Air Plan Approval; New Hampshire; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standards, 44542-44554 [2016-15623]
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Federal Register / Vol. 81, No. 131 / Friday, July 8, 2016 / Rules and Regulations
The bridge owner, Connecticut
Department of Transportation, requested
a temporary deviation from the normal
operating schedule to perform timber
ties replacement and steel repairs at the
bridge.
Under this temporary deviation, the
Metro-North Devon Bridge will operate
according to the schedule below:
a. From 8 a.m. on September 6, 2016
through 4 a.m. on September 9, 2016,
the bridge will not open to marine
traffic.
b. From 4 a.m. on September 9, 2016
through 8 a.m. on September 12, 2016,
the bridge will open fully on signal
upon 24 hr advance notice.
c. From 8 a.m. on September 12, 2016
through 4 a.m. on September 16, 2016,
the bridge will not open to marine
traffic.
d. From 4 a.m. on September 16, 2016
through 8 a.m. on September 19, 2016,
the bridge will open fully on signal
upon 24 hr advance notice.
Vessels able to pass under the bridge
in the closed position may do so at
anytime. The bridge will not be able to
open for emergencies and there is no
immediate alternate route for vessels to
pass.
The Coast Guard will inform the users
of the waterways through our Local
Notice and Broadcast to Mariners of the
change in operating schedule for the
bridge so that vessel operations can
arrange their transits to minimize any
impact caused by the temporary
deviation.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the effective period of this
temporary deviation. This deviation
from the operating regulations is
authorized under 33 CFR 117.35.
Dated: July 5, 2016.
C.J. Bisignano,
Supervisory Bridge Management Specialist,
First Coast Guard District.
[FR Doc. 2016–16187 Filed 7–7–16; 8:45 am]
BILLING CODE 9110–04–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R01–OAR–2012–0950; FRL–9948–58–
Region 1]
Air Plan Approval; New Hampshire;
Infrastructure Requirements for the
2010 Sulfur Dioxide National Ambient
Air Quality Standards
Environmental Protection
Agency (EPA).
AGENCY:
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ACTION:
Final rule.
The Environmental Protection
Agency (EPA) is approving elements of
State Implementation Plan (SIP)
submissions from New Hampshire
regarding the infrastructure
requirements of the Clean Air Act (CAA
or Act) for the 2010 sulfur dioxide
National Ambient Air Quality Standards
(NAAQS). EPA is also updating the
classification for two of New
Hampshire’s air quality control regions
for sulfur dioxide based on recent air
quality monitoring data collected by the
state. Last, we are conditionally
approving certain elements of New
Hampshire’s submittal relating to
prevention of significant deterioration
requirements.
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.
DATES: This final rule is effective on
August 8, 2016.
ADDRESSES: EPA has established a
docket for this action under Docket ID
Number EPA–R01–OAR–2012–0950. All
documents in the docket are listed in
the www.regulations.gov Web site.
Although listed in the electronic docket,
some information is not publicly
available, i.e., confidential business
information (CBI) or other information
whose disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available at https://www.regulations.gov
or at the U.S. Environmental Protection
Agency, EPA New England Regional
Office, Office of Ecosystem Protection,
Air Quality Planning Unit, 5 Post Office
Square, Suite 100, Boston, MA. EPA
requests that if at all possible, you
contact the contact listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional
Office’s official hours of business are
Monday through Friday, 8:30 a.m. to
4:30 p.m., excluding legal holidays.
FOR FURTHER INFORMATION CONTACT:
Donald Dahl, (617) 918–1657, or by
email at dahl.donald@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document whenever
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
EPA.
Organization of this document. The
following outline is provided to aid in
locating information in this preamble.
SUMMARY:
I. Summary of SIP Revision
II. Public Comments
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A. Sierra Club General Comments on
Emission Limitations
1. The Plain Language of the CAA
2. The Legislative History of the CAA
3. Case Law
4. EPA Regulations, Such as 40 CFR
51.112(a)
5. EPA Interpretations in Other
Rulemakings
B. Sierra Club Comments on New
Hampshire SIP SO2 Emission Limits
III. Final Action
IV. Statutory and Executive Order Reviews
I. Summary of SIP Revision
On June 22, 2010 (75 FR 35520), EPA
promulgated a revised NAAQS for the
1-hour primary SO2 at a level of 75 parts
per billion (ppb), based on a 3-year
average of the annual 99th percentile of
1-hour daily maximum concentrations.
Pursuant to section 110(a)(1) of the
CAA, states are required to submit SIPs
meeting the applicable requirements of
section 110(a)(2) within three years after
promulgation of a new or revised
NAAQS or within such shorter period
as EPA may prescribe.
On September 13, 2013, the New
Hampshire Department of
Environmental Services (NH DES)
submitted a SIP revision addressing
infrastructure elements specified in
section 110(a)(2) of the CAA to
implement, maintain, and enforce the
2010 sulfur dioxide NAAQS. On July
17, 2015 (80 FR 42446), EPA published
a notice of proposed rulemaking (NPR)
for the State of New Hampshire
proposing approval of New Hampshire’s
submittal. In the NPR, EPA proposed
approval of the following infrastructure
elements: Section 110(a)(2)(A), (B), (C)
(enforcement and minor new source
review), (D)(i)(II) (Visibility Protection),
(D)(ii) (International Pollution
Abatement), (E)(i) and (ii), (F), (G), (H),
(J) (consultation, public notification,
and visibility protection), (K), (L), and
(M), or portions thereof. EPA also
proposed to approve the PSD program
relating to infrastructure elements
(C)(ii), D(i)(II), D(ii), and (J)(iii), except
to conditionally approve the aspect of
the PSD program relating to notification
to neighboring states. Within the same
NPR, EPA also proposed taking similar
action on New Hampshire’s
infrastructure SIP submittals for the
2008 lead, 2008 ozone, and the 2010
nitrogen dioxide standards. EPA has
already finalized its action on the
infrastructure SIPs for the 2008 lead,
2008 ozone, and the 2010 nitrogen
dioxide standards (80 FR 78139,
December 16, 2015).
In New Hampshire’s September 13,
2013 infrastructure SIP for the SO2
NAAQS, the state did not submit
section 110(a)(2)(I) which pertains to the
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nonattainment requirements of part D,
Title I of the CAA, since this element is
not required to be submitted by the
3-year submission deadline of section
110(a)(1), and will be addressed in a
separate process. This rulemaking
action also does not include action on
section 110(a)(2)(D)(i)(I) of the CAA,
because New Hampshire’s September
13, 2013 infrastructure SIP submittal
did not include provisions for this
element. EPA will take later, separate
action on section 110(a)(2)(D)(i)(I) for
the 2010 SO2 NAAQS for New
Hampshire.
The rationale supporting EPA’s
proposed rulemaking action, including
the scope of infrastructure SIPs in
general, is explained in the published
NPR. The NPR is available in the docket
for this rulemaking at
www.regulations.gov, Docket ID Number
EPA–R01–OAR–2012–0950.
II. Public Comments and EPA’s
Responses
EPA received comments from the
Sierra Club on the August 17, 2015
proposed rulemaking action on New
Hampshire’s 2010 SO2 infrastructure
SIP. A full set of these comments is
provided in the docket for this final
rulemaking action.
A. Sierra Club General Comments on
Emission Limitations
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1. The Plain Language of the CAA
Comment 1: Sierra Club (hereafter
referred to as Commenter) contends that
the plain language of section
110(a)(2)(A) of the CAA, legislative
history of the CAA, case law, EPA
regulations such as 40 CFR 51.112(a),
and EPA interpretations in prior
rulemakings require that infrastructure
SIPs include enforceable emission limits
that ensure attainment and maintenance
of the NAAQS. Accordingly,
Commenter contends that any
infrastructure SIP where emission limits
are inadequate to prevent exceedances
of the NAAQS must be disapproved.
The Commenter states the main
objective of the infrastructure SIP
process ‘‘is to ensure that all areas of the
country meet the NAAQS’’ and states
that nonattainment areas are addressed
through ‘‘nonattainment SIPs.’’ The
Commenter asserts the NAAQS ‘‘are the
foundation upon which air emissions
limitations and standards for the entire
country are set,’’ including specific
emission limitations for most large
stationary sources, such as coal-fired
power plants. The Commenter discusses
the CAA’s framework whereby states
have primary responsibility to assure air
quality within the state, which the states
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carry out through SIPs such as
infrastructure SIPs required by section
110(a)(2). The Commenter also states
that on its face the CAA requires
infrastructure SIPs ‘‘to prevent
exceedances of the NAAQS.’’ In
support, the Commenter quotes the
language in section 110(a)(1), which
requires states to adopt a plan for
implementation, maintenance, and
enforcement of the NAAQS, and the
language in section 110(a)(2)(A), which
requires SIPs to include enforceable
emissions limitations as may be
necessary to meet the requirements of
the CAA, which the Commenter claims
includes attainment and maintenance of
the NAAQS. The Commenter also notes
the use of the word ‘‘attain’’ in section
110(a)(2)(H)(ii) and suggests this is
further evidence that the emission limits
provided for in section 110(a)(2)(A)
must ensure attainment of the NAAQS.
Response 1: EPA disagrees that
section 110 is clear on its face and must
be interpreted in the manner suggested
by the Commenter. As we have
previously explained in response to the
Commenter’s similar comments on
EPA’s actions approving other states’
infrastructure SIPs, section 110 is only
one provision that is part of the
complicated structure governing
implementation of the NAAQS program
under the CAA, as amended in 1990,
and it must be interpreted in the context
of not only that structure, but also of the
historical evolution of that structure.1
EPA interprets infrastructure SIPs as
more general planning SIPs, consistent
with the CAA as understood in light of
its history and structure. When Congress
enacted the CAA in 1970, it did not
include provisions requiring states and
the EPA to label areas as attainment or
nonattainment. Rather, states were
required to include all areas of the state
in ‘‘air quality control regions’’ (AQCRs)
and section 110 set forth the core
substantive planning provisions for
these AQCRs. At that time, Congress
anticipated that states would be able to
address air pollution quickly pursuant
to the very general planning provisions
in section 110 and could bring all areas
into compliance with a new NAAQS
within five years. Moreover, at that
time, section 110(a)(2)(A)(i) specified
that the section 110 plan provide for
1 See 80 FR 46494 (Aug. 5, 2015) (approving
Pennsylvania SO2 and ozone infrastructure SIP); 80
FR 11557 (Mar. 4, 2015) (approving Virginia SO2
infrastructure SIP); 79 FR 62022 (Oct. 16, 2014)
(approving West Virginia SO2 infrastructure SIP); 79
FR 19001 (Apr. 7, 2014) (approving West Virginia
ozone infrastructure SIP); 79 FR 17043 (Mar. 27,
2014) (approving Virginia ozone infrastructure SIP);
and 80 FR 63436 (Oct. 20, 2015) (approving
Minnesota ozone, NO2, SO2, and PM2.5
infrastructure SIP).
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‘‘attainment’’ of the NAAQS and section
110(a)(2)(B) specified that the plan must
include ‘‘emission limitations,
schedules, and timetables for
compliance with such limitations, and
such other measures as may be
necessary to insure attainment and
maintenance [of the NAAQS].’’
In 1977, Congress recognized that the
existing structure was not sufficient and
many areas were still violating the
NAAQS. At that time, Congress for the
first time added provisions requiring
states and EPA to identify whether areas
of a state were violating the NAAQS
(i.e., were nonattainment) or were
meeting the NAAQS (i.e., were
attainment) and established specific
planning requirements in section 172
for areas not meeting the NAAQS. In
1990, many areas still had air quality
not meeting the NAAQS and Congress
again amended the CAA and added yet
another layer of more prescriptive
planning requirements for each of the
NAAQS. At that same time, Congress
modified section 110 to remove
references to the section 110 SIP
providing for attainment, including
removing pre-existing section
110(a)(2)(A) in its entirety and
renumbering subparagraph (B) as
section 110(a)(2)(A). Additionally,
Congress replaced the clause ‘‘as may be
necessary to insure attainment and
maintenance [of the NAAQS]’’ with ‘‘as
may be necessary or appropriate to meet
the applicable requirements of this
chapter.’’ 2 Thus, the CAA has
significantly evolved in the more than
40 years since it was originally enacted.
While at one time section 110 of the
CAA did provide the only detailed SIP
planning provisions for states and
specified that such plans must provide
for attainment of the NAAQS, under the
structure of the current CAA, section
110 is only the initial stepping-stone in
the planning process for a specific
NAAQS. More detailed, later-enacted
2 The Commenter misses the mark by citing the
word ‘‘attain’’ in CAA section 110(a)(2)(H) as
evidence that the emission limits submitted to
satisfy the infrastructure requirements of
110(a)(2)(A) must ensure attainment of the NAAQS.
That portion of section 110(a)(2)(H) is referencing
CAA section 110(k)(5)—the ‘‘SIP call’’ process—
which allows the Administrator to make a finding
of substantial inadequacy with respect to a SIP. As
discussed at proposal, the existence of section
110(k)(5) bolster’s the reasonableness of EPA’s
approach to infrastructure SIP requirements, which
is based on a reasonable reading of sections
110(a)(1) and 110(a)(2). Section 110(k)(5) is one of
the avenues and mechanisms Congress provided to
address specific substantive deficiencies in existing
SIPs. The SIP call process allows EPA to take
appropriately tailored action, depending upon the
nature and severity of the alleged SIP deficiency.
Section 110(a)(2)(H)(ii) ensures that the relevant
state agency has the authority to revise the SIP in
response to a SIP call.
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provisions govern the substantive
planning process, including planning
for attainment of the NAAQS.
Thus, section 110 of the CAA is only
one provision of the complicated overall
structure governing implementation of
the NAAQS program under the CAA, as
amended in 1990, and must be
interpreted in the context of that
structure and the historical evolution of
that structure. In light of the revisions
to section 110 since 1970 and the later
promulgated and more specific planning
requirements of the CAA, EPA
reasonably interprets the requirement in
section 110(a)(2)(A) of the CAA that the
plan provide for ‘‘implementation,
maintenance and enforcement’’ to mean
that the SIP must contain enforceable
emission limits that will aid in attaining
and/or maintaining the NAAQS and that
the state demonstrate that it has the
necessary tools to implement and
enforce a NAAQS, such as adequate
state personnel and an enforcement
program. EPA has interpreted the
requirement for emission limitations in
section 110 to mean that a 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 has stated in the
2013 Guidance on Infrastructure State
Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1)
and 110(a)(2) (‘‘2013 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.’’ 2013
Infrastructure SIP Guidance at p. 1–2.3
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2. The Legislative History of the CAA
Comment 2: The Commenter cites two
excerpts from the legislative history of
the 1970 CAA, claiming they support an
interpretation that SIP revisions under
CAA section 110 must include
emissions limitations sufficient to show
3 Thus, EPA disagrees with the Commenter’s
general assertion that the main objective of
infrastructure SIPs is to ensure all areas of the
country meet the NAAQS, as we believe the
infrastructure SIP process is the opportunity to
review the structural requirements of a state’s air
program. While the NAAQS can be a foundation
upon which emission limitations are set, as
explained in responses to subsequent comments,
these emission limitations are generally set in the
attainment planning process envisioned by part D
of title I of the CAA, including, but not limited to,
CAA sections 172, 181–182, and 191–192.
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maintenance of the NAAQS in all areas
of the state. The Commenter also
contends that the legislative history of
the CAA supports the interpretation that
infrastructure SIPs under section
110(a)(2) must include enforceable
emission limitations, citing the Senate
Committee Report and the subsequent
Senate Conference Report
accompanying the 1970 CAA.
Response 2: As provided in the
previous response, the CAA, as enacted
in 1970, including its legislative history,
cannot be interpreted in isolation from
the later amendments that refined that
structure and deleted relevant language
from section 110 concerning
demonstrating attainment. See also 79
FR at 17046 (responding to comments
on Virginia’s ozone infrastructure SIP).
In any event, the two excerpts of
legislative history the Commenter cites
merely provide that states should
include enforceable emission limits in
their SIPs, and they do not mention or
otherwise address whether states are
required to include maintenance plans
for all areas of the state as part of the
infrastructure SIP.
3. Case Law
Comment 3: The Commenter also
discusses several cases applying the
CAA which the Commenter claims
support its contention that courts have
been clear that section 110(a)(2)(A)
requires enforceable emissions limits in
infrastructure SIPs to prevent
exceedances of the NAAQS. The
Commenter first cites to language in
Train v. Natural Resources Defense
Council, 421 U.S. 60, 78 (1975),
addressing the requirement for
‘‘emission limitations’’ and stating that
emission limitations ‘‘are the specific
rules to which operators of pollution
sources are subject, and which if
enforced should result in ambient air
which meets the national standards.’’
The Commenter also cites Pennsylvania
Department of Environmental Resources
v. EPA, 932 F.2d 269, 272 (3d Cir. 1991),
for the proposition that the CAA directs
EPA to withhold approval of a SIP
where it does not ensure maintenance of
the NAAQS, and to Mision Industrial,
Inc. v. EPA, 547 F.2d 123, 129 (1st Cir.
1976), which quoted section 110(a)(2)(B)
of the CAA of 1970. The Commenter
contends that the 1990 Amendments do
not alter how courts have interpreted
the requirements of section 110, quoting
Alaska Department of Environmental
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
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Commenter also quotes several
additional opinions in this vein,
including Montana Sulphur & Chemical
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 national ambient air
quality standards (‘NAAQS’) through
enforceable emission limitations.’’) and
Hall v. EPA, 273 F.3d 1146, 1161 (9th
Cir. 2001) (EPA’s analysis is required to
‘‘reflect consideration of the prospects
of meeting current attainment
requirements under a revised air quality
plan.’’). Finally, the Commenter cites
Michigan Department of Environmental
Quality v. Browner, for the proposition
that an infrastructure SIP must
‘‘include[] emission limitations that
result in compliance with the NAAQS.’’
