Air Plan Approval; Minnesota; Infrastructure SIP Requirements for the 2008 Ozone, 2010 NO2, 63436-63451 [2015-25969]

Download as PDF 63436 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R05–OAR–2014–0503; FRL–9935–17– Region 5] Air Plan Approval; Minnesota; Infrastructure SIP Requirements for the 2008 Ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is taking final action to approve some elements and disapprove other elements of state implementation plan (SIP) submissions from Minnesota regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 ozone, 2010 nitrogen dioxide (NO2), 2010 sulfur dioxide (SO2), and 2012 fine particulate matter (PM2.5) National Ambient Air Quality Standards (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 state’s responsibilities under the CAA. EPA is disapproving certain elements of Minnesota’s submissions relating to Prevention of Significant Deterioration (PSD) requirements. Minnesota already administers Federally promulgated regulations that address the disapprovals described in this rulemaking. Therefore, the state is not obligated to submit any new or additional regulations as a result of this disapproval. The proposed rulemaking associated with this final action was published on June 26, 2015, and EPA received one comment letter during the comment period, which ended on July 27, 2015. DATES: This final rule is effective on November 19, 2015. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA–R05–OAR–2014–0503. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Environmental Protection Agency, mstockstill on DSK4VPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 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 Eric Svingen, Environmental Engineer, at (312) 353–4489 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–4489, svingen.eric@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 state submissions does this rulemaking address? This rulemaking addresses June 12, 2014, submissions and a February 3, 2015, clarification from the Minnesota Pollution Control Agency (MPCA) intended to address all applicable infrastructure requirements for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. B. Why did the state make these SIP submissions? Under section 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 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 the NAAQS already meet those requirements. EPA has highlighted this statutory requirement in multiple guidance documents. The most recent, entitled ‘‘Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2),’’ was published on September 13, 2013. C. What is the scope of this rulemaking? EPA is acting upon the SIP submissions from Minnesota that PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 address the infrastructure requirements of CAA section 110(a)(1) and (2) for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. The requirement for states to make SIP submissions of this type arises out of CAA section 110(a)(1), which states that 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 section 110(a)(1) and (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 SIP submissions that address the nonattainment planning requirements of part D and the PSD requirements of part C of title I of the CAA, and ‘‘regional haze SIP’’ submissions required to address the visibility protection requirements of CAA section 169A. This rulemaking will not cover three substantive areas because they are not integral to acting on a state’s infrastructure SIP submissions: (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 notice or without requiring further approval by EPA, that may be contrary to the CAA; and, (iii) existing provisions for 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 E:\FR\FM\20OCR1.SGM 20OCR1 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations substantive areas in separate rulemakings. A detailed history, interpretation, and rationale as they relate to infrastructure SIP requirements can be found in EPA’s 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). mstockstill on DSK4VPTVN1PROD with RULES II. What is our response to comments received on the proposed rulemaking? The public comment period for EPA’s proposed actions with respect to Minnesota’s satisfaction of the infrastructure SIP requirements for the 2008 ozone NAAQS closed on July 27, 2015. EPA received one comment letter, which was from the Sierra Club. A synopsis of the comments contained in this letter and EPA’s responses are provided below. Comment 1: The Sierra Club states that, on its face, the CAA ‘‘requires ISIPs [infrastructure SIPs] to be adequate to prevent exceedances of the NAAQS.’’ In support, the commenter quotes the language in section 110(a)(1) that requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) that requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which the commenter 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 sources that are sufficient to ensure maintenance of the NAAQS.’’ Response 1: EPA disagrees that section 110 must be interpreted in the manner suggested by Sierra Club. Section 110 is only one provision that is part of the complex 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 ‘‘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 VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 as adequate state personnel and an enforcement program. Our interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute 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 the NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for ‘‘attainment’’ of the NAAQS and section 110(a)(2)(B) specified that the plan must include ‘‘emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].’’ In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of the 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, with the primary provisions for ozone in section 182. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing preexisting 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 [sic] 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 did provide the only detailed SIP planning provisions for PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 63437 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. And, more detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS. With regard to the requirement for emission limitations, EPA has interpreted this to mean that, for purposes of section 110, 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 CAA 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. Comment 2: Sierra Club cites two excerpts from the legislative history of the CAA Amendments of 1970 asserting that they support an interpretation that SIP revisions under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of Minnesota. Sierra Club also contends that the legislative history of the CAA supports its interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA. Response 2: The CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning demonstrating attainment. In any event, the two excerpts of legislative history the commenter cites merely provide that states should include enforceable emission limits in their SIPs; they do not mention or otherwise address whether states are required to include E:\FR\FM\20OCR1.SGM 20OCR1 mstockstill on DSK4VPTVN1PROD with RULES 63438 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations maintenance plans for all areas of the state as part of the infrastructure SIP. Comment 3: Sierra Club cites to 40 CFR 51.112(a), which provides 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].’’ The commenter asserts that this regulation requires all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. The commenter states that ‘‘[a]lthough these regulations were developed before the Clean Air Act was amended to separate Infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the regulations nonetheless apply to ISIPs.’’ The commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that ‘‘[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act. . . .’’ 51 FR 40656 (November 7, 1986). Response 3: The commenter’s reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits ‘‘adequate to prohibit NAAQS violations’’ and adequate or sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA notes and the commenter recognizes 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 section 175A and 182. The commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA’s action ‘‘restructuring and consolidating’’ provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were ‘‘beyond the scope’’ of the rulemaking. It is important to note, however, that EPA’s action in 1986 was not to establish new substantive planning requirements, but rather to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 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. Id. at 40657. Although EPA was explicit that it was not establishing requirements interpreting the provisions of new ‘‘part D’’ of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (‘‘Control strategy: SOX and PM (portion)’’), 51.14 (‘‘Control strategy: CO, HC, Ox and NO2 (portion)’’), 51.80 (‘‘Demonstration of attainment: Pb (portion)’’), and 51.82 (‘‘Air quality data (portion)’’). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan. Comment 4: 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, March 13, 2006). 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, December 27, 2013). 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 Infrastructure SIP Guidance that states could postpone specific PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 requirements for startup, 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 4: EPA does not agree that the two prior actions referenced by the 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. Similarly, the Indiana action does not provide support for the Sierra Club’s position (78 FR 78720, December 27, 2013). 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 E:\FR\FM\20OCR1.SGM 20OCR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 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 Minnesota 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 Minnesota has demonstrated that they have the necessary tools to implement and enforce a NAAQS. Comment 5: Sierra Club discusses several cases applying to 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 and demonstrate maintenance throughout the area. 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 Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that ‘‘SIPs must include certain measures Congress specified’’ to ensure attainment of the NAAQS. The commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (‘‘The Clean Air Act directs states to develop implementation plans—SIPs—that ‘assure’ attainment and maintenance of [NAAQS] through enforceable emissions limitations’’); Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (‘‘Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region in the state’’). The commenter also cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 would not interfere with attainment and maintenance of the NAAQS. Response 5: None of the cases the commenter cites supports the commenter’s contention that section 110(a)(2)(A) requires that infrastructure SIPs 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, 421 U.S. 60, none of the cases the commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a challenge to an EPA action, revisions to a SIP that were required and approved as meeting other provisions of the CAA or in the context of an enforcement action, the court references section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of its decision. In Train, a case that was decided almost 40 years ago, the court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were ‘‘postponements’’ that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The court concluded that EPA reasonably interpreted section 110(f) not to restrict a state’s choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus, the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits 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 PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 63439 on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA’s disapproval, but did not provide any interpretation of that provision. Yet, even if the court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here. At issue in Mision Industrial, 547 F.2d 123, was the definition of ‘‘emissions limitation’’ not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The commenters do 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. In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the court was reviewing a Federal implementation plan that EPA promulgated after a long history of the state failing to submit an adequate state implementation plan. The court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations but this language was not part of the court’s holding in the case. The commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre1990 version of that provision and the court makes no mention of the changed language. Furthermore, the commenter also quotes the court’s statement that ‘‘SIPs must include certain measures Congress specified’’ but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state’s ‘‘new source’’ permitting program, not its infrastructure SIP. Two of the cases the commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision E:\FR\FM\20OCR1.SGM 20OCR1 mstockstill on DSK4VPTVN1PROD with RULES 63440 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations governing ‘‘revisions’’ to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA. Comment 6: Sierra Club asserts that EPA cannot approve Minnesota’s infrastructure submittals for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS because Minnesota has not incorporated the standards into their SIP. The commenter points out that the Minnesota Administrative Rules section 7009.0800 does list previous standards but does not yet include the ones listed above and is therefore out of compliance with the CAA. Response 6: There is not a CAA requirement for states to incorporate the NAAQS updates into their SIPs. Therefore, EPA disagrees with the commenter that by not doing so, Minnesota is out of compliance with the CAA. The states are required to comply with the NAAQS regardless of whether or not they are in the SIP and Minnesota Statue 116.07 gives MPCA broad authority to implement rules and standards as needed for the purpose of controlling air pollution. Comment 7: Citing section 110(a)(2)(A) of the CAA, Sierra Club contends that EPA may not approve the proposed infrastructure SIP because it does not include enforceable 1-hour SO2 emission limits for sources that show NAAQS exceedances through modeling. Sierra Club asserts the proposed infrastructure SIP fails to include enforceable 1-hour SO2 emissions limits or other required measures to ensure attainment and maintenance of the SO2 NAAQS in areas not designated nonattainment as 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 Minnesota 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. 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 four coalfired EGUs in Minnesota including the Minnesota Power Boswell Coal Plant (‘‘Boswell Plant’’), Otter Tail Hoot Lake VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 Coal Plant (‘‘Hoot Lake Coal Plant’’), Xcel Energy Sherburne County Coal Plant (‘‘Sherco Coal Plant’’), and Taconite Harbor Energy Center (‘‘Taconite Harbor Plant’’). 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 four facilities or actual emissions at the Sherco Plant and Taconite Harbor Plant.1 Based on the modeling, Sierra Club asserts that the Minnesota SO2 infrastructure SIP submittals authorizes 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 Minnesota’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 7: 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 longstanding position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in 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. 1 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. PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 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 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 E:\FR\FM\20OCR1.SGM 20OCR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 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 VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 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 Minnesota’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.2 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 2 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 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. PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 63441 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 Minnesota has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submittal. Emissions limitations and other control measures needed to attain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure elements. States, like Minnesota, 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, Minnesota 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. Minnesota’s SIP revisions reflect several provisions that have the ability to reduce SO2. Although the Minnesota SIP relies on measures and programs used to implement previous SO2 NAAQS, these provisions will provide benefits for the 2010 SO2 NAAQS. The identified Minnesota 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 rule, Minnesota has the ability to revise its SIPs when necessary (e.g., in the event the Administrator finds its 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 E:\FR\FM\20OCR1.SGM 20OCR1 mstockstill on DSK4VPTVN1PROD with RULES 63442 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 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 did not designate any portions of Minnesota 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, 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 Minnesota 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 VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 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 Minnesota SO2 infrastructure SIP. 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 to 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 Minnesota was obligated during this infrastructure SIP planning process to account for controlled SO2 levels at individual sources. See Homer City/Mansfield Order at 10–19. Minnesota currently has the ability to control emissions of SO2. MPCA identified enforceable permits and administrative orders with SO2 emission limits. In previous rulemakings, EPA has approved these permits and orders into Minnesota’s SIP (see 59 FR 17703, April 14, 1994; 59 FR 17703, 64 FR 5936, February 8, 1999; 66 FR 14087, March 9, 2001; 67 FR 8727, February 26, 2002; 72 FR 68508, December 5, 2007; 74 FR 18138, April 21, 2009; 74 FR 18634, April 24, 2009; 74 FR 18638, April 24, 2009; 74 FR 63066, December 2, 2009; 75 FR 45480, August 3, 2010; 75 FR 48864, August 12, 2010; 75 FR 81471, December 28, 2010; and 78 FR 28501, May 15, 2013). Also, an administrative order issued as part of Minnesota’s Regional Haze SIP includes SO2 limits. Additionally, state rules that have been incorporated into PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 Minnesota’s SIP (at Minn. R. 7011.0500 to 7011.0553, 7011.0600 to 7011.0625, 7011.1400 to 7011.1430, 7011.1600 to 7011.1605, and 7011.2300) contain SO2 emission limits. Also, Minn. R. 7011.0900 to 7011.0909 include fuel sulfur content restrictions that can limit SO2 emissions. These regulations support compliance with and attainment of the 2010 SO2 NAAQS. 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 Minnesota’s infrastructure SIP submission because it does 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 8: 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. The commenter refers to EPA’s historic use of air dispersion modeling for attainment designations as well as ‘‘SIP revisions.’’ The commenter cites to prior EPA statements that the Agency has used modeling for designations and attainment demonstrations, including statements in the 2010 SO2 NAAQS preamble, EPA’s 2012 Draft White Paper for Discussion on Implementing the 2010 SO2 NAAQS, and a 1994 SO2 Guideline Document, as modeling could better address the source-specific impacts of SO2 emissions and historic challenges from monitoring SO2 E:\FR\FM\20OCR1.SGM 20OCR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations emissions.3 The commenter also discusses MPCA’s previous use and support of SO2 modeling, specifically citing a Letter from the MPCA Commissioner to the EPA and their use of modeling for setting title V limits. The commenter discusses statements made by EPA staff discussing use of modeling and monitoring in setting emission limitations or determining ambient concentrations resulting from sources, discussing performance of AERMOD as a model, and discussing that modeling is capable of predicting whether the NAAQS is attained and whether individual sources contribute to SO2 NAAQS violations. The commenter cites to EPA’s history of employing air dispersion modeling for increment compliance verifications in the permitting process for the PSD program required in part C of the CAA. The commenter claims the Boswell Plant, Hoot Lake Coal Plant, Sherco Coal Plant, and Taconite Harbor Plant are examples of sources in elevated terrain where the AERMOD model functions appropriately in evaluating ambient impacts. The commenter asserts EPA’s use of air dispersion modeling was upheld in GenOn REMA, LLC v. EPA, 722 F.3d 513 (3rd Cir. 2013) where an EGU challenged EPA’s use of CAA section 126 to impose SO2 emission limits on a source due to cross-state impacts. The commenter claims the Third Circuit in GenOn REMA upheld EPA’s actions after examining the record which included EPA’s air dispersion modeling of the one source as well as other data. The commenter cites to Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254 (D.C. Cir. 2009) for the general proposition that it would be arbitrary and capricious for an agency to ignore an aspect of an issue placed before it and for the statement that an agency must consider information presented during notice-and-comment rulemaking. Finally, the commenter claims that Minnesota’s proposed SO2 infrastructure SIP lacks emission limitations informed by air dispersion modeling and therefore fails to ensure Minnesota will achieve and maintain the 2010 SO2 NAAQS. Sierra Club claims EPA must require adequate, 1hour SO2 emission limits in the 3 The commenter also cites to a 1983 EPA Memorandum on section 107 designations policy regarding use of modeling for designations and to the 2012 Mont. Sulphur & Chem. Co. case where EPA had designated an area in Montana as nonattainment due to modeled violations of the NAAQS. VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 infrastructure SIP that show no exceedances of NAAQS when modeled. Response 8: EPA agrees with the commenter that air dispersion modeling, such as AERMOD, can be an important tool in the CAA section 107 designations process and in the attainment SIP process pursuant to sections 172 and 192, including supporting required attainment demonstrations. EPA agrees that prior EPA statements, EPA guidance, and case law support the use of air dispersion modeling in the designations process and attainment demonstration process, 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 commenter that EPA must disapprove the Minnesota SO2 infrastructure SIP for its alleged failure to include source-specific SO2 emission limits that show no exceedances of the NAAQS when modeled. As discussed previously above and in the Infrastructure SIP Guidance, EPA believes the conceptual purpose of an infrastructure SIP submission is to ensure 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. 