which it claims support its contention that courts have been clear
that section 110(a)(2)(A) requires enforceable emissions limits in
infrastructure SIPs to prevent violations of the NAAQS. Sierra Club
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.'' Sierra Club 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 Sierra
Club 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 4: None of the cases the Sierra Club cites support its
contention that section 110(a)(2)(A) requires 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 CAA). 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 challenges to EPA actions on
revisions to SIPs that were required and approved 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) to not 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 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
[[Page 48737]]
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 Sierra Club quotes does not interpret but rather merely
describes section 110(a)(2)(A). Sierra Club does not raise any concerns
about whether the measures relied on by the state in the infrastructure
SIP are ``emissions limitations,'' and the decision in this case has no
bearing here.\1\
---------------------------------------------------------------------------
\1\ While the Sierra Club does contend that the State shouldn't
be allowed to rely on emission reductions that were developed for
the prior SO2 standards (which we address herein), it
does not claim that any of the measures are not ``emissions
limitations'' within the definition of the CAA.
---------------------------------------------------------------------------
In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was
reviewing a Federal implementation plan (FIP) that EPA promulgated
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, which triggered the state's duty to submit a new SIP to show how
it would remedy that deficiency and attain the NAAQS. The Court cited
generally 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 portions of the state's responsive SIP
and attainment demonstration, and adoption of a remedial FIP were
lawful.
The Sierra Club 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 makes no mention of the changed language. Furthermore,
the Sierra Club 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 cases the Sierra Club 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 section 110(a)(2)(A) solely
for the purpose of providing a brief background of the CAA.
Finally, in Conn. Fund for Env't, Inc. v. EPA, 696 F.2d 169 (D.C.
Cir. 1982), the D.C. Circuit was reviewing EPA action on a control
measure SIP provision which adjusted the percent of sulfur permissible
in fuel oil. The D.C. Circuit focused on whether EPA needed to evaluate
effects of the SIP revision on one pollutant or effects of change on
all possible pollutants; therefore, the D.C. Circuit did not address
required measures for infrastructure SIPs, and nothing in the opinion
addressed whether infrastructure SIPs needed to contain measures to
ensure attainment and maintenance of the NAAQS.
Comment 5: Citing section 110(a)(2)(A) of the CAA, Sierra Club
contends that EPA may not approve the proposed infrastructure SIPs
because they do not include enforceable one hour SO2
emission limits for sources that show NAAQS exceedances through
modeling. Sierra Club asserts the proposed infrastructure SIPs fail to
include enforceable one hour SO2 emissions limits or other
required measures to ensure attainment and maintenance of the
SO2 NAAQS in areas not designated nonattainment as required
by section 110(a)(2)(A). Sierra Club asserts that emission limits are
especially important for meeting the 2010 SO2 NAAQS because
SO2 impacts are strongly source-oriented. Sierra Club states
that coal-fired electric generating units (EGUs) are large contributors
to SO2 emissions but contends that Ohio and Indiana did not
demonstrate that emissions allowed by the proposed infrastructure SIPs
from such large sources of SO2 will ensure compliance with
the 2010 SO2 NAAQS.
For Ohio, the Sierra Club claims that the proposed infrastructure
SIP would allow major sources to continue operating with present
emission limits. Sierra Club then refers to air dispersion modeling it
conducted for three coal-fired EGUs in Ohio including the Cardinal
Power Plant (Brilliant), the Sammis Station (Stratton), and the Zimmer
Plant (Moscow). Sierra Club asserts that the results of the air
dispersion modeling it conducted employing EPA's AERMOD program for
modeling used the plants' allowable and actual emissions, and showed
that the plants could cause exceedances of the 2010 SO2
NAAQS with either allowable emissions at all three facilities or actual
emissions at the Zimmer Plant.\2\
---------------------------------------------------------------------------
\2\ Sierra Club asserts its modeling followed protocols pursuant
to 40 CFR part 50, Appendix W, EPA's March 2011 guidance for
implementing the 2010 SO2 NAAQS, and EPA's December 2013
SO2 NAAQS Designation Technical Assistance Document for
the for both Indiana and Ohio.