230 F.3d 181, 185 (6th Cir. 2000) (citing
Train, 421 U.S. at 79).
Response 3: None of the cases the
Commenter cites support its contention
that section 110(a)(2)(A) is clear that
infrastructure SIPs must include
detailed plans providing for attainment
and maintenance of the NAAQS in all
areas of the state, nor do they shed light
on how section 110(a)(2)(A) may
reasonably be interpreted. With the
exception of Train, none of the cases the
Commenter cites concerned the
interpretation of CAA section
110(a)(2)(A) (or section 110(a)(2)(B) of
the pre-1990 Act). Rather, the courts
reference section 110(a)(2)(A) (or section
110(a)(2)(B) of the pre-1990 CAA) in the
background sections of decisions in the
context of a challenge to an EPA action
on revisions to a SIP that was required
and approved or disapproved as
meeting other provisions of the CAA or
in the context of an enforcement action.
In Train, 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
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needs to provide for attainment or
whether emissions limits providing
such are needed as part of the SIP;
rather the issue was which statutory
provision governed when the state
wanted to revise the emission limits in
its SIP if such revision would not
impact attainment or maintenance of the
NAAQS. To the extent the holding in
the case has any bearing on how section
110(a)(2)(A) might be interpreted, it is
important to realize that in 1975, when
the opinion was issued, section
110(a)(2)(B) (the predecessor to section
110(a)(2)(A)) expressly referenced the
requirement to attain the NAAQS, a
reference that was removed in 1990.
The decision in Pennsylvania
Department of Environmental 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 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 decision in this case
has no bearing here.4 In Montana
Sulphur, the Court was not reviewing an
infrastructure SIP, but rather EPA’s
disapproval of a SIP and promulgation
of a federal implementation plan (FIP)
after a long history of the state failing to
submit an adequate SIP in response to
EPA’s finding under section 110(k)(5)
that the previously approved SIP was
substantially inadequate to attain or
maintain the NAAQS. The Court cited
generally to sections 107 and
110(a)(2)(A) of the CAA for the
proposition that SIPs should assure
attainment and maintenance of NAAQS
through emission limitations, but this
4 To the extent the comments could be read to
include an assertion that New Hampshire’s SIP does
not contain any ‘‘emissions limitations’’ relevant to
SO2, it should be noted that state regulations at
Env-A Chapter 400, Sulfur Content Limits in Fuels,
which EPA previously approved into the state’s SIP,
see 40 CFR 52.1520(c), are similar to the regulations
that the Mision court found to be an ‘‘emission
limitation’’ in 1976. See 547 F.2d at 129.
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language was not part of the Court’s
holding in the case, which focused
instead on whether EPA’s finding of SIP
inadequacy, disapproval of the state’s
required responsive attainment
demonstration under section 110(k)(5),
and adoption of a remedial FIP under
section 110(c) were lawful. The
Commenter suggests that Alaska
Department of Environmental
Conservation 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 made no mention of the
changed language. Furthermore, the
Commenter also quotes the Court’s
statement that ‘‘SIPs must include
certain measures Congress specified,’’
but that statement specifically
referenced the requirement in section
110(a)(2)(C), which requires an
enforcement program and a program for
the regulation of the modification and
construction of new sources. Notably, at
issue in that case was the state’s ‘‘new
source’’ permitting program, not its
infrastructure SIP.
Two of the other cases the Commenter
cites, Michigan Department of
Environmental Quality and Hall,
interpret CAA section 110(l), the
provision governing ‘‘revisions’’ to
plans, and not the initial plan
submission requirement under section
110(a)(2) for a new or revised NAAQS,
such as the infrastructure SIP at issue in
this instance. In those cases, the courts
cited to section 110(a)(2)(A) solely for
the purpose of providing a brief
background of the CAA.
EPA does not believe any of these
court decisions addressed required
measures for infrastructure SIPs and
believes nothing in the opinions
addressed whether infrastructure SIPs
need to contain measures to ensure
attainment and maintenance of the
NAAQS.
4. EPA Regulations, Such as 40 CFR
51.112(a)
Comment 4: The Commenter cites to
40 CFR 51.112(a), providing that 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 infrastructure SIPs to include
emissions limits necessary to ensure
attainment and maintenance of the
NAAQS. The Commenter states the
provisions of 40 CFR 51.112 are not
limited to nonattainment SIPs and
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instead apply to infrastructure SIPs,
which are required to attain and
maintain the NAAQS in all areas of a
state. The Commenter relies on a
statement in the preamble to the 1986
action restructuring and consolidating
provisions in part 51, in which EPA
stated that ‘‘[i]t is beyond the scope of
th[is] rulemaking to address the
provisions of Part D of the Act . . .’’ 51
FR 40656, 40656 (Nov. 7, 1986). The
Commenter asserts 40 CFR 51.112(a)
‘‘identifies the plans to which it applies
as those that implement the NAAQS,’’
which it contends means that
§ 51.112(a) is applicable to
infrastructure SIPs.
Response 4: The Commenter’s
reliance on 40 CFR 51.112 to support its
argument that infrastructure SIPs must
contain emission limits adequate to
ensure attainment and maintenance of
the NAAQS is not supported. As an
initial matter, EPA notes this regulatory
provision was initially promulgated and
later restructured and consolidated prior
to the CAA Amendments of 1990, in
which Congress removed all references
to ‘‘attainment’’ in section 110(a)(2)(A).
And, it is clear on its face that 40 CFR
51.112 applies to plans specifically
designed to attain the NAAQS. EPA
interprets these provisions to apply
when states are developing ‘‘control
strategy’’ SIPs such as the detailed
attainment and maintenance plans
required under other provisions of the
CAA, as amended in 1977 and again in
1990, such as sections 175A, 181–182,
and 191–192. The Commenter suggests
that these provisions must apply to
section 110 SIPs because in the
preamble to EPA’s action ‘‘restructuring
and consolidating’’ provisions in part
51, EPA stated the new attainment
demonstration provisions in the 1977
Amendments to the CAA were ‘‘beyond
the scope’’ of the rulemaking. It is
important to note, however, that EPA’s
action in 1986 was not to establish new
substantive planning requirements, but
rather was meant merely to consolidate
and restructure provisions that had
previously been promulgated. EPA
noted that it had already issued
guidance addressing the new ‘‘Part D’’
attainment planning obligations. Also,
as to maintenance regulations, EPA
expressly stated that it was not making
any revisions other than to re-number
those provisions. 51 FR 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 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
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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
40,660. Thus, the present-day 40 CFR
51.112 contains consolidated provisions
that are focused on control strategy SIPs,
and the infrastructure SIP is not such a
plan.
5. EPA Interpretations in Other
Rulemakings
Comment 5: The Commenter
references a prior EPA rulemaking
action where EPA disapproved a SIP
and claims that action shows EPA relied
on section 110(a)(2)(A) and 40 CFR
51.112 to reject the SIP. The Commenter
points to a 2006 partial approval and
partial disapproval of revisions to
Missouri’s existing control strategy
plans addressing the SO2 NAAQS. The
Commenter claims EPA cited section
110(a)(2)(A) for disapproving a revision
to the state plan on the basis that the
State failed to demonstrate the SIP was
sufficient to ensure maintenance of the
SO2 NAAQS after revision of an
emission limit and claims EPA cited to
40 CFR 51.112 as requiring that a plan
demonstrates the rules in a SIP are
adequate to attain the NAAQS. The
Commenter claims the revisions to
Missouri’s control strategy SIP for SO2
were rejected by EPA because the
revised control strategy limits were also
in Missouri’s infrastructure SIP and thus
the weakened limits would have
impacted the infrastructure SIP’s ability
to aid in attaining and maintaining the
NAAQS.
Response 5: EPA does not agree the
prior Missouri rulemaking action
referenced by the Commenter
establishes how EPA reviews
infrastructure SIPs. It is clear from the
final Missouri rule that EPA was not
reviewing initial infrastructure SIP
submissions under section 110 of the
CAA, but rather reviewing revisions that
would make an already approved SIP
designed to demonstrate attainment of
the NAAQS less stringent. EPA’s partial
approval and partial disapproval of
revisions to restrictions on emissions of
sulfur compounds for the Missouri SIP
in 71 FR 12623 addressed a control
strategy SIP and not an infrastructure
SIP. Nothing in that action addresses the
necessary content of the initial
infrastructure SIP for a new or revised
NAAQS.
B. Sierra Club Comments on New
Hampshire SIP SO2 Emission Limits
The Commenter contends that the
New Hampshire 2010 SO2 infrastructure
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SIP revisions did not revise the existing
SO2 emission limits in response to the
2010 SO2 NAAQS and fail to comport
with assorted CAA requirements for
SIPs to establish enforceable emission
limits that are adequate to prohibit
NAAQS exceedances in areas not
designated nonattainment.
Comment 6: Citing section
110(a)(2)(A) of the CAA, the Commenter
contends that EPA may not approve
New Hampshire’s proposed 2010 SO2
infrastructure SIP, because it does not
include SO2 emissions limits or other
required measures sufficient to ensure
attainment and maintenance of the SO2
NAAQS in areas not designated
nonattainment, which the Commenter
claims is required by section
110(a)(2)(A), and because it does not
include SO2 emission limits ‘‘set in light
of the 2010 SO2 NAAQS or even
analyzed in light of the standard.’’ The
Commenter also contended that section
110(a)(2)(A) requires not only that the
state air agency has the authority to
adopt future emission limitations, but
that the SIP include existing substantive
emission limitations. The Commenter
also provided results from a refined air
dispersion modeling analysis that
evaluated SO2 impacts from Schiller
Station, which the commenter asserts
demonstrate that SO2 emission limits
relied on in the infrastructure SIP are
insufficient to prevent exceedances of
the NAAQS in both New Hampshire
and Maine and claims that emissions
from this source can in theory, and have
in practice, resulted in exceedances of
the 2010 SO2 NAAQS. Lastly, the
commenter asserted the structure of the
Act makes clear that Congress did not
intend states to be relieved of their
infrastructure SIP obligations under
section 110(a)(2)(A) until designations
occur. For all of these reasons, the
Commenter maintained that EPA should
disapprove New Hampshire’s SO2
infrastructure SIP and promulgate a FIP.
Response 6: EPA disagrees with the
Commenter that EPA must disapprove
New Hampshire’s SO2 infrastructure SIP
for the reasons provided by the
Commenter, including the Commenter’s
modeling results and the state’s
allegedly insufficient SO2 emission
limits. EPA is not in this action making
a determination regarding the State’s
current air quality status or regarding
whether its control strategy is sufficient
to attain and maintain the NAAQS.
Therefore, EPA is not in this action
making any judgment on whether the
Commenter’s submitted modeling
demonstrates the NAAQS exceedances
that the Commenter claims. EPA
believes that section 110(a)(2)(A) of the
CAA is reasonably interpreted to require
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states to submit infrastructure SIPs that
reflect the first step in their planning for
attainment and maintenance of a new or
revised NAAQS. These SIP revisions
should contain a demonstration the
state has the available tools and
authority to develop and implement
plans to attain and maintain the NAAQS
and show that the SIP has enforceable
control measures. In light of the
structure of the CAA, EPA’s
longstanding position regarding
infrastructure SIPs is that they are
general planning SIPs to ensure that the
state has adequate resources and
authority to implement a NAAQS in
general throughout the state and not
detailed attainment and maintenance
plans for each individual area of the
state. As mentioned above, EPA has
interpreted this to mean with regard to
the requirement for emission limitations
that states may rely on measures already
in place to address the pollutant at issue
or any new control measures that the
state may choose to submit. As stated in
response to a previous more general
comment, section 110 of the CAA is
only one provision that is part of the
complicated structure governing
implementation of the NAAQS program
under the CAA, as amended in 1990,
and it must be interpreted in the context
of not only that structure, but also of the
historical evolution of that structure. In
light of the revisions to section 110
since 1970 and the later-promulgated
and more specific planning
requirements of the CAA, EPA
reasonably interprets the requirement in
section 110(a)(2)(A) of the CAA that the
plan provide for ‘‘implementation,
maintenance and enforcement’’ to mean
that the SIP must contain enforceable
emission limits that will aid in attaining
and/or maintaining the NAAQS and that
the State demonstrate that it has the
necessary tools to implement and
enforce a NAAQS, such as adequate
state personnel and an enforcement
program. As discussed above, EPA has
interpreted the requirement for emission
limitations in section 110 to mean 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 2013 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
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making a substantive SIP revision to
update the SIP, or both.’’ 2013
Infrastructure SIP Guidance at p. 2. On
April 12, 2012, EPA explained its
expectations regarding implementation
of the 2010 SO2 NAAQS via letters to
each of the states. EPA communicated
in the April 2012 letters that all states
were expected to submit SIPs meeting
the ‘‘infrastructure’’ SIP requirements
under section 110(a)(2) of the CAA by
June 2013. At the time, EPA was
undertaking a stakeholder outreach
process to continue to develop possible
approaches for determining attainment
status under the SO2 NAAQS and
implementing this NAAQS. EPA made
abundantly clear in the April 2012
letters that EPA did not expect states to
submit substantive attainment
demonstrations or modeling
demonstrations showing attainment for
areas not designated nonattainment in
infrastructure SIPs due in June 2013.
Although EPA had previously suggested
in its 2010 SO2 NAAQS preamble and
in prior draft implementation guidance
in 2011 that states should, in the unique
SO2 context, use the section 110(a) SIP
process as the vehicle for demonstrating
attainment of the NAAQS, this approach
was never adopted as a binding
requirement and was subsequently
discarded in the April 2012 letters to
states. The April 2012 letters
recommended states focus infrastructure
SIPs due in June 2013, such as New
Hampshire’s SO2 infrastructure SIP, on
traditional ‘‘infrastructure elements’’ in
section 110(a)(1) and (2) rather than on
modeling demonstrations for future
attainment for areas not designated as
nonattainment.5 Therefore, EPA asserts
5 In EPA’s final SO NAAQS preamble, 75 FR
2
35520 (June 22, 2010), and subsequent draft
guidance in March and September 2011, EPA had
expressed its expectation that many areas would be
initially designated as unclassifiable due to
limitations in the scope of the ambient monitoring
network and the short time available before which
states could conduct modeling to support their
designations recommendations due in June 2011. In
order to address concerns about potential violations
in these unclassifiable areas, EPA initially
recommended that states submit substantive
attainment demonstration SIPs based on air quality
modeling by June 2013 (under section 110(a)) that
show how their unclassifiable areas would attain
and maintain the NAAQS in the future.
Implementation of the 2010 Primary 1-Hour SO2
NAAQS, Draft White Paper for Discussion, May
2012 (‘‘2012 Draft White Paper’’) (for discussion
purposes with Stakeholders at meetings in May and
June 2012), available at https://www.epa.gov/
airquality/sulfurdioxide/implement.html. However,
EPA clearly stated in this 2012 Draft White Paper
its clarified implementation position that it was no
longer recommending such attainment
demonstrations for unclassifiable areas for June
2013 infrastructure SIPs. Id. EPA had stated in the
preamble to the NAAQS and in the prior 2011 draft
guidance that EPA intended to develop and seek
public comment on guidance for modeling and
development of SIPs for sections 110 and 191 of the
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that evaluations of modeling
demonstrations such as the one
submitted by the Commenter are more
appropriately considered in actions that
make determinations regarding states’
current air quality status or regarding
future air quality status. EPA also
asserts that SIP revisions for SO2
nonattainment areas, including
measures and modeling demonstrating
attainment, are due by the dates
statutorily prescribed under subpart 5
under part D. Those submissions are
due no later than 18 months after an
area is designated nonattainment for
SO2, under CAA section 191(a). Thus,
the CAA directs states to submit these
SIP requirements that are specific for
nonattainment areas on a separate
schedule from the ‘‘structural
requirements’’ of 110(a)(2) which are
due within three years of adoption or
revision of a NAAQS and which apply
statewide. The infrastructure SIP
submission requirement does not move
up the date for any required submission
of a part D plan for areas designated
nonattainment for the new NAAQS.
Thus, elements relating to
demonstrating attainment for areas not
attaining the NAAQS are not necessary
for infrastructure SIP submissions,6 and
the CAA does not provide explicit
requirements for demonstrating
attainment for areas that have not yet
been designated regarding attainment
with a particular NAAQS. As stated
previously, EPA believes that the proper
inquiry at this juncture is whether New
Hampshire has met the basic structural
SIP requirements appropriate at the
point in time EPA is acting upon the
infrastructure submittal. Emissions
limitations and other control measures
needed to attain the NAAQS in areas
designated nonattainment for that
NAAQS are due on a different schedule
from the section 110 infrastructure
elements. A state, like New Hampshire,
may reference preexisting SIP emission
limits or other rules contained in part D
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 2013 Infrastructure SIP
Guidance.
6 For this reason, EPA disagrees with the
comment that the infrastructure SIP process is the
appropriate mechanism in which to demonstrate
that emission limitations for Merrimack Station are
sufficient to ensure the Central New Hampshire
nonattainment area attains the standard.
