80 FR 23713 - Approval and Promulgation of Air Quality Implementation Plans; Indiana; Infrastructure SIP Requirements for the 2008 Ozone National Ambient Air Quality Standards (NAAQS)
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 80, Issue 82 (April 29, 2015)
Federal Register Volume 80, Issue 82 (April 29, 2015)
| Page Range | 23713-23721 | |
| FR Document | 2015-09883 |
[Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)] [Rules and Regulations] [Pages 23713-23721] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-09883] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2011-0969; FRL-9926-81-Region 5] Approval and Promulgation of Air Quality Implementation Plans; Indiana; Infrastructure SIP Requirements for the 2008 Ozone National Ambient Air Quality Standards (NAAQS) AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is taking final action to approve elements of a state implementation plan (SIP) submission by Indiana regarding the infrastructure requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 ozone national ambient air quality standards (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. The proposed rulemaking associated with this final action was published on August 19, 2013, and EPA received two comment letters during the comment period, which ended on September 18, 2013. The concerns raised in these letters, as well as EPA's responses, will be addressed in this final action. DATES: This final rule is effective on May 29, 2015. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2011-0969. All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly-available only in hard copy. Publicly-available docket materials are available either electronically in www.regulations.gov or in hard copy at the U.S. Environmental [[Page 23714]] Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Sarah Arra at (312) 886-9401 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR- 18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, arra.sarah@epa.gov. SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' ``us,'' or ``our'' is used, we mean EPA. This supplementary information section is arranged as follows: I. What is the background of this SIP submission? II. What is our response to comments received on the proposed rulemaking? III. What action is EPA taking? IV. Statutory and Executive Order Reviews I. What is the background of this SIP submission? A. What does this rulemaking address? This rulemaking addresses a December 12, 2011, submission from the Indiana Department of Environmental Management (IDEM) intended to meet the applicable infrastructure SIP requirements for the 2008 ozone NAAQS. B. Why did the state make this SIP submission? Under sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2008 ozone NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for ozone already meet those requirements. EPA has highlighted this statutory requirement in multiple guidance documents, including the most recent guidance document entitled ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2)'' issued on September 13, 2013. C. What is the scope of this rulemaking? EPA is acting upon Indiana's SIP submission that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 ozone NAAQS. The requirement for states to make SIP submissions of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions ``within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),'' and these SIP submissions are to provide for the ``implementation, maintenance, and enforcement'' of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ``[e]ach such plan'' submission must address. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as ``infrastructure SIP'' submissions. Although the term ``infrastructure SIP'' does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to address the nonattainment planning requirements of part D of title I of the CAA, ``regional haze SIP'' submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D. This rulemaking will not cover three substantive areas that are not integral to acting on a state's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction (``SSM'')at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions; (ii) existing provisions related to ``director's variance'' or ``director's discretion'' that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (collectively referred to as ``director's discretion''); and, (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, EPA has the authority to address each one of these substantive areas in separate rulemaking. A detailed rationale, history, and interpretation related to infrastructure SIP requirements can be found in our May 13, 2014, proposed rule entitled, ``Infrastructure SIP Requirements for the 2008 Lead NAAQS'' in the section, ``What is the scope of this rulemaking?'' (see 79 FR 27241 at 27242-27245). In addition, EPA is not acting on section 110(a)(2)(D)(i)(I), interstate transport significant contribution and interference with maintenance, a portion of section 110(a)(2)(D)(i)(II) with respect to visibility, and 110(a)(2)(J) with respect to visibility. EPA is also not acting on section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions Under Part D, in its entirety. The rationale for not acting on elements of these requirements was included in EPA's August 19, 2013, proposed rulemaking or discussed below in today's response to comments. II. What is our response to comments received on the proposed rulemaking? The public comment period for EPA's proposed actions with respect to Indiana's satisfaction of the infrastructure SIP requirements for the 2008 ozone NAAQS closed on September 18, 2013. EPA received two comment letters, which were from the Sierra Club and the state of Connecticut. A synopsis of the comments contained in these letters and EPA's responses are provided below. Comment 1: The Sierra Club states that, on its face, the CAA ``requires I-SIPs to be adequate to prevent violations of the NAAQS.'' In support, the commenter quotes the language in section 110(a)(1) that requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) which requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which commenters claimed include the maintenance plan requirement. Sierra Club notes the CAA definition of ``emission limit'' and reads these provisions together to require ``enforceable emission limitations on source emissions sufficient to ensure maintenance of the NAAQS.'' Response 1: EPA disagrees that section 110 must be interpreted in the manner suggested by Sierra Club. Section 110 is only one provision that is part of the complex structure governing implementation of the NAAQS program under the CAA, as [[Page 23715]] amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later- promulgated and more specific planning requirements of the CAA, EPA interprets the requirement in section 110(a)(2)(A) that the plan provide for ``implementation, maintenance and enforcement'' to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations, EPA has interpreted this to mean that, for purposes of section 110, the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. As EPA stated in ``Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and 110(a)(2),'' dated September 13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p. 2. Comment 2: Sierra Club cites two excerpts from the legislative history of the CAA Amendments of 1970 asserting that they support an interpretation that SIP revisions under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of Indiana. Sierra Club 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: The CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning demonstrating attainment. In any event, the two excerpts of legislative history the commenter cites merely provide that states should include enforceable emission limits in their SIPs; they do not mention or otherwise address whether states are required to include maintenance plans for all areas of the state as part of the infrastructure SIP. Comment 3: Sierra Club cites to 40 CFR 51.112(a), 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 all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. The commenter states that ``[a]lthough these regulations were developed before the Clean Air Act separated Infrastructure SIPs from nonattainment SIPs--a process that began with the 1977 amendments and was completed by the 1990 amendments--the regulations apply to I-SIPs.'' The commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that ``[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act. . . .'' 