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 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 63443 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 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 its 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 2010 SO2 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 (May 13, 2014) (proposing process and timetables for additional SO2 designations informed through ambient monitoring and/or air quality modeling). While the EPA guidance for attainment SIPs and the proposed process for additional designations 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 Minnesota SO2 infrastructure SIP submittal contains the structural requirements to address elements in section 110(a)(2) as discussed in detail in our TSD 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. E:\FR\FM\20OCR1.SGM 20OCR1 mstockstill on DSK4VPTVN1PROD with RULES 63444 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations supporting 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. EPA finds Sierra Club’s discussion of case law, guidance, and EPA staff statements regarding advantages of AERMOD as an air dispersion model to be irrelevant to our analysis here of the Minnesota infrastructure SIP, as this SIP for section 110(a) is not an attainment SIP required to demonstrate attainment of the NAAQS pursuant to section 172. EPA also finds Sierra Club’s comments relating to MPCA’s current use of modeling to be likewise irrelevant. 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 Minnesota’s infrastructure SIP is 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 1-hour SO2 NAAQS as part of the NSR/PSD permit programs. Therefore, as attainment SIPs, designations, and NSR/PSD actions are outside the scope of a required infrastructure SIP for the 2010 SO2 NAAQS for section 110(a), EPA provides no further response to the commenter’s discussion of air dispersion modeling for these applications. If Sierra Club resubmits its air dispersion modeling for the Minnesota EGUs or updated modeling information in the appropriate context, EPA will address the resubmitted modeling or updated modeling in the appropriate future context when an analysis of whether Minnesota’s VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 emissions limits are adequate to show attainment and maintenance of the NAAQS is warranted. The commenter 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 commenter appears to have cited to this matter to demonstrate again EPA’s use of modeling for certain aspects of the CAA. EPA agrees with the commenter regarding the appropriate role air dispersion modeling has for designations, attainment SIPs, and demonstrating significant contributions to interstate transport. However, EPA’s approval of Minnesota’s infrastructure SIP is based on our determination that Minnesota has 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 commenter that EPA must require additional emission limitations in the Minnesota SO2 infrastructure SIP 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 consider the Sierra Club’s modeling data on the Boswell Plant, Hoot Lake Coal Plant, Sherco Coal Plant, and Taconite Harbor Plant based on administrative law principles regarding consideration of comments provided during a rulemaking process. EPA asserts that it has considered the modeling submitted PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 by the commenter as well as all the submitted comments of Sierra Club. As discussed in detail in the Responses above, however, EPA does not believe the infrastructure SIPs required by section 110(a) are the appropriate place to require 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 County v. EPA, 571 F.3d 20 (D.C. Cir. 2009), the DC 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 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 in finding that it is not relevant to the approvability of Minnesota’s proposed infrastructure SIP for the 2010 SO2 NAAQS. Comment 9: Sierra Club asserts that EPA may not approve the Minnesota proposed SO2 infrastructure SIP because it fails to include enforceable emission limitations with a 1-hour averaging time that applies at all times. The commenter cites to CAA section 302(k) which requires emission limits to apply on a continuous basis. The commenter claims EPA has stated that 1-hour averaging times are necessary for the 2010 SO2 NAAQS citing to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding need for 1-hour SO2 emission limits in a PSD permit, an EPA Environmental Hearing Board (EHB) decision rejecting use of 3-hour averaging time for a SO2 limit in a PSD permit, and EPA’s disapproval of a Missouri SIP which relied on annual averaging for SO2 emission rates.5 Sierra Club also contends EPA must include monitoring of SO2 emission limits on a continuous basis using a continuous emission monitor system or systems (CEMs) and cites to section 110(a)(2)(F) which requires a SIP to establish a system to monitor emissions from stationary sources and to require submission of periodic emission reports. 5 Sierra Club cited to In re: Mississippi Lime Co., PSDAPLPEAL 11–01, 2011 WL 3557194, at * 26–27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy SO2 SIP). E:\FR\FM\20OCR1.SGM 20OCR1 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations mstockstill on DSK4VPTVN1PROD with RULES Sierra Club contends infrastructure SIPs must require such SO2 CEMs to monitor SO2 sources regardless of whether sources have control technology installed to ensure limits are protective of the NAAQS. Thus, Sierra Club contends EPA must require enforceable emission limits, applicable at all times, with 1-hour averaging periods, monitored continuously by large sources of SO2 emissions and must disapprove Minnesota’s infrastructure SIP which fails to require emission limits with adequate averaging times. Response 9: EPA disagrees that EPA must disapprove the proposed Minnesota infrastructure SIP because the SIP does not contain enforceable SO2 emission limitations with 1-hour averaging periods that apply at all times and with required CEMs. These issues are not appropriate for resolution at this stage. As explained in detail in previous Responses, the purpose of the infrastructure SIP is to ensure that a state has the structural capability to attain and maintain the NAAQS and thus additional SO2 emission limitations to ensure attainment and maintenance of the NAAQS are not required for such infrastructure SIPs.6 Likewise, EPA need not address for the purpose of approving Minnesota’s infrastructure SIP whether CEMs or some other appropriate monitoring of SO2 emissions is necessary to demonstrate compliance with emission limits to show attainment of the 2010 NAAQS as EPA believes such SO2 emission limits and an attainment demonstration when applicable are not a prerequisite to our approval of Minnesota’s infrastructure SIP.7 Therefore, because EPA finds Minnesota’s SO2 infrastructure SIP approvable without the additional SO2 emission limitations showing 6 For a discussion on emission averaging times for emissions limitations for SO2 attainment SIPs, see the April 23, 2014 Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. EPA explained that it is possible, in specific cases, for states to develop control strategies that account for variability in 1-hour emissions rates through emission limits with averaging times that are longer than 1-hour, using averaging times as long as 30days, but still provide for attainment of the 2010 SO2 NAAQS as long as the limits are of at least comparable stringency to a 1-hour limit at the critical emission value. EPA has not yet evaluated any specific submission of such a limit, and so is not at this time prepared to take final action to implement this concept. If and when a state submits an attainment demonstration that relies upon a limit with such a longer averaging time, EPA will evaluate it then. 7 EPA believes the appropriate time for application of monitoring requirements to demonstrate continuous compliance by specific sources is when such 1-hour emission limits are set for specific sources whether in permits issued by a state pursuant to the SIP or in attainment SIPs submitted in the part D planning process. VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 attainment of the NAAQS, EPA finds the issues of appropriate averaging periods and monitoring requirements for such future limitations not relevant at this time for our approval of the infrastructure SIP. Sierra Club has cited to prior EPA discussion on emission limitations required in PSD permits (from an EHB decision and EPA’s letter to Kansas’ permitting authority) pursuant to part C of the CAA which is not relevant nor applicable to section 110 infrastructure SIPs. In addition, as discussed previously, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to a control strategy SIP required pursuant to part D attainment planning and is likewise not relevant to our analysis of infrastructure SIP requirements. Comment 10: Sierra Club states that enforceable emission limits in SIPs or permits are necessary to avoid nonattainment designations in areas where modeling or monitoring shows SO2 levels exceed the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA document, ‘‘Next Steps for Area Designations and Implementation of the Sulfur Dioxide Nation Ambient Air Quality Standard,’’ which Sierra Club contends discussed how states could avoid future nonattainment designations. The commenter asserts EPA must disapprove the Minnesota infrastructure SIP to ensure large sources of SO2 do not cause exceedances of the 2010 SO2 NAAQS which would avoid nonattainment designations. Response 10: EPA appreciates the commenter’s concern with assisting Minnesota in avoiding nonattainment designations with the 2010 SO2 NAAQS and with assisting coal-fired EGUs in achieving regulatory certainty as EGUs make informed decisions on how to comply with CAA requirements. However, Congress designed the CAA such that states have the primary responsibility for assuring air quality within their geographic area by submitting SIPs which will specify how the state will achieve and maintain the NAAQS within the state. Pursuant to section 107(d), the states make initial recommendations of designations for areas within each state and EPA then promulgates the designations after considering the state’s submission and other information. EPA promulgated initial designations for the 2010 SO2 NAAQS in August 2013. EPA proposed on May 14, 2014 an additional process for further designations of additional areas in each state for the 2010 SO2 NAAQS. 79 FR 27446. EPA has also entered a settlement to resolve deadline suits regarding the remaining PO 00000 Frm 00037 Fmt 4700 Sfmt 4700 63445 designations that will impose deadlines for three more rounds of designations. Under these schemes, Minnesota would have the initial opportunity to propose additional areas for designations for the 2010 SO2 NAAQS. While EPA appreciates Sierra Club’s comments, further designations will occur pursuant to the section 107(d) process, and in accordance with any applicable future court orders addressing the designations deadline suits and, if promulgated, future EPA rules addressing additional monitoring or modeling to be conducted by states. Minnesota may on its own accord decide to impose additional SO2 emission limitations to avoid future designations to nonattainment. However, such considerations are not required of Minnesota to consider at the infrastructure SIP stage of NAAQS implementation, as this action relates to our approval of Minnesota’s SO2 infrastructure SIP submittal pursuant to section 110(a) of the CAA, and Sierra Club’s comments regarding designations under section 107 are neither relevant nor germane to EPA’s approval of Minnesota’s SO2 infrastructure SIP. See Commonwealth of Virginia, et al. v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995)) (discussing that states have primary responsibility for determining an emission reductions program for its areas subject to EPA approval dependent upon whether the SIP as a whole meets applicable requirements of the CAA). Thus, EPA does not believe it is appropriate or necessary to condition approval of Minnesota’s infrastructure SIP upon inclusion of a particular emission reduction program as long as the SIP otherwise meets the requirements of the CAA. EPA disagrees that we must disapprove the infrastructure SIP for not including enforceable emissions limitations to prevent future nonattainment designations. Comment 11: Sierra Club contends that EPA cannot approve the section 110(a)(2)(A) portion of Minnesota’s 2008 ozone infrastructure SIP revision because an infrastructure SIP should include enforceable emission limits to prevent NAAQS violations in areas not designated nonattainment. The commenter alleges that Minnesota is threatened by high concentrations of ozone, and on the edge of exceeding the ozone NAAQS. Response 11: We disagree with the commenter that infrastructure SIPs must include detailed attainment and maintenance plans for all areas of the state and must be disapproved if air quality data that became available late E:\FR\FM\20OCR1.SGM 20OCR1 mstockstill on DSK4VPTVN1PROD with RULES 63446 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations in the process or after the SIP was due and submitted changes the status of areas within the state. We believe that section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and that they contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS. The suggestion that the infrastructure SIP must include measures addressing violations of the standard that did not occur until shortly before or even after the SIP was due and submitted cannot be supported. The CAA provides states with three years to develop infrastructure SIPs and states cannot reasonably be expected to address the annual change in an area’s design value for each year over that period. Moreover, the CAA recognizes and has provisions to address changes in air quality over time, such as an area slipping from attainment to nonattainment or changing from nonattainment to attainment. These include provisions providing for redesignation in section 107(d) and provisions in section 110(k)(5) allowing EPA to call on the state to revise its SIP, as appropriate. We do not believe that section 110(a)(2)(A) requires detailed planning SIPs demonstrating either attainment or maintenance for specific geographic areas of the state. The infrastructure SIP is triggered by promulgation of the NAAQS, not designation. Moreover, infrastructure SIPs are due three years following promulgation of the NAAQS and designations are not due until two years (or in some cases three years) following promulgation of the NAAQS. Thus, during a significant portion of the period that the state has available for developing the infrastructure SIP, it does not know what the designation will be for individual areas of the state.8 In light of the structure of the CAA, EPA’s long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance 8 While it is true that there may be some monitors within a state with values so high as to make a nonattainment designation of the county with that monitor almost a certainty, the geographic boundaries of the nonattainment area associated with that monitor would not be known until EPA issues final designations. VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 plans for each individual area of the state. For all of the above reasons, we disagree with the commenter that EPA must disapprove an infrastructure SIP revision if there are or may be future monitored violations of the standard in the state and the section 110(a)(2)(A) revision does not have detailed plans for demonstrating how the state will bring that area into attainment. Rather, EPA believes that the proper inquiry at this juncture is whether the state has met the basic structural SIP requirements appropriate when EPA is acting upon the submittal. Comment 12: Sierra Club suggests that the state adopt specific controls that they contend are cost-effective for reducing nitrogen oxides (NOX), a precursor to ozone. Response 12: Minnesota currently has the ability to control emissions of NOX. NOX emissions are limited by Minn. R. 7011.0500 to 7011.0553 and 7011.1700 to 7011.1705, as well as an administrative order issued as part of Minnesota’s Regional Haze SIP. Minnesota relies on measures and programs used to implement previous ozone NAAQS. Because there is no substantive difference between the previous ozone NAAQS and the more recent ozone NAAQS, other than the level of the standard, the provisions relied on by Minnesota will provide benefits for the new NAAQS; in other words, the measures reduce overall ground-level ozone and its precursors and are not limited to reducing ozone levels to meet one specific NAAQS. Further, in approving Minnesota’s infrastructure SIP revision, EPA is affirming that Minnesota has sufficient authority to take the types of actions required by the CAA in order to bring any potential nonattainment areas back into attainment. The commenter has not provided any information to demonstrate that emissions will be affected by the infrastructure SIP submission. Comment 13: The commenter alleges that EPA cannot approve the infrastructure SIP for the 2010 NO2 NAAQS unless Minnesota includes adequately stringent emission limits that address the 1-hour NO2 NAAQS. The commenter points to a news article summarizing research by Clark, Millet, and Marshall showing patterns in environmental justice for NO2 concentrations in Minnesota and elsewhere. Response 13: 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 PO 00000 Frm 00038 Fmt 4700 Sfmt 4700 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. Minnesota currently has the ability to control emissions of NO2. NOX emissions are limited by Minn. R. 7011.0500 to 7011.0553 and 7011.1700 to 7011.1705, as well as an administrative order issued as part of Minnesota’s Regional Haze SIP. Because NO2 is a subcategory of NOX, controls relating to NOX can be expected to limit emissions of NO2. These regulations support compliance with and attainment of the 2010 NO2 NAAQS. While EPA employs multiple mechanisms for strengthening environmental justice communities, EPA believes it is inappropriate to address this issue through section 110(a)(2) of the CAA or the infrastructure SIP submittal process. The commenter does not attempt to demonstrate how environmental justice might be lawfully considered as part of Minnesota’s infrastructure SIP under CAA section 110(a)(2). Comment 14: The commenter points to a 2013 MPCA report showing PM2.5 monitoring data, and also points out sources of PM2.5 emissions including the Sherco Plant, Taconite Harbor Plant, and Silica mining industry, and alleges that Minnesota is close to exceeding the NAAQS. The commenter concludes that EPA cannot approve the infrastructure SIP for the 2012 PM2.5 NAAQS unless Minnesota includes enforceable emission limitations. Response 14: 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 E:\FR\FM\20OCR1.SGM 20OCR1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 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. Minnesota currently has the ability to control emissions of PM2.5. MPCA identified enforceable permits and administrative orders with SO2 emission limits. In previous rulemakings, EPA has approved these permits and orders into Minnesota’s SIP (see 59 FR 7218, February 15, 1994; 60 FR 31088, June 13, 1995; 62 FR 39120, July 22, 1997; 65 FR 42861, July 12, 2000; 69 FR 51371, August 19, 2004; 72 FR 51713, September 11, 2007; 74 FR 23632, May 20, 2009; 74 FR 63066, December 2, 2009; 75 FR 11461, March 11, 2010; and 75 FR 78602, December 16, 2010). Additionally, state rules that have been incorporated into Minnesota’s SIP (at Minn. R. 7011.0150, 7011.0500 to 7011.0553, 7011.0600 to 7011.0625, 7011.0710 to 7011.0735, 7011.0850 to 7011.0859, 7011.0900 to 7011.0922, 7011.1000 to 7011.1015, 7011.1100 to 7011.1125, 7011.1300 to 7011.1325, and 7011.1400 to 7011.1430) contain PM emission limits. These regulations support compliance with and attainment of the 2012 PM2.5 NAAQS. Comment 15: Throughout its letter, Sierra Club alleges that Minnesota’s infrastructure SIP must include provisions for monitoring of emissions of the various NAAQS. Response 15: As discussed previously, EPA need not address for the purpose of approving Minnesota’s infrastructure SIPs whether monitoring of emissions is necessary to demonstrate compliance with emission limits to show attainment of any NAAQS as EPA believes such emission limits and an attainment demonstration when applicable are not a prerequisite to our approval of Minnesota’s infrastructure SIP. Therefore, because EPA finds Minnesota’s infrastructure SIPs approvable without the additional emission limitations showing attainment of the NAAQS, EPA finds the issues of monitoring requirements not relevant at this time for our approval of the infrastructure SIP. Comment 16: Sierra Club alleges that Minnesota’s infrastructure SIPs contain no emission limits for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. The commenter states that it provided modeling and other evidence showing that any limits currently in place are insufficient, and that Minnesota is taking little to no action to address any NAAQS exceedances. Sierra Club alleges that standards contained within the infrastructure SIPs VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 were created for earlier NAAQS, and must be revised to reflect the new standards. Sierra Club asserts that Minnesota’s