---------------------------------------------------------------------------
For Indiana, the Sierra Club also claims that the proposed
infrastructure SIP would allow major sources to continue operating with
present emission limits. Sierra Club then refers to air dispersion
modeling it conducted for three coal-fired EGUs in Indiana, including
the A.B. Brown Plant (Mount Vernon), the Clifty Creek Plant (Madison),
and the Gibson Plant (Owensville). Sierra Club asserts that the results
of the air dispersion modeling it conducted employing EPA's AERMOD
program for modeling used the plants' allowable and actual emissions,
and showed the plants could cause exceedances of the 2010
SO2 NAAQS with either allowable or actual emissions at all
three facilities.
Based on the modeling, Sierra Club asserts that the Ohio and
Indiana SO2 infrastructure SIP submittals authorize these
EGUs to cause exceedances of the NAAQS with allowable and actual
emission rates, and therefore that 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. As a result, Sierra
Club claims EPA must disapprove Ohio and Indiana's proposed SIP
revisions. In addition, Sierra Club asserts that additional emission
limits should be imposed on the plants that ensure attainment and
maintenance of the NAAQS at all times.
Response 5: EPA believes that section 110(a)(2)(A) of the CAA is
reasonably interpreted to require states to submit SIPs that reflect
the first step in their planning for attainment and maintenance of a
new or revised NAAQS. These SIP revisions, also known as infrastructure
SIPs, should 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. In light of the
structure of the CAA, EPA's long-
[[Page 48738]]
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, with regard to the requirement for
emission limitations, EPA has interpreted this to mean 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.
EPA's interpretation that infrastructure SIPs are more general
planning SIPs is 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 that 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. In
addition, more detailed, later-enacted provisions govern the
substantive planning process, including planning for attainment of the
NAAQS, depending upon how air quality status is judged under other
provisions of the CAA, such as the designations process under section
107.
As stated in response to a previous comment, EPA asserts 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 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
infrastructure SIP must contain enforceable emission limits that will
aid in attaining and/or maintaining the NAAQS and that the state must
demonstrate that it has the necessary tools to implement and enforce a
NAAQS, such as an adequate monitoring network 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, ``[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 the
2010 SO2 NAAQS infrastructure SIPs 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, the EPA was undertaking a stakeholder outreach process to
continue to develop possible approaches for determining attainment
status with the SO2 NAAQS and implementing this NAAQS. EPA
was abundantly clear in the April 2012 letters to states that EPA did
not expect states to submit substantive attainment demonstrations or
modeling demonstrations showing attainment for potentially
unclassifiable areas in infrastructure SIPs due in June 2013, as EPA
had previously suggested in its 2010 SO2 NAAQS preamble
based upon information available at the time and in prior draft
implementation guidance in 2011 while EPA was gathering public comment.
The April 2012 letters to states recommended states focus
infrastructure SIPs due in June 2013, such as Ohio and Indiana's
SO2 infrastructure SIP, on ``traditional infrastructure
elements'' in section 110(a)(1) and (2) rather than on modeling
demonstrations for future attainment for potentially unclassifiable
areas.\3\
---------------------------------------------------------------------------
\3\ 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 potentially
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 (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.
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[[Page 48739]]
Therefore, EPA continues to believe that the elements of section
110(a)(2) which address SIP revisions for nonattainment areas including
measures and modeling demonstrating attainment are due by the dates
statutorily prescribed under subparts 2 through 5 under part D of title
I. The CAA directs states to submit these 110(a)(2) elements 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. 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 states to include in the infrastructure
SIP submission, and the CAA does not provide explicit requirements for
demonstrating attainment for areas potentially designated as
``unclassifiable'' (or 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 Ohio and Indiana have 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. States, like Ohio and Indiana, may reference
pre-existing SIP emission limits or other rules contained in part D
plans for previous NAAQS in an infrastructure SIP submission. For
example, Ohio and Indiana submitted lists of existing emission
reduction measures in the SIP that control emissions of SO2
as discussed above in response to a prior comment and discussed in
detail in our proposed rulemakings. Ohio and Indiana's SIP revisions
reflect several provisions that have the ability to reduce
SO2. Although the Ohio and Indiana SIPs rely on measures and
programs used to implement previous SO2 NAAQS, these
provisions will provide benefits for the 2010 SO2 NAAQS. The
identified Ohio and Indiana SIP measures help to reduce overall
SO2 and are not limited to reducing SO2 levels to
meet one specific NAAQS.
Additionally, as discussed in EPA's proposed rules, Ohio and
Indiana have the ability to revise their SIPs when necessary (e.g, in
the event the Administrator finds their plans 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).