51 FR 40656 (November 7, 1986). Response 3: The commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits ``adequate to prohibit NAAQS violations'' and adequate or sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA notes and the commenter recognizes this regulatory provision was initially promulgated and ``restructured and consolidated'' prior to the CAA Amendments of 1990, in which Congress removed all references to ``attainment'' in section 110(a)(2)(A). In addition, it is clear on its face that 40 CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these provisions to apply when states are developing ``control strategy'' SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as section 175A and 182. The commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action ``restructuring and consolidating'' provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were ``beyond the scope'' of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new ``Part D'' attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re- number those provisions. Id. at 40657. Although EPA was explicit that it was not establishing requirements interpreting the provisions of new ``part D'' of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: SOX and PM (portion)''), 51.14 (``Control strategy: CO, HC, Ox and NO2 (portion)''), 51.80 (``Demonstration of attainment: Pb (portion)''), and 51.82 (``Air quality data (portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan. Comment 4: Sierra Club references two prior EPA rulemaking actions where EPA disapproved or proposed to disapprove SIPs, and claimed they were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first points to a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the sulfur dioxide (SO2 ) NAAQS. In that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the state plan on the basis that the state failed to demonstrate the SIP was sufficient to ensure maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. Second, commenter cites a 2013 proposed disapproval of a revision to the SO2 SIP for Indiana, where the revision removed an emission limit that applied to a specific emissions source at a facility in the state. EPA relied on 40 CFR 51.112(a) in proposing to reject the revision, stating that the state had not demonstrated that the emission limit was ``redundant, unnecessary, or that its removal would not result in or allow an increase in actual SO2 emissions.'' EPA further stated in that proposed disapproval that the state had not demonstrated that removal of the limit would not ``affect the validity of the [[Page 23716]] emission rates used in the existing attainment demonstration.'' Response 4: EPA does not agree that the two prior actions referenced by the commenter establish how EPA reviews infrastructure SIPs. It is clear from both the final Missouri rule and the now final Indiana 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 addressed a control strategy SIP and not an infrastructure SIP (71 FR 12623). The Indiana action provides even less support for the commenter's position (78 FR 78720). The review in that rule was of a completely different requirement than the 110(a)(2)(A) SIP. Rather, in that case, the state had an approved SO2 attainment plan and was seeking to remove from the SIP, provisions relied on as part of the modeled attainment demonstration. EPA determined that the state had failed to demonstrate under section 110(l) of the CAA that the SIP revision would not result in increased SO2 emissions and thus not interfere with attainment of the NAAQS. Nothing in that rulemaking addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. Rather, it is simply applying the clear statutory requirement that a state must demonstrate why a revision to an approved attainment plan will not interfere with attainment of the NAAQS. Comment 5: Sierra Club discusses several cases applying to the CAA which it claims support its contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent violations of the NAAQS and demonstrate maintenance throughout the area. Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for ``emission limitations'' and stating that emission limitations ``are specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meet the national standards.'' Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that ``SIPs must include certain measures Congress specified'' to ensure attainment of the NAAQS. The commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to develop implementation plans--SIPs--that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations''); Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region in the state''). The commenter also cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS. Response 5: None of the cases the commenter cites supports the commenter's contention that section 110(a)(2)(A) requires that infrastructure SIPs include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, 421 U.S. 60, none of the cases the commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a challenge to an EPA action, revisions to a SIP that were required and approved as meeting other provisions of the CAA or in the context of an enforcement action, the court references section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of its decision. In Train, a case that was decided almost 40 years ago, the court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were ``postponements'' that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus, the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, a reference that was removed in 1990. The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. Yet, even if the court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here. At issue in Mision Industrial, 547 F.2d 123, was the definition of ``emissions limitation'' not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The commenters do not raise any concerns about whether the measures relied on by the state in the infrastructure SIP are ``emissions limitations'' and the decision in this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the court was reviewing a Federal implementation plan that EPA promulgated after a long history of the state failing to submit an adequate state implementation plan. The court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure [[Page 23717]] attainment and maintenance of NAAQS through emission limitations but this language was not part of the court's holding in the case. The commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, the commenter also quotes the court's statement that ``SIPs must include certain measures Congress specified'' but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state's ``new source'' permitting program, not its infrastructure SIP. Two of the cases the commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing ``revisions'' to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA. Comment 6: Sierra Club contends that EPA cannot approve the section 110(a)(2)(A) portion of Indiana's 2008 ozone infrastructure SIP revision because an infrastructure SIP should include enforceable emission limits to prevent NAAQS violations in areas not designated nonattainment. Specifically, Sierra Club cited air monitoring reports for Clark, Floyd, and LaPorte Counties indicating violations of the NAAQS based on 2010-2012 and 2011-2013 design values and air quality monitoring reports for Greene County indicating violations based on data from 2010-2012. The commenter alleges that these violations demonstrate that the infrastructure SIP fails to ensure that air pollution levels meet or are below the level of the NAAQS and thus the infrastructure SIP must be disapproved. Sierra Club noted that the violation of the NAAQS based on data from 2010-2012 had been known for over four months, and that Indiana failed to strengthen its infrastructure SIP and address the violations by enacting enforceable limits. Furthermore, the commenter suggests that the state adopt specific controls that they contend are cost-effective for reducing NOx, a precursor to ozone. Response 6: We disagree with the commenter that infrastructure SIPs must include detailed attainment and maintenance plans for all areas of the state and must be disapproved if air quality data that became available late in the process or after the SIP was due and submitted changes the status of areas within the state. We believe that section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and that they contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS. The suggestion that the infrastructure SIP must include measures addressing violations of the standard that did not occur until shortly before or even after the SIP was due and submitted cannot be supported. The CAA provides states with three years to develop infrastructure SIPs and states cannot reasonably be expected to address the annual change in an area's design value for each year over that period. Moreover, the CAA recognizes and has provisions to address changes in air quality over time, such as an area slipping from attainment to nonattainment or changing from nonattainment to attainment. These include provisions providing for redesignation in section 107(d) and provisions in section 110(k)(5) allowing EPA to call on the state to revise its SIP, as appropriate. We do not believe that section 110(a)(2)(A) requires detailed planning SIPs demonstrating either attainment or maintenance for specific geographic areas of the state. The infrastructure SIP is triggered by promulgation of the NAAQS, not designation. Moreover, infrastructure SIPs are due three years following promulgation of the NAAQS and designations are not due until two years (or in some cases three years) following promulgation of the NAAQS. Thus, during a significant portion of the period that the state has available for developing the infrastructure SIP, it does not know what the designation will be for individual areas of the state.\1\ In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state. --------------------------------------------------------------------------- \1\ While it is true that there may be some monitors within a state with values so high as to make a nonattainment designation of the county with that monitor almost a certainty, the geographic boundaries of the nonattainment area associated with that monitor would not be known until EPA issues final designations. --------------------------------------------------------------------------- Our interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in ``air quality control regions'' (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with the NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for ``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the plan must include ``emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].'' In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of the state were violating the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS, with the primary provisions for ozone in section 182. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the clause ``as may be necessary to insure attainment and maintenance [of the NAAQS]'' with ``as may be necessary or appropriate to meet the applicable [[Page 23718]] requirements of this chapter.'' Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. And, more detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS. For all of the above reasons, we disagree with the commenter that EPA must disapprove an infrastructure SIP revision if there are monitored violations of the standard in the state and the section 110(a)(2)(A) revision does not have detailed plans for demonstrating how the state will bring that area into attainment. Rather, EPA believes that the proper inquiry at this juncture is whether the state has met the basic structural SIP requirements appropriate when EPA is acting upon the submittal. Moreover, Indiana's SIP contains existing emission reduction measures that control emissions of VOCs and NOX found in 326 IAC 8 and 326 IAC 10, respectively. Indiana's SIP revision reflects several provisions that have the ability to reduce ground level ozone and its precursors. The Indiana SIP relies on measures and programs used to implement previous ozone NAAQS. Because there is no substantive difference between the previous ozone NAAQS and the more recent ozone NAAQS, other than the level of the standard, the provisions relied on by Indiana will provide benefits for the new NAAQS; in other words, the measures reduce overall ground-level ozone and its precursors and are not limited to reducing ozone levels to meet one specific NAAQS. Further, in approving Indiana's infrastructure SIP revision, EPA is affirming that Indiana has sufficient authority to take the types of actions required by the CAA in order to bring such areas back into attainment. Comment 7: Sierra Club asserted that Indiana's infrastructure SIP fails to meet the requirements of section 110(a)(2)(A) and section 110(a)(2)(E) because IC 13-14-8-8 contains provisions that would allow the board to grant variances to rules when the rules would impose ``undue hardships or burden.'' The commenter noted that EPA had cited IC 13-14-8 as one of IDEM's mechanisms for satisfying the requirements of section 110(a)(2)(A) and section 110(a)(2)(E), but contended that the variance provisions in IC 13-14-8-8 are too broad and vague to ensure that emission limits and controls are properly enforced, or to ensure that adequate legal authority is provided to carry out Indiana's SIP. Therefore, EPA cannot approve IC 13-14-8 to meet any requirements of section 110. Response 7: EPA disagrees the commenter's claim that Indiana's infrastructure SIP fails to meet the requirements of section 110(a)(2)(A) and section 110(a)(2)(E). As an initial matter, IC 13-14- 8-8 is not a regulation that has been approved into the SIP. Thus, any variance granted by the state pursuant to this provision would not modify the requirements of