infrastructure SIP must not allow for ambient air incremental increases, variances, exceptions, or exclusions with regard to limits placed on sources of pollutants. The commenter asserts that Minnesota’s rules allow exceptions from enforcement, and points to Minn. Stat. 116.07, Minn. R. 7000.7000, and Minn. R. 7007.1850 as examples of methods by which MPCA may grant variances or undermine emission limits. Additionally, the commentator alleges that Minnesota excludes major sources of emissions from its major permitting program, allowing these sources to emit pollution under fewer restrictions. Response 16: 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. EPA disagrees with the commenter’s claim that Minnesota’s infrastructure SIP fails to meet any requirements regarding variances. As an initial matter, Minn. Stat. 116.07 and Minn. R. 7000.7000 are not regulations that have been approved into the SIP. Minn. R. 7007.1850 grants the source the right to prove a circumstance beyond its control, but does not limit Minnesota’s enforcement authority. Thus, any variance granted by the state pursuant to this provision would not modify the requirements of the SIP. Furthermore, for a variance from the state to be approved into the SIP, a demonstration must be made under CAA section 110(l) showing that the revision does not interfere with any requirements of the CAA including attainment or maintenance of a NAAQS. We disagree that the existence of this provision as solely a matter of state law means that the state does not have adequate authority to carry out the implementation plan. PO 00000 Frm 00039 Fmt 4700 Sfmt 4700 63447 Finally, we find that there is nothing in the record to support the commenter’s assertion that Minnesota excludes major sources of emissions from the major permitting requirements required under title I of the CAA, which is the focus of this action. This action is governed by section 110(a)(2), which falls under title I of the CAA and governs the implementation, maintenance, and enforcement of the NAAQS. As noted above, Minnesota implements the Federal major source PSD program through delegated authority from EPA. Since Minnesota already administers Federally promulgated PSD regulations through delegation, it applies the Federal promulgated regulations in 40 CFR 52.21—not the regulations cited in the comment, or any exclusions they may contain—in determining the major sources subject to title I permitting requirements. We also note that the regulations cited in the comment apply to part 70 operating permits issued under title V of the CAA and certain state permits (see MAR section 7007.0200 and section 7007.0250, respectively). Thus, any evaluation of these regulations must be done pursuant to CAA section 502 and 40 CFR part 70 and state law, respectively, and are not subject to our review under section 110(a)(2). Comment 17: The commenter alleges that the proposed infrastructure SIP does not address sources significantly contributing to nonattainment or interfering with maintenance of the NAAQS in other states as required by section 110(a)(2)(D)(i)(I) of the CAA, and states EPA must therefore disapprove the infrastructure SIP. Sierra Club states that the CAA requires infrastructure SIPs to address cross-state air pollution within three years of the NAAQS promulgation. The commenter references the recent Supreme Court decision, EPA v. EME Homer City Generation, L.P. et al., 134 S. Ct. 1584 (2014), which supports the states’ mandatory duty to address cross-state pollution under section 110(a)(2)(D)(i)(I). Sierra Club additionally alleges that Minnesota cannot rely on the absence of nonattainment areas within the state, when determining whether Minnesota is contributing to nonattainment or interference with maintenance of the NAAQS in downwind states. The commenter also alleges that Minnesota cannot rely on a Federal implementation plan (FIP) for PSD and an approved NSR permitting program when determining that Minnesota is not contributing to nonattainment or interference with maintenance of the E:\FR\FM\20OCR1.SGM 20OCR1 mstockstill on DSK4VPTVN1PROD with RULES 63448 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations NAAQS in downwind states. Sierra Club additionally alleges that PSD and NSR programs address only new sources, and also apply only in nonattainment areas. The commenter notes that Minnesota has no nonattainment areas for the 2008 ozone, 2010 SO2, 2010 NO2, and 2012 PM2.5 NAAQS. Response 17: EPA disagrees with Sierra Club’s statement that EPA must disapprove the submitted infrastructure SIPs due to Minnesota’s failure to address section 110(a)(2)(D)(i)(I). In EPA’s NPR proposing to approve Minnesota’s infrastructure SIP for the 2008 ozone, 2010 SO2, 2010 NO2, and 2012 PM2.5 NAAQS, EPA clearly stated that it was not taking any final action with respect to the good neighbor provision in section 110(a)(2)(D)(i)(I) which addresses emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state for the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS. Minnesota did not make a SIP submission to address the requirements of section 110(a)(2)(D)(i)(I) for the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS, and thus there is no such submission upon which EPA could take action under section 110(k) of the CAA. EPA cannot act under section 110(k) to disapprove a SIP submission that has not been submitted to EPA. EPA also disagrees with the commenter that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. EPA additionally believes there is no basis for the contention that EPA has triggered its obligation to issue a FIP addressing the good neighbor obligation under section 110(c), as EPA has neither found that Minnesota failed to timely submit a required 110(a)(2)(D)(i)(I) SIP submission as to the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS or made such a submission that was incomplete, nor has EPA disapproved a SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS. EPA acknowledges the commenter’s concern for the interstate transport of air pollutants and agrees in general with the commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses crossstate air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the commenter’s argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101– 228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)). EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve or conditionally approve individual elements of Minnesota’s infrastructure SIP submission for the various NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect to each NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if Minnesota had made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS, which to date it has not, EPA would still have discretion under section 110(k) of the CAA to act upon the various individual elements of the state’s infrastructure SIP submission, separately or together, as appropriate. The commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court’s April 2014 decision in EME Homer City alters our interpretation that we may act on individual severable measures, including the requirements of section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (affirming a state’s obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA’s action finding significant contribution or interference with maintenance). In sum, the concerns raised by the commenter do not establish that it is inappropriate or unreasonable for EPA to approve the portions of Minnesota’s June 12, 2014, infrastructure SIP submission for the 2010 SO2 NAAQS. Furthermore, as discussed above, EPA has no obligation to issue a FIP pursuant PO 00000 Frm 00040 Fmt 4700 Sfmt 4700 to 110(c)(1) to address Minnesota’s obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Minnesota failed to make the required submission addressing the element or the State has made such a submission but it is incomplete, or EPA disapproves a SIP submittal addressing that element. Until either occurs, EPA does not have the authority to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the commenter’s contention that it must issue a FIP for Minnesota to address 110(a)(2)(D)(i)(I) at this time. Sierra Club claims that Minnesota may not rely on the absence of nonattainment areas within the state, a FIP for PSD, or an approved nonattainment NSR permitting program when determining that Minnesota is not contributing to nonattainment or interference with maintenance of the NAAQS in downwind states. In fact, EPA is not taking action on 110(a)(2)(D)(i)(I) at this time for the 2008 ozone, 2010 SO2, and 2012 PM2.5 NAAQS, and therefore these comments are not relevant to this rulemaking. EPA is indeed addressing the transport provisions of Minnesota’s infrastructure SIP for the 2010 NO2 NAAQS, but here EPA is making this determination in part because no state has a nonattainment area for the 2010 NO2 NAAQS, and it is impossible for any state to contribute to nonattainment when no nonattainment areas actually exist. Sierra Club’s comments are not relevant for a NAAQS with no nonattainment areas in any state. Comment 18: The commenter contends that Minnesota does not have the adequate personnel, funding, and authority, required by section 110(a)(2)(E) of the CAA, to properly implement the SIP, shown by overdue permits and improper reissuing of expired permits. The commenter contends that permits for the Taconite Harbor Plant and Boswell Plant have expired, and this may allow these plants to ‘‘exceed the 2010 SO2 NAAQS.’’ Response 18: EPA disagrees that the issue raised by the commenter implies that MPCA does not meet the criteria of section 110(a)(2)(E). Although title V programs are not a component of the SIP, EPA fully approved Minnesota’s title V program on December 4, 2001 (66 FR 62967). Minnesota has funding for its program through title V fees, and has the authority to implement the programs though a number of state rules to implement 40 CFR part 70, and dedicated staff for implementation of their title V program. E:\FR\FM\20OCR1.SGM 20OCR1 63449 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations Comment 19: Sierra Club alleges that section 110(a)(2)(J) of the CAA requires states to provide for public notification of exceedances of the NAAQS. Sierra Club further asserts that section 110(a)(2)(J) requires states to satisfy section 127 of the CAA, which mandates that each SIP must contain provisions for notifying the public of instances or areas of primary NAAQS exceedances, and additionally advise the public of associated health hazards. Sierra Club further alleges that Minnesota’s SIP cites provisions that in fact do not require public notification procedures. Sierra Club notes that Minnesota’s infrastructure SIP states that a portion of the MPCA Web site is dedicated to enhancing public awareness of measures that can be taken to prevent exceedances for the NAAQS. Response 19: Sierra Club correctly notes that 110(a)(2)(J) of the CAA requires states to satisfy the requirements of section 127 of the CAA. Section 127 requires a state’s infrastructure SIP to contain measures allowing the state to notify the public upon the exceedance of a NAAQS, to advise the public of the health hazards, and to enhance public awareness. The CAA, which was last amended in 1990, further states that ‘‘[s]uch measures may include the posting of warning signs on interstate highway access points to metropolitan areas or television, radio, or press notices or information.’’ Here in the year 2015, Minnesota has a Web site. This Web site contains much more information than, for example, a warning sign on a highway. MPCA’s Web site allows Minnesotans to learn about air quality issues, view a current air quality index, review reports to the legislature, and access air quality alerts for ozone. As Sierra Club noted, MPCA submitted a link to this Web site as part of its infrastructure SIP. The Web site does contain sections dedicated to enhancing public awareness of measures that can be taken to prevent exceedances for the NAAQS. EPA believes Minnesota has fully satisfied its public notification requirements under section 110(a)(2)(J) of the CAA. Comment 20: Sierra Club asserts that EPA must disapprove Minnesota’s infrastructure SIP because it does not address the visibility protection provisions of section 110(a)(2)(J). Response 20: The visibility requirements in part C of the CAA that are referenced in section 110(a)(2)(J) are not affected by the establishment or revision of a NAAQS. As a result, there are no ‘‘applicable’’ visibility protection obligations associated with the promulgation of a new or revised NAAQS. Because there are no applicable requirements, states are not required to address section 110(a)(2)(J) in their infrastructure SIP. III. What action is EPA taking? EPA is taking final action to approve most elements of submissions from Minnesota certifying that its current SIP is sufficient to meet the required infrastructure elements under section 110(a)(1) and (2) for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. We are also disapproving some elements of the state’s submission as they relate to its PSD program. As described above, Minnesota already administers Federally promulgated PSD regulations through delegation, and therefore no practical effect is associated with this disapproval of those elements. The proposed rulemaking associated with this final action was published on June 26, 2015 (75 FR 36743), and EPA received one comment during the comment period, which ended on July 27, 2015. For the reasons discussed in the proposed rulemaking and in the above response to the public comment, EPA is therefore taking final action to approve most elements and disapprove certain elements, as proposed, of Minnesota’s submissions. EPA’s actions for the state’s satisfaction of infrastructure SIP requirements, by element of section 110(a)(2) and NAAQS, are contained in the table below. Element 2008 Ozone 2010 NO2 2010 SO2 2012 PM2.5 (A)—Emission limits and other control measures ................................................... (B)—Ambient air quality monitoring/data system .................................................... (C)1—Program for enforcement of control measures ............................................. (C)2—PSD ............................................................................................................... (D)1—I Prong 1: Interstate transport—significant contribution ................................ (D)2—I Prong 2: Interstate transport—interfere with maintenance ......................... (D)3—II Prong 3: Interstate transport—prevention of significant deterioration. ...... (D)4—II Prong 4: Interstate transport—protect visibility .......................................... (D)5—Interstate and international pollution abatement ........................................... (E)1—Adequate resources ...................................................................................... (E)2—State board requirements .............................................................................. (F)—Stationary source monitoring system .............................................................. (G)—Emergency power ........................................................................................... (H)—Future SIP revisions. ....................................................................................... (I)—Nonattainment planning requirements of part D .............................................. (J)1—Consultation with government officials .......................................................... (J)2—Public notification ........................................................................................... (J)3—PSD ................................................................................................................ (J)4—Visibility protection ......................................................................................... (K)—Air quality modeling/data ................................................................................. (L)—Permitting fees ................................................................................................. (M)—Consultation and participation by affected local entities ................................ A A A D NA NA D NA D A NA A A A * A A D * A A A A A A D A A D NA D A NA A A A * A A D * A A A A A A D NA NA D NA D A NA A A A * A A D * A A A A A A D NA NA D NA D A NA A A A * A A D * A A A mstockstill on DSK4VPTVN1PROD with RULES In the above table, the key is as follows: VI. Statutory and Executive Order Reviews A ............ D ............ NA .......... * ............. 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, Approve. Disapprove. No Action/Separate Rulemaking. Not germane to infrastructure SIPs. VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 PO 00000 Frm 00041 Fmt 4700 Sfmt 4700 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 E:\FR\FM\20OCR1.SGM 20OCR1 63450 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 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 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 December 21, 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, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: September 23, 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 § 52.1220, the table in paragraph (e) is amended by adding entries at the end of the table for ‘‘Section 110(a)(2) Infrastructure Requirements for the 2008 ozone NAAQS,’’ ‘‘Section 110(a)(2) Infrastructure Requirements for the 2010 nitrogen dioxide (NO2) NAAQS,’’ ‘‘Section 110(a)(2) Infrastructure Requirements for the 2010 sulfur dioxide (SO2) NAAQS,’’ and ‘‘Section 110(a)(2) Infrastructure Requirements for the 2012 fine particulate matter (PM2.5) NAAQS’’ to read as follows: ■ § 52.1220 * Identification of plan. * * (e) * * * * * EPA-APPROVED MINNESOTA NONREGULATORY PROVISIONS Name of nonregulatory SIP provision mstockstill on DSK4VPTVN1PROD with RULES * Section 110(a)(2) Infrastructure Requirements for the 2008 ozone NAAQS. VerDate Sep<11>2014 Applicable geographic or nonattainment area State submittal date/effective date * Statewide .......... 16:12 Oct 19, 2015 Jkt 238001 * 6/12/2014 (submittal date). PO 00000 Frm 00042 Fmt 4700 EPA approved date * Comments * 10/20/2015, [insert Federal Register citation]. * * This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). We are not taking action on (D)(i)(I), the visibility portion of (D)(i)(II), or the state board requirements of (E)(ii). We will address these requirements in a separate action. EPA is disapproving the elements related to the prevention of significant deterioration, specifically as they pertain to section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); however, Minnesota continues to implement the Federally promulgated rules for this purpose. Sfmt 4700 E:\FR\FM\20OCR1.SGM 20OCR1 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 63451 EPA-APPROVED MINNESOTA NONREGULATORY PROVISIONS—Continued Name of nonregulatory SIP provision Applicable geographic or nonattainment area State submittal date/effective date EPA approved date Comments This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). We are not taking action on the visibility portion of (D)(i)(II) or the state board requirements of (E)(ii). We will address these requirements in a separate action. EPA is disapproving the elements related to the prevention of significant deterioration, specifically as they pertain to section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); however, Minnesota continues to implement the Federally promulgated rules for this purpose. This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). We are not taking action on (D)(i)(I), the visibility portion of (D)(i)(II), or the state board requirements of (E)(ii). We will address these requirements in a separate action. EPA is disapproving the elements related to the prevention of significant deterioration, specifically as they pertain to section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); however, Minnesota continues to implement the Federally promulgated rules for this purpose. This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). We are not taking action on (D)(i)(I), the visibility portion of (D)(i)(II), or the state board requirements of (E)(ii). We will address these requirements in a separate action. EPA is disapproving the elements related to the prevention of significant deterioration, specifically as they pertain to section 110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); however, Minnesota continues to implement the Federally promulgated rules for this purpose. Section 110(a)(2) Infrastructure Requirements for the 2010 nitrogen dioxide (NO2) NAAQS. Statewide .......... 6/12/2014 (submittal date). 10/20/2015, [insert Federal Register citation]. Section 110(a)(2) Infrastructure Requirements for the 2010 sulfur dioxide (SO2) NAAQS. Statewide .......... 6/12/2014 (submittal date). 10/20/2015, [insert Federal Register citation]. Section 110(a)(2) Infrastructure Requirements for the 2012 fine particulate matter (PM2.5) NAAQS. Statewide .......... 6/12/2014 (submittal date). 10/20/2015, [insert Federal Register citation]. [FR Doc. 2015–25969 Filed 10–19–15; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–RO5–OAR–2014–0657; FRL–9935–63– Region 5] mstockstill on DSK4VPTVN1PROD with RULES Air Plan Approval; Michigan; 2006 PM2.5 and 2008 Lead NAAQS State Board Infrastructure SIP Requirements Environmental Protection Agency (EPA). ACTION: Direct final rule. AGENCY: The Environmental Protection Agency (EPA) is approving elements of state implementation plan (SIP) SUMMARY: VerDate Sep<11>2014 16:12 Oct 19, 2015 Jkt 238001 submissions from Michigan regarding state board requirements of section 110 of the Clean Air Act (CAA) for the 2006 fine particulate matter (PM2.5) and 2008 lead National Ambient Air Quality Standards (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 state’s responsibilities under the CAA. This direct final rule will be effective December 21, 2015, unless EPA receives adverse comments by November 19, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect. DATES: PO 00000 Frm 00043 Fmt 4700 Sfmt 4700 Submit your comments, identified by Docket ID No. EPA–R05– OAR–2014–0657 by one of the following methods: 1. www.regulations.gov: Follow the online instructions for submitting comments. 2. Email: aburano.douglas@epa.gov. 3. Fax: (312) 408–2279. 4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. 5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted ADDRESSES: E:\FR\FM\20OCR1.SGM 20OCR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 80, Number 202 (Tuesday, October 20, 2015)]
[Rules and Regulations]
[Pages 63436-63451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25969]