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44547
plans for previous NAAQS in an
infrastructure SIP submission. New
Hampshire’s existing rules and emission
reduction measures in the SIP that
control emissions of SO2 were discussed
in the state’s submittal.7 These
provisions have the ability to reduce
SO2 overall. Although the New
Hampshire SIP relies on measures and
programs used to implement previous
SO2 NAAQS, these provisions are not
limited to reducing SO2 levels to meet
one specific NAAQS and will continue
to provide benefits for the 2010 SO2
NAAQS. Additionally, as discussed in
the NPR, New Hampshire has the ability
to revise its SIP when necessary (e.g. in
the event the Administrator finds the
plan to be substantially inadequate to
attain the NAAQS or otherwise meet all
applicable CAA requirements) as
required under element H of section
110(a)(2).
The requirements for emission
reduction measures for an area
designated nonattainment for the 2010
primary SO2 NAAQS are in sections 172
and 191–192 of the CAA, and therefore,
the appropriate avenue for
implementing requirements for
necessary emission limitations for
demonstrating attainment with the 2010
SO2 NAAQS is through the attainment
planning process contemplated by those
sections of the CAA. On August 5, 2013,
EPA designated as nonattainment most
areas in locations where existing
monitoring data from 2009–2011
indicated violations of the 1-hour SO2
standard. 78 FR 47191. At that time, one
area in New Hampshire had monitoring
data from 2009–2011 indicating
violations of the 1-hour SO2 standard,
and this area was designated
nonattainment in New Hampshire. See
40 CFR 81.330. On March 2, 2015 the
United States District Court for the
Northern District of California entered a
Consent Decree among the EPA, Sierra
Club and Natural Resources Defense
Council to resolve litigation concerning
the deadline for completing
designations for the 2010 SO2 NAAQS.
Pursuant to the terms of the Consent
Decree, EPA will complete additional
designations for all remaining areas of
the country including remaining areas
in New Hampshire.8
7 New Hampshire cites to several SIP approved
emission limitations relevant to SO2 to demonstrate
compliance with section 110(a)(2)(A), including
Chapter Env-A 400 (Sulfur Content Limits in
Fuels)(renumbered Env-A 1600). Thus, to the extent
the Commenter meant to suggest that New
Hampshire only has authority to set future emission
limitations, but that the SIP contains none relevant
to the 2010 SO2 NAAQS, we disagree.
8 The Consent Decree, entered March 2, 2015 by
the United States District Court for the Northern
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For the area designated nonattainment
in New Hampshire in August 2013, the
attainment SIP was due by April 4, 2015
and must contain a demonstration that
the area will attain the 2010 SO2
NAAQS as expeditiously as practicable,
but no later than October 4, 2018
pursuant to sections 172, 191 and 192
of the CAA, including a plan for
enforceable measures to reach
attainment of the NAAQS. Similar
attainment planning SIPs for any
additional areas which EPA
subsequently designates nonattainment
with the 2010 SO2 NAAQS will be due
for such areas within the timeframes
specified in CAA section 191. EPA
believes it is not appropriate to interpret
the overall section 110(a)(2)
infrastructure SIP obligation to require
bypassing the attainment planning
process by imposing separate
requirements outside the attainment
planning process. Such actions would
be disruptive and premature absent
exceptional circumstances and would
interfere with a state’s planning process.
See In the Matter of EME Homer City
Generation LP and First Energy
Generation Corp., Order on Petitions
Numbers III–2012–06, III–2012–07, and
III 2013–01 (July 30, 2014) (hereafter,
Homer City/Mansfield Order) at 10–19
(finding Pennsylvania SIP did not
require imposition of 1-hour SO2
emission limits on sources independent
of the part D attainment planning
process contemplated by the CAA). 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 New
Hampshire must include SO2 emission
limits on sources, where needed, for the
area designated nonattainment to reach
attainment with the 2010 1-hour SO2
NAAQS and for any additional areas
EPA may subsequently designate
nonattainment. EPA agrees that the
structure of the Act makes clear that
Congress did not intend to postpone a
state’s obligation to submit and
infrastructure SIP under section
110(a)(2)(A) until designations occur.
EPA disagrees, however, with the
Commenter’s interpretation that section
110(a)(2)(A) requires a state to submit
SO2 emission limitations for individual
sources during this infrastructure SIP
planning process that ensure attainment
and maintenance of the 2010 SO2
NAAQS. As stated above, in light of the
revisions to section 110 since 1970 and
District of California in Sierra Club and NRDC v.
EPA, Case 3:13–cv–03953–SI (N.D. Cal.) is available
at https://www3.epa.gov/so2designations/pdfs/
201503FinalCourtOrder.pdf.
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the later-promulgated and more specific
planning requirements of the CAA, EPA
reasonably interprets the requirement in
section 110(a)(2)(A) that the plan
provide for ‘‘implementation,
maintenance and enforcement’’ to mean
that the SIP must contain enforceable
emission limits that will aid in attaining
and/or maintaining the NAAQS and that
the State demonstrate that it has the
necessary tools to implement and
enforce a NAAQS.
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, EPA will act in
accordance with the entered Consent
Decree’s schedule for conducting
additional designations for the 2010 SO2
NAAQS and any areas designated
nonattainment must meet the applicable
part D requirements for these areas.
However, because the purpose of an
infrastructure SIP submission is for
more general planning purposes, EPA
does not believe New Hampshire was
obligated during this infrastructure SIP
planning process to account for
controlled SO2 levels at individual
sources to satisfy section 110(a)(2)(A).
See Homer City/Mansfield Order at 10–
19. Regarding the air dispersion
modeling conducted by the Commenter
pursuant to AERMOD for Schiller
Station, EPA does not find the modeling
information relevant at this time for
review of an infrastructure SIP. While
EPA has extensively discussed the use
of modeling for attainment
demonstration purposes and for
designations, EPA has affirmatively
stated such modeling was not needed to
demonstrate attainment for the SO2
infrastructure SIPs under the 2010 SO2
NAAQS. See April 12, 2012 letters to
states regarding SO2 implementation
and Implementation of the 2010 Primary
1-Hour SO2 NAAQS, Draft White Paper
for Discussion, May 2012, available at
https://www.epa.gov/airquality/
sulfurdioxide/implement.html.9 EPA’s
Data Requirements Rule contains a
9 EPA has provided draft guidance for states
regarding modeling analyses to support the
designations process for the 2010 SO2 NAAQS. SO2
NAAQS Designations Modeling Technical
Assistance Document (draft), EPA Office of Air and
Radiation and Office of Air Quality Planning and
Standards, December 2013, available at https://
www.epa.gov/airquality/sulfurdioxide/
implement.html.
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process by which state air agencies
characterize air quality around SO2
sources through ambient monitoring
and/or air quality modeling techniques
and submit such data to the EPA. See,
e.g., 80 FR 51502 (Aug. 21, 2015). The
rule includes a discussion of how EPA
anticipates addressing modeling that
informs determinations of states’ air
quality status under the 2010 SO2
NAAQS. As stated above, EPA believes
it is not appropriate to bypass the
attainment planning process by
imposing separate attainment planning
process requirements outside part D and
into the infrastructure SIP process.
In conclusion, EPA disagrees with the
Commenter’s statements that EPA must
disapprove New Hampshire’s
infrastructure SIP submission because it
does not establish specific enforceable
SO2 emission limits, either on coal-fired
EGUs or other large SO2 sources, in
order to demonstrate attainment and
maintenance with the NAAQS at this
time.10 Because we are approving New
Hampshire’s infrastructure SIP
submission with respect to section
110(a)(2)(A), we need not promulgate a
federal implementation plan. See CAA
section 110(c)(1).
Comment 7: The Commenter claims
that New Hampshire’s proposed SO2
infrastructure SIP lacks emission
limitations for Schiller Station informed
by air dispersion modeling as well as
other large SO2 sources outside of the
nonattainment area and therefore fails to
ensure New Hampshire will attain and
maintain the 2010 SO2 NAAQS. The
Commenter claims EPA must
disapprove the SO2 infrastructure SIP as
it does not ‘‘prevent exceedances’’ or
ensure attainment and maintenance of
the SO2 NAAQS.
Response 7: EPA agrees with the
Commenter that air dispersion
modeling, such as AERMOD, can be an
important tool in the CAA section 107
designations process for SO2 and in
developing SIPs for nonattainment areas
as required by sections 172 and 191–
192, including supporting required
attainment demonstrations. EPA agrees
that prior EPA statements, EPA
guidance, and case law support the use
of air dispersion modeling in the SO2
designations process and attainment
demonstration process, as well as in
analyses of the interstate impact of
transported emissions and whether
existing approved SIPs remain adequate
10 Finally, EPA does not disagree with the
Commenter’s claim that coal-fired EGUs are a large
source of SO2 emissions in New Hampshire based
on the 2011 NEI. However, EPA does not agree that
this information is relevant to our approval of the
infrastructure SIP, which EPA has explained meets
requirements in CAA section 110(a)(2).
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to show attainment and maintenance of
the SO2 NAAQS. However, as provided
in the previous responses, EPA
disagrees with the Commenter that EPA
must disapprove the New Hampshire
SO2 infrastructure SIP for its alleged
failure to include source-specific SO2
emission limits that show no
exceedances of the NAAQS when
modeled or ensure attainment and
maintenance of the NAAQS.
In acting to approve or disapprove an
infrastructure SIP, EPA is not required
to make findings regarding current air
quality status of areas within the state,
such area’s projected future air quality
status, or whether existing emissions
limits in such area are sufficient to meet
a NAAQS in the area. The attainment
planning process detailed in part D of
the CAA, including sections 172 and
191–192 attainment SIPs, is the
appropriate place for the state to
evaluate measures needed to bring instate nonattainment areas into
attainment with a NAAQS and to
impose additional emission limitations
such as SO2 emission limits on specific
sources.
EPA had initially recommended that
states submit substantive attainment
demonstration SIPs based on air quality
modeling in the final 2010 SO2 NAAQS
preamble, 75 FR 35520 (June 22, 2010),
and in subsequent draft guidance issued
in September 2011 for the section 110(a)
SIPs due in June 2013 in order to show
how areas then-expected to be
designated as unclassifiable would
attain and maintain the NAAQS. These
initial statements in the preamble and
2011 draft guidance, presented only in
the context of the new 1-hour SO2
NAAQS and not suggested as a matter
of general infrastructure SIP policy,
were based on EPA’s expectation at the
time that, by June 2012, most areas
would initially be designated as
unclassifiable due to limitations in the
scope of the ambient monitoring
network and the short time available
before which states could conduct
modeling to support designations
recommendations in 2011. However,
after conducting extensive stakeholder
outreach and receiving comments from
the states regarding these initial
statements and the timeline for
implementing the NAAQS, EPA
subsequently stated in the April 12,
2012 letters and in the 2012 Draft White
Paper that EPA was clarifying its 2010
SO2 NAAQS implementation position
and was no longer recommending such
attainment demonstrations supported by
air dispersion modeling for
unclassifiable areas (which had not yet
been designated) for the June 2013
infrastructure SIPs. Instead, EPA
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explained that it expected states to
submit infrastructure SIPs that followed
the general policy EPA had applied
under other NAAQS. EPA then
reaffirmed this position in the February
6, 2013 memorandum, ‘‘Next Steps for
Area Designations and Implementation
of the Sulfur Dioxide National Ambient
Air Quality Standard.’’ 11 As previously
mentioned, EPA had stated in the
preamble to the NAAQS and in the prior
2011 draft guidance that EPA intended
to develop and seek public comment on
guidance for modeling and development
of SIPs for sections 110, 172 and 191–
192 of the CAA. After receiving such
further comment, EPA has now issued
guidance for the nonattainment area
SIPs due pursuant to sections 172 and
191–192. See April 23, 2014 Guidance
for 1-Hour SO2 Nonattainment Area SIP
Submissions. In addition, modeling may
be an appropriate consideration for
states and EPA in further designations
for the SO2 NAAQS in accordance with
the Sierra Club and NRDC Consent
Decree and the data requirements rule
mentioned previously.12 While the EPA
guidance for attainment SIPs and for
designations for CAA section 107 and
the process for characterizing SO2
emissions from larger sources discuss
the use of air dispersion modeling,
EPA’s 2013 Infrastructure SIP Guidance
did not suggest that states use air
dispersion modeling for purposes of the
section 110(a)(2) infrastructure SIP.
Therefore, as discussed previously, EPA
believes the New Hampshire SO2
infrastructure SIP submittal contains the
structural requirements to address
elements in section 110(a)(2) as
discussed in the proposed approval.
EPA believes infrastructure SIPs are
general planning SIPs to ensure that a
state has adequate resources and
authority to implement a NAAQS.
Infrastructure SIP submissions are not
intended to act or fulfill the obligations
of a detailed attainment and/or
maintenance plan for each individual
11 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.
12 The Consent Decree in Sierra Club and NRDC
v. EPA, Case 3:13–cv–03953–SI (N.D. Cal.) is
available at https://www.epa.gov/airquality/
sulfurdioxide/designations/pdfs/
201503FinalCourtOrder.pdf. See 80 FR 51052,
August 21, 2015 (EPA’s data requirements rule). See
also Updated Guidance for Area Designations for
the 2010 Primary Sulfur Dioxide National Ambient
Air Quality Standard, Stephen D. Page, Director,
EPA’s Office of Air Quality Planning Standards,
March 20, 2015, available at https://www.epa.gov/
airquality/sulfurdioxide/pdfs/
20150320SO2designations.pdf.
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44549
area of the state that is not attaining the
NAAQS. While infrastructure SIPs must
address modeling authorities in general
for section 110(a)(2)(K), EPA believes
110(a)(2)(K) requires infrastructure SIPs
to provide the state’s authority for air
quality modeling and for submission of
modeling data to EPA, not specific air
dispersion modeling for large stationary
sources of pollutants. In the proposal for
this rulemaking action, EPA provided
an explanation of New Hampshire’s
ability and authority to conduct air
quality modeling when required and its
authority to submit modeling data to the
EPA. The 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 New Hampshire’s
infrastructure SIP is unrelated to the
section 107 designations process. 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 1hour SO2 NAAQS as part of the NSR/
PSD permit programs. Therefore, as
attainment SIPs, designations, and NSR/
PSD actions are outside the scope of a
required infrastructure SIP for the 2010
SO2 NAAQS for section 110(a), EPA
provides no further response to the
Commenter’s discussion of air
dispersion modeling for these
applications. If the Commenter
resubmits its air dispersion modeling for
the New Hampshire EGU, or updated
modeling information in the appropriate
context, EPA will address the
resubmitted modeling or updated
modeling at that time.
The Commenter, citing administrative
law principles regarding consideration
of comments provided during a
rulemaking process,13 contends that
EPA must consider the modeling data
the Commenter has submitted ‘‘over the
years which demonstrate the
inadequacy of New Hampshire’s rules.’’
For the reasons previously explained,
however, the purpose for which the
Commenter submitted the modeling—
namely, to assert that current air quality
in the area in which Schiller Station is
located does not meet the NAAQS—is
not relevant to EPA’s action on this
infrastructure SIP, and consequently
EPA is not required to consider the
modeling in evaluating the
approvability of the infrastructure SIP.
13 The Commenter cites to Motor Vehicle
Manufacturers Association v. State Farm Mutual
Auto Insurance Co., 463 U.S. 29, 43 (1983) and
NRDC v. EPA, 571 F.3d 1245, 1254 (D.C. Cir. 2009).
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EPA does not believe infrastructure SIPs
must contain emission limitations
informed by air dispersion modeling in
order to meet the requirements of
section 110(a)(2)(A). Thus, EPA has
evaluated the persuasiveness of the
Commenter’s submitted modeling in
finding that it is not relevant to the
approvability of New Hampshire’s
proposed infrastructure SIP for the 2010
SO2 NAAQS, but EPA has made no
judgment regarding whether the
Commenter’s submitted modeling is
sufficient to show violations of the
NAAQS.
While EPA does not believe that
infrastructure SIP submissions are
required to contain emission limits
assuring in-state attainment of the
NAAQS, as suggested by the
Commenter, EPA does recognize that in
the past, states have, in their discretion,
used infrastructure SIP submittals as a
‘vehicle’ for incorporating regulatory
revisions or source-specific emission
limits into the state’s plan. See 78 FR
73442 (December 6, 2013) (approving
regulations Maryland submitted for
incorporation into the SIP along with
the 2008 ozone infrastructure SIP to
address ethics requirements for State
Boards in sections 128 and
110(a)(2)(E)(ii)). While these SIP
revisions are intended to help the state
meet the requirements of section
110(a)(2), these ‘‘ride-along’’ SIP
revisions are not intended to signify that
all infrastructure SIP submittals must, in
order to be approved by EPA, have
similar regulatory revisions or sourcespecific emission limits. Rather, the
regulatory provisions and sourcespecific emission limits the state relies
on when showing compliance with
section 110(a)(2) have, in many cases,
likely already been incorporated into
the state’s SIP prior to each new
infrastructure SIP submission; in some
cases this was done for entirely separate
CAA requirements, such as attainment
plans required under section 172, or for
previous NAAQS.
Comment 8: The Commenter asserts
that EPA may not approve the proposed
New Hampshire SO2 infrastructure SIP
because it fails to include enforceable
emission limitations with a 1-hour
averaging time (or, if longer averaging
periods are used, more stringent
numerical emission limits) that apply at
all times. For support, the Commenter
cites to the definition of ‘‘emission
limitation’’ at CAA section 302(k). The
Commenter also claims EPA has stated
that 1-hour averaging times are
necessary for the 2010 SO2 NAAQS
citing to EPA’s April 23, 2014 Guidance
for 1-Hour SO2 Nonattainment Area SIP
Submissions, a February 3, 2011, EPA
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Region 7 letter to the Kansas
Department of Health and Environment
regarding the need for 1-hour SO2
emission limits in a PSD permit, an EPA
Environmental Appeals Board (EAB)
decision rejecting use of a 3-hour
averaging time for a SO2 limit in a PSD
permit,14 and EPA’s disapproval of a
Missouri SIP that relied on annual
averaging for SO2 emission rates.15
Thus, the Commenter contends EPA
must disapprove New Hampshire’s
infrastructure SIP, which the
Commenter claims fails to require
emission limits with adequate averaging
times.