the SIP. Furthermore, for a variance from the state to be approved into the SIP, a demonstration must be made under CAA section 110(l) showing that the revision does not interfere with any requirements of the act including attainment or maintenance of a NAAQS. We disagree that the existence of this provision as solely a matter of state law means that the state does not have adequate authority to carry out the implementation plan. Comment 8: Sierra Club asserted that EPA must disapprove Indiana's infrastructure SIP because it does not address the visibility provisions under section 110(a)(2)(D)(i)(II). The commenter noted that EPA's basis for proposing approval for the visibility protection provisions of section 110(a)(2)(D)(i)(II) was contingent upon EPA's claim that Indiana has an approved regional haze SIP. The commenter contended that Indiana's regional haze SIP was only partially approved and no action has been taken on issues addressing the Best Available Retrofit Technology requirements for EGUs. Therefore, the commenter believes that EPA must disapprove the visibility protection requirements found in section 110(a)(2)(D)(i)(II) for Indiana's infrastructure SIP. Response 8: The commenter is correct that EPA issued a limited disapproval of Indiana's regional haze SIP. Our limited disapproval was based on Indiana's reliance on the Clean Air Interstate Rule (CAIR) to satisfy certain requirements for controlling emissions of SO2 and NOX from EGUs. EPA also issued a limited approval of the remaining portion of the regional haze plan. However, in response to this comment, EPA is not taking final action today on the portion of Indiana's infrastructure SIP addressing the requirements of section 110(a)(2)(D)(i)(II) with respect to visibility. Comment 9: Sierra Club asserted that EPA must disapprove Indiana's infrastructure SIP because it does not address the visibility protection provisions, as described above, for section 110(a)(2)(J). The commenter contended that EPA did not provide a rationale for why the visibility provisions in section 110(a)(2)(J) are not applicable to the 2008 Pb and 2008 ozone NAAQS. Response 9: The visibility requirements in part C of the CAA that are referenced in section 110(a)(2)(J) are not affected by the establishment or revision of a NAAQS. As a result, there are no ``applicable'' visibility protection obligations associated with the promulgation of a new or revised NAAQS. Because there are no applicable requirements, states are not required to address section 110(a)(2)(J) in their infrastructure SIP. Comment 10: Sierra Club stated that EPA cannot approve Indiana's infrastructure SIP, specifically the infrastructure element under section 110(a)(2)(A), for the 2008 ozone NAAQS because the state has not incorporated this NAAQS into the SIP. Instead, the commenter noted that the SIP at the time of proposed rulemaking, specifically at 326 Indiana Administrative Code (IAC) 1-3-4(b)(4)(B), contained the older 8-hour ozone NAAQS promulgated in 1997. Response 10: In a rulemaking published on December 18, 2014 (79 FR 75527), EPA approved revisions to Indiana's SIP incorporating the 2008 ozone NAAQS. Comment 11: Sierra Club asserted that EPA must clarify two repealed regulations that were cited in the proposed rulemaking. Specifically, the commenter observed that EPA cited 326 IAC 11-5 as helping Indiana satisfy the requirements of section 110(a)(2)(G) ``Emergency Powers'' and IC 13-4-8 which was cited to satisfy section 110(a)(2)(H), ``Future SIP Revisions.'' Response 11: EPA did not intend to engender any confusion with these citations. The commenter is correct in noting that 326 IAC 11-5 has been repealed. That rule was of little relevance to section 110(a)(2)(G) and was incorrectly cited; the correct citation that was provided by IDEM is SIP-approved IAC 1-5, ``Alert Levels.'' In a similar manner, IDEM provided IC 13-14-8 as helping to meet the requirements under section 110(a)(2)(H), but EPA incorrectly cited IC 13-4-8. Comment 12: Sierra Club asserted that EPA must disapprove portions of Indiana's infrastructure SIP for the 2008 ozone NAAQS addressing certain PM2.5 requirements under section 110(a)(2)(C). In particular, the commenter objected to the fact that Indiana has not codified the [[Page 23719]] increments for areas designated as class I or class III for PM2.5. The commenter noted that while Indiana does not have class I or class III areas, the increments for class I and class III areas are still a requirement to satisfy section 110(a)(2)(C). The commenter contends it is insufficient for EPA to ``hope'' that the state will adopt the increments if areas in the state are later redesignated to class I or class III, and therefore EPA must disapprove this section of Indiana's infrastructure SIP. Response 12: EPA disagrees with the commenter's view that Indiana's infrastructure SIP related to section 110(a)(2)(C) must be disapproved because the state has not codified the PM2.5 increments for class I and class III areas as provided at 40 CFR 52.166(c) and 40 CFR 52.21(c). As explained in the August 19, 2013, proposed approval, Indiana does not currently have any areas designated class I or class III for PM2.5. Accordingly, EPA does not consider the PM2.5 increments for class I and class III areas to be necessary for the implementation of PSD permitting in Indiana at this time. In the event that areas in Indiana are one day classified as class I or class III, EPA expects IDEM to adopt these increments and submit them for incorporation into the SIP (see 78 FR 50360 at 50364). Federal regulations at 40 CFR 51.166(g)(1) and 52.21(g)(1) specify that if a state seeks to have an area reclassified to either class I or class III, it must submit such a request as a revision to its SIP for approval by the EPA Administrator. Thus, no areas in Indiana can be reclassified to class I or class III without EPA approval, and the process of evaluating such a request for approval requires a notice- and-comment rulemaking process. The EPA and other interested parties can evaluate the adequacy of Indiana's PSD regulations as they apply to the proposed reclassified area at that time and, if necessary, initiate a process to cure any identified deficiency. However, at this time, EPA does not believe there to be an applicability gap for the PM2.5 increments as they apply in the state of Indiana. Comment 13: The State of Connecticut asserts that its ability to attain the 2008 ozone NAAQS is substantially compromised by the transport of pollution from upwind states. Specifically, modeling conducted by both the Ozone Transport Commission and EPA as part of the Cross-State Air Pollution Rule (CSAPR) shows emissions from Indiana contributing to the nonattainment problem in Connecticut. The State of Connecticut states that it has done its share to reduce in-state emissions, and EPA should ensure that each upwind state addresses contribution to another downwind state's nonattainment. With regard to the ``good neighbor provision'' in Section 1109(a)(1) of the CAA, Connecticut characterizes Indiana's 2008 ozone submission as relying on state regulations which implement the Clean Air Interstate Rule and CSAPR, and that such programs were intended by EPA to address the 1997 ozone NAAQS and not the more stringent 2008 standard. Connecticut asserts EPA should therefore disapprove the Indiana submission. Connecticut also states that, under section 110(a)(2), Indiana was required to submit a complete SIP that demonstrated compliance with the good