[[Page 63436]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2014-0503; FRL-9935-17-Region 5]


Air Plan Approval; Minnesota; Infrastructure SIP Requirements for 
the 2008 Ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve some elements and disapprove other elements of state 
implementation plan (SIP) submissions from Minnesota regarding the 
infrastructure requirements of section 110 of the Clean Air Act (CAA) 
for the 2008 ozone, 2010 nitrogen dioxide (NO2), 2010 sulfur 
dioxide (SO2), and 2012 fine particulate matter 
(PM2.5) National Ambient Air Quality Standards (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 state's responsibilities under the CAA. EPA is disapproving 
certain elements of Minnesota's submissions relating to Prevention of 
Significant Deterioration (PSD) requirements. Minnesota already 
administers Federally promulgated regulations that address the 
disapprovals described in this rulemaking. Therefore, the state is not 
obligated to submit any new or additional regulations as a result of 
this disapproval. The proposed rulemaking associated with this final 
action was published on June 26, 2015, and EPA received one comment 
letter during the comment period, which ended on July 27, 2015.

DATES: This final rule is effective on November 19, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2014-0503. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the 
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 Eric Svingen, 
Environmental Engineer, at (312) 353-4489 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Eric Svingen, Environmental Engineer, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 353-4489, 
svingen.eric@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 state submissions does this rulemaking address?

    This rulemaking addresses June 12, 2014, submissions and a February 
3, 2015, clarification from the Minnesota Pollution Control Agency 
(MPCA) intended to address all applicable infrastructure requirements 
for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS.

B. Why did the state make these SIP submissions?

    Under section 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure that their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS, including 
the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 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 the NAAQS 
already meet those requirements.
    EPA has highlighted this statutory requirement in multiple guidance 
documents. The most recent, entitled ``Guidance on Infrastructure State 
Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and 
(2),'' was published on September 13, 2013.

C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submissions from Minnesota that address 
the infrastructure requirements of CAA section 110(a)(1) and (2) for 
the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS. The requirement for states to make SIP 
submissions of this type arises out of CAA section 110(a)(1), which 
states that 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 section 110(a)(1) and (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 SIP submissions that address the nonattainment planning requirements 
of part D and the PSD requirements of part C of title I of the CAA, and 
``regional haze SIP'' submissions required to address the visibility 
protection requirements of CAA section 169A.
    This rulemaking will not cover three substantive areas because they 
are not integral to acting on a state's infrastructure SIP submissions: 
(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 notice or without 
requiring further approval by EPA, that may be contrary to the CAA; 
and, (iii) existing provisions for 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

[[Page 63437]]

substantive areas in separate rulemakings. A detailed history, 
interpretation, and rationale as they relate to infrastructure SIP 
requirements can be found in EPA's 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).

II. What is our response to comments received on the proposed 
rulemaking?

    The public comment period for EPA's proposed actions with respect 
to Minnesota's satisfaction of the infrastructure SIP requirements for 
the 2008 ozone NAAQS closed on July 27, 2015. EPA received one comment 
letter, which was from the Sierra Club. A synopsis of the comments 
contained in this letter and EPA's responses are provided below.
    Comment 1: The Sierra Club states that, on its face, the CAA 
``requires ISIPs [infrastructure SIPs] to be adequate to prevent 
exceedances of the NAAQS.'' In support, the commenter quotes the 
language in section 110(a)(1) that requires states to adopt a plan for 
implementation, maintenance, and enforcement of the NAAQS and the 
language in section 110(a)(2)(A) that requires SIPs to include 
enforceable emissions limitations as may be necessary to meet the 
requirements of the CAA and which the commenter 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 sources that are sufficient to ensure 
maintenance of the NAAQS.''
    Response 1: EPA disagrees that section 110 must be interpreted in 
the manner suggested by Sierra Club. Section 110 is only one provision 
that is part of the complex 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 ``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.
    Our interpretation that infrastructure SIPs are more general 
planning SIPs is consistent with the statute 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 the NAAQS within five years. Moreover, at that time, 
section 110(a)(2)(A)(i) specified that the section 110 plan provide for 
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the 
plan must include ``emission limitations, schedules, and timetables for 
compliance with such limitations, and such other measures as may be 
necessary to insure attainment and maintenance [of the NAAQS].''
    In 1977, Congress recognized that the existing structure was not 
sufficient and many areas were still violating the NAAQS. At that time, 
Congress for the first time added provisions requiring states and EPA 
to identify whether areas of the 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, with the 
primary provisions for ozone in section 182. 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 [sic] 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 
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. And, more 
detailed, later-enacted provisions govern the substantive planning 
process, including planning for attainment of the NAAQS.
    With regard to the requirement for emission limitations, EPA has 
interpreted this to mean that, for purposes of section 110, 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 CAA 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.
    Comment 2: Sierra Club cites two excerpts from the legislative 
history of the CAA Amendments of 1970 asserting that they support an 
interpretation that SIP revisions under CAA section 110 must include 
emissions limitations sufficient to show maintenance of the NAAQS in 
all areas of Minnesota. Sierra Club also contends that the legislative 
history of the CAA supports its interpretation that infrastructure SIPs 
under section 110(a)(2) must include enforceable emission limitations, 
citing the Senate Committee Report and the subsequent Senate Conference 
Report accompanying the 1970 CAA.
    Response 2: The CAA, as enacted in 1970, including its legislative 
history, cannot be interpreted in isolation from the later amendments 
that refined that structure and deleted relevant language from section 
110 concerning demonstrating attainment. In any event, the two excerpts 
of legislative history the commenter cites merely provide that states 
should include enforceable emission limits in their SIPs; they do not 
mention or otherwise address whether states are required to include