Response 8: EPA disagrees that EPA
must disapprove the proposed New
Hampshire infrastructure SIP because
the SIP does not contain enforceable
SO2 emission limitations with 1-hour
averaging periods that apply at all times,
as this issue is not appropriate for
resolution at this stage. The comment
does not assert that the SO2 emission
limits in New Hampshire’s SIP are not
enforceable or that they do not apply at
all times, instead the comment focuses
on the lack of 1-hour averaging times.
As EPA has noted previously, the
purpose of the section 110(a)(2) SIP is
to ensure that the State has the
necessary structural components to
implement programs for attainment and
maintenance of the NAAQS.16
While EPA does agree that the
averaging time is a critical consideration
for purposes of substantive SIP
revisions, such as attainment
demonstrations, the averaging time of
existing rules in the SIP is not relevant
for determining that the State has met
the applicable requirements of section
110(a)(2) with respect to the
infrastructure elements addressed in the
present SIP action.17 Therefore, because
14 In re Mississippi Lime Co., 15 E.A.D. 349, 379–
82 (EAB Aug. 9, 2011).
15 71 FR 12623, 12,624 (Mar. 13, 2006)
(disapproving a control strategy SO2 SIP).
16 As EPA has stated, some areas are designated
nonattainment areas pursuant to CAA section 107
for the 2010 SO2 NAAQS in the State. Thus, while
the State, at this time, has an obligation to submit
attainment plans for the 2010 SO2 NAAQS for
sections 172, 191 and 192, EPA believes the
appropriate time for examining necessity of the
averaging periods within any submitted SO2
emission limits on specific sources is within the
attainment planning process.
17 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
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EPA finds New Hampshire’s SO2
infrastructure SIP approvable without
the additional SO2 emission limitations
showing in-state attainment of the
NAAQS, EPA finds the issues of
appropriate averaging periods for such
future limitations not relevant at this
time. The Commenter has cited to prior
EPA discussion on emission limitations
required in PSD permits (from an EAB
decision and EPA’s letter to Kansas’
permitting authority) pursuant to part C
of the CAA, which is neither relevant
nor applicable to the present SIP action.
In addition, as previously discussed, the
EPA disapproval of the 2006 Missouri
SIP was a disapproval relating to a
control strategy SIP required pursuant to
part D attainment planning and is
likewise not relevant to the analysis of
infrastructure SIP requirements.
Comment 9: The Commenter states
that enforceable emission limits in SIPs
are necessary to avoid additional
nonattainment designations in areas
where modeling or monitoring shows
SO2 levels exceed the 1-hour SO2
NAAQS and cites to a February 6, 2013
EPA document, Next Steps for Area
Designations and Implementation of the
Sulfur Dioxide National Ambient Air
Quality Standard, which the
Commenter contends discusses how
states could avoid future nonattainment
designations. The Commenter claims
the modeling it conducted for Schiller
Station indicates exceedances over a
wide area in both New Hampshire and
Maine. The Commenter states that
additional areas in New Hampshire will
have to be designated nonattainment ‘‘if
source-specific enforceable emissions
limits are not placed on PSNH Schiller
Station through this I–SIP.’’ In
summary, the Commenter asserts that,
‘‘in order to implement the NAAQS,
comply with section 110(a)(2)(A), and
avoid additional nonattainment
designations for areas impacted by’’
Schiller Station, EPA must disapprove
the New Hampshire infrastructure SIP
and ensure that emission limits ‘‘relied
upon in the Infrastructure SIP’’ will not
allow large sources of SO2 to cause
exceedances of the 2010 SO2 NAAQS.
Response 9: EPA appreciates the
Commenter’s concern with avoiding
nonattainment designations in New
Hampshire for the 2010 SO2 NAAQS.
However, Congress designed the CAA
such that states have the primary
responsibility for achieving and
maintaining the NAAQS within their
geographic areas by submitting SIPs
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.
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which will specify the details of how
the states will meet the NAAQS.
Pursuant to section 107(d), the states
make initial recommendations of
designations for areas within each state
and EPA then promulgates the
designations after considering the state’s
submission and other information. EPA
promulgated initial designations for the
2010 SO2 NAAQS in August 2013 for
areas in which monitoring at that time
showed violations of the NAAQS, but
has not yet issued designations for other
areas and will complete the required
designations pursuant to the schedule
contained in the recently entered
Consent Decree. EPA will designate
additional areas for the 2010 SO2
NAAQS in accordance with CAA
section 107 and existing EPA policy and
guidance. New Hampshire may, on its
own accord, decide to impose
additional SO2 emission limitations to
avoid future designations to
nonattainment. If additional New
Hampshire areas are designated
nonattainment, New Hampshire will
then have the initial opportunity to
develop additional emissions
limitations needed to attain the NAAQS,
and EPA would be charged with
reviewing whether the SIP is adequate
to demonstrate attainment. See
Commonwealth of Virginia v. EPA, 108
F.3d 1397, 1410 (D.C. Cir. 1997) (citing
Nat. Res. Def. 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). However, such considerations
are not required of New Hampshire at
the infrastructure SIP stage of NAAQS
implementation, as the Commenter’s
statements concern the separate
designations process under section
107.18 EPA disagrees that the
18 EPA also notes that in EPA’s final rule
regarding the 2010 SO2 NAAQS, EPA noted that it
anticipates several forthcoming national and
regional rules, such as the Industrial Boilers
standard under CAA section 112, are likely to
require significant reductions in SO2 emissions over
the next several years. See 75 FR 35520. EPA
continues to believe similar national and regional
rules will lead to SO2 reductions that will help
achieve compliance with the 2010 SO2 NAAQS. If
it appears that states with areas designated
nonattainment in 2013 will nevertheless fail to
attain the NAAQS as expeditiously as practicable
(but no later than October 2018) during EPA’s
review of attainment SIPs required by section 172,
the CAA provides authorities and tools for EPA to
solve such failure, including, as appropriate,
disapproving submitted SIPs and promulgating
federal implementation plans. Likewise, for any
areas designated nonattainment after 2013, EPA has
the same authorities and tools available to address
any areas which do not timely attain the NAAQS.
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infrastructure SIP must be disapproved
for not including enforceable emissions
limitations to prevent future 1-hour SO2
nonattainment designations.
Comment 10: The commenter notes
that New Hampshire did not include a
submittal to satisfy CAA section
110(a)(2)(D)(i)(I) (the so-called ‘‘Good
Neighbor’’ provision) and asserts that, as
a result, ‘‘EPA must take immediate
action here to disapprove the SO2 I–SIP
Certification . . . and initiate the FIP
[Federal Implementation Plan] process
with regard to the I–SIP’s ‘Good
Neighbor’ provisions.’’
Response 10: EPA is not taking any
action at this time with respect to
Element D(i)(I), which addresses
emissions that significantly contribute
to nonattainment or interfere with
maintenance of the NAAQS in another
state, also known as ‘‘good neighbor’’
SIPs or ‘‘interstate transport’’ SIPs. As
the commenter notes, New Hampshire
did not include any provisions to
address the requirements of section
110(a)(2)(D)(i)(I) in its September 13,
2013infrastructure SIP submittal for the
2010 SO2 NAAQS. In the NPR, EPA did
not propose to take any action with
respect to New Hampshire’s obligations
pursuant to section 110(a)(2)(D)(i)(I) for
the September 13, 2013 infrastructure
SIP submittal.
Because New Hampshire did not
make a submission in its September 13,
2013 SIP submittal to address the
requirements of section
110(a)(2)(D)(i)(I), EPA is not required to
have proposed or to take final SIP
approval or disapproval action on this
element under section 110(k) of the
CAA. In this case, there has been no
substantive submission for EPA to
evaluate under section 110(k). Nor does
the lack of a submission addressing
section 110(a)(2)(D)(i)(I) require EPA to
disapprove New Hampshire’s
September 13, 2013 SIP submittal as to
the other elements of section 110(a)(2).
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 New Hampshire’s
infrastructure SIP submissions, separate
and apart from any action with respect
to the requirements of section
110(a)(2)(D)(i)(I) of the CAA. EPA views
discrete infrastructure SIP requirements
in section 110(a)(2), such as the
requirements of 110(a)(2)(D)(i)(I), as
severable from the other infrastructure
elements and interprets section
110(k)(3) as allowing it to act on
individual severable measures in a plan
submission.
On August 21, 2012, the D.C. Circuit
issued a decision in EME Homer City
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44551
Generation, L.P. v. EPA, 696 F.3d 7, 31
(D.C. Cir. 2012), holding, among other
things, that states had no obligation to
submit good neighbor SIPs until the
EPA had first quantified each state’s
good neighbor obligation. Accordingly,
under that decision the submission
deadline for good neighbor SIPs under
the CAA would not necessarily be tied
to the promulgation of a new or revised
NAAQS. While the EPA sought review
first with the D.C. Circuit en banc and
then with the United States Supreme
Court, the EPA complied with the D.C.
Circuit’s ruling during the pendency of
its appeal. The D.C. Circuit declined to
consider EPA’s appeal en banc, but, on
April 29, 2014, the Supreme Court
reversed the D.C. Circuit’s EME Homer
City opinion and held, among other
things, that under the plain language of
the CAA, states must submit SIPs
addressing the good neighbor
requirement in CAA section
110(a)(2)(D)(i)(I) within three years of
promulgation of a new or revised
NAAQS, regardless of whether the EPA
first provides guidance, technical data
or rulemaking to quantify the state’s
obligation.
Pursuant to CAA section 110(c)(1),
EPA is authorized and obligated to
promulgate a FIP, if EPA takes any of
the following actions: (1) Finds that a
state has failed to make a required SIP
submission; (2) finds that a required
submission was incomplete; or (3)
disapproves a required SIP submission
in whole or in part. With respect to the
2010 SO2 NAAQS, EPA has not issued
a finding of failure to submit, issued a
finding of incompleteness, or
disapproved the submission in whole or
in part. Consequently, the two-year FIP
clock has not yet begun to run. EPA
agrees in general that sections 110(a)(1)
and (a)(2) of the CAA require states to
submit, within three years of
promulgation of a new or revised
NAAQS, a plan that addresses crossstate air pollution under section
110(a)(2)(D)(i)(I). In this rulemaking,
however, EPA is only approving
portions of New Hampshire’s
infrastructure SIP submissions for the
2010 SO2 NAAQS, which did not
include provisions for interstate
transport under section
110(a)(2)(D)(i)(I). A finding of failure to
submit a SIP submission for the 2010
SO2 NAAQS addressing section
110(a)(2)(D)(i)(I) could occur in a
separate rulemaking. As that issue was
not addressed in the July 17, 2015
NPR,19 and is thus not pertinent to this
19 See 80 FR 42446, 42452 (July 17, 2015) (‘‘In
today’s rulemaking, EPA is not proposing to
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rulemaking, EPA provides no further
response. In sum, New Hampshire’s and
EPA’s obligations regarding interstate
transport of pollution for the 2010 SO2
NAAQS will be addressed in later
rulemakings.
III. Final Action
EPA is approving a SIP submission
from New Hampshire certifying the
state’s current SIP is sufficient to meet
the required infrastructure elements
under sections 110(a)(1) and (2) for the
2010 SO2 NAAQS, with the exception of
certain aspects relating to the state’s
PSD program which we are
conditionally approving. On September
25, 2015, we conditionally approved the
portion of New Hampshire’s PSD
program that pertains to providing
notification to neighboring states of
certain permitting actions in New
Hampshire. See 80 FR 57722. Therefore,
we are conditionally approving herein
the related portions of New Hampshire’s
infrastructure SIP submittals affected by
our September 25, 2015 conditional
approval. A summary of EPA’s actions
regarding these infrastructure SIP
requirements are contained in Table 1
below.
TABLE 1—ACTION TAKEN ON NH INFRASTRUCTURE SIP SUBMITTALS FOR LISTED NAAQS
2010 SO2
(A): Emission limits and other control measures ................................................................................................................................
(B): Ambient air quality monitoring and data system ..........................................................................................................................
(C)(i): Enforcement of SIP measures ..................................................................................................................................................
(C)(ii): PSD program for major sources and major modifications .......................................................................................................
(C)(iii): Permitting program for minor sources and minor modifications .............................................................................................
(D)(i)(I): Contribute to nonattainment/interfere with maintenance of NAAQS (prongs 1 and 2) .........................................................
(D)(i)(II): PSD (prong 3) .......................................................................................................................................................................
(D)(i)(II): Visibility Protection (prong 4) ................................................................................................................................................
(D)(ii): Interstate Pollution Abatement .................................................................................................................................................
(D)(ii): International Pollution Abatement ............................................................................................................................................
(E)(i): Adequate resources ..................................................................................................................................................................
(E)(ii): State boards .............................................................................................................................................................................
(E)(iii): Necessary assurances with respect to local agencies ............................................................................................................
(F): Stationary source monitoring system ...........................................................................................................................................
(G): Emergency power ........................................................................................................................................................................
(H): Future SIP revisions .....................................................................................................................................................................
(I): Nonattainment area plan or plan revisions under part D ..............................................................................................................
(J)(i): Consultation with government officials ......................................................................................................................................
(J)(ii): Public notification ......................................................................................................................................................................
(J)(iii): PSD ..........................................................................................................................................................................................
(J)(iv): Visibility protection ....................................................................................................................................................................
(K): Air quality modeling and data .......................................................................................................................................................
(L): Permitting fees ..............................................................................................................................................................................
(M): Consultation and participation by affected local entities .............................................................................................................
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Element
A
A
A
A*
A
NS
A*
A
A*
A
A
A
NA
A
A
A
+
A
A
A*
+
A
A
A
In the above table, the key is as
follows:
A—Approve
A*—Approve, but conditionally
approve aspect of PSD program
relating to notification to neighboring
states
+—Not germane to infrastructure SIPs
NS—No Submittal
NA—Not applicable
Additionally, we are updating the
classification of two air quality control
regions in New Hampshire at 40 CFR
52.1521. The classification of the
Androscoggin Valley Interstate control
region is being revised from Priority 1A
to Priority III and the Merrimack
Valley—Southern New Hampshire
Interstate control region is being revised
from Priority I to Priority III based on
recent air quality monitoring data
collected by the state.
EPA is conditionally approving an
aspect of New Hampshire’s SIP revision
submittals pertaining to the state’s PSD
program. The outstanding issue with the
PSD program concerns the lack of a
requirement that neighboring states be
notified of the issuance of a PSD permit
by the New Hampshire Department of
Environmental Services. On September
25, 2015, we conditionally approved
New Hampshire’s PSD program for this
reason. See 80 FR 57722. Accordingly,
we are also conditionally approving this
aspect of New Hampshire’s
infrastructure SIP revisions for the 2010
SO2 NAAQS. New Hampshire must
submit to EPA a SIP submittal
addressing the above mentioned
deficiency in the state’s PSD program
within the timeframe provided within
our September 25, 2015 action. If the
State fails to do so, the elements we are
conditionally approving in this
rulemaking will be disapproved on that
date. EPA will notify the State by letter
that this action has occurred. At that
time, this commitment will no longer be
a part of the approved New Hampshire
SIP. EPA subsequently will publish a
document in the Federal Register
notifying the public that the conditional
approval automatically converted to a
disapproval. If the State meets its
commitment within the applicable time
frame, the conditionally approved
submission will remain a part of the SIP
until EPA takes final action approving
or disapproving the new submittal. If
EPA disapproves the new submittal, the
conditionally approved aspect of New
Hampshire’s PSD program will also be
disapproved at that time. If EPA
approves the revised PSD program
submittal, then the portions of New
Hampshire’s infrastructure SIP
submittals that were conditionally
approved will be fully approved in their
entirety and replace the conditional
approval in the SIP. In addition, final
disapproval of an infrastructure SIP
submittal triggers the Federal
implementation plan (FIP) requirement
under section 110(c).
approve or disapprove New Hampshire’s
compliance with section 110(a)(2)(D)(i)(I) with
respect to the 2008 ozone, 2010 NO2 and 2010 SO2
NAAQS, since New Hampshire’s infrastructure SIPs
for these NAAQS do not include a submittal with
respect to transport for sub-element 1, prongs 1 and
2.’’).
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IV. Statutory and Executive Order
Reviews
Under the Clean Air Act, the
Administrator is required to approve a
SIP submission that complies with the
provisions of the Act and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
state choices, provided that they meet
the criteria of the Clean Air Act.
Accordingly, this action merely
approves state law as meeting Federal
requirements and does not impose
additional requirements beyond those
imposed by state law. For that reason,
this action:
• Is not a significant regulatory action
subject to review by the Office of
Management and Budget under
Executive Orders 12866 (58 FR 51735,
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified 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 Clean Air Act;
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 Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by September 6,
2016. 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)).
44553
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Reporting and recordkeeping
requirements, Sulfur dioxides.
Dated: June 15, 2016.
H. Curtis Spalding,
Regional Administrator, EPA New England.
Part 52 of chapter I, title 40 of the
Code of Federal Regulations is amended
as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart EE—New Hampshire
2. Section 52.1519 is amended by
adding paragraph (a)(11) to read as
follows:
■
§ 52.1519 Identification of plan—
conditional approval.