neighbor provision of section 110(a)(2)(D)(i)(I). Connecticut further suggests that the CAA does not give EPA discretion to take no action on the submitted good neighbor provisions on the grounds of taking a separate action. Instead, it asserts that the only action available to EPA is to determine the approvability of the good neighbor provision of Indiana's 2008 ozone NAAQS infrastructure SIP submission, or promulgate a FIP under section 110(c)(1) within two years. Response 13: As explained in the notice of proposed rulemaking (NPR), this action does not address, for the 2008 ozone NAAQS, the good neighbor provision in section 110(a)(2)(D)(i)(I), which prohibits emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state. Thus, to the extent the comment relates to the substance or approvability of the good neighbor provision in Indiana's 2008 ozone infrastructure SIP submission, the comment is not relevant to the present rulemaking. As stated herein and in the NPR, EPA will take later, separate action to address section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. EPA disagrees with the commenter's argument that EPA cannot approve a SIP without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve the states' SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)). The Agency interprets its authority under section 110(k)(3) as affording it the discretion to approve or conditionally approve individual elements of Indiana's infrastructure submission for the 2008 ozone NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements, and interprets section 110(k)(3) as allowing EPA to act on individual severable measures in a plan submission. In short, EPA has discretion under section 110(k) to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate. The commenter raises no compelling legal or environmental rationale for an alternate interpretation. EPA notes, however, that it is working with state partners to assess next steps to address air pollution that crosses state boundaries and will later take a separate action to address section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. EPA's approval of the Indiana infrastructure SIP submission for the 2008 ozone NAAQS for the portions described in the NPR is, therefore, appropriate. III. What action is EPA taking? For the reasons discussed in our August 19, 2013, proposed rulemaking and in the above responses to public comments, EPA is taking final action to approve Indiana's infrastructure SIP for the 2008 ozone NAAQS as proposed with the exception of not taking final action on section 110(a)(2)(D)(i)(II) with respect to visibility. In EPA's August 19, 2013, proposed rulemaking for these infrastructure SIPs, EPA also proposed to approve Indiana's satisfaction of the state board requirements contained in section 128 of the CAA, as well as certain PSD requirements obligated by EPA's October 20, 2010, final rule on the ``Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5 )--Increments, Significant Impact Levels (SILs), Significant Monitoring Concentration (SMC)'' (2010 NSR Rule), and the infrastructure requirements for the 2008 lead NAAQS. The final approvals for each of the above requirements were published in the Federal Register on December 24, 2013 (see 78 FR 77599, state board [[Page 23720]] requirements), July 2, 2014 (see 79 FR 37646, 2010 NSR Rule requirements), August 11, 2013 (see 78 FR 46709, 2010 NSR Rule requirements, continued), and October 16, 2014 (see 79 FR 62035, 2008 Lead Infrastructure requirements). In today's rulemaking, we are taking final action on only the infrastructure SIP requirements for the 2008 ozone NAAQS. Our final actions by element of section 110(a)(2) and NAAQS, are contained in the table below. ------------------------------------------------------------------------ 2008 Ozone Element NAAQS ------------------------------------------------------------------------ (A): Emission limits and other control measures........ A (B): Ambient air quality monitoring and data system.... A (C)1: Enforcement of SIP measures...................... A (C)2: PSD.............................................. A (D)1: Contribute to nonattainment/interfere with NA maintenance of NAAQS.................................. (D)2: PSD.............................................. A (D)3: Visibility Protection............................ NA (D)4: Interstate Pollution Abatement................... A (D)5: International Pollution Abatement................ A (E)1: Adequate resources............................... A (E)2: State boards..................................... A (F): Stationary source monitoring system............... A (G): Emergency power................................... A (H): Future SIP revisions.............................. A (I): Nonattainment area plan or plan revisions under NA part D................................................ (J)1: Consultation with government officials........... A (J)2: Public notification.............................. A (J)3: PSD.............................................. A (J)4: Visibility protection (Regional Haze)............ NA (K): Air quality modeling and data..................... A (L): Permitting fees................................... A (M): Consultation and participation by affected local A entities.............................................. ------------------------------------------------------------------------ In the table above, the key is as follows: ------------------------------------------------------------------------ ------------------------------------------------------------------------ A...................................... Approve. NA..................................... No Action/Separate Rulemaking. ------------------------------------------------------------------------ IV. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 29, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) [[Page 23721]] List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements. Dated: April 16, 2015. Susan Hedman, Regional Administrator, Region 5. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. 0 2. In Sec. 52.770, the table in paragraph (e) is amended by adding an entry in alphabetical order for ``Section 110(a)(2) Infrastructure Requirements for the 2008 Ozone NAAQS'' to read as follows: Sec. 52.770 Identification of plan. * * * * * (e) * * * EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions ---------------------------------------------------------------------------------------------------------------- Title Indiana date EPA Approval Explanation ---------------------------------------------------------------------------------------------------------------- * * * * * * * Section 110(a)(2) Infrastructure 12/12/2011 4/29/2015, [insert This action addresses the Requirements for the 2008 Ozone NAAQS. Federal Register following CAA elements: citation]. 110(a)(2)(A), (B), (C), (D)(i)(II) except visibility, (D)(ii), (E), (F), (G), (H), (J) except visibility, (K), (L), and (M). * * * * * * * ---------------------------------------------------------------------------------------------------------------- [FR Doc. 2015-09883 Filed 4-28-15; 8:45 am] BILLING CODE 6560-50-P
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Order 12988, Civil Justice Reform, to For the reasons discussed in the (d) Enforcement periods. This rule
minimize litigation, eliminate preamble, the Coast Guard amends 33 will be enforced from 8:30 p.m. to 9
ambiguity, and reduce burden. CFR part 165 as follows: p.m. on May 30, 2015.