EPA believes the requirements for emission reduction measures for
an area designated nonattainment to come into attainment with the 2010
primary SO2 NAAQS are in sections 172 and 192 of the CAA,
and, therefore, the appropriate time 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 2010
SO2 standard. EPA designated Lake County and portions of
Clermont, Morgan, Washington, and Jefferson Counties in Ohio and
portions of Marion, Morgan, Daviess, Pike, and Vigo Counties in Indiana
as nonattainment areas for the 2010 SO2 NAAQS. 78 FR 47191
(August 5, 2013). In separate future actions, EPA will address the
designations for all other areas for which the Agency has yet to issue
designations. See, e.g., 79 FR 27446 (May 13, 2014) (proposing process
and timetables 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 for
future attainment status determinations under the 2010 SO2
NAAQS). For the areas designated nonattainment in August 2013 within
Ohio and Indiana, attainment SIPs were due by April 4, 2015, and must
contain demonstrations that the areas will attain 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. EPA believes it is not appropriate to bypass
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 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 Ohio and Indiana must include additional
SO2 emission limits on sources in order to demonstrate
future attainment, where needed.
The Sierra Club'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 clearly on its face
applies to plans specifically designed to attain the NAAQS and not to
infrastructure SIPs which show the states have in place structural
requirements necessary to implement the NAAQS. Therefore, EPA finds 40
CFR 51.112 inapplicable to its analysis of the Ohio and Indiana
SO2 infrastructure SIPs.
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 (June 22, 2010). As mentioned previously above, EPA has proposed
a process to address additional areas in states which may not be
attaining the 2010 SO2 NAAQS. See 79 FR 27446 (May, 13,
2014, proposing process for gather further information from additional
monitoring or modeling that may be used to inform future attainment
status determinations). In addition, in response to lawsuits in
district courts seeking to compel EPA's remaining designations of
undesignated areas under the NAAQS, EPA has been placed under a court
order to complete the designations process under section 107. However,
because the purpose of an infrastructure SIP submission is for more
general planning purposes, EPA does not believe Ohio and Indiana were
obligated during this infrastructure SIP
[[Page 48740]]
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 Sierra Club
pursuant to AERMOD for the coal-fired EGUs, EPA is not at this stage
prepared to opine on whether it demonstrates violations of the NAAQS,
and 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 and other actions in which areas' air quality status is
determined, EPA has recommended that such modeling was not needed for
the SO2 infrastructure SIPs needed for 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. In
contrast, EPA recently discussed modeling for designations in our May
14, 2014, proposal at 79 FR 27446 and for nonattainment planning in the
April 23, 2014, Guidance for 1-Hour SO2 Nonattainment Area SIP
Submissions.
In conclusion, EPA disagrees with Sierra Club's statements that EPA
must disapprove Ohio and Indiana's infrastructure SIP submissions
because they do not establish at this time specific enforceable
SO2 emission limits either on coal-fired EGUs or other large
SO2 sources in order to demonstrate attainment with the
NAAQS.
Comment 6: Sierra Club asserts that modeling is the appropriate
tool for evaluating adequacy of infrastructure SIPs and ensuring
attainment and maintenance of the 2010 SO2 NAAQS. It refers
to EPA's historic use of air dispersion modeling for attainment
designations as well as ``SIP revisions.''
The Sierra Club 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 for the statement that an agency must consider
information presented during notice-and-comment rulemaking.
The Sierra Club cites 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. The
Sierra Club discusses EPA's history of employing air dispersion
modeling for increment compliance verifications in the permitting
process for the PSD program and discusses different scenarios where the
AERMOD model functions appropriately.
The Sierra Club asserts that 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 Sierra Club claims that 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.
Finally, the Sierra Club agrees that Ohio and Indiana have the
authority to use modeling for attainment demonstrations, but claims
that Ohio and Indiana's proposed SO2 infrastructure SIPs
lack emission limitations informed by air dispersion modeling and
therefore fail to ensure Ohio and Indiana will achieve and maintain the
2010 SO2 NAAQS. Sierra Club claims Ohio and Indiana must
require adequate one hour SO2 emission limits in the
infrastructure SIP that show no exceedances of NAAQS when modeled.