[[Page 63438]]

maintenance plans for all areas of the state as part of the 
infrastructure SIP.
    Comment 3: Sierra Club cites to 40 CFR 51.112(a), which provides 
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].'' The commenter asserts that 
this regulation requires all SIPs to include emissions limits necessary 
to ensure attainment of the NAAQS. The commenter states that 
``[a]lthough these regulations were developed before the Clean Air Act 
was amended to separate Infrastructure SIPs from nonattainment SIPs--a 
process that began with the 1977 amendments and was completed by the 
1990 amendments--the regulations nonetheless apply to ISIPs.'' The 
commenter relies on a statement in the preamble to the 1986 action 
restructuring and consolidating provisions in part 51, in which EPA 
stated that ``[i]t is beyond the scope of th[is] rulemaking to address 
the provisions of Part D of the Act. . . .'' 51 FR 40656 (November 7, 
1986).
    Response 3: The commenter's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
``adequate to prohibit NAAQS violations'' and adequate or sufficient to 
ensure the maintenance of the NAAQS is not supported. As an initial 
matter, EPA notes and the commenter recognizes 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 section 175A and 182.
    The commenter suggests that these provisions must apply to section 
110 SIPs because in the preamble to EPA's action ``restructuring and 
consolidating'' provisions in part 51, EPA stated that the new 
attainment demonstration provisions in the 1977 Amendments to the CAA 
were ``beyond the scope'' of the rulemaking. It is important to note, 
however, that EPA's action in 1986 was not to establish new substantive 
planning requirements, but rather 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. Id. at 40657.
    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``part D'' of the CAA, it is clear 
that the regulations being restructured and consolidated were intended 
to address control strategy plans. In the preamble, EPA clearly stated 
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: 
SOX and PM (portion)''), 51.14 (``Control strategy: CO, HC, 
Ox and NO2 (portion)''), 51.80 (``Demonstration of 
attainment: Pb (portion)''), and 51.82 (``Air quality data 
(portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112 
contains consolidated provisions that are focused on control strategy 
SIPs, and the infrastructure SIP is not such a plan.
    Comment 4: 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, March 13, 2006). 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, December 27, 2013). 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 Infrastructure 
SIP Guidance that states could postpone specific requirements for 
startup, 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 4: EPA does not agree that the two prior actions 
referenced by the 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. Similarly, the Indiana 
action does not provide support for the Sierra Club's position (78 FR 
78720, December 27, 2013). 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

[[Page 63439]]

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 
Minnesota 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 Minnesota has demonstrated that 
they have the necessary tools to implement and enforce a NAAQS.
    Comment 5: Sierra Club discusses several cases applying to 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 and demonstrate 
maintenance throughout the area. 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 Mision Industrial, Inc. v. EPA, 
547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of 
the CAA of 1970. The commenter contends that the 1990 Amendments do not 
alter how courts have interpreted the requirements of section 110, 
quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 
(2004) which in turn quoted section 110(a)(2)(A) of the CAA and also 
stated that ``SIPs must include certain measures Congress specified'' 
to ensure attainment of the NAAQS. The commenter also quotes several 
additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 
F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to 
develop implementation plans--SIPs--that `assure' attainment and 
maintenance of [NAAQS] through enforceable emissions limitations''); 
Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must 
submit a [SIP] that specif[ies] the manner in which [NAAQS] will be 
achieved and maintained within each air quality control region in the 
state''). The commenter also 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 5: None of the cases the commenter cites supports the 
commenter's contention that section 110(a)(2)(A) requires that 
infrastructure SIPs 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, 421 U.S. 60, none of the cases the commenter 
cites concerned the interpretation of CAA section 110(a)(2)(A) (or 
section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a 
challenge to an EPA action, revisions to a SIP that were required and 
approved as meeting other provisions of the CAA or in the context of an 
enforcement action, the court references section 110(a)(2)(A) (or 
section 110(a)(2)(B) of the pre-1990 CAA) in the background section of 
its decision.
    In Train, a case that was decided almost 40 years ago, the court 
was addressing a state revision to an attainment plan submission made 
pursuant to section 110 of the CAA, the sole statutory provision at 
that time regulating such submissions. The issue in that case concerned 
whether changes to requirements that would occur before attainment was 
required were variances that should be addressed pursuant to the 
provision governing SIP revisions or were ``postponements'' that must 
be addressed under section 110(f) of the CAA of 1970, which contained 
prescriptive criteria. The court concluded that EPA reasonably 
interpreted section 110(f) not to restrict a state's choice of the mix 
of control measures needed to attain the NAAQS and that revisions to 
SIPs that would not impact attainment of the NAAQS by the attainment 
date were not subject to the limits of section 110(f). Thus, the issue 
was not whether a section 110 SIP needs to provide for attainment or 
whether emissions limits are needed as part of the SIP; rather the 
issue was which statutory provision governed when the state wanted to 
revise the emission limits in its SIP if such revision would not impact 
attainment or maintenance of the NAAQS. To the extent the holding in 
the case has any bearing on how section 110(a)(2)(A) might be 
interpreted, it is important to realize that in 1975, when the opinion 
was issued, section 110(a)(2)(B) (the predecessor to section 
110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, 
a reference that was removed in 1990.
    The decision in Pennsylvania Dept. of Envtl. Resources was also 
decided based on the pre-1990 provision of the CAA. At issue was 
whether EPA properly rejected a revision to an approved plan where the 
inventories relied on by the state for the updated submission had gaps. 
The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of 
EPA's disapproval, but did not provide any interpretation of that 
provision. Yet, even if the court had interpreted that provision, EPA 
notes that it was modified by Congress in 1990; thus, this decision has 
little bearing on the issue here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of 
``emissions limitation'' not whether section 110 requires the state to 
demonstrate how all areas of the state will attain and maintain the 
NAAQS as part of their infrastructure SIPs. The language from the 
opinion the commenter quotes does not interpret but rather merely 
describes section 110(a)(2)(A). The commenters do 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.
    In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the court was 
reviewing a Federal implementation plan that EPA promulgated after a 
long history of the state failing to submit an adequate state 
implementation plan. The court cited generally to sections 107 and 
110(a)(2)(A) of the CAA for the proposition that SIPs should assure 
attainment and maintenance of NAAQS through emission limitations but 
this language was not part of the court's holding in the case.
    The commenter suggests that Alaska Dept. of Envtl. Conservation, 
540 U.S. 461, stands for the proposition that the 1990 CAA Amendments 
do not alter how courts interpret section 110. This claim is 
inaccurate. Rather, the court quoted section 110(a)(2)(A), which, as 
noted previously, differs from the pre-1990 version of that provision 
and the court makes no mention of the changed language. Furthermore, 
the commenter also quotes the court's statement that ``SIPs must 
include certain measures Congress specified'' but that statement 
specifically referenced the requirement in section 110(a)(2)(C), which 
requires an enforcement program and a program for the regulation of the 
modification and construction of new sources. Notably, at issue in that 
case was the state's ``new source'' permitting program, not its 
infrastructure SIP.
    Two of the cases the commenter cites, Mich. Dept. of Envtl. 
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 
110(l), the provision

[[Page 63440]]

governing ``revisions'' to plans, and not the initial plan submission 
requirement under section 110(a)(2) for a new or revised NAAQS, such as 
the infrastructure SIP at issue in this instance. In those cases, the 
courts cited to section 110(a)(2)(A) solely for the purpose of 
providing a brief background of the CAA.
    Comment 6: Sierra Club asserts that EPA cannot approve Minnesota's 
infrastructure submittals for the 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 NAAQS because Minnesota has 
not incorporated the standards into their SIP. The commenter points out 
that the Minnesota Administrative Rules section 7009.0800 does list 
previous standards but does not yet include the ones listed above and 
is therefore out of compliance with the CAA.
    Response 6: There is not a CAA requirement for states to 
incorporate the NAAQS updates into their SIPs. Therefore, EPA disagrees 
with the commenter that by not doing so, Minnesota is out of compliance 
with the CAA. The states are required to comply with the NAAQS 
regardless of whether or not they are in the SIP and Minnesota Statue 
116.07 gives MPCA broad authority to implement rules and standards as 
needed for the purpose of controlling air pollution.
    Comment 7: Citing section 110(a)(2)(A) of the CAA, Sierra Club 
contends that EPA may not approve the proposed infrastructure SIP 
because it does not include enforceable 1-hour SO2 emission 
limits for sources that show NAAQS exceedances through modeling. Sierra 
Club asserts the proposed infrastructure SIP fails to include 
enforceable 1-hour SO2 emissions limits or other required 
measures to ensure attainment and maintenance of the SO2 
NAAQS in areas not designated nonattainment as 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 Minnesota 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. 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 four coal-fired EGUs in Minnesota including 
the Minnesota Power Boswell Coal Plant (``Boswell Plant''), Otter Tail 
Hoot Lake Coal Plant (``Hoot Lake Coal Plant''), Xcel Energy Sherburne 
County Coal Plant (``Sherco Coal Plant''), and Taconite Harbor Energy 
Center (``Taconite Harbor Plant''). 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 four 
facilities or actual emissions at the Sherco Plant and Taconite Harbor 
Plant.\1\
---------------------------------------------------------------------------

    \1\ 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.
---------------------------------------------------------------------------

    Based on the modeling, Sierra Club asserts that the Minnesota 
SO2 infrastructure SIP submittals authorizes 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 Minnesota'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 7: 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-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 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

[[Page 63441]]

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 Minnesota'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.\2\
---------------------------------------------------------------------------

    \2\ 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.
---------------------------------------------------------------------------

    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 Minnesota has met the basic structural SIP 
requirements appropriate at the point in time EPA is acting upon the 
infrastructure submittal. Emissions limitations and other control 
measures needed to attain the NAAQS in areas designated nonattainment 
for that NAAQS are due on a different schedule from the section 110 
infrastructure elements. States, like Minnesota, 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, 
Minnesota 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. Minnesota's SIP revisions reflect several provisions that 
have the ability to reduce SO2. Although the Minnesota SIP 
relies on measures and programs used to implement previous 
SO2 NAAQS, these provisions will provide benefits for the 
2010 SO2 NAAQS. The identified Minnesota 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 rule, Minnesota has 
the ability to revise its SIPs when necessary (e.g., in the event the 
Administrator finds its 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

[[Page 63442]]

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 did not designate any portions of 
Minnesota 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, 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 Minnesota 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 Minnesota SO2 
infrastructure SIP.
    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 to 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 Minnesota was obligated 
during this infrastructure SIP planning process to account for 
controlled SO2 levels at individual sources. See Homer City/
Mansfield Order at 10-19.
    Minnesota currently has the ability to control emissions of 
SO2. MPCA identified enforceable permits and administrative 
orders with SO2 emission limits. In previous rulemakings, 
EPA has approved these permits and orders into Minnesota's SIP (see 59 
FR 17703, April 14, 1994; 59 FR 17703, 64 FR 5936, February 8, 1999; 66 
FR 14087, March 9, 2001; 67 FR 8727, February 26, 2002; 72 FR 68508, 
December 5, 2007; 74 FR 18138, April 21, 2009; 74 FR 18634, April 24, 
2009; 74 FR 18638, April 24, 2009; 74 FR 63066, December 2, 2009; 75 FR 
45480, August 3, 2010; 75 FR 48864, August 12, 2010; 75 FR 81471, 
December 28, 2010; and 78 FR 28501, May 15, 2013). Also, an 
administrative order issued as part of Minnesota's Regional Haze SIP 
includes SO2 limits. Additionally, state rules that have 
been incorporated into Minnesota's SIP (at Minn. R. 7011.0500 to 
7011.0553, 7011.0600 to 7011.0625, 7011.1400 to 7011.1430, 7011.1600 to 
7011.1605, and 7011.2300) contain SO2 emission limits. Also, 
Minn. R. 7011.0900 to 7011.0909 include fuel sulfur content 
restrictions that can limit SO2 emissions. These regulations 
support compliance with and attainment of the 2010 SO2 
NAAQS.
    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 Minnesota's infrastructure SIP submission because it 
does 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 8: 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. The 
commenter refers to EPA's historic use of air dispersion modeling for 
attainment designations as well as ``SIP revisions.'' The commenter 
cites to prior EPA statements that the Agency has used modeling for 
designations and attainment demonstrations, including statements in the 
2010 SO2 NAAQS preamble, EPA's 2012 Draft White Paper for 
Discussion on Implementing the 2010 SO2 NAAQS, and a 1994 
SO2 Guideline Document, as modeling could better address the 
source-specific impacts of SO2 emissions and historic 
challenges from monitoring SO2