10. Protection of Children Dated: April 17, 2015.
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS Christopher S. Keane,
We have analyzed this rule under
Captain, U.S. Coast Guard, Captain of the
Executive Order 13045, Protection of ■ 1. The authority citation for part 165 Port Hampton Roads.
Children from Environmental Health continues to read as follows: [FR Doc. 2015–10018 Filed 4–28–15; 8:45 am]
Risks and Safety Risks. This rule is not
an economically significant rule and Authority: 33 U.S.C. 1231; 50 U.S.C. 191; BILLING CODE 9110–04–P
33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5;
does not create an environmental risk to
Department of Homeland Security Delegation
health or risk to safety that may No. 0170.1.
disproportionately affect children. ENVIRONMENTAL PROTECTION
■ 2. Add § 165.T05–0117 to read as AGENCY
11. Indian Tribal Governments follows:
40 CFR Part 52
This rule does not have tribal 165.T05–0117 Safety Zone, Southern
implications under Executive Order [EPA–R05–OAR–2011–0969; FRL–9926–81–
Branch Elizabeth River; Chesapeake, VA.
13175, Consultation and Coordination Region 5]
(a) Definitions. For the purposes of
with Indian Tribal Governments, this section:
because it does not have a substantial Approval and Promulgation of Air
Captain of the Port means the Quality Implementation Plans; Indiana;
direct effect on one or more Indian Commander, Sector Hampton Roads.
tribes, on the relationship between the Infrastructure SIP Requirements for
Participants mean individuals the 2008 Ozone National Ambient Air
Federal Government and Indian tribes, responsible for launching the fireworks.
or on the distribution of power and Quality Standards (NAAQS)
Representative means any Coast
responsibilities between the Federal Guard commissioned, warrant or petty AGENCY: Environmental Protection
Government and Indian tribes. officer who has been authorized to act Agency (EPA).
12. Energy Effects on the behalf of the Captain of the Port. ACTION: Final rule.
(b) Locations. The following area is a
This action is not a ‘‘significant safety zone: SUMMARY: The Environmental Protection
energy action’’ under Executive Order (1) All waters of the Southern Branch Agency (EPA) is taking final action to
13211, Actions Concerning Regulations of the Elizabeth River within a 140 foot approve elements of a state
That Significantly Affect Energy Supply, radius of the fireworks display in implementation plan (SIP) submission
Distribution, or Use. approximate position 36°48′31.0818″ N, by Indiana regarding the infrastructure
076°17′14.2506″ W, located near the requirements of sections 110(a)(1) and
13. Technical Standards (2) of the Clean Air Act (CAA) for the
Elizabeth River Park, Chesapeake,
This rule does not use technical Virginia. 2008 ozone national ambient air quality
standards. Therefore, we did not (c) Regulations. standards (NAAQS). The infrastructure
consider the use of voluntary consensus (1) All persons are required to comply requirements are designed to ensure that
standards. with the general regulations governing the structural components of each
safety zones in § 165.23 of this part. state’s air quality management program
14. Environment (2) With the exception of participants, are adequate to meet the state’s
We have analyzed this rule under entry into or remaining in this safety responsibilities under the CAA. The
Department of Homeland Security zone is prohibited unless authorized by proposed rulemaking associated with
Management Directive 023–01 and the Captain of the Port, Hampton Roads this final action was published on
Commandant Instruction M16475.lD, or his designated representatives. August 19, 2013, and EPA received two
which guide the Coast Guard in (3) All vessels underway within this comment letters during the comment
complying with the National safety zone at the time it is implemented period, which ended on September 18,
Environmental Policy Act of 1969 are to depart the zone immediately. 2013. The concerns raised in these
(4) The Captain of the Port, Hampton letters, as well as EPA’s responses, will
(NEPA) (42 U.S.C. 4321–4370f), and
Roads or his representative can be be addressed in this final action.
have determined that this action is one
reached at telephone number (757) 668– DATES: This final rule is effective on
of a category of actions that do not
5555. May 29, 2015.
individually or cumulatively have a (5) The Coast Guard vessels enforcing
significant effect on the human the safety zone can be contacted on ADDRESSES: EPA has established a
environment. This rule involves the VHF–FM marine band radio channel 13 docket for this action under Docket ID
establishment of a safety zone. This rule (165.65Mhz) and channel 16 (156.8 No. EPA–R05–OAR–2011–0969. All
is categorically excluded from further Mhz). documents in the docket are listed in
review under paragraph 34(g) of Figure (6) This section applies to all persons the www.regulations.gov index.