(a) * * *
(11) 2010 Sulfur Dioxide NAAQS: The
110(a)(2) infrastructure SIP submitted
on September 13, 2013, is conditionally
approved for Clean Air Act (CAA)
elements 110(a)(2)(C)(ii), (D)(i)(II), D(ii),
and (J)(iii) only as it relates to the aspect
of the PSD program pertaining to
providing notification to neighboring
states of certain permitting activity
being considered by New Hampshire.
This conditional approval is contingent
upon New Hampshire taking actions to
address these requirements as detailed
within a final conditional approval
dated September 25, 2015.
*
*
*
*
*
■ 3. In § 52.1520, the table in paragraph
(e) is amended by revising the entry for
‘‘Infrastructure SIP for the 2010 SO2
NAAQS’’ to read as follows:
§ 52.1520
*
Identification of plan.
*
*
(e) * * *
*
*
NEW HAMPSHIRE NONREGULATORY
jstallworth on DSK7TPTVN1PROD with RULES
Name of nonregulatory
SIP provision
*
Infrastructure SIP for the
2010 SO2 NAAQS.
VerDate Sep<11>2014
Applicable
geographic or
nonattainment
area
State submittal
date/effective
date
*
Statewide ..........
17:33 Jul 07, 2016
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*
9/13/2013
Frm 00065
EPA approved date 3
*
7/8/2016 [Insert Federal
Register citation]
Fmt 4700
Sfmt 4700
Explanations
*
*
*
Approved submittal, except for certain aspects relating to PSD which were conditionally approved.
See 52.1519.
E:\FR\FM\08JYR1.SGM
08JYR1
44554
Federal Register / Vol. 81, No. 131 / Friday, July 8, 2016 / Rules and Regulations
NEW HAMPSHIRE NONREGULATORY—Continued
Name of nonregulatory
SIP provision
Applicable
geographic or
nonattainment
area
*
State submittal
date/effective
date
*
EPA approved date 3
*
*
Explanations
*
*
*
3 In
order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision.
4. In § 52.1521, the table is amended
by revising the entries for
‘‘Androscoggin Valley Interstate’’ and
■
§ 52.1521
‘‘Merrimack Valley—Southern New
Hampshire Interstate’’ to read as
follows:
*
*
Classification of regions.
*
*
*
Pollutant
Air quality control region
Particulate
matter
Sulfur oxides
Nitrogen
dioxide
Carbon
monoxide
Ozone
Androscoggin Valley Interstate .............................................
IA
III
III
III
III
*
*
*
Merrimack Valley—Southern New Hampshire Interstate .....
I
*
*
III
*
III
[FR Doc. 2016–15623 Filed 7–7–16; 8:45 am]
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]]>Agencies
[Federal Register Volume 81, Number 131 (Friday, July 8, 2016)]
[Rules and Regulations]
[Pages 44542-44554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15623]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R01-OAR-2012-0950; FRL-9948-58-Region 1]
Air Plan Approval; New Hampshire; Infrastructure Requirements for
the 2010 Sulfur Dioxide National Ambient Air Quality Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is approving
elements of State Implementation Plan (SIP) submissions from New
Hampshire regarding the infrastructure requirements of the Clean Air
Act (CAA or Act) for the 2010 sulfur dioxide National Ambient Air
Quality Standards (NAAQS). EPA is also updating the classification for
two of New Hampshire's air quality control regions for sulfur dioxide
based on recent air quality monitoring data collected by the state.
Last, we are conditionally approving certain elements of New
Hampshire's submittal relating to prevention of significant
deterioration requirements.
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.
DATES: This final rule is effective on August 8, 2016.
ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R01-OAR-2012-0950. All documents in the docket are listed in
the www.regulations.gov Web site. Although listed in the electronic
docket, some information is not publicly available, i.e., confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available at https://www.regulations.gov or at the U.S. Environmental
Protection Agency, EPA New England Regional Office, Office of Ecosystem
Protection, Air Quality Planning Unit, 5 Post Office Square, Suite 100,
Boston, MA. EPA requests that if at all possible, you contact the
contact listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
legal holidays.
FOR FURTHER INFORMATION CONTACT: Donald Dahl, (617) 918-1657, or by
email at dahl.donald@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Organization of this document. The following outline is provided to
aid in locating information in this preamble.
I. Summary of SIP Revision
II. Public Comments
A. Sierra Club General Comments on Emission Limitations
1. The Plain Language of the CAA
2. The Legislative History of the CAA
3. Case Law
4. EPA Regulations, Such as 40 CFR 51.112(a)
5. EPA Interpretations in Other Rulemakings
B. Sierra Club Comments on New Hampshire SIP SO2
Emission Limits
III. Final Action
IV. Statutory and Executive Order Reviews
I. Summary of SIP Revision
On June 22, 2010 (75 FR 35520), EPA promulgated a revised NAAQS for
the 1-hour primary SO2 at a level of 75 parts per billion
(ppb), based on a 3-year average of the annual 99th percentile of 1-
hour daily maximum concentrations. Pursuant to section 110(a)(1) of the
CAA, states are required to submit SIPs meeting the applicable
requirements of section 110(a)(2) within three years after promulgation
of a new or revised NAAQS or within such shorter period as EPA may
prescribe.
On September 13, 2013, the New Hampshire Department of
Environmental Services (NH DES) submitted a SIP revision addressing
infrastructure elements specified in section 110(a)(2) of the CAA to
implement, maintain, and enforce the 2010 sulfur dioxide NAAQS. On July
17, 2015 (80 FR 42446), EPA published a notice of proposed rulemaking
(NPR) for the State of New Hampshire proposing approval of New
Hampshire's submittal. In the NPR, EPA proposed approval of the
following infrastructure elements: Section 110(a)(2)(A), (B), (C)
(enforcement and minor new source review), (D)(i)(II) (Visibility
Protection), (D)(ii) (International Pollution Abatement), (E)(i) and
(ii), (F), (G), (H), (J) (consultation, public notification, and
visibility protection), (K), (L), and (M), or portions thereof. EPA
also proposed to approve the PSD program relating to infrastructure
elements (C)(ii), D(i)(II), D(ii), and (J)(iii), except to
conditionally approve the aspect of the PSD program relating to
notification to neighboring states. Within the same NPR, EPA also
proposed taking similar action on New Hampshire's infrastructure SIP
submittals for the 2008 lead, 2008 ozone, and the 2010 nitrogen dioxide
standards. EPA has already finalized its action on the infrastructure
SIPs for the 2008 lead, 2008 ozone, and the 2010 nitrogen dioxide
standards (80 FR 78139, December 16, 2015).
In New Hampshire's September 13, 2013 infrastructure SIP for the
SO2 NAAQS, the state did not submit section 110(a)(2)(I)
which pertains to the
[[Page 44543]]
nonattainment requirements of part D, Title I of the CAA, since this
element is not required to be submitted by the 3-year submission
deadline of section 110(a)(1), and will be addressed in a separate
process. This rulemaking action also does not include action on section
110(a)(2)(D)(i)(I) of the CAA, because New Hampshire's September 13,
2013 infrastructure SIP submittal did not include provisions for this
element. EPA will take later, separate action on section
110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS for New Hampshire.
The rationale supporting EPA's proposed rulemaking action,
including the scope of infrastructure SIPs in general, is explained in
the published NPR. The NPR is available in the docket for this
rulemaking at www.regulations.gov, Docket ID Number EPA-R01-OAR-2012-
0950.
II. Public Comments and EPA's Responses
EPA received comments from the Sierra Club on the August 17, 2015
proposed rulemaking action on New Hampshire's 2010 SO2
infrastructure SIP. A full set of these comments is provided in the
docket for this final rulemaking action.
A. Sierra Club General Comments on Emission Limitations
1. The Plain Language of the CAA
Comment 1: Sierra Club (hereafter referred to as Commenter)
contends that the plain language of section 110(a)(2)(A) of the CAA,
legislative history of the CAA, case law, EPA regulations such as 40
CFR 51.112(a), and EPA interpretations in prior rulemakings require
that infrastructure SIPs include enforceable emission limits that
ensure attainment and maintenance of the NAAQS. Accordingly, Commenter
contends that any infrastructure SIP where emission limits are
inadequate to prevent exceedances of the NAAQS must be disapproved.
The Commenter states the main objective of the infrastructure SIP
process ``is to ensure that all areas of the country meet the NAAQS''
and states that nonattainment areas are addressed through
``nonattainment SIPs.'' The Commenter asserts the NAAQS ``are the
foundation upon which air emissions limitations and standards for the
entire country are set,'' including specific emission limitations for
most large stationary sources, such as coal-fired power plants. The
Commenter discusses the CAA's framework whereby states have primary
responsibility to assure air quality within the state, which the states
carry out through SIPs such as infrastructure SIPs required by section
110(a)(2). The Commenter also states that on its face the CAA requires
infrastructure SIPs ``to prevent exceedances of the NAAQS.'' In
support, the Commenter quotes the language in section 110(a)(1), which
requires states to adopt a plan for implementation, maintenance, and
enforcement of the NAAQS, and the language in section 110(a)(2)(A),
which requires SIPs to include enforceable emissions limitations as may
be necessary to meet the requirements of the CAA, which the Commenter
claims includes attainment and maintenance of the NAAQS. The Commenter
also notes the use of the word ``attain'' in section 110(a)(2)(H)(ii)
and suggests this is further evidence that the emission limits provided
for in section 110(a)(2)(A) must ensure attainment of the NAAQS.
Response 1: EPA disagrees that section 110 is clear on its face and
must be interpreted in the manner suggested by the Commenter. As we
have previously explained in response to the Commenter's similar
comments on EPA's actions approving other states' infrastructure SIPs,
section 110 is only one provision that is part of the complicated
structure governing implementation of the NAAQS program under the CAA,
as amended in 1990, and it must be interpreted in the context of not
only that structure, but also of the historical evolution of that
structure.\1\
---------------------------------------------------------------------------
\1\ See 80 FR 46494 (Aug. 5, 2015) (approving Pennsylvania
SO2 and ozone infrastructure SIP); 80 FR 11557 (Mar. 4,
2015) (approving Virginia SO2 infrastructure SIP); 79 FR
62022 (Oct. 16, 2014) (approving West Virginia SO2
infrastructure SIP); 79 FR 19001 (Apr. 7, 2014) (approving West
Virginia ozone infrastructure SIP); 79 FR 17043 (Mar. 27, 2014)
(approving Virginia ozone infrastructure SIP); and 80 FR 63436 (Oct.
20, 2015) (approving Minnesota ozone, NO2,
SO2, and PM2.5 infrastructure SIP).
---------------------------------------------------------------------------
EPA interprets infrastructure SIPs as more general planning SIPs,
consistent with the CAA as understood in light of its history and
structure. When Congress enacted the CAA in 1970, it did not include
provisions requiring states and the EPA to label areas as attainment or
nonattainment. Rather, states were required to include all areas of the
state in ``air quality control regions'' (AQCRs) and section 110 set
forth the core substantive planning provisions for these AQCRs. At that
time, Congress anticipated that states would be able to address air
pollution quickly pursuant to the very general planning provisions in
section 110 and could bring all areas into compliance with a new NAAQS
within five years. Moreover, at that time, section 110(a)(2)(A)(i)
specified that the section 110 plan provide for ``attainment'' of the
NAAQS and section 110(a)(2)(B) specified that the plan must include
``emission limitations, schedules, and timetables for compliance with
such limitations, and such other measures as may be necessary to insure
attainment and maintenance [of the NAAQS].''
In 1977, Congress recognized that the existing structure was not
sufficient and many areas were still violating the NAAQS. At that time,
Congress for the first time added provisions requiring states and EPA
to identify whether areas of a state were violating the NAAQS (i.e.,
were nonattainment) or were meeting the NAAQS (i.e., were attainment)
and established specific planning requirements in section 172 for areas
not meeting the NAAQS. In 1990, many areas still had air quality not
meeting the NAAQS and Congress again amended the CAA and added yet
another layer of more prescriptive planning requirements for each of
the NAAQS. At that same time, Congress modified section 110 to remove
references to the section 110 SIP providing for attainment, including
removing pre-existing section 110(a)(2)(A) in its entirety and
renumbering subparagraph (B) as section 110(a)(2)(A). Additionally,
Congress replaced the clause ``as may be necessary to insure attainment
and maintenance [of the NAAQS]'' with ``as may be necessary or
appropriate to meet the applicable requirements of this chapter.'' \2\
Thus, the CAA has significantly evolved in the more than 40 years since
it was originally enacted. While at one time section 110 of the CAA did
provide the only detailed SIP planning provisions for states and
specified that such plans must provide for attainment of the NAAQS,
under the structure of the current CAA, section 110 is only the initial
stepping-stone in the planning process for a specific NAAQS. More
detailed, later-enacted
[[Page 44544]]
provisions govern the substantive planning process, including planning
for attainment of the NAAQS.
---------------------------------------------------------------------------
\2\ The Commenter misses the mark by citing the word ``attain''
in CAA section 110(a)(2)(H) as evidence that the emission limits
submitted to satisfy the infrastructure requirements of 110(a)(2)(A)
must ensure attainment of the NAAQS. That portion of section
110(a)(2)(H) is referencing CAA section 110(k)(5)--the ``SIP call''
process--which allows the Administrator to make a finding of
substantial inadequacy with respect to a SIP. As discussed at
proposal, the existence of section 110(k)(5) bolster's the
reasonableness of EPA's approach to infrastructure SIP requirements,
which is based on a reasonable reading of sections 110(a)(1) and
110(a)(2). Section 110(k)(5) is one of the avenues and mechanisms
Congress provided to address specific substantive deficiencies in
existing SIPs. The SIP call process allows EPA to take appropriately
tailored action, depending upon the nature and severity of the
alleged SIP deficiency. Section 110(a)(2)(H)(ii) ensures that the
relevant state agency has the authority to revise the SIP in
response to a SIP call.
---------------------------------------------------------------------------
Thus, section 110 of the CAA is only one provision of the
complicated overall structure governing implementation of the NAAQS
program under the CAA, as amended in 1990, and must be interpreted in
the context of that structure and the historical evolution of that
structure. In light of the revisions to section 110 since 1970 and the
later promulgated and more specific planning requirements of the CAA,
EPA reasonably interprets the requirement in section 110(a)(2)(A) of
the CAA that the plan provide for ``implementation, maintenance and
enforcement'' to mean that the SIP must contain enforceable emission
limits that will aid in attaining and/or maintaining the NAAQS and that
the state demonstrate that it has the necessary tools to implement and
enforce a NAAQS, such as adequate state personnel and an enforcement
program. EPA has interpreted the requirement for emission limitations
in section 110 to mean that a 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 has stated in the
2013 Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2) (``2013
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.'' 2013 Infrastructure SIP Guidance at p. 1-
2.\3\
---------------------------------------------------------------------------
\3\ Thus, EPA disagrees with the Commenter's general assertion
that the main objective of infrastructure SIPs is to ensure all
areas of the country meet the NAAQS, as we believe the
infrastructure SIP process is the opportunity to review the
structural requirements of a state's air program. While the NAAQS
can be a foundation upon which emission limitations are set, as
explained in responses to subsequent comments, these emission
limitations are generally set in the attainment planning process
envisioned by part D of title I of the CAA, including, but not
limited to, CAA sections 172, 181-182, and 191-192.
---------------------------------------------------------------------------
2. The Legislative History of the CAA
Comment 2: The Commenter cites two excerpts from the legislative
history of the 1970 CAA, claiming they support an interpretation that
SIP revisions under CAA section 110 must include emissions limitations
sufficient to show maintenance of the NAAQS in all areas of the state.
The Commenter also contends that the legislative history of the CAA
supports the interpretation that infrastructure SIPs under section
110(a)(2) must include enforceable emission limitations, citing the
Senate Committee Report and the subsequent Senate Conference Report
accompanying the 1970 CAA.
Response 2: As provided in the previous response, the CAA, as
enacted in 1970, including its legislative history, cannot be
interpreted in isolation from the later amendments that refined that
structure and deleted relevant language from section 110 concerning
demonstrating attainment. See also 79 FR at 17046 (responding to
comments on Virginia's ozone infrastructure SIP). In any event, the two
excerpts of legislative history the Commenter cites merely provide that
states should include enforceable emission limits in their SIPs, and
they do not mention or otherwise address whether states are required to
include maintenance plans for all areas of the state as part of the
infrastructure SIP.
3. Case Law
Comment 3: The Commenter also discusses several cases applying the
CAA which the Commenter claims support its contention that courts have
been clear that section 110(a)(2)(A) requires enforceable emissions
limits in infrastructure SIPs to prevent exceedances of the NAAQS. The
Commenter first cites to language in Train v. Natural Resources Defense
Council, 421 U.S. 60, 78 (1975), addressing the requirement for
``emission limitations'' and stating that emission limitations ``are
the specific rules to which operators of pollution sources are subject,
and which if enforced should result in ambient air which meets the
national standards.'' The Commenter also cites Pennsylvania Department
of Environmental Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991),
for the proposition that the CAA directs EPA to withhold approval of a
SIP where it does not ensure maintenance of the NAAQS, and to Mision
Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which
quoted section 110(a)(2)(B) of the CAA of 1970. The Commenter contends
that the 1990 Amendments do not alter how courts have interpreted the
requirements of section 110, quoting Alaska Department of Environmental
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, including Montana Sulphur & Chemical 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 national ambient air quality standards (`NAAQS') through
enforceable emission limitations.'') and Hall v. EPA, 273 F.3d 1146,
1161 (9th Cir. 2001) (EPA's analysis is required to ``reflect
consideration of the prospects of meeting current attainment
requirements under a revised air quality plan.''). Finally, the
Commenter cites Michigan Department of Environmental Quality v.