For Indiana, the Sierra Club specifically points out the need for
modeling demonstrated by Duke Energy's Gibson Plant. It alleges that
the air monitor is not showing the true picture of the occurring
violations. The Sierra Club states that its model predicts no impact at
the monitor, but violations nearby.
Response 6: EPA agrees with the Sierra Club that air dispersion
modeling, such as AERMOD, can be an important tool in the CAA section
107 designations process, in the attainment SIP process pursuant to
sections 172 and 192, including supporting required attainment
demonstrations, and in other actions in which areas' air quality status
is determined. EPA agrees that prior EPA statements, EPA guidance, and
case law support the use of air dispersion modeling in these processes,
as well as in analyses of whether existing approved SIPs remain
adequate to show attainment and maintenance of the SO2
NAAQS. However, EPA disagrees with the Sierra Club that EPA must
disapprove Ohio's and Indiana's SO2 infrastructure SIPs for
their alleged failure to include source-specific SO2
emission limits that show no exceedances of the NAAQS when modeled,
since this is not an action in which air quality status is being
determined or for which there is a duty for the States to demonstrate
future attainment of the NAAQS in areas that may be violating it.
As discussed previously and in the Infrastructure SIP Guidance, EPA
believes the 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 and that the infrastructure
SIP submission process provides an opportunity to review the basic
structural requirements of the air agency's air quality management
program in light of the new or revised NAAQS. See Infrastructure SIP
Guidance at p. 2. EPA believes the attainment planning process detailed
in part D of the CAA, including attainment SIPs required by sections
172 and 192 for areas not attaining the NAAQS, is the appropriate place
for the state to evaluate measures needed to bring nonattainment areas
into attainment with a NAAQS and to impose additional emission
limitations such as SO2 emission limits on specific sources
as needed to achieve such future attainment. While EPA had initially
suggested in the final 2010 SO2 NAAQS preamble (75 FR 35520)
and subsequent draft guidance in March and September 2011 that EPA
recommended states submit substantive attainment demonstration SIPs
based on air quality modeling in section 110(a) SIPs due in June 2013
to show how areas expected to be designated as unclassifiable would
attain and maintain the NAAQS, these initial statements in the preamble
and 2011 draft guidance were based on EPA's initial expectation that
most areas would by June 2012 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 designations recommendations in 2011. However, after 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 to the states and in the May 2012
Implementation of the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper
for Discussion that EPA was clarifying its implementation position and
that EPA was no longer recommending such attainment demonstrations
supported by air dispersion modeling for unclassifiable
[[Page 48741]]
areas (which had not yet been designated) for June 2013 infrastructure
SIPs. EPA reaffirmed this position that EPA did not expect attainment
demonstrations for areas not designated nonattainment for
infrastructure SIPs in the February 6, 2013, memorandum, ``Next Steps
for Area Designations and Implementation of the Sulfur Dioxide National
Ambient Air Quality Standard.'' \4\ 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 191-192 and 172 and proposed a process for further
designations for the 2010 SO2 NAAQS, which could include use
of air dispersion modeling. See April 23, 2014, Guidance for 1-Hour SO2
Nonattainment Area SIP Submissions and 79 FR 27446 (proposing process
and timetables for additional gathering of information to support
future attainment status determinations informed through ambient
monitoring and/or air quality modeling). While the EPA guidance for
attainment SIPs and the proposed process for additional information
gathering discusses use of air dispersion modeling, EPA's 2013
Infrastructure SIP Guidance did not require use of air dispersion
modeling to inform emission limitations for section 110(a)(2)(A) to
ensure no exceedances of the NAAQS when sources are modeled. Therefore,
as discussed previously, EPA believes the Ohio and Indiana
SO2 infrastructure SIP submittals contains the structural
requirements to address elements in section 110(a)(2) as discussed in
detail in our proposed approval and in our response to a prior comment.
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 such as
SO2 in a SO2 infrastructure SIP. In the proposed
rules for this action, EPA provided a detailed explanation of Ohio's
and Indiana's abilities and authorities to conduct air quality modeling
when required and their authority to submit modeling data to the EPA.
---------------------------------------------------------------------------
\4\ 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.