2–1 of the Commandant Instruction. We or vessels wishing to transit through the Although listed in the index, some
seek any comments or information that safety zone except participants and information is not publicly available,
may lead to the discovery of a vessels that are engaged in the following e.g., Confidential Business Information
significant environmental impact from operations: or other information whose disclosure is
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this rule. (i) Enforcing laws; restricted by statute. Certain other
(ii) servicing aids to navigation, and material, such as copyrighted material,
List of Subjects in 33 CFR Part 165
(iii) Emergency response vessels. will be publicly-available only in hard
Harbors, Marine safety, Navigation (7) The U.S. Coast Guard may be copy. Publicly-available docket
(water), Reporting and recordkeeping assisted in the patrol and enforcement materials are available either
requirements, Security measures, of the safety zone by Federal, State, and electronically in www.regulations.gov or
Waterways. local agencies. in hard copy at the U.S. Environmental
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![23714 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations
Protection Agency, Region 5, Air and for states to make SIP submissions of Reform’’). Instead, EPA has the
Radiation Division, 77 West Jackson this type arises out of CAA section authority to address each one of these
Boulevard, Chicago, Illinois 60604. This 110(a)(1). Pursuant to section 110(a)(1), substantive areas in separate
facility is open from 8:30 a.m. to 4:30 states must make SIP submissions rulemaking. A detailed rationale,
p.m., Monday through Friday, excluding ‘‘within 3 years (or such shorter period history, and interpretation related to
Federal holidays. We recommend that as the Administrator may prescribe) infrastructure SIP requirements can be
you telephone Sarah Arra at (312) 886– after the promulgation of a national found in our May 13, 2014, proposed
9401 before visiting the Region 5 office. primary ambient air quality standard (or rule entitled, ‘‘Infrastructure SIP
FOR FURTHER INFORMATION CONTACT: any revision thereof),’’ and these SIP Requirements for the 2008 Lead
Sarah Arra, Environmental Scientist, submissions are to provide for the NAAQS’’ in the section, ‘‘What is the
Attainment Planning and Maintenance ‘‘implementation, maintenance, and scope of this rulemaking?’’ (see 79 FR
Section, Air Programs Branch (AR–18J), enforcement’’ of such NAAQS. The 27241 at 27242–27245).
U.S. Environmental Protection Agency, statute directly imposes on states the In addition, EPA is not acting on
Region 5, 77 West Jackson Boulevard, duty to make these SIP submissions, section 110(a)(2)(D)(i)(I), interstate
Chicago, Illinois 60604, (312) 886–9401, and the requirement to make the transport significant contribution and
arra.sarah@epa.gov. submissions is not conditioned upon interference with maintenance, a
EPA’s taking any action other than portion of section 110(a)(2)(D)(i)(II) with
SUPPLEMENTARY INFORMATION:
promulgating a new or revised NAAQS. respect to visibility, and 110(a)(2)(J)
Throughout this document whenever with respect to visibility. EPA is also
Section 110(a)(2) includes a list of
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean not acting on section 110(a)(2)(I)—
specific elements that ‘‘[e]ach such
EPA. This supplementary information Nonattainment Area Plan or Plan
plan’’ submission must address.
section is arranged as follows: EPA has historically referred to these Revisions Under Part D, in its entirety.
I. What is the background of this SIP SIP submissions made for the purpose The rationale for not acting on elements
submission? of satisfying the requirements of CAA of these requirements was included in
II. What is our response to comments sections 110(a)(1) and 110(a)(2) as EPA’s August 19, 2013, proposed
received on the proposed rulemaking? ‘‘infrastructure SIP’’ submissions. rulemaking or discussed below in
III. What action is EPA taking?
Although the term ‘‘infrastructure SIP’’ today’s response to comments.
IV. Statutory and Executive Order Reviews
does not appear in the CAA, EPA uses
II. What is our response to comments
I. What is the background of this SIP the term to distinguish this particular
received on the proposed rulemaking?
submission? type of SIP submission from
submissions that are intended to satisfy The public comment period for EPA’s
A. What does this rulemaking address? proposed actions with respect to
other SIP requirements under the CAA,
This rulemaking addresses a such as ‘‘nonattainment SIP’’ or Indiana’s satisfaction of the
December 12, 2011, submission from the ‘‘attainment plan SIP’’ submissions to infrastructure SIP requirements for the
Indiana Department of Environmental address the nonattainment planning 2008 ozone NAAQS closed on
Management (IDEM) intended to meet requirements of part D of title I of the September 18, 2013. EPA received two
the applicable infrastructure SIP CAA, ‘‘regional haze SIP’’ submissions comment letters, which were from the
requirements for the 2008 ozone required by EPA rule to address the Sierra Club and the state of Connecticut.