Browner, for the proposition that an infrastructure SIP must
``include[] emission limitations that result in compliance with the
NAAQS.'' 230 F.3d 181, 185 (6th Cir. 2000) (citing Train, 421 U.S. at
79).
Response 3: None of the cases the Commenter cites support its
contention that section 110(a)(2)(A) is clear that infrastructure SIPs
must include detailed plans providing for attainment and maintenance of
the NAAQS in all areas of the state, nor do they shed light on how
section 110(a)(2)(A) may reasonably be interpreted. With the exception
of Train, none of the cases the Commenter cites concerned the
interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of
the pre-1990 Act). Rather, the courts reference section 110(a)(2)(A)
(or section 110(a)(2)(B) of the pre-1990 CAA) in the background
sections of decisions in the context of a challenge to an EPA action on
revisions to a SIP that was required and approved or disapproved as
meeting other provisions of the CAA or in the context of an enforcement
action.
In Train, 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
[[Page 44545]]
needs to provide for attainment or whether emissions limits providing
such are needed as part of the SIP; rather the issue was which
statutory provision governed when the state wanted to revise the
emission limits in its SIP if such revision would not impact attainment
or maintenance of the NAAQS. To the extent the holding in the case has
any bearing on how section 110(a)(2)(A) might be interpreted, it is
important to realize that in 1975, when the opinion was issued, section
110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly
referenced the requirement to attain the NAAQS, a reference that was
removed in 1990.
The decision in Pennsylvania Department of Environmental 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 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 decision in this case has no bearing here.\4\ In Montana Sulphur,
the Court was not reviewing an infrastructure SIP, but rather EPA's
disapproval of a SIP and promulgation of a federal implementation plan
(FIP) after a long history of the state failing to submit an adequate
SIP in response to EPA's finding under section 110(k)(5) that the
previously approved SIP was substantially inadequate to attain or
maintain the NAAQS. The Court cited generally to sections 107 and
110(a)(2)(A) of the CAA for the proposition that SIPs should assure
attainment and maintenance of NAAQS through emission limitations, but
this language was not part of the Court's holding in the case, which
focused instead on whether EPA's finding of SIP inadequacy, disapproval
of the state's required responsive attainment demonstration under
section 110(k)(5), and adoption of a remedial FIP under section 110(c)
were lawful. The Commenter suggests that Alaska Department of
Environmental Conservation 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 made no mention of the changed language. Furthermore, the
Commenter also quotes the Court's statement that ``SIPs must include
certain measures Congress specified,'' but that statement specifically
referenced the requirement in section 110(a)(2)(C), which requires an
enforcement program and a program for the regulation of the
modification and construction of new sources. Notably, at issue in that
case was the state's ``new source'' permitting program, not its
infrastructure SIP.
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\4\ To the extent the comments could be read to include an
assertion that New Hampshire's SIP does not contain any ``emissions
limitations'' relevant to SO2, it should be noted that
state regulations at Env-A Chapter 400, Sulfur Content Limits in
Fuels, which EPA previously approved into the state's SIP, see 40
CFR 52.1520(c), are similar to the regulations that the Mision court
found to be an ``emission limitation'' in 1976. See 547 F.2d at 129.
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Two of the other cases the Commenter cites, Michigan Department of
Environmental Quality and Hall, interpret CAA section 110(l), the
provision governing ``revisions'' to plans, and not the initial plan
submission requirement under section 110(a)(2) for a new or revised
NAAQS, such as the infrastructure SIP at issue in this instance. In
those cases, the courts cited to section 110(a)(2)(A) solely for the
purpose of providing a brief background of the CAA.
EPA does not believe any of these court decisions addressed
required measures for infrastructure SIPs and believes nothing in the
opinions addressed whether infrastructure SIPs need to contain measures
to ensure attainment and maintenance of the NAAQS.
4. EPA Regulations, Such as 40 CFR 51.112(a)
Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that
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 infrastructure SIPs to include emissions limits
necessary to ensure attainment and maintenance of the NAAQS. The
Commenter states the provisions of 40 CFR 51.112 are not limited to
nonattainment SIPs and instead apply to infrastructure SIPs, which are
required to attain and maintain the NAAQS in all areas of a state. The
Commenter relies on a statement in the preamble to the 1986 action
restructuring and consolidating provisions in part 51, in which EPA
stated that ``[i]t is beyond the scope of th[is] rulemaking to address
the provisions of Part D of the Act . . .'' 51 FR 40656, 40656 (Nov. 7,
1986). The Commenter asserts 40 CFR 51.112(a) ``identifies the plans to
which it applies as those that implement the NAAQS,'' which it contends
means that Sec. 51.112(a) is applicable to infrastructure SIPs.
Response 4: The Commenter's reliance on 40 CFR 51.112 to support
its argument that infrastructure SIPs must contain emission limits
adequate to ensure attainment and maintenance of the NAAQS is not
supported. As an initial matter, EPA notes this regulatory provision
was initially promulgated and later restructured and consolidated prior
to the CAA Amendments of 1990, in which Congress removed all references
to ``attainment'' in section 110(a)(2)(A). And, it is clear on its face
that 40 CFR 51.112 applies to plans specifically designed to attain the
NAAQS. EPA interprets these provisions to apply when states are
developing ``control strategy'' SIPs such as the detailed attainment
and maintenance plans required under other provisions of the CAA, as
amended in 1977 and again in 1990, such as sections 175A, 181-182, and
191-192. The Commenter suggests that these provisions must apply to
section 110 SIPs because in the preamble to EPA's action
``restructuring and consolidating'' provisions in part 51, EPA stated
the new attainment demonstration provisions in the 1977 Amendments to
the CAA were ``beyond the scope'' of the rulemaking. It is important to
note, however, that EPA's action in 1986 was not to establish new
substantive planning requirements, but rather was meant merely to
consolidate and restructure provisions that had previously been
promulgated. EPA noted that it had already issued guidance addressing
the new ``Part D'' attainment planning obligations. Also, as to
maintenance regulations, EPA expressly stated that it was not making
any revisions other than to re-number those provisions. 51 FR 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
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
[[Page 44546]]
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
40,660. Thus, the present-day 40 CFR 51.112 contains consolidated
provisions that are focused on control strategy SIPs, and the
infrastructure SIP is not such a plan.
5. EPA Interpretations in Other Rulemakings
Comment 5: The Commenter references a prior EPA rulemaking action
where EPA disapproved a SIP and claims that action shows EPA relied on
section 110(a)(2)(A) and 40 CFR 51.112 to reject the SIP. The Commenter
points to a 2006 partial approval and partial disapproval of revisions
to Missouri's existing control strategy plans addressing the
SO2 NAAQS. The Commenter claims EPA cited section
110(a)(2)(A) for disapproving a revision to the state plan on the basis
that the State failed to demonstrate the SIP was sufficient to ensure
maintenance of the SO2 NAAQS after revision of an emission
limit and claims EPA cited to 40 CFR 51.112 as requiring that a plan
demonstrates the rules in a SIP are adequate to attain the NAAQS. The
Commenter claims the revisions to Missouri's control strategy SIP for
SO2 were rejected by EPA because the revised control
strategy limits were also in Missouri's infrastructure SIP and thus the
weakened limits would have impacted the infrastructure SIP's ability to
aid in attaining and maintaining the NAAQS.
Response 5: EPA does not agree the prior Missouri rulemaking action
referenced by the Commenter establishes how EPA reviews infrastructure
SIPs. It is clear from the final Missouri rule that EPA was not
reviewing initial infrastructure SIP submissions under section 110 of
the CAA, but rather reviewing revisions that would make an already
approved SIP designed to demonstrate attainment of the NAAQS less
stringent. EPA's partial approval and partial disapproval of revisions
to restrictions on emissions of sulfur compounds for the Missouri SIP
in 71 FR 12623 addressed a control strategy SIP and not an
infrastructure SIP. Nothing in that action addresses the necessary
content of the initial infrastructure SIP for a new or revised NAAQS.
B. Sierra Club Comments on New Hampshire SIP SO2 Emission
Limits
The Commenter contends that the New Hampshire 2010 SO2
infrastructure SIP revisions did not revise the existing SO2
emission limits in response to the 2010 SO2 NAAQS and fail
to comport with assorted CAA requirements for SIPs to establish
enforceable emission limits that are adequate to prohibit NAAQS
exceedances in areas not designated nonattainment.
Comment 6: Citing section 110(a)(2)(A) of the CAA, the Commenter
contends that EPA may not approve New Hampshire's proposed 2010
SO2 infrastructure SIP, because it does not include
SO2 emissions limits or other required measures sufficient
to ensure attainment and maintenance of the SO2 NAAQS in
areas not designated nonattainment, which the Commenter claims is
required by section 110(a)(2)(A), and because it does not include
SO2 emission limits ``set in light of the 2010
SO2 NAAQS or even analyzed in light of the standard.'' The
Commenter also contended that section 110(a)(2)(A) requires not only
that the state air agency has the authority to adopt future emission
limitations, but that the SIP include existing substantive emission
limitations. The Commenter also provided results from a refined air
dispersion modeling analysis that evaluated SO2 impacts from
Schiller Station, which the commenter asserts demonstrate that
SO2 emission limits relied on in the infrastructure SIP are
insufficient to prevent exceedances of the NAAQS in both New Hampshire
and Maine and claims that emissions from this source can in theory, and
have in practice, resulted in exceedances of the 2010 SO2
NAAQS. Lastly, the commenter asserted the structure of the Act makes
clear that Congress did not intend states to be relieved of their
infrastructure SIP obligations under section 110(a)(2)(A) until
designations occur. For all of these reasons, the Commenter maintained
that EPA should disapprove New Hampshire's SO2
infrastructure SIP and promulgate a FIP.
Response 6: EPA disagrees with the Commenter that EPA must
disapprove New Hampshire's SO2 infrastructure SIP for the
reasons provided by the Commenter, including the Commenter's modeling
results and the state's allegedly insufficient SO2 emission
limits. EPA is not in this action making a determination regarding the
State's current air quality status or regarding whether its control
strategy is sufficient to attain and maintain the NAAQS. Therefore, EPA
is not in this action making any judgment on whether the Commenter's
submitted modeling demonstrates the NAAQS exceedances that the
Commenter claims. EPA believes that section 110(a)(2)(A) of the CAA is
reasonably interpreted to require states to submit infrastructure SIPs
that reflect the first step in their planning for attainment and
maintenance of a new or revised NAAQS. These SIP revisions should
contain a demonstration the state has the available tools and authority
to develop and implement plans to attain and maintain the NAAQS and
show that the SIP has enforceable control measures. In light of the
structure of the CAA, EPA's longstanding position regarding
infrastructure SIPs is that they are general planning SIPs to ensure
that the state has adequate resources and authority to implement a
NAAQS in general throughout the state and not detailed attainment and
maintenance plans for each individual area of the state. As mentioned
above, EPA has interpreted this to mean with regard to the requirement
for emission limitations that states may rely on measures already in
place to address the pollutant at issue or any new control measures
that the state may choose to submit. As stated in response to a
previous more general comment, section 110 of the CAA is only one
provision that is part of the complicated structure governing
implementation of the NAAQS program under the CAA, as amended in 1990,
and it must be interpreted in the context of not only that structure,
but also of the historical evolution of that structure. In light of the
revisions to section 110 since 1970 and the later-promulgated and more
specific planning requirements of the CAA, EPA reasonably interprets
the requirement in section 110(a)(2)(A) of the CAA that the plan
provide for ``implementation, maintenance and enforcement'' to mean
that the SIP must contain enforceable emission limits that will aid in
attaining and/or maintaining the NAAQS and that the State demonstrate
that it has the necessary tools to implement and enforce a NAAQS, such
as adequate state personnel and an enforcement program. As discussed
above, EPA has interpreted the requirement for emission limitations in
section 110 to mean 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 2013
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
[[Page 44547]]
making a substantive SIP revision to update the SIP, or both.'' 2013
Infrastructure SIP Guidance at p. 2. On April 12, 2012, EPA explained
its expectations regarding implementation of the 2010 SO2
NAAQS via letters to each of the states. EPA communicated in the April
2012 letters that all states were expected to submit SIPs meeting the
``infrastructure'' SIP requirements under section 110(a)(2) of the CAA
by June 2013. At the time, EPA was undertaking a stakeholder outreach
process to continue to develop possible approaches for determining
attainment status under the SO2 NAAQS and implementing this
NAAQS. EPA made abundantly clear in the April 2012 letters that EPA did
not expect states to submit substantive attainment demonstrations or
modeling demonstrations showing attainment for areas not designated
nonattainment in infrastructure SIPs due in June 2013. Although EPA had
previously suggested in its 2010 SO2 NAAQS preamble and in
prior draft implementation guidance in 2011 that states should, in the
unique SO2 context, use the section 110(a) SIP process as
the vehicle for demonstrating attainment of the NAAQS, this approach
was never adopted as a binding requirement and was subsequently
discarded in the April 2012 letters to states. The April 2012 letters
recommended states focus infrastructure SIPs due in June 2013, such as
New Hampshire's SO2 infrastructure SIP, on traditional
``infrastructure elements'' in section 110(a)(1) and (2) rather than on
modeling demonstrations for future attainment for areas not designated
as nonattainment.\5\ Therefore, EPA asserts that evaluations of
modeling demonstrations such as the one submitted by the Commenter are
more appropriately considered in actions that make determinations
regarding states' current air quality status or regarding future air
quality status. EPA also asserts that SIP revisions for SO2
nonattainment areas, including measures and modeling demonstrating
attainment, are due by the dates statutorily prescribed under subpart 5
under part D. Those submissions are due no later than 18 months after
an area is designated nonattainment for SO2, under CAA
section 191(a). Thus, the CAA directs states to submit these SIP
requirements that are specific for nonattainment areas on a separate
schedule from the ``structural requirements'' of 110(a)(2) which are
due within three years of adoption or revision of a NAAQS and which
apply statewide. The infrastructure SIP submission requirement does not
move up the date for any required submission of a part D plan for areas
designated nonattainment for the new NAAQS. Thus, elements relating to
demonstrating attainment for areas not attaining the NAAQS are not
necessary for infrastructure SIP submissions,\6\ and the CAA does not
provide explicit requirements for demonstrating attainment for areas
that have not yet been designated regarding attainment with a
particular NAAQS. As stated previously, EPA believes that the proper
inquiry at this juncture is whether New Hampshire has met the basic
structural SIP requirements appropriate at the point in time EPA is
acting upon the infrastructure submittal. Emissions limitations and
other control measures needed to attain the NAAQS in areas designated
nonattainment for that NAAQS are due on a different schedule from the
section 110 infrastructure elements. A state, like New Hampshire, may
reference preexisting SIP emission limits or other rules contained in
part D plans for previous NAAQS in an infrastructure SIP submission.
New Hampshire's existing rules and emission reduction measures in the
SIP that control emissions of SO2 were discussed in the
state's submittal.\7\ These provisions have the ability to reduce
SO2 overall. Although the New Hampshire SIP relies on
measures and programs used to implement previous SO2 NAAQS,
these provisions are not limited to reducing SO2 levels to
meet one specific NAAQS and will continue to provide benefits for the
2010 SO2 NAAQS. Additionally, as discussed in the NPR, New
Hampshire has the ability to revise its SIP when necessary (e.g. in the
event the Administrator finds the plan to be substantially inadequate
to attain the NAAQS or otherwise meet all applicable CAA requirements)
as required under element H of section 110(a)(2).
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\5\ In EPA's final SO2 NAAQS preamble, 75 FR 35520
(June 22, 2010), and subsequent draft guidance in March and
September 2011, EPA had expressed its expectation that many areas
would be initially designated as unclassifiable due to limitations
in the scope of the ambient monitoring network and the short time
available before which states could conduct modeling to support
their designations recommendations due in June 2011. In order to
address concerns about potential violations in these unclassifiable
areas, EPA initially recommended that states submit substantive
attainment demonstration SIPs based on air quality modeling by June
2013 (under section 110(a)) that show how their unclassifiable areas
would attain and maintain the NAAQS in the future. Implementation of
the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper for
Discussion, May 2012 (``2012 Draft White Paper'') (for discussion
purposes with Stakeholders at meetings in May and June 2012),
available at https://www.epa.gov/airquality/sulfurdioxide/implement.html. However, EPA clearly stated in this 2012 Draft White
Paper its clarified implementation position that it was no longer
recommending such attainment demonstrations for unclassifiable areas
for June 2013 infrastructure SIPs. Id. EPA had stated in the
preamble to the NAAQS and in the prior 2011 draft guidance that EPA
intended to develop and seek public comment on guidance for modeling
and development of SIPs for sections 110 and 191 of the CAA. Section
191 of the CAA requires states to submit SIPs in accordance with
section 172 for areas designated nonattainment with the
SO2 NAAQS. After seeking such comment, EPA has now issued
guidance for the nonattainment area SIPs due pursuant to sections
191 and 172. See Guidance for 1-Hour SO2 Nonattainment Area SIP
Submissions, Stephen D. Page, Director, EPA's Office of Air Quality
Planning and Standards, to Regional Air Division Directors Regions
1-10, April 23, 2014. In September 2013, EPA had previously issued
specific guidance relevant to infrastructure SIP submissions due for
the NAAQS, including the 2010 SO2 NAAQS. See 2013
Infrastructure SIP Guidance.
\6\ For this reason, EPA disagrees with the comment that the
infrastructure SIP process is the appropriate mechanism in which to
demonstrate that emission limitations for Merrimack Station are
sufficient to ensure the Central New Hampshire nonattainment area
attains the standard.