[[Page 63443]]

emissions.\3\ The commenter also discusses MPCA's previous use and 
support of SO2 modeling, specifically citing a Letter from 
the MPCA Commissioner to the EPA and their use of modeling for setting 
title V limits.
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    \3\ The commenter also cites to a 1983 EPA Memorandum on section 
107 designations policy regarding use of modeling for designations 
and to the 2012 Mont. Sulphur & Chem. Co. case where EPA had 
designated an area in Montana as nonattainment due to modeled 
violations of the NAAQS.
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    The commenter discusses statements made by EPA staff discussing use 
of modeling and monitoring in setting emission limitations or 
determining ambient concentrations resulting from sources, discussing 
performance of AERMOD as a model, and discussing that modeling is 
capable of predicting whether the NAAQS is attained and whether 
individual sources contribute to SO2 NAAQS violations. The 
commenter cites to EPA's history of employing air dispersion modeling 
for increment compliance verifications in the permitting process for 
the PSD program required in part C of the CAA. The commenter claims the 
Boswell Plant, Hoot Lake Coal Plant, Sherco Coal Plant, and Taconite 
Harbor Plant are examples of sources in elevated terrain where the 
AERMOD model functions appropriately in evaluating ambient impacts.
    The commenter asserts EPA's use of air dispersion modeling was 
upheld in GenOn REMA, LLC v. EPA, 722 F.3d 513 (3rd Cir. 2013) where an 
EGU challenged EPA's use of CAA section 126 to impose SO2 
emission limits on a source due to cross-state impacts. The commenter 
claims the Third Circuit in GenOn REMA upheld EPA's actions after 
examining the record which included EPA's air dispersion modeling of 
the one source as well as other data.
    The commenter cites to Vehicle Mfrs. Ass'n v. State Farm Mut. Auto 
Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254 
(D.C. Cir. 2009) for the general proposition that it would be arbitrary 
and capricious for an agency to ignore an aspect of an issue placed 
before it and for the statement that an agency must consider 
information presented during notice-and-comment rulemaking.
    Finally, the commenter claims that Minnesota's proposed 
SO2 infrastructure SIP lacks emission limitations informed 
by air dispersion modeling and therefore fails to ensure Minnesota will 
achieve and maintain the 2010 SO2 NAAQS. Sierra Club claims 
EPA must require adequate, 1-hour SO2 emission limits in the 
infrastructure SIP that show no exceedances of NAAQS when modeled.
    Response 8: EPA agrees with the commenter that air dispersion 
modeling, such as AERMOD, can be an important tool in the CAA section 
107 designations process and in the attainment SIP process pursuant to 
sections 172 and 192, including supporting required attainment 
demonstrations. EPA agrees that prior EPA statements, EPA guidance, and 
case law support the use of air dispersion modeling in the designations 
process and attainment demonstration process, 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 commenter that EPA must disapprove the Minnesota SO2 
infrastructure SIP for its alleged failure to include source-specific 
SO2 emission limits that show no exceedances of the NAAQS 
when modeled.
    As discussed previously above and in the Infrastructure SIP 
Guidance, EPA believes the conceptual purpose of an infrastructure SIP 
submission is to ensure 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. 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 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 its 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 2010 
SO2 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 (May 13, 2014) 
(proposing process and timetables for additional SO2 
designations informed through ambient monitoring and/or air quality 
modeling). While the EPA guidance for attainment SIPs and the proposed 
process for additional designations 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 Minnesota 
SO2 infrastructure SIP submittal contains the structural 
requirements to address elements in section 110(a)(2) as discussed in 
detail in our TSD

[[Page 63444]]

supporting 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.
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    \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, guidance, and EPA 
staff statements regarding advantages of AERMOD as an air dispersion 
model to be irrelevant to our analysis here of the Minnesota 
infrastructure SIP, as this SIP for section 110(a) is not an attainment 
SIP required to demonstrate attainment of the NAAQS pursuant to section 
172. EPA also finds Sierra Club's comments relating to MPCA's current 
use of modeling to be likewise irrelevant. 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 Minnesota's infrastructure SIP is 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 1-hour SO2 NAAQS as part of the NSR/PSD permit 
programs. Therefore, as attainment SIPs, designations, and NSR/PSD 
actions are outside the scope of a required infrastructure SIP for the 
2010 SO2 NAAQS for section 110(a), EPA provides no further 
response to the commenter's discussion of air dispersion modeling for 
these applications. If Sierra Club resubmits its air dispersion 
modeling for the Minnesota EGUs or updated modeling information in the 
appropriate context, EPA will address the resubmitted modeling or 
updated modeling in the appropriate future context when an analysis of 
whether Minnesota's emissions limits are adequate to show attainment 
and maintenance of the NAAQS is warranted. The commenter 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 commenter appears to have cited to this 
matter to demonstrate again EPA's use of modeling for certain aspects 
of the CAA. EPA agrees with the commenter regarding the appropriate 
role air dispersion modeling has for designations, attainment SIPs, and 
demonstrating significant contributions to interstate transport. 
However, EPA's approval of Minnesota's infrastructure SIP is based on 
our determination that Minnesota has 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 commenter that EPA must require additional emission 
limitations in the Minnesota SO2 infrastructure SIP 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 
consider the Sierra Club's modeling data on the Boswell Plant, Hoot 
Lake Coal Plant, Sherco Coal Plant, and Taconite Harbor Plant based on 
administrative law principles regarding consideration of comments 
provided during a rulemaking process. EPA asserts that it has 
considered the modeling submitted by the commenter as well as all the 
submitted comments of Sierra Club. As discussed in detail in the 
Responses above, however, EPA does not believe the infrastructure SIPs 
required by section 110(a) are the appropriate place to require 
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 County v. EPA, 571 F.3d 20 (D.C. Cir. 
2009), the DC 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 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 in finding that it is not relevant to 
the approvability of Minnesota's proposed infrastructure SIP for the 
2010 SO2 NAAQS.
    Comment 9: Sierra Club asserts that EPA may not approve the 
Minnesota proposed SO2 infrastructure SIP because it fails 
to include enforceable emission limitations with a 1-hour averaging 
time that applies at all times. The commenter cites to CAA section 
302(k) which requires emission limits to apply on a continuous basis. 
The commenter claims EPA has stated that 1-hour averaging times are 
necessary for the 2010 SO2 NAAQS citing to a February 3, 
2011, EPA Region 7 letter to the Kansas Department of Health and 
Environment regarding need for 1-hour SO2 emission limits in 
a PSD permit, an EPA Environmental Hearing Board (EHB) decision 
rejecting use of 3-hour averaging time for a SO2 limit in a 
PSD permit, and EPA's disapproval of a Missouri SIP which relied on 
annual averaging for SO2 emission rates.\5\ Sierra Club also 
contends EPA must include monitoring of SO2 emission limits 
on a continuous basis using a continuous emission monitor system or 
systems (CEMs) and cites to section 110(a)(2)(F) which requires a SIP 
to establish a system to monitor emissions from stationary sources and 
to require submission of periodic emission reports.

[[Page 63445]]

Sierra Club contends infrastructure SIPs must require such 
SO2 CEMs to monitor SO2 sources regardless of 
whether sources have control technology installed to ensure limits are 
protective of the NAAQS. Thus, Sierra Club contends EPA must require 
enforceable emission limits, applicable at all times, with 1-hour 
averaging periods, monitored continuously by large sources of 
SO2 emissions and must disapprove Minnesota's infrastructure 
SIP which fails to require emission limits with adequate averaging 
times.
---------------------------------------------------------------------------

    \5\ Sierra Club cited to In re: Mississippi Lime Co., PSDAPLPEAL 
11-01, 2011 WL 3557194, at * 26-27 (EPA Aug. 9, 2011) and 71 FR 
12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy 
SO2 SIP).
---------------------------------------------------------------------------

    Response 9: EPA disagrees that EPA must disapprove the proposed 
Minnesota infrastructure SIP because the SIP does not contain 
enforceable SO2 emission limitations with 1-hour averaging 
periods that apply at all times and with required CEMs. These issues 
are not appropriate for resolution at this stage. As explained in 
detail in previous Responses, the purpose of the infrastructure SIP is 
to ensure that a state has the structural capability to attain and 
maintain the NAAQS and thus additional SO2 emission 
limitations to ensure attainment and maintenance of the NAAQS are not 
required for such infrastructure SIPs.\6\ Likewise, EPA need not 
address for the purpose of approving Minnesota's infrastructure SIP 
whether CEMs or some other appropriate monitoring of SO2 
emissions is necessary to demonstrate compliance with emission limits 
to show attainment of the 2010 NAAQS as EPA believes such 
SO2 emission limits and an attainment demonstration when 
applicable are not a prerequisite to our approval of Minnesota's 
infrastructure SIP.\7\ Therefore, because EPA finds Minnesota's 
SO2 infrastructure SIP approvable without the additional 
SO2 emission limitations showing attainment of the NAAQS, 
EPA finds the issues of appropriate averaging periods and monitoring 
requirements for such future limitations not relevant at this time for 
our approval of the infrastructure SIP. Sierra Club has cited to prior 
EPA discussion on emission limitations required in PSD permits (from an 
EHB decision and EPA's letter to Kansas' permitting authority) pursuant 
to part C of the CAA which is not relevant nor applicable to section 
110 infrastructure SIPs. In addition, as discussed previously, the EPA 
disapproval of the 2006 Missouri SIP was a disapproval relating to a 
control strategy SIP required pursuant to part D attainment planning 
and is likewise not relevant to our analysis of infrastructure SIP 
requirements.
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    \6\ For a discussion on emission averaging times for emissions 
limitations for SO2 attainment SIPs, see the April 23, 
2014 Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. EPA 
explained that it is possible, in specific cases, for states to 
develop control strategies that account for variability in 1-hour 
emissions rates through emission limits with averaging times that 
are longer than 1-hour, using averaging times as long as 30-days, 
but still provide for attainment of the 2010 SO2 NAAQS as 
long as the limits are of at least comparable stringency to a 1-hour 
limit at the critical emission value. EPA has not yet evaluated any 
specific submission of such a limit, and so is not at this time 
prepared to take final action to implement this concept. If and when 
a state submits an attainment demonstration that relies upon a limit 
with such a longer averaging time, EPA will evaluate it then.
    \7\ EPA believes the appropriate time for application of 
monitoring requirements to demonstrate continuous compliance by 
specific sources is when such 1-hour emission limits are set for 
specific sources whether in permits issued by a state pursuant to 
the SIP or in attainment SIPs submitted in the part D planning 
process.
---------------------------------------------------------------------------

    Comment 10: Sierra Club states that enforceable emission limits in 
SIPs or permits are necessary to avoid nonattainment designations in 
areas where modeling or monitoring shows SO2 levels exceed 
the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA 
document, ``Next Steps for Area Designations and Implementation of the 
Sulfur Dioxide Nation Ambient Air Quality Standard,'' which Sierra Club 
contends discussed how states could avoid future nonattainment 
designations. The commenter asserts EPA must disapprove the Minnesota 
infrastructure SIP to ensure large sources of SO2 do not 
cause exceedances of the 2010 SO2 NAAQS which would avoid 
nonattainment designations.
    Response 10: EPA appreciates the commenter's concern with assisting 
Minnesota in avoiding nonattainment designations with the 2010 
SO2 NAAQS and with assisting coal-fired EGUs in achieving 
regulatory certainty as EGUs make informed decisions on how to comply 
with CAA requirements. However, Congress designed the CAA such that 
states have the primary responsibility for assuring air quality within 
their geographic area by submitting SIPs which will specify how the 
state will achieve and maintain the NAAQS within the state. Pursuant to 
section 107(d), the states make initial recommendations of designations 
for areas within each state and EPA then promulgates the designations 
after considering the state's submission and other information. EPA 
promulgated initial designations for the 2010 SO2 NAAQS in 
August 2013. EPA proposed on May 14, 2014 an additional process for 
further designations of additional areas in each state for the 2010 
SO2 NAAQS. 79 FR 27446. EPA has also entered a settlement to 
resolve deadline suits regarding the remaining designations that will 
impose deadlines for three more rounds of designations. Under these 
schemes, Minnesota would have the initial opportunity to propose 
additional areas for designations for the 2010 SO2 NAAQS. 
While EPA appreciates Sierra Club's comments, further designations will 
occur pursuant to the section 107(d) process, and in accordance with 
any applicable future court orders addressing the designations deadline 
suits and, if promulgated, future EPA rules addressing additional 
monitoring or modeling to be conducted by states. Minnesota may on its 
own accord decide to impose additional SO2 emission 
limitations to avoid future designations to nonattainment. However, 
such considerations are not required of Minnesota to consider at the 
infrastructure SIP stage of NAAQS implementation, as this action 
relates to our approval of Minnesota's SO2 infrastructure 
SIP submittal pursuant to section 110(a) of the CAA, and Sierra Club's 
comments regarding designations under section 107 are neither relevant 
nor germane to EPA's approval of Minnesota's SO2 
infrastructure SIP. See Commonwealth of Virginia, et al. v. EPA, 108 
F.3d 1397, 1410 (D.C. Cir. 1997) (citing Natural Resources Defense 
Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995)) 
(discussing that states have primary responsibility for determining an 
emission reductions program for its areas subject to EPA approval 
dependent upon whether the SIP as a whole meets applicable requirements 
of the CAA). Thus, EPA does not believe it is appropriate or necessary 
to condition approval of Minnesota's infrastructure SIP upon inclusion 
of a particular emission reduction program as long as the SIP otherwise 
meets the requirements of the CAA. EPA disagrees that we must 
disapprove the infrastructure SIP for not including enforceable 
emissions limitations to prevent future nonattainment designations.
    Comment 11: Sierra Club contends that EPA cannot approve the 
section 110(a)(2)(A) portion of Minnesota's 2008 ozone infrastructure 
SIP revision because an infrastructure SIP should include enforceable 
emission limits to prevent NAAQS violations in areas not designated 
nonattainment. The commenter alleges that Minnesota is threatened by 
high concentrations of ozone, and on the edge of exceeding the ozone 
NAAQS.
    Response 11: We disagree with the commenter that infrastructure 
SIPs must include detailed attainment and maintenance plans for all 
areas of the state and must be disapproved if air quality data that 
became available late

[[Page 63446]]

in the process or after the SIP was due and submitted changes the 
status of areas within the state. We believe that section 110(a)(2)(A) 
is reasonably interpreted to require states to submit SIPs that reflect 
the first step in their planning for attaining and maintaining a new or 
revised NAAQS and that they contain enforceable control measures and a 
demonstration that the state has the available tools and authority to 
develop and implement plans to attain and maintain the NAAQS.
    The suggestion that the infrastructure SIP must include measures 
addressing violations of the standard that did not occur until shortly 
before or even after the SIP was due and submitted cannot be supported. 
The CAA provides states with three years to develop infrastructure SIPs 
and states cannot reasonably be expected to address the annual change 
in an area's design value for each year over that period. Moreover, the 
CAA recognizes and has provisions to address changes in air quality 
over time, such as an area slipping from attainment to nonattainment or 
changing from nonattainment to attainment. These include provisions 
providing for redesignation in section 107(d) and provisions in section 
110(k)(5) allowing EPA to call on the state to revise its SIP, as 
appropriate.
    We do not believe that section 110(a)(2)(A) requires detailed 
planning SIPs demonstrating either attainment or maintenance for 
specific geographic areas of the state. The infrastructure SIP is 
triggered by promulgation of the NAAQS, not designation. Moreover, 
infrastructure SIPs are due three years following promulgation of the 
NAAQS and designations are not due until two years (or in some cases 
three years) following promulgation of the NAAQS. Thus, during a 
significant portion of the period that the state has available for 
developing the infrastructure SIP, it does not know what the 
designation will be for individual areas of the state.\8\ In light of 
the structure of the CAA, EPA's long-standing position regarding 
infrastructure SIPs is that they are general planning SIPs to ensure 
that the state has adequate resources and authority to implement a 
NAAQS in general throughout the state and not detailed attainment and 
maintenance plans for each individual area of the state.
---------------------------------------------------------------------------