---------------------------------------------------------------------------
EPA finds Sierra Club's discussion of case law and guidance to be
irrelevant to our analysis here of the Ohio and Indiana infrastructure
SIPs, as this SIP for section 110(a) is not an attainment SIP required
to demonstrate attainment of the NAAQS pursuant to section 172. In
addition, Sierra Club's comments relating to EPA's use of AERMOD or
modeling in general in designations pursuant to section 107 are
likewise irrelevant as EPA's present approval of Ohio's and Indiana's
infrastructure SIPs are unrelated to the section 107 designations
process. Nor is our 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 2010 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 Sierra Club
resubmits its air dispersion modeling for the Ohio and Indiana EGUs, or
updated modeling information in the appropriate context where an
evaluation of areas' air quality status is being conducted, including
the Gibson Plant referenced in this comment, EPA will address the
resubmitted modeling or updated modeling in the appropriate future
context when an analysis of whether Ohio and Indiana's emissions limits
are adequate to show attainment and maintenance of the NAAQS is
warranted.
The Sierra Club correctly noted that the Third Circuit upheld EPA's
section 126 Order 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)(I), which relates to significant
contributions to nonattainment or maintenance 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 violations of the NAAQS. The Sierra
Club appears to have cited this matter to demonstrate again EPA's use
of modeling for certain aspects of the CAA. EPA agrees with the Sierra
Club regarding the appropriate role air dispersion modeling has for
designations, attainment SIPs, and demonstrating significant
contributions to interstate transport. However, EPA's approval of Ohio
and Indiana's infrastructure SIPs is based on our determination that
Ohio and Indiana have the required structural requirements pursuant to
section 110(a)(2) in accordance with our explanation of the intent for
infrastructure SIPs as discussed in the 2013 Infrastructure SIP
Guidance. Therefore, while air dispersion modeling may be appropriate
for consideration in certain circumstances, EPA does not find air
dispersion modeling demonstrating no exceedances of the NAAQS to be a
required element before approval of infrastructure SIPs for section
110(a) or specifically for 110(a)(2)(A). Thus, EPA disagrees with the
Sierra Club that EPA must require additional emission limitations in
the Ohio and Indiana SO2 infrastructure SIPs informed by air
dispersion modeling and demonstrating attainment and maintenance of the
2010 NAAQS.
In its comments, Sierra Club relies on Motor Vehicle Mfrs. Ass'n
and NRDC v. EPA to support its comments that EPA must now consider the
Sierra Club's modeling data based on administrative law principles
regarding consideration of comments provided during a rulemaking
process. EPA notes that it has considered the modeling submitted by the
Sierra Club, as well as all of its submitted comments, to the extent
that they are germane to the action being undertaken here. This action
is not, in addition to being the traditional action on infrastructure
SIPs described above, a response to a separate administrative petition
to determine the air quality status of Ohio and Indiana generally.
Therefore, the information Sierra Club has submitted regarding such a
potential determination is not germane to this action. As discussed in
detail in the
[[Page 48742]]
Responses above, EPA does not believe the infrastructure SIPs required
by section 110(a) must contain emission limits demonstrating future
attainment with a NAAQS. Part D of the CAA contains numerous
requirements for the NAAQS attainment planning process including
requirements for attainment demonstrations in section 172 supported by
appropriate modeling. As also discussed previously, section 107
supports EPA's use of modeling in the designations process. In Catawba,
the D.C. Circuit upheld EPA's consideration of data or factors for
designations other than ambient monitoring. EPA does not believe state
infrastructure SIPs must contain emission limitations informed by air
dispersion modeling demonstrating current future NAAQS attainment in
order to meet the requirements of section 110(a)(2)(A). Thus, EPA has
not evaluated the persuasiveness of the Commenter's submitted modeling
for that purpose, and finds that it is not relevant to the
approvability of Ohio's and Indiana's proposed infrastructure SIPs for
the 2010 SO2 NAAQS.
III. What action is EPA taking?
For the reasons discussed in our February 27, 2015, proposed
rulemaking and in the above responses to public comments, EPA is taking
final action to approve Indiana's infrastructure SIP for the 2010
NO2 and SO2 NAAQS as proposed.