\7\ New Hampshire cites to several SIP approved emission
limitations relevant to SO2 to demonstrate compliance
with section 110(a)(2)(A), including Chapter Env-A 400 (Sulfur
Content Limits in Fuels)(renumbered Env-A 1600). Thus, to the extent
the Commenter meant to suggest that New Hampshire only has authority
to set future emission limitations, but that the SIP contains none
relevant to the 2010 SO2 NAAQS, we disagree.
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The requirements for emission reduction measures for an area
designated nonattainment for the 2010 primary SO2 NAAQS are
in sections 172 and 191-192 of the CAA, and therefore, the appropriate
avenue for implementing requirements for necessary emission limitations
for demonstrating attainment with the 2010 SO2 NAAQS is
through the attainment planning process contemplated by those sections
of the CAA. On August 5, 2013, EPA designated as nonattainment most
areas in locations where existing monitoring data from 2009-2011
indicated violations of the 1-hour SO2 standard. 78 FR
47191. At that time, one area in New Hampshire had monitoring data from
2009-2011 indicating violations of the 1-hour SO2 standard,
and this area was designated nonattainment in New Hampshire. See 40 CFR
81.330. On March 2, 2015 the United States District Court for the
Northern District of California entered a Consent Decree among the EPA,
Sierra Club and Natural Resources Defense Council to resolve litigation
concerning the deadline for completing designations for the 2010
SO2 NAAQS. Pursuant to the terms of the Consent Decree, EPA
will complete additional designations for all remaining areas of the
country including remaining areas in New Hampshire.\8\
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\8\ The Consent Decree, entered March 2, 2015 by the United
States District Court for the Northern District of California in
Sierra Club and NRDC v. EPA, Case 3:13-cv-03953-SI (N.D. Cal.) is
available at https://www3.epa.gov/so2designations/pdfs/201503FinalCourtOrder.pdf.
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[[Page 44548]]
For the area designated nonattainment in New Hampshire in August
2013, the attainment SIP was due by April 4, 2015 and must contain a
demonstration that the area will attain the 2010 SO2 NAAQS
as expeditiously as practicable, but no later than October 4, 2018
pursuant to sections 172, 191 and 192 of the CAA, including a plan for
enforceable measures to reach attainment of the NAAQS. Similar
attainment planning SIPs for any additional areas which EPA
subsequently designates nonattainment with the 2010 SO2
NAAQS will be due for such areas within the timeframes specified in CAA
section 191. EPA believes it is not appropriate to interpret the
overall section 110(a)(2) infrastructure SIP obligation to require
bypassing the attainment planning process by imposing separate
requirements outside the attainment planning process. Such actions
would be disruptive and premature absent exceptional circumstances and
would interfere with a state's planning process. See In the Matter of
EME Homer City Generation LP and First Energy Generation Corp., Order
on Petitions Numbers III-2012-06, III-2012-07, and III 2013-01 (July
30, 2014) (hereafter, Homer City/Mansfield Order) at 10-19 (finding
Pennsylvania SIP did not require imposition of 1-hour SO2
emission limits on sources independent of the part D attainment
planning process contemplated by the CAA). 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 New Hampshire must include SO2
emission limits on sources, where needed, for the area designated
nonattainment to reach attainment with the 2010 1-hour SO2
NAAQS and for any additional areas EPA may subsequently designate
nonattainment. EPA agrees that the structure of the Act makes clear
that Congress did not intend to postpone a state's obligation to submit
and infrastructure SIP under section 110(a)(2)(A) until designations
occur. EPA disagrees, however, with the Commenter's interpretation that
section 110(a)(2)(A) requires a state to submit SO2 emission
limitations for individual sources during this infrastructure SIP
planning process that ensure attainment and maintenance of the 2010
SO2 NAAQS. As stated above, 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) that the plan provide for
``implementation, maintenance and enforcement'' to mean that the SIP
must contain enforceable emission limits that will aid in attaining
and/or maintaining the NAAQS and that the State demonstrate that it has
the necessary tools to implement and enforce a NAAQS.
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, EPA will act in
accordance with the entered Consent Decree's schedule for conducting
additional designations for the 2010 SO2 NAAQS and any areas
designated nonattainment must meet the applicable part D requirements
for these areas. However, because the purpose of an infrastructure SIP
submission is for more general planning purposes, EPA does not believe
New Hampshire was obligated during this infrastructure SIP planning
process to account for controlled SO2 levels at individual
sources to satisfy section 110(a)(2)(A). See Homer City/Mansfield Order
at 10-19. Regarding the air dispersion modeling conducted by the
Commenter pursuant to AERMOD for Schiller Station, EPA does not find
the modeling information relevant at this time for review of an
infrastructure SIP. While EPA has extensively discussed the use of
modeling for attainment demonstration purposes and for designations,
EPA has affirmatively stated such modeling was not needed to
demonstrate attainment for the SO2 infrastructure SIPs under
the 2010 SO2 NAAQS. See April 12, 2012 letters to states
regarding SO2 implementation and Implementation of the 2010
Primary 1-Hour SO2 NAAQS, Draft White Paper for Discussion,
May 2012, available at https://www.epa.gov/airquality/sulfurdioxide/implement.html.\9\ EPA's Data Requirements Rule contains a process by
which state air agencies characterize air quality around SO2
sources through ambient monitoring and/or air quality modeling
techniques and submit such data to the EPA. See, e.g., 80 FR 51502
(Aug. 21, 2015). The rule includes a discussion of how EPA anticipates
addressing modeling that informs determinations of states' air quality
status under the 2010 SO2 NAAQS. As stated above, EPA
believes it is not appropriate to bypass the attainment planning
process by imposing separate attainment planning process requirements
outside part D and into the infrastructure SIP process.
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\9\ EPA has provided draft guidance for states regarding
modeling analyses to support the designations process for the 2010
SO2 NAAQS. SO2 NAAQS Designations Modeling
Technical Assistance Document (draft), EPA Office of Air and
Radiation and Office of Air Quality Planning and Standards, December
2013, available at https://www.epa.gov/airquality/sulfurdioxide/implement.html.
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In conclusion, EPA disagrees with the Commenter's statements that
EPA must disapprove New Hampshire's infrastructure SIP submission
because it does not establish specific enforceable SO2
emission limits, either on coal-fired EGUs or other large
SO2 sources, in order to demonstrate attainment and
maintenance with the NAAQS at this time.\10\ Because we are approving
New Hampshire's infrastructure SIP submission with respect to section
110(a)(2)(A), we need not promulgate a federal implementation plan. See
CAA section 110(c)(1).
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\10\ Finally, EPA does not disagree with the Commenter's claim
that coal-fired EGUs are a large source of SO2 emissions
in New Hampshire based on the 2011 NEI. However, EPA does not agree
that this information is relevant to our approval of the
infrastructure SIP, which EPA has explained meets requirements in
CAA section 110(a)(2).
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Comment 7: The Commenter claims that New Hampshire's proposed
SO2 infrastructure SIP lacks emission limitations for
Schiller Station informed by air dispersion modeling as well as other
large SO2 sources outside of the nonattainment area and
therefore fails to ensure New Hampshire will attain and maintain the
2010 SO2 NAAQS. The Commenter claims EPA must disapprove the
SO2 infrastructure SIP as it does not ``prevent
exceedances'' or ensure attainment and maintenance of the
SO2 NAAQS.
Response 7: EPA agrees with the Commenter that air dispersion
modeling, such as AERMOD, can be an important tool in the CAA section
107 designations process for SO2 and in developing SIPs for
nonattainment areas as required by sections 172 and 191-192, including
supporting required attainment demonstrations. EPA agrees that prior
EPA statements, EPA guidance, and case law support the use of air
dispersion modeling in the SO2 designations process and
attainment demonstration process, as well as in analyses of the
interstate impact of transported emissions and whether existing
approved SIPs remain adequate
[[Page 44549]]
to show attainment and maintenance of the SO2 NAAQS.
However, as provided in the previous responses, EPA disagrees with the
Commenter that EPA must disapprove the New Hampshire SO2
infrastructure SIP for its alleged failure to include source-specific
SO2 emission limits that show no exceedances of the NAAQS
when modeled or ensure attainment and maintenance of the NAAQS.
In acting to approve or disapprove an infrastructure SIP, EPA is
not required to make findings regarding current air quality status of
areas within the state, such area's projected future air quality
status, or whether existing emissions limits in such area are
sufficient to meet a NAAQS in the area. The attainment planning process
detailed in part D of the CAA, including sections 172 and 191-192
attainment SIPs, is the appropriate place for the state to evaluate
measures needed to bring in-state nonattainment areas into attainment
with a NAAQS and to impose additional emission limitations such as
SO2 emission limits on specific sources.
EPA had initially recommended that states submit substantive
attainment demonstration SIPs based on air quality modeling in the
final 2010 SO2 NAAQS preamble, 75 FR 35520 (June 22, 2010),
and in subsequent draft guidance issued in September 2011 for the
section 110(a) SIPs due in June 2013 in order to show how areas then-
expected to be designated as unclassifiable would attain and maintain
the NAAQS. These initial statements in the preamble and 2011 draft
guidance, presented only in the context of the new 1-hour
SO2 NAAQS and not suggested as a matter of general
infrastructure SIP policy, were based on EPA's expectation at the time
that, by June 2012, most areas would initially be designated as
unclassifiable due to limitations in the scope of the ambient
monitoring network and the short time available before which states
could conduct modeling to support designations recommendations in 2011.
However, after conducting extensive stakeholder outreach and receiving
comments from the states regarding these initial statements and the
timeline for implementing the NAAQS, EPA subsequently stated in the
April 12, 2012 letters and in the 2012 Draft White Paper that EPA was
clarifying its 2010 SO2 NAAQS implementation position and
was no longer recommending such attainment demonstrations supported by
air dispersion modeling for unclassifiable areas (which had not yet
been designated) for the June 2013 infrastructure SIPs. Instead, EPA
explained that it expected states to submit infrastructure SIPs that
followed the general policy EPA had applied under other NAAQS. EPA then
reaffirmed this position in the February 6, 2013 memorandum, ``Next
Steps for Area Designations and Implementation of the Sulfur Dioxide
National Ambient Air Quality Standard.'' \11\ As previously mentioned,
EPA had stated in the preamble to the NAAQS and in the prior 2011 draft
guidance that EPA intended to develop and seek public comment on
guidance for modeling and development of SIPs for sections 110, 172 and
191- 192 of the CAA. After receiving such further comment, EPA has now
issued guidance for the nonattainment area SIPs due pursuant to
sections 172 and 191-192. See April 23, 2014 Guidance for 1-Hour
SO2 Nonattainment Area SIP Submissions. In addition,
modeling may be an appropriate consideration for states and EPA in
further designations for the SO2 NAAQS in accordance with
the Sierra Club and NRDC Consent Decree and the data requirements rule
mentioned previously.\12\ While the EPA guidance for attainment SIPs
and for designations for CAA section 107 and the process for
characterizing SO2 emissions from larger sources discuss the
use of air dispersion modeling, EPA's 2013 Infrastructure SIP Guidance
did not suggest that states use air dispersion modeling for purposes of
the section 110(a)(2) infrastructure SIP. Therefore, as discussed
previously, EPA believes the New Hampshire SO2
infrastructure SIP submittal contains the structural requirements to
address elements in section 110(a)(2) as discussed in the proposed
approval. EPA believes infrastructure SIPs are general planning SIPs to
ensure that a state has adequate resources and authority to implement a
NAAQS. Infrastructure SIP submissions are not intended to act or
fulfill the obligations of a detailed attainment and/or maintenance
plan for each individual area of the state that is not attaining the
NAAQS. While infrastructure SIPs must address modeling authorities in
general for section 110(a)(2)(K), EPA believes 110(a)(2)(K) requires
infrastructure SIPs to provide the state's authority for air quality
modeling and for submission of modeling data to EPA, not specific air
dispersion modeling for large stationary sources of pollutants. In the
proposal for this rulemaking action, EPA provided an explanation of New
Hampshire's ability and authority to conduct air quality modeling when
required and its authority to submit modeling data to the EPA. The
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 New Hampshire's infrastructure SIP is unrelated to
the section 107 designations process. As outlined in the August 23,
2010 clarification memo, ``Applicability of Appendix W Modeling
Guidance for the 1-hour SO2 National Ambient Air Quality
Standard'' (U.S. EPA, 2010a), AERMOD is the preferred model for single
source modeling to address the 1-hour SO2 NAAQS as part of
the NSR/PSD permit programs. Therefore, as attainment SIPs,
designations, and NSR/PSD actions are outside the scope of a required
infrastructure SIP for the 2010 SO2 NAAQS for section
110(a), EPA provides no further response to the Commenter's discussion
of air dispersion modeling for these applications. If the Commenter
resubmits its air dispersion modeling for the New Hampshire EGU, or
updated modeling information in the appropriate context, EPA will
address the resubmitted modeling or updated modeling at that time.
---------------------------------------------------------------------------
\11\ 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.
\12\ The Consent Decree in Sierra Club and NRDC v. EPA, Case
3:13-cv-03953-SI (N.D. Cal.) is available at https://www.epa.gov/airquality/sulfurdioxide/designations/pdfs/201503FinalCourtOrder.pdf. See 80 FR 51052, August 21, 2015 (EPA's
data requirements rule). See also Updated Guidance for Area
Designations for the 2010 Primary Sulfur Dioxide National Ambient
Air Quality Standard, Stephen D. Page, Director, EPA's Office of Air
Quality Planning Standards, March 20, 2015, available at https://www.epa.gov/airquality/sulfurdioxide/pdfs/20150320SO2designations.pdf.
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The Commenter, citing administrative law principles regarding
consideration of comments provided during a rulemaking process,\13\
contends that EPA must consider the modeling data the Commenter has
submitted ``over the years which demonstrate the inadequacy of New
Hampshire's rules.'' For the reasons previously explained, however, the
purpose for which the Commenter submitted the modeling--namely, to
assert that current air quality in the area in which Schiller Station
is located does not meet the NAAQS--is not relevant to EPA's action on
this infrastructure SIP, and consequently EPA is not required to
consider the modeling in evaluating the approvability of the
infrastructure SIP.
[[Page 44550]]
EPA does not believe infrastructure SIPs must contain emission
limitations informed by air dispersion modeling in order to meet the
requirements of section 110(a)(2)(A). Thus, EPA has evaluated the
persuasiveness of the Commenter's submitted modeling in finding that it
is not relevant to the approvability of New Hampshire's proposed
infrastructure SIP for the 2010 SO2 NAAQS, but EPA has made
no judgment regarding whether the Commenter's submitted modeling is
sufficient to show violations of the NAAQS.
---------------------------------------------------------------------------
\13\ The Commenter cites to Motor Vehicle Manufacturers
Association v. State Farm Mutual Auto Insurance Co., 463 U.S. 29, 43
(1983) and NRDC v. EPA, 571 F.3d 1245, 1254 (D.C. Cir. 2009).
---------------------------------------------------------------------------
While EPA does not believe that infrastructure SIP submissions are
required to contain emission limits assuring in-state attainment of the
NAAQS, as suggested by the Commenter, EPA does recognize that in the
past, states have, in their discretion, used infrastructure SIP
submittals as a `vehicle' for incorporating regulatory revisions or
source-specific emission limits into the state's plan. See 78 FR 73442
(December 6, 2013) (approving regulations Maryland submitted for
incorporation into the SIP along with the 2008 ozone infrastructure SIP
to address ethics requirements for State Boards in sections 128 and
110(a)(2)(E)(ii)). While these SIP revisions are intended to help the
state meet the requirements of section 110(a)(2), these ``ride-along''
SIP revisions are not intended to signify that all infrastructure SIP
submittals must, in order to be approved by EPA, have similar
regulatory revisions or source-specific emission limits. Rather, the
regulatory provisions and source-specific emission limits the state
relies on when showing compliance with section 110(a)(2) have, in many
cases, likely already been incorporated into the state's SIP prior to
each new infrastructure SIP submission; in some cases this was done for
entirely separate CAA requirements, such as attainment plans required
under section 172, or for previous NAAQS.
Comment 8: The Commenter asserts that EPA may not approve the
proposed New Hampshire SO2 infrastructure SIP because it
fails to include enforceable emission limitations with a 1-hour
averaging time (or, if longer averaging periods are used, more
stringent numerical emission limits) that apply at all times. For
support, the Commenter cites to the definition of ``emission
limitation'' at CAA section 302(k). The Commenter also claims EPA has
stated that 1-hour averaging times are necessary for the 2010
SO2 NAAQS citing to EPA's April 23, 2014 Guidance for 1-Hour
SO2 Nonattainment Area SIP Submissions, a February 3, 2011,
EPA Region 7 letter to the Kansas Department of Health and Environment
regarding the need for 1-hour SO2 emission limits in a PSD
permit, an EPA Environmental Appeals Board (EAB) decision rejecting use
of a 3-hour averaging time for a SO2 limit in a PSD
permit,\14\ and EPA's disapproval of a Missouri SIP that relied on
annual averaging for SO2 emission rates.\15\ Thus, the
Commenter contends EPA must disapprove New Hampshire's infrastructure
SIP, which the Commenter claims fails to require emission limits with
adequate averaging times.
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\14\ In re Mississippi Lime Co., 15 E.A.D. 349, 379-82 (EAB Aug.
9, 2011).
\15\ 71 FR 12623, 12,624 (Mar. 13, 2006) (disapproving a control
strategy SO2 SIP).