    \8\ While it is true that there may be some monitors within a 
state with values so high as to make a nonattainment designation of 
the county with that monitor almost a certainty, the geographic 
boundaries of the nonattainment area associated with that monitor 
would not be known until EPA issues final designations.
---------------------------------------------------------------------------

    For all of the above reasons, we disagree with the commenter that 
EPA must disapprove an infrastructure SIP revision if there are or may 
be future monitored violations of the standard in the state and the 
section 110(a)(2)(A) revision does not have detailed plans for 
demonstrating how the state will bring that area into attainment. 
Rather, EPA believes that the proper inquiry at this juncture is 
whether the state has met the basic structural SIP requirements 
appropriate when EPA is acting upon the submittal.
    Comment 12: Sierra Club suggests that the state adopt specific 
controls that they contend are cost-effective for reducing nitrogen 
oxides (NOX), a precursor to ozone.
    Response 12: Minnesota currently has the ability to control 
emissions of NOX. NOX emissions are limited by 
Minn. R. 7011.0500 to 7011.0553 and 7011.1700 to 7011.1705, as well as 
an administrative order issued as part of Minnesota's Regional Haze 
SIP. Minnesota relies on measures and programs used to implement 
previous ozone NAAQS. Because there is no substantive difference 
between the previous ozone NAAQS and the more recent ozone NAAQS, other 
than the level of the standard, the provisions relied on by Minnesota 
will provide benefits for the new NAAQS; in other words, the measures 
reduce overall ground-level ozone and its precursors and are not 
limited to reducing ozone levels to meet one specific NAAQS. Further, 
in approving Minnesota's infrastructure SIP revision, EPA is affirming 
that Minnesota has sufficient authority to take the types of actions 
required by the CAA in order to bring any potential nonattainment areas 
back into attainment. The commenter has not provided any information to 
demonstrate that emissions will be affected by the infrastructure SIP 
submission.
    Comment 13: The commenter alleges that EPA cannot approve the 
infrastructure SIP for the 2010 NO2 NAAQS unless Minnesota 
includes adequately stringent emission limits that address the 1-hour 
NO2 NAAQS. The commenter points to a news article 
summarizing research by Clark, Millet, and Marshall showing patterns in 
environmental justice for NO2 concentrations in Minnesota 
and elsewhere.
    Response 13: 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.
    Minnesota currently has the ability to control emissions of 
NO2. NOX emissions are limited by Minn. R. 
7011.0500 to 7011.0553 and 7011.1700 to 7011.1705, as well as an 
administrative order issued as part of Minnesota's Regional Haze SIP. 
Because NO2 is a subcategory of NOX, controls 
relating to NOX can be expected to limit emissions of 
NO2. These regulations support compliance with and 
attainment of the 2010 NO2 NAAQS. While EPA employs multiple 
mechanisms for strengthening environmental justice communities, EPA 
believes it is inappropriate to address this issue through section 
110(a)(2) of the CAA or the infrastructure SIP submittal process. The 
commenter does not attempt to demonstrate how environmental justice 
might be lawfully considered as part of Minnesota's infrastructure SIP 
under CAA section 110(a)(2).
    Comment 14: The commenter points to a 2013 MPCA report showing 
PM2.5 monitoring data, and also points out sources of 
PM2.5 emissions including the Sherco Plant, Taconite Harbor 
Plant, and Silica mining industry, and alleges that Minnesota is close 
to exceeding the NAAQS. The commenter concludes that EPA cannot approve 
the infrastructure SIP for the 2012 PM2.5 NAAQS unless 
Minnesota includes enforceable emission limitations.
    Response 14: 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

[[Page 63447]]

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.
    Minnesota currently has the ability to control emissions of 
PM2.5. MPCA identified enforceable permits and 
administrative orders with SO2 emission limits. In previous 
rulemakings, EPA has approved these permits and orders into Minnesota's 
SIP (see 59 FR 7218, February 15, 1994; 60 FR 31088, June 13, 1995; 62 
FR 39120, July 22, 1997; 65 FR 42861, July 12, 2000; 69 FR 51371, 
August 19, 2004; 72 FR 51713, September 11, 2007; 74 FR 23632, May 20, 
2009; 74 FR 63066, December 2, 2009; 75 FR 11461, March 11, 2010; and 
75 FR 78602, December 16, 2010). Additionally, state rules that have 
been incorporated into Minnesota's SIP (at Minn. R. 7011.0150, 
7011.0500 to 7011.0553, 7011.0600 to 7011.0625, 7011.0710 to 7011.0735, 
7011.0850 to 7011.0859, 7011.0900 to 7011.0922, 7011.1000 to 7011.1015, 
7011.1100 to 7011.1125, 7011.1300 to 7011.1325, and 7011.1400 to 
7011.1430) contain PM emission limits. These regulations support 
compliance with and attainment of the 2012 PM2.5 NAAQS.
    Comment 15: Throughout its letter, Sierra Club alleges that 
Minnesota's infrastructure SIP must include provisions for monitoring 
of emissions of the various NAAQS.
    Response 15: As discussed previously, EPA need not address for the 
purpose of approving Minnesota's infrastructure SIPs whether monitoring 
of emissions is necessary to demonstrate compliance with emission 
limits to show attainment of any NAAQS as EPA believes such emission 
limits and an attainment demonstration when applicable are not a 
prerequisite to our approval of Minnesota's infrastructure SIP. 
Therefore, because EPA finds Minnesota's infrastructure SIPs approvable 
without the additional emission limitations showing attainment of the 
NAAQS, EPA finds the issues of monitoring requirements not relevant at 
this time for our approval of the infrastructure SIP.
    Comment 16: Sierra Club alleges that Minnesota's infrastructure 
SIPs contain no emission limits for the 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS. 
The commenter states that it provided modeling and other evidence 
showing that any limits currently in place are insufficient, and that 
Minnesota is taking little to no action to address any NAAQS 
exceedances. Sierra Club alleges that standards contained within the 
infrastructure SIPs were created for earlier NAAQS, and must be revised 
to reflect the new standards.
    Sierra Club asserts that Minnesota's infrastructure SIP must not 
allow for ambient air incremental increases, variances, exceptions, or 
exclusions with regard to limits placed on sources of pollutants. The 
commenter asserts that Minnesota's rules allow exceptions from 
enforcement, and points to Minn. Stat. 116.07, Minn. R. 7000.7000, and 
Minn. R. 7007.1850 as examples of methods by which MPCA may grant 
variances or undermine emission limits.
    Additionally, the commentator alleges that Minnesota excludes major 
sources of emissions from its major permitting program, allowing these 
sources to emit pollution under fewer restrictions.
    Response 16: 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.
    EPA disagrees with the commenter's claim that Minnesota's 
infrastructure SIP fails to meet any requirements regarding variances. 
As an initial matter, Minn. Stat. 116.07 and Minn. R. 7000.7000 are not 
regulations that have been approved into the SIP. Minn. R. 7007.1850 
grants the source the right to prove a circumstance beyond its control, 
but does not limit Minnesota's enforcement authority. Thus, any 
variance granted by the state pursuant to this provision would not 
modify the requirements of the SIP. Furthermore, for a variance from 
the state to be approved into the SIP, a demonstration must be made 
under CAA section 110(l) showing that the revision does not interfere 
with any requirements of the CAA including attainment or maintenance of 
a NAAQS. We disagree that the existence of this provision as solely a 
matter of state law means that the state does not have adequate 
authority to carry out the implementation plan.
    Finally, we find that there is nothing in the record to support the 
commenter's assertion that Minnesota excludes major sources of 
emissions from the major permitting requirements required under title I 
of the CAA, which is the focus of this action. This action is governed 
by section 110(a)(2), which falls under title I of the CAA and governs 
the implementation, maintenance, and enforcement of the NAAQS. As noted 
above, Minnesota implements the Federal major source PSD program 
through delegated authority from EPA. Since Minnesota already 
administers Federally promulgated PSD regulations through delegation, 
it applies the Federal promulgated regulations in 40 CFR 52.21--not the 
regulations cited in the comment, or any exclusions they may contain--
in determining the major sources subject to title I permitting 
requirements. We also note that the regulations cited in the comment 
apply to part 70 operating permits issued under title V of the CAA and 
certain state permits (see MAR section 7007.0200 and section 7007.0250, 
respectively). Thus, any evaluation of these regulations must be done 
pursuant to CAA section 502 and 40 CFR part 70 and state law, 
respectively, and are not subject to our review under section 
110(a)(2).
    Comment 17: The commenter alleges that the proposed infrastructure 
SIP does not address sources significantly contributing to 
nonattainment or interfering with maintenance of the NAAQS in other 
states as required by section 110(a)(2)(D)(i)(I) of the CAA, and states 
EPA must therefore disapprove the infrastructure SIP. Sierra Club 
states that the CAA requires infrastructure SIPs to address cross-state 
air pollution within three years of the NAAQS promulgation. The 
commenter references the recent Supreme Court decision, EPA v. EME 
Homer City Generation, L.P. et al., 134 S. Ct. 1584 (2014), which 
supports the states' mandatory duty to address cross-state pollution 
under section 110(a)(2)(D)(i)(I).
    Sierra Club additionally alleges that Minnesota cannot rely on the 
absence of nonattainment areas within the state, when determining 
whether Minnesota is contributing to nonattainment or interference with 
maintenance of the NAAQS in downwind states. The commenter also alleges 
that Minnesota cannot rely on a Federal implementation plan (FIP) for 
PSD and an approved NSR permitting program when determining that 
Minnesota is not contributing to nonattainment or interference with 
maintenance of the

[[Page 63448]]

NAAQS in downwind states. Sierra Club additionally alleges that PSD and 
NSR programs address only new sources, and also apply only in 
nonattainment areas. The commenter notes that Minnesota has no 
nonattainment areas for the 2008 ozone, 2010 SO2, 2010 
NO2, and 2012 PM2.5 NAAQS.
    Response 17: EPA disagrees with Sierra Club's statement that EPA 
must disapprove the submitted infrastructure SIPs due to Minnesota's 
failure to address section 110(a)(2)(D)(i)(I). In EPA's NPR proposing 
to approve Minnesota's infrastructure SIP for the 2008 ozone, 2010 
SO2, 2010 NO2, and 2012 PM2.5 NAAQS, 
EPA clearly stated that it was not taking any final action with respect 
to the good neighbor provision in section 110(a)(2)(D)(i)(I) which 
addresses emissions that significantly contribute to nonattainment or 
interfere with maintenance of the NAAQS in another state for the 2008 
ozone, 2010 SO2, and 2012 PM2.5 NAAQS. Minnesota 
did not make a SIP submission to address the requirements of section 
110(a)(2)(D)(i)(I) for the 2008 ozone, 2010 SO2, and 2012 
PM2.5 NAAQS, and thus there is no such submission upon which 
EPA could take action under section 110(k) of the CAA. EPA cannot act 
under section 110(k) to disapprove a SIP submission that has not been 
submitted to EPA. EPA also disagrees with the commenter that EPA cannot 
approve an infrastructure SIP submission without the good neighbor 
provision. EPA additionally believes there is no basis for the 
contention that EPA has triggered its obligation to issue a FIP 
addressing the good neighbor obligation under section 110(c), as EPA 
has neither found that Minnesota failed to timely submit a required 
110(a)(2)(D)(i)(I) SIP submission as to the 2008 ozone, 2010 
SO2, and 2012 PM2.5 NAAQS or made such a 
submission that was incomplete, nor has EPA disapproved a SIP 
submission addressing 110(a)(2)(D)(i)(I) with respect to the 2008 
ozone, 2010 SO2, and 2012 PM2.5 NAAQS.
    EPA acknowledges the commenter's concern for the interstate 
transport of air pollutants and agrees in general with the commenter 
that sections 110(a)(1) and (a)(2) of the CAA generally require states 
to submit, within three years of promulgation of a new or revised 
NAAQS, a plan which addresses cross-state air pollution under section 
110(a)(2)(D)(i)(I). However, EPA disagrees with the commenter's 
argument that EPA cannot approve an infrastructure SIP submission 
without the good neighbor provision. Section 110(k)(3) of the CAA 
authorizes EPA to approve a plan in full, disapprove it in full, or 
approve it in part and disapprove it in part, depending on the extent 
to which such plan meets the requirements of the CAA. This authority to 
approve state SIP revisions in separable parts was included in the 1990 
Amendments to the CAA to overrule a decision in the Court of Appeals 
for the Ninth Circuit holding that EPA could not approve individual 
measures in a plan submission without either approving or disapproving 
the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 
3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 
F.2d 1071 (9th Cir. 1987)). EPA interprets its authority under section 
110(k)(3) of the CAA, as affording EPA the discretion to approve or 
conditionally approve individual elements of Minnesota's infrastructure 
SIP submission for the various NAAQS, separate and apart from any 
action with respect to the requirements of section 110(a)(2)(D)(i)(I) 
of the CAA with respect to each NAAQS. EPA views discrete 
infrastructure SIP requirements, such as the requirements of 
110(a)(2)(D)(i)(I), as severable from the other infrastructure elements 
and interprets section 110(k)(3) as allowing it to act on individual 
severable measures in a plan submission. In short, EPA believes that 
even if Minnesota had made a SIP submission for section 
110(a)(2)(D)(i)(I) of the CAA for the 2008 ozone, 2010 SO2, 
and 2012 PM2.5 NAAQS, which to date it has not, EPA would 
still have discretion under section 110(k) of the CAA to act upon the 
various individual elements of the state's infrastructure SIP 
submission, separately or together, as appropriate.
    The commenter raises no compelling legal or environmental rationale 
for an alternate interpretation. Nothing in the Supreme Court's April 
2014 decision in EME Homer City alters our interpretation that we may 
act on individual severable measures, including the requirements of 
section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer 
City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation 
to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) 
independent of EPA's action finding significant contribution or 
interference with maintenance). In sum, the concerns raised by the 
commenter do not establish that it is inappropriate or unreasonable for 
EPA to approve the portions of Minnesota's June 12, 2014, 
infrastructure SIP submission for the 2010 SO2 NAAQS.
    Furthermore, as discussed above, EPA has no obligation to issue a 
FIP pursuant to 110(c)(1) to address Minnesota's obligations under 
section 110(a)(2)(D)(i)(I) until EPA first either finds Minnesota 
failed to make the required submission addressing the element or the 
State has made such a submission but it is incomplete, or EPA 
disapproves a SIP submittal addressing that element. Until either 
occurs, EPA does not have the authority to issue a FIP pursuant to 
section 110(c) with respect to the good neighbor provision. Therefore, 
EPA disagrees with the commenter's contention that it must issue a FIP 
for Minnesota to address 110(a)(2)(D)(i)(I) at this time.
    Sierra Club claims that Minnesota may not rely on the absence of 
nonattainment areas within the state, a FIP for PSD, or an approved 
nonattainment NSR permitting program when determining that Minnesota is 
not contributing to nonattainment or interference with maintenance of 
the NAAQS in downwind states. In fact, EPA is not taking action on 
110(a)(2)(D)(i)(I) at this time for the 2008 ozone, 2010 
SO2, and 2012 PM2.5 NAAQS, and therefore these 
comments are not relevant to this rulemaking. EPA is indeed addressing 
the transport provisions of Minnesota's infrastructure SIP for the 2010 
NO2 NAAQS, but here EPA is making this determination in part 
because no state has a nonattainment area for the 2010 NO2 
NAAQS, and it is impossible for any state to contribute to 
nonattainment when no nonattainment areas actually exist. Sierra Club's 
comments are not relevant for a NAAQS with no nonattainment areas in 
any state.
    Comment 18: The commenter contends that Minnesota does not have the 
adequate personnel, funding, and authority, required by section 
110(a)(2)(E) of the CAA, to properly implement the SIP, shown by 
overdue permits and improper reissuing of expired permits. The 
commenter contends that permits for the Taconite Harbor Plant and 
Boswell Plant have expired, and this may allow these plants to ``exceed 
the 2010 SO2 NAAQS.''
    Response 18: EPA disagrees that the issue raised by the commenter 
implies that MPCA does not meet the criteria of section 110(a)(2)(E). 
Although title V programs are not a component of the SIP, EPA fully 
approved Minnesota's title V program on December 4, 2001 (66 FR 62967). 
Minnesota has funding for its program through title V fees, and has the 
authority to implement the programs though a number of state rules to 
implement 40 CFR part 70, and dedicated staff for implementation of 
their title V program.