For the reasons discussed in our July 25, 2014, proposed
rulemaking, EPA is taking final action to approve Ohio's infrastructure
SIP for the 2010 SO2 NAAQS as proposed. In the July 25,
2014, rulemaking, EPA also proposed approval for Ohio's 2008 lead, 2008
ozone, and 2010 NO2 infrastructure submittals. Those
approvals have been finalized in separate rulemakings (see 79 FR 60075,
October 6, 2014, and 79 FR 62019, October 16, 2014). In today's
rulemaking, we are taking final action on only the infrastructure SIP
requirements for the 2010 SO2 NAAQS for Ohio. Our final
actions by element of section 110(a)(2) and NAAQS, are contained in the
table below.\5\
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\5\ As stated previously, EPA will take later, separate action
on portions of Ohio and Indiana's SO2 infrastructure SIP
submittal including the portions of the SIP submittal addressing
section 110(a)(2)(D)(i)(I) and the visibility portion of
110(a)(2)(D)(i)(II).
----------------------------------------------------------------------------------------------------------------
2010 NO2 NAAQS 2010 SO2 NAAQS 2010 SO2 NAAQS
Element for Indiana for Indiana for Ohio
----------------------------------------------------------------------------------------------------------------
(A): Emission limits and other control measures.............. A A A
(B): Ambient air quality monitoring and data system.......... A A A
(C)1: Enforcement of SIP measures............................ A A A
(C)2: PSD.................................................... A A A
(D)1: Contribute to nonattainment/interfere with maintenance A NA NA
of NAAQS....................................................
(D)2: PSD.................................................... A A A
(D)3: Visibility Protection.................................. NA NA NA
(D)4: Interstate Pollution Abatement......................... A A A
(D)5: International Pollution Abatement...................... A A A
(E)1: Adequate resources..................................... A A A
(E)2: State boards........................................... A A A
(F): Stationary source monitoring system..................... A A A
(G): Emergency power......................................... A A A
(H): Future SIP revisions.................................... A A A
(I): Nonattainment area plan or plan revisions under part D.. NA NA NA
(J)1: Consultation with government officials................. A A A
(J)2: Public notification.................................... A A A
(J)3: PSD.................................................... A A A
(J)4: Visibility protection (Regional Haze).................. NA NA NA
(K): Air quality modeling and data........................... A A A
(L): Permitting fees......................................... A A A
(M): Consultation and participation by affected local A A A
entities....................................................
----------------------------------------------------------------------------------------------------------------
In the table above, the key is as follows:
A......................................... Approve.
a......................................... Approved in a previous
Rulemaking.
NA........................................ No Action/Separate
Rulemaking.
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the 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 Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified 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
[[Page 48743]]
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, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by October 13, 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 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, sulfur dioxide, nitrogen
dioxide, Reporting and recordkeeping requirements.
Dated: August 3, 2015.
Susan Hedman,
Regional Administrator, Region 5.
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.
0
2. In Sec. 52.770 the table in paragraph (e) is amended by adding
entries in alphabetical order for ``Section 110(a)(2) Infrastructure
Requirements for the 2010 NO2 NAAQS'' and ``Section
110(a)(2) Infrastructure Requirements for the 2010 SO2
NAAQS'' to read as follows:
Sec. 52.770 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Title Indiana date EPA Approval Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Infrastructure 1/15/2013 8/14/2015, [insert This action addresses the
Requirements for the 2010 NO2 NAAQS. Federal Register following CAA elements:
citation]. 110(a)(2)(A), (B), (C),
(D)(i)(I), (D)(i)(II) except
visibility, (D)(ii), (E),
(F), (G), (H), (J) except
visibility, (K), (L), and
(M).
Section 110(a)(2) Infrastructure 5/22/2013 8/14/2015, [insert This action addresses the
Requirements for the 2010 SO2 NAAQS. Federal Register following CAA elements:
citation]. 110(a)(2)(A), (B), (C),
(D)(i)(II) except
visibility, (D)(ii), (E),
(F), (G), (H), (J) except
visibility, (K), (L), and
(M).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Section 52.1891 is amended by revising paragraph (h) to read as
follows:
Sec. 52.1891 Section 110(a)(2) Infrastructure Requirements.
* * * * *
(h) Approval--In a June 7, 2013, submittal, Ohio certified that the
State has satisfied the infrastructure SIP requirements of section
110(a)(2)(A) through (H), and (J) through (M) for the 2010
SO2 NAAQS. We are not finalizing action on section
110(a)(2)(D)(i)(I)--Interstate transport prongs 1 and 2 or visibility
portions of section 110(a)(2)(D)(i)(II) and 110(a)(2)(J).
[FR Doc. 2015-20020 Filed 8-13-15; 8:45 am]
BILLING CODE 6560-50-P