---------------------------------------------------------------------------
Response 8: EPA disagrees that EPA must disapprove the proposed New
Hampshire infrastructure SIP because the SIP does not contain
enforceable SO2 emission limitations with 1-hour averaging
periods that apply at all times, as this issue is not appropriate for
resolution at this stage. The comment does not assert that the
SO2 emission limits in New Hampshire's SIP are not
enforceable or that they do not apply at all times, instead the comment
focuses on the lack of 1-hour averaging times. As EPA has noted
previously, the purpose of the section 110(a)(2) SIP is to ensure that
the State has the necessary structural components to implement programs
for attainment and maintenance of the NAAQS.\16\
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\16\ As EPA has stated, some areas are designated nonattainment
areas pursuant to CAA section 107 for the 2010 SO2 NAAQS
in the State. Thus, while the State, at this time, has an obligation
to submit attainment plans for the 2010 SO2 NAAQS for
sections 172, 191 and 192, EPA believes the appropriate time for
examining necessity of the averaging periods within any submitted
SO2 emission limits on specific sources is within the
attainment planning process.
---------------------------------------------------------------------------
While EPA does agree that the averaging time is a critical
consideration for purposes of substantive SIP revisions, such as
attainment demonstrations, the averaging time of existing rules in the
SIP is not relevant for determining that the State has met the
applicable requirements of section 110(a)(2) with respect to the
infrastructure elements addressed in the present SIP action.\17\
Therefore, because EPA finds New Hampshire's SO2
infrastructure SIP approvable without the additional SO2
emission limitations showing in-state attainment of the NAAQS, EPA
finds the issues of appropriate averaging periods for such future
limitations not relevant at this time. The Commenter has cited to prior
EPA discussion on emission limitations required in PSD permits (from an
EAB decision and EPA's letter to Kansas' permitting authority) pursuant
to part C of the CAA, which is neither relevant nor applicable to the
present SIP action. In addition, as previously discussed, the EPA
disapproval of the 2006 Missouri SIP was a disapproval relating to a
control strategy SIP required pursuant to part D attainment planning
and is likewise not relevant to the analysis of infrastructure SIP
requirements.
---------------------------------------------------------------------------
\17\ 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.
---------------------------------------------------------------------------
Comment 9: The Commenter states that enforceable emission limits in
SIPs are necessary to avoid additional nonattainment designations in
areas where modeling or monitoring shows SO2 levels exceed
the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA
document, Next Steps for Area Designations and Implementation of the
Sulfur Dioxide National Ambient Air Quality Standard, which the
Commenter contends discusses how states could avoid future
nonattainment designations. The Commenter claims the modeling it
conducted for Schiller Station indicates exceedances over a wide area
in both New Hampshire and Maine. The Commenter states that additional
areas in New Hampshire will have to be designated nonattainment ``if
source-specific enforceable emissions limits are not placed on PSNH
Schiller Station through this I-SIP.'' In summary, the Commenter
asserts that, ``in order to implement the NAAQS, comply with section
110(a)(2)(A), and avoid additional nonattainment designations for areas
impacted by'' Schiller Station, EPA must disapprove the New Hampshire
infrastructure SIP and ensure that emission limits ``relied upon in the
Infrastructure SIP'' will not allow large sources of SO2 to
cause exceedances of the 2010 SO2 NAAQS.
Response 9: EPA appreciates the Commenter's concern with avoiding
nonattainment designations in New Hampshire for the 2010 SO2
NAAQS. However, Congress designed the CAA such that states have the
primary responsibility for achieving and maintaining the NAAQS within
their geographic areas by submitting SIPs
[[Page 44551]]
which will specify the details of how the states will meet the NAAQS.
Pursuant to section 107(d), the states make initial recommendations of
designations for areas within each state and EPA then promulgates the
designations after considering the state's submission and other
information. EPA promulgated initial designations for the 2010
SO2 NAAQS in August 2013 for areas in which monitoring at
that time showed violations of the NAAQS, but has not yet issued
designations for other areas and will complete the required
designations pursuant to the schedule contained in the recently entered
Consent Decree. EPA will designate additional areas for the 2010
SO2 NAAQS in accordance with CAA section 107 and existing
EPA policy and guidance. New Hampshire may, on its own accord, decide
to impose additional SO2 emission limitations to avoid
future designations to nonattainment. If additional New Hampshire areas
are designated nonattainment, New Hampshire will then have the initial
opportunity to develop additional emissions limitations needed to
attain the NAAQS, and EPA would be charged with reviewing whether the
SIP is adequate to demonstrate attainment. See Commonwealth of Virginia
v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing Nat. Res. Def.
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). However, such considerations are not required of New
Hampshire at the infrastructure SIP stage of NAAQS implementation, as
the Commenter's statements concern the separate designations process
under section 107.\18\ EPA disagrees that the infrastructure SIP must
be disapproved for not including enforceable emissions limitations to
prevent future 1-hour SO2 nonattainment designations.
---------------------------------------------------------------------------
\18\ EPA also notes that in EPA's final rule regarding the 2010
SO2 NAAQS, EPA noted that it anticipates several
forthcoming national and regional rules, such as the Industrial
Boilers standard under CAA section 112, are likely to require
significant reductions in SO2 emissions over the next
several years. See 75 FR 35520. EPA continues to believe similar
national and regional rules will lead to SO2 reductions
that will help achieve compliance with the 2010 SO2
NAAQS. If it appears that states with areas designated nonattainment
in 2013 will nevertheless fail to attain the NAAQS as expeditiously
as practicable (but no later than October 2018) during EPA's review
of attainment SIPs required by section 172, the CAA provides
authorities and tools for EPA to solve such failure, including, as
appropriate, disapproving submitted SIPs and promulgating federal
implementation plans. Likewise, for any areas designated
nonattainment after 2013, EPA has the same authorities and tools
available to address any areas which do not timely attain the NAAQS.
---------------------------------------------------------------------------
Comment 10: The commenter notes that New Hampshire did not include
a submittal to satisfy CAA section 110(a)(2)(D)(i)(I) (the so-called
``Good Neighbor'' provision) and asserts that, as a result, ``EPA must
take immediate action here to disapprove the SO2 I-SIP
Certification . . . and initiate the FIP [Federal Implementation Plan]
process with regard to the I-SIP's `Good Neighbor' provisions.''
Response 10: EPA is not taking any action at this time with respect
to Element D(i)(I), which addresses emissions that significantly
contribute to nonattainment or interfere with maintenance of the NAAQS
in another state, also known as ``good neighbor'' SIPs or ``interstate
transport'' SIPs. As the commenter notes, New Hampshire did not include
any provisions to address the requirements of section
110(a)(2)(D)(i)(I) in its September 13, 2013infrastructure SIP
submittal for the 2010 SO2 NAAQS. In the NPR, EPA did not
propose to take any action with respect to New Hampshire's obligations
pursuant to section 110(a)(2)(D)(i)(I) for the September 13, 2013
infrastructure SIP submittal.
Because New Hampshire did not make a submission in its September
13, 2013 SIP submittal to address the requirements of section
110(a)(2)(D)(i)(I), EPA is not required to have proposed or to take
final SIP approval or disapproval action on this element under section
110(k) of the CAA. In this case, there has been no substantive
submission for EPA to evaluate under section 110(k). Nor does the lack
of a submission addressing section 110(a)(2)(D)(i)(I) require EPA to
disapprove New Hampshire's September 13, 2013 SIP submittal as to the
other elements of section 110(a)(2). 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 New
Hampshire's infrastructure SIP submissions, separate and apart from any
action with respect to the requirements of section 110(a)(2)(D)(i)(I)
of the CAA. EPA views discrete infrastructure SIP requirements in
section 110(a)(2), such as the requirements of 110(a)(2)(D)(i)(I), as
severable from the other infrastructure elements and interprets section
110(k)(3) as allowing it to act on individual severable measures in a
plan submission.
On August 21, 2012, the D.C. Circuit issued a decision in EME Homer
City Generation, L.P. v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012), holding,
among other things, that states had no obligation to submit good
neighbor SIPs until the EPA had first quantified each state's good
neighbor obligation. Accordingly, under that decision the submission
deadline for good neighbor SIPs under the CAA would not necessarily be
tied to the promulgation of a new or revised NAAQS. While the EPA
sought review first with the D.C. Circuit en banc and then with the
United States Supreme Court, the EPA complied with the D.C. Circuit's
ruling during the pendency of its appeal. The D.C. Circuit declined to
consider EPA's appeal en banc, but, on April 29, 2014, the Supreme
Court reversed the D.C. Circuit's EME Homer City opinion and held,
among other things, that under the plain language of the CAA, states
must submit SIPs addressing the good neighbor requirement in CAA
section 110(a)(2)(D)(i)(I) within three years of promulgation of a new
or revised NAAQS, regardless of whether the EPA first provides
guidance, technical data or rulemaking to quantify the state's
obligation.
Pursuant to CAA section 110(c)(1), EPA is authorized and obligated
to promulgate a FIP, if EPA takes any of the following actions: (1)
Finds that a state has failed to make a required SIP submission; (2)
finds that a required submission was incomplete; or (3) disapproves a
required SIP submission in whole or in part. With respect to the 2010
SO2 NAAQS, EPA has not issued a finding of failure to
submit, issued a finding of incompleteness, or disapproved the
submission in whole or in part. Consequently, the two-year FIP clock
has not yet begun to run. EPA agrees in general that sections 110(a)(1)
and (a)(2) of the CAA require states to submit, within three years of
promulgation of a new or revised NAAQS, a plan that addresses cross-
state air pollution under section 110(a)(2)(D)(i)(I). In this
rulemaking, however, EPA is only approving portions of New Hampshire's
infrastructure SIP submissions for the 2010 SO2 NAAQS, which
did not include provisions for interstate transport under section
110(a)(2)(D)(i)(I). A finding of failure to submit a SIP submission for
the 2010 SO2 NAAQS addressing section 110(a)(2)(D)(i)(I)
could occur in a separate rulemaking. As that issue was not addressed
in the July 17, 2015 NPR,\19\ and is thus not pertinent to this
[[Page 44552]]
rulemaking, EPA provides no further response. In sum, New Hampshire's
and EPA's obligations regarding interstate transport of pollution for
the 2010 SO2 NAAQS will be addressed in later rulemakings.
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\19\ See 80 FR 42446, 42452 (July 17, 2015) (``In today's
rulemaking, EPA is not proposing to approve or disapprove New
Hampshire's compliance with section 110(a)(2)(D)(i)(I) with respect
to the 2008 ozone, 2010 NO2 and 2010 SO2
NAAQS, since New Hampshire's infrastructure SIPs for these NAAQS do
not include a submittal with respect to transport for sub-element 1,
prongs 1 and 2.'').
---------------------------------------------------------------------------
III. Final Action
EPA is approving a SIP submission from New Hampshire certifying the
state's current SIP is sufficient to meet the required infrastructure
elements under sections 110(a)(1) and (2) for the 2010 SO2
NAAQS, with the exception of certain aspects relating to the state's
PSD program which we are conditionally approving. On September 25,
2015, we conditionally approved the portion of New Hampshire's PSD
program that pertains to providing notification to neighboring states
of certain permitting actions in New Hampshire. See 80 FR 57722.
Therefore, we are conditionally approving herein the related portions
of New Hampshire's infrastructure SIP submittals affected by our
September 25, 2015 conditional approval. A summary of EPA's actions
regarding these infrastructure SIP requirements are contained in Table
1 below.
Table 1--Action Taken on NH Infrastructure SIP Submittals for Listed
NAAQS
------------------------------------------------------------------------
Element 2010 SO2
------------------------------------------------------------------------
(A): Emission limits and other control measures........ A
(B): Ambient air quality monitoring and data system.... A
(C)(i): Enforcement of SIP measures.................... A
(C)(ii): PSD program for major sources and major A *
modifications.........................................
(C)(iii): Permitting program for minor sources and A
minor modifications...................................
(D)(i)(I): Contribute to nonattainment/interfere with NS
maintenance of NAAQS (prongs 1 and 2).................
(D)(i)(II): PSD (prong 3).............................. A *
(D)(i)(II): Visibility Protection (prong 4)............ A
(D)(ii): Interstate Pollution Abatement................ A *
(D)(ii): International Pollution Abatement............. A
(E)(i): Adequate resources............................. A
(E)(ii): State boards.................................. A
(E)(iii): Necessary assurances with respect to local NA
agencies..............................................
(F): Stationary source monitoring system............... A
(G): Emergency power................................... A
(H): Future SIP revisions.............................. A
(I): Nonattainment area plan or plan revisions under +
part D................................................
(J)(i): Consultation with government officials......... A
(J)(ii): Public notification........................... A
(J)(iii): PSD.......................................... A *
(J)(iv): Visibility protection......................... +
(K): Air quality modeling and data..................... A
(L): Permitting fees................................... A
(M): Consultation and participation by affected local A
entities..............................................
------------------------------------------------------------------------
In the above table, the key is as follows:
A--Approve
A*--Approve, but conditionally approve aspect of PSD program relating
to notification to neighboring states
+--Not germane to infrastructure SIPs
NS--No Submittal
NA--Not applicable
Additionally, we are updating the classification of two air quality
control regions in New Hampshire at 40 CFR 52.1521. The classification
of the Androscoggin Valley Interstate control region is being revised
from Priority 1A to Priority III and the Merrimack Valley--Southern New
Hampshire Interstate control region is being revised from Priority I to
Priority III based on recent air quality monitoring data collected by
the state.
EPA is conditionally approving an aspect of New Hampshire's SIP
revision submittals pertaining to the state's PSD program. The
outstanding issue with the PSD program concerns the lack of a
requirement that neighboring states be notified of the issuance of a
PSD permit by the New Hampshire Department of Environmental Services.
On September 25, 2015, we conditionally approved New Hampshire's PSD
program for this reason. See 80 FR 57722. Accordingly, we are also
conditionally approving this aspect of New Hampshire's infrastructure
SIP revisions for the 2010 SO2 NAAQS. New Hampshire must
submit to EPA a SIP submittal addressing the above mentioned deficiency
in the state's PSD program within the timeframe provided within our
September 25, 2015 action. If the State fails to do so, the elements we
are conditionally approving in this rulemaking will be disapproved on
that date. EPA will notify the State by letter that this action has
occurred. At that time, this commitment will no longer be a part of the
approved New Hampshire SIP. EPA subsequently will publish a document in
the Federal Register notifying the public that the conditional approval
automatically converted to a disapproval. If the State meets its
commitment within the applicable time frame, the conditionally approved
submission will remain a part of the SIP until EPA takes final action
approving or disapproving the new submittal. If EPA disapproves the new
submittal, the conditionally approved aspect of New Hampshire's PSD
program will also be disapproved at that time. If EPA approves the
revised PSD program submittal, then the portions of New Hampshire's
infrastructure SIP submittals that were conditionally approved will be
fully approved in their entirety and replace the conditional approval
in the SIP. In addition, final disapproval of an infrastructure SIP
submittal triggers the Federal implementation plan (FIP) requirement
under section 110(c).
[[Page 44553]]
IV. Statutory and Executive Order Reviews
Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this action merely approves state law as meeting Federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this action:
Is not a significant regulatory action subject to review
by the Office of Management and Budget under Executive Orders 12866 (58
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified 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 Clean Air Act; 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 6, 2016. 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, Reporting and recordkeeping
requirements, Sulfur dioxides.
Dated: June 15, 2016.
H. Curtis Spalding,
Regional Administrator, EPA New England.
Part 52 of chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart EE--New Hampshire
0
2. Section 52.1519 is amended by adding paragraph (a)(11) to read as
follows:
Sec. 52.1519 Identification of plan--conditional approval.
(a) * * *
(11) 2010 Sulfur Dioxide NAAQS: The 110(a)(2) infrastructure SIP
submitted on September 13, 2013, is conditionally approved for Clean
Air Act (CAA) elements 110(a)(2)(C)(ii), (D)(i)(II), D(ii), and
(J)(iii) only as it relates to the aspect of the PSD program pertaining
to providing notification to neighboring states of certain permitting
activity being considered by New Hampshire. This conditional approval
is contingent upon New Hampshire taking actions to address these
requirements as detailed within a final conditional approval dated
September 25, 2015.
* * * * *
0
3. In Sec. 52.1520, the table in paragraph (e) is amended by revising
the entry for ``Infrastructure SIP for the 2010 SO2 NAAQS''
to read as follows:
Sec. 52.1520 Identification of plan.
* * * * *
(e) * * *
New Hampshire Nonregulatory
----------------------------------------------------------------------------------------------------------------
State
Name of nonregulatory SIP Applicable geographic submittal date/ EPA approved date Explanations
provision or nonattainment area effective date \3\
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Infrastructure SIP for the Statewide............. 9/13/2013 7/8/2016 [Insert Approved submittal,
2010 SO2 NAAQS. Federal Register except for certain
citation] aspects relating to
PSD which were
conditionally
approved. See
52.1519.
[[Page 44554]]
* * * * * * *
----------------------------------------------------------------------------------------------------------------
\3\ In order to determine the EPA effective date for a specific provision listed in this table, consult the
Federal Register notice cited in this column for the particular provision.
0
4. In Sec. 52.1521, the table is amended by revising the entries for
``Androscoggin Valley Interstate'' and ``Merrimack Valley--Southern New
Hampshire Interstate'' to read as follows:
Sec. 52.1521 Classification of regions.
* * * * *
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Pollutant
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Air quality control region Particulate Nitrogen
matter Sulfur oxides dioxide Carbon monoxide Ozone
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Androscoggin Valley Interstate..................................... IA III III III III
* * * * * * *
Merrimack Valley--Southern New Hampshire Interstate................ I III III III I
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[FR Doc. 2016-15623 Filed 7-7-16; 8:45 am]
BILLING CODE 6560-50-P