[[Page 63449]]

    Comment 19: Sierra Club alleges that section 110(a)(2)(J) of the 
CAA requires states to provide for public notification of exceedances 
of the NAAQS. Sierra Club further asserts that section 110(a)(2)(J) 
requires states to satisfy section 127 of the CAA, which mandates that 
each SIP must contain provisions for notifying the public of instances 
or areas of primary NAAQS exceedances, and additionally advise the 
public of associated health hazards. Sierra Club further alleges that 
Minnesota's SIP cites provisions that in fact do not require public 
notification procedures. Sierra Club notes that Minnesota's 
infrastructure SIP states that a portion of the MPCA Web site is 
dedicated to enhancing public awareness of measures that can be taken 
to prevent exceedances for the NAAQS.
    Response 19: Sierra Club correctly notes that 110(a)(2)(J) of the 
CAA requires states to satisfy the requirements of section 127 of the 
CAA. Section 127 requires a state's infrastructure SIP to contain 
measures allowing the state to notify the public upon the exceedance of 
a NAAQS, to advise the public of the health hazards, and to enhance 
public awareness. The CAA, which was last amended in 1990, further 
states that ``[s]uch measures may include the posting of warning signs 
on interstate highway access points to metropolitan areas or 
television, radio, or press notices or information.'' Here in the year 
2015, Minnesota has a Web site. This Web site contains much more 
information than, for example, a warning sign on a highway. MPCA's Web 
site allows Minnesotans to learn about air quality issues, view a 
current air quality index, review reports to the legislature, and 
access air quality alerts for ozone. As Sierra Club noted, MPCA 
submitted a link to this Web site as part of its infrastructure SIP. 
The Web site does contain sections dedicated to enhancing public 
awareness of measures that can be taken to prevent exceedances for the 
NAAQS. EPA believes Minnesota has fully satisfied its public 
notification requirements under section 110(a)(2)(J) of the CAA.
    Comment 20: Sierra Club asserts that EPA must disapprove 
Minnesota's infrastructure SIP because it does not address the 
visibility protection provisions of section 110(a)(2)(J).
    Response 20: The visibility requirements in part C of the CAA that 
are referenced in section 110(a)(2)(J) are not affected by the 
establishment or revision of a NAAQS. As a result, there are no 
``applicable'' visibility protection obligations associated with the 
promulgation of a new or revised NAAQS. Because there are no applicable 
requirements, states are not required to address section 110(a)(2)(J) 
in their infrastructure SIP.

III. What action is EPA taking?

    EPA is taking final action to approve most elements of submissions 
from Minnesota certifying that its current SIP is sufficient to meet 
the required infrastructure elements under section 110(a)(1) and (2) 
for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS. We are also disapproving some elements of the 
state's submission as they relate to its PSD program. As described 
above, Minnesota already administers Federally promulgated PSD 
regulations through delegation, and therefore no practical effect is 
associated with this disapproval of those elements.
    The proposed rulemaking associated with this final action was 
published on June 26, 2015 (75 FR 36743), and EPA received one comment 
during the comment period, which ended on July 27, 2015. For the 
reasons discussed in the proposed rulemaking and in the above response 
to the public comment, EPA is therefore taking final action to approve 
most elements and disapprove certain elements, as proposed, of 
Minnesota's submissions. EPA's actions for the state's satisfaction of 
infrastructure SIP requirements, by element of section 110(a)(2) and 
NAAQS, are contained in the table below.

----------------------------------------------------------------------------------------------------------------
                     Element                        2008 Ozone       2010 NO2        2010 SO2       2012 PM2.5
----------------------------------------------------------------------------------------------------------------
(A)--Emission limits and other control measures.              A               A               A               A
(B)--Ambient air quality monitoring/data system.              A               A               A               A
(C)1--Program for enforcement of control                      A               A               A               A
 measures.......................................
(C)2--PSD.......................................              D               D               D               D
(D)1--I Prong 1: Interstate transport--                      NA               A              NA              NA
 significant contribution.......................
(D)2--I Prong 2: Interstate transport--interfere             NA               A              NA              NA
 with maintenance...............................
(D)3--II Prong 3: Interstate transport--                      D               D               D               D
 prevention of significant deterioration........
(D)4--II Prong 4: Interstate transport--protect              NA              NA              NA              NA
 visibility.....................................
(D)5--Interstate and international pollution                  D               D               D               D
 abatement......................................
(E)1--Adequate resources........................              A               A               A               A
(E)2--State board requirements..................             NA              NA              NA              NA
(F)--Stationary source monitoring system........              A               A               A               A
(G)--Emergency power............................              A               A               A               A
(H)--Future SIP revisions.......................              A               A               A               A
(I)--Nonattainment planning requirements of part              *               *               *               *
 D..............................................
(J)1--Consultation with government officials....              A               A               A               A
(J)2--Public notification.......................              A               A               A               A
(J)3--PSD.......................................              D               D               D               D
(J)4--Visibility protection.....................              *               *               *               *
(K)--Air quality modeling/data..................              A               A               A               A
(L)--Permitting fees............................              A               A               A               A
(M)--Consultation and participation by affected               A               A               A               A
 local entities.................................
----------------------------------------------------------------------------------------------------------------

    In the above table, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A.................................  Approve.
D.................................  Disapprove.
NA................................  No Action/Separate Rulemaking.
*.................................  Not germane to infrastructure SIPs.
------------------------------------------------------------------------

VI. 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

[[Page 63450]]

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 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 December 21, 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, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

    Dated: September 23, 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.  52.1220, the table in paragraph (e) is amended by adding 
entries at the end of the table for ``Section 110(a)(2) Infrastructure 
Requirements for the 2008 ozone NAAQS,'' ``Section 110(a)(2) 
Infrastructure Requirements for the 2010 nitrogen dioxide 
(NO2) NAAQS,'' ``Section 110(a)(2) Infrastructure 
Requirements for the 2010 sulfur dioxide (SO2) NAAQS,'' and 
``Section 110(a)(2) Infrastructure Requirements for the 2012 fine 
particulate matter (PM2.5) NAAQS'' to read as follows:


Sec.  52.1220  Identification of plan.

* * * * *
    (e) * * *

                                 EPA-Approved Minnesota Nonregulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                                         State  submittal
  Name of nonregulatory  SIP    Applicable  geographic    date/effective     EPA approved          Comments
           provision            or  nonattainment area         date              date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)               Statewide.............  6/12/2014          10/20/2015,       This action
 Infrastructure Requirements                             (submittal date).  [insert Federal   addresses the
 for the 2008 ozone NAAQS.                                                  Register          following CAA
                                                                            citation].        elements:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L), and
                                                                                              (M). We are not
                                                                                              taking action on
                                                                                              (D)(i)(I), the
                                                                                              visibility portion
                                                                                              of (D)(i)(II), or
                                                                                              the state board
                                                                                              requirements of
                                                                                              (E)(ii). We will
                                                                                              address these
                                                                                              requirements in a
                                                                                              separate action.
                                                                                              EPA is
                                                                                              disapproving the
                                                                                              elements related
                                                                                              to the prevention
                                                                                              of significant
                                                                                              deterioration,
                                                                                              specifically as
                                                                                              they pertain to
                                                                                              section
                                                                                              110(a)(2)(C),
                                                                                              (D)(i)(II),
                                                                                              (D)(ii), and (J);
                                                                                              however, Minnesota
                                                                                              continues to
                                                                                              implement the
                                                                                              Federally
                                                                                              promulgated rules
                                                                                              for this purpose.

[[Page 63451]]

 
Section 110(a)(2)               Statewide.............  6/12/2014          10/20/2015,       This action
 Infrastructure Requirements                             (submittal date).  [insert Federal   addresses the
 for the 2010 nitrogen dioxide                                              Register          following CAA
 (NO2) NAAQS.                                                               citation].        elements:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L), and
                                                                                              (M). We are not
                                                                                              taking action on
                                                                                              the visibility
                                                                                              portion of
                                                                                              (D)(i)(II) or the
                                                                                              state board
                                                                                              requirements of
                                                                                              (E)(ii). We will
                                                                                              address these
                                                                                              requirements in a
                                                                                              separate action.
                                                                                              EPA is
                                                                                              disapproving the
                                                                                              elements related
                                                                                              to the prevention
                                                                                              of significant
                                                                                              deterioration,
                                                                                              specifically as
                                                                                              they pertain to
                                                                                              section
                                                                                              110(a)(2)(C),
                                                                                              (D)(i)(II),
                                                                                              (D)(ii), and (J);
                                                                                              however, Minnesota
                                                                                              continues to
                                                                                              implement the
                                                                                              Federally
                                                                                              promulgated rules
                                                                                              for this purpose.
Section 110(a)(2)               Statewide.............  6/12/2014          10/20/2015,       This action
 Infrastructure Requirements                             (submittal date).  [insert Federal   addresses the
 for the 2010 sulfur dioxide                                                Register          following CAA
 (SO2) NAAQS.                                                               citation].        elements:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L), and
                                                                                              (M). We are not
                                                                                              taking action on
                                                                                              (D)(i)(I), the
                                                                                              visibility portion
                                                                                              of (D)(i)(II), or
                                                                                              the state board
                                                                                              requirements of
                                                                                              (E)(ii). We will
                                                                                              address these
                                                                                              requirements in a
                                                                                              separate action.
                                                                                              EPA is
                                                                                              disapproving the
                                                                                              elements related
                                                                                              to the prevention
                                                                                              of significant
                                                                                              deterioration,
                                                                                              specifically as
                                                                                              they pertain to
                                                                                              section
                                                                                              110(a)(2)(C),
                                                                                              (D)(i)(II),
                                                                                              (D)(ii), and (J);
                                                                                              however, Minnesota
                                                                                              continues to
                                                                                              implement the
                                                                                              Federally
                                                                                              promulgated rules
                                                                                              for this purpose.
Section 110(a)(2)               Statewide.............  6/12/2014          10/20/2015,       This action
 Infrastructure Requirements                             (submittal date).  [insert Federal   addresses the
 for the 2012 fine particulate                                              Register          following CAA
 matter (PM2.5) NAAQS.                                                      citation].        elements:
                                                                                              110(a)(2)(A), (B),
                                                                                              (C), (D), (E),
                                                                                              (F), (G), (H),
                                                                                              (J), (K), (L), and
                                                                                              (M). We are not
                                                                                              taking action on
                                                                                              (D)(i)(I), the
                                                                                              visibility portion
                                                                                              of (D)(i)(II), or
                                                                                              the state board
                                                                                              requirements of
                                                                                              (E)(ii). We will
                                                                                              address these
                                                                                              requirements in a
                                                                                              separate action.
                                                                                              EPA is
                                                                                              disapproving the
                                                                                              elements related
                                                                                              to the prevention
                                                                                              of significant
                                                                                              deterioration,
                                                                                              specifically as
                                                                                              they pertain to
                                                                                              section
                                                                                              110(a)(2)(C),
                                                                                              (D)(i)(II),
                                                                                              (D)(ii), and (J);
                                                                                              however, Minnesota
                                                                                              continues to
                                                                                              implement the
                                                                                              Federally
                                                                                              promulgated rules
                                                                                              for this purpose.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-25969 Filed 10-19-15; 8:45 am]
 BILLING CODE 6560-50-P

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