NAAQS. visibility protection requirements of A synopsis of the comments contained
CAA section 169A, and nonattainment in these letters and EPA’s responses are
B. Why did the state make this SIP provided below.
new source review (NNSR) permit
submission? Comment 1: The Sierra Club states
program submissions to address the
Under sections 110(a)(1) and (2) of the permit requirements of CAA, title I, part that, on its face, the CAA ‘‘requires I–
CAA, states are required to submit D. SIPs to be adequate to prevent violations
infrastructure SIPs to ensure that their This rulemaking will not cover three of the NAAQS.’’ In support, the
SIPs provide for implementation, substantive areas that are not integral to commenter quotes the language in
maintenance, and enforcement of the acting on a state’s infrastructure SIP section 110(a)(1) that requires states to
NAAQS, including the 2008 ozone submission: (i) Existing provisions adopt a plan for implementation,
NAAQS. These submissions must related to excess emissions during maintenance, and enforcement of the
contain any revisions needed for periods of start-up, shutdown, or NAAQS and the language in section
meeting the applicable SIP requirements malfunction (‘‘SSM’’)at sources, that 110(a)(2)(A) which requires SIPs to
of section 110(a)(2), or certifications that may be contrary to the CAA and EPA’s include enforceable emissions
their existing SIPs for ozone already policies addressing such excess limitations as may be necessary to meet
meet those requirements. emissions; (ii) existing provisions the requirements of the CAA and which
EPA has highlighted this statutory related to ‘‘director’s variance’’ or commenters claimed include the
requirement in multiple guidance ‘‘director’s discretion’’ that purport to maintenance plan requirement. Sierra
documents, including the most recent permit revisions to SIP approved Club notes the CAA definition of
guidance document entitled ‘‘Guidance emissions limits with limited public ‘‘emission limit’’ and reads these
on Infrastructure State Implementation process or without requiring further provisions together to require
Plan (SIP) Elements under CAA approval by EPA, that may be contrary ‘‘enforceable emission limitations on
Sections 110(a)(1) and (2)’’ issued on to the CAA (collectively referred to as source emissions sufficient to ensure
September 13, 2013. ‘‘director’s discretion’’); and, (iii) maintenance of the NAAQS.’’
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existing provisions for Prevention of Response 1: EPA disagrees that
C. What is the scope of this rulemaking? Significant Deterioration (PSD) section 110 must be interpreted in the
EPA is acting upon Indiana’s SIP programs that may be inconsistent with manner suggested by Sierra Club.
submission that addresses the current requirements of EPA’s ‘‘Final Section 110 is only one provision that
infrastructure requirements of CAA NSR Improvement Rule,’’ 67 FR 80186 is part of the complex structure
sections 110(a)(1) and 110(a)(2) for the (December 31, 2002), as amended by 72 governing implementation of the
2008 ozone NAAQS. The requirement FR 32526 (June 13, 2007) (‘‘NSR NAAQS program under the CAA, as
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amended in 1990, and it must be from section 110 concerning however, that EPA’s action in 1986 was
interpreted in the context of not only demonstrating attainment. In any event, not to establish new substantive
that structure, but also of the historical the two excerpts of legislative history planning requirements, but rather to
evolution of that structure. In light of the commenter cites merely provide that consolidate and restructure provisions
the revisions to section 110 since 1970 states should include enforceable that had previously been promulgated.
and the later-promulgated and more emission limits in their SIPs; they do EPA noted that it had already issued
specific planning requirements of the not mention or otherwise address guidance addressing the new ‘‘Part D’’
CAA, EPA interprets the requirement in whether states are required to include attainment planning obligations. Also,
section 110(a)(2)(A) that the plan maintenance plans for all areas of the as to maintenance regulations, EPA
provide for ‘‘implementation, state as part of the infrastructure SIP. expressly stated that it was not making
maintenance and enforcement’’ to mean Comment 3: Sierra Club cites to 40 any revisions other than to re-number
that the infrastructure SIP must contain CFR 51.112(a), providing that each plan those provisions. Id. at 40657.
enforceable emission limits that will aid must ‘‘demonstrate that the measures, Although EPA was explicit that it was
in attaining and/or maintaining the rules, and regulations contained in it are not establishing requirements
NAAQS and that the state demonstrate adequate to provide for the timely interpreting the provisions of new ‘‘part
that it has the necessary tools to attainment and maintenance of the D’’ of the CAA, it is clear that the
implement and enforce a NAAQS, such [NAAQS].’’ The commenter asserts that regulations being restructured and
as adequate state personnel and an this regulation requires all SIPs to consolidated were intended to address
enforcement program. include emissions limits necessary to control strategy plans. In the preamble,
With regard to the requirement for ensure attainment of the NAAQS. The EPA clearly stated that 40 CFR 51.112
emission limitations, EPA has commenter states that ‘‘[a]lthough these was replacing 40 CFR 51.13 (‘‘Control
interpreted this to mean that, for regulations were developed before the strategy: SOX and PM (portion)’’), 51.14
purposes of section 110, the state may Clean Air Act separated Infrastructure (‘‘Control strategy: CO, HC, Ox and NO2
rely on measures already in place to SIPs from nonattainment SIPs—a (portion)’’), 51.80 (‘‘Demonstration of
address the pollutant at issue or any process that began with the 1977 attainment: Pb (portion)’’), and 51.82
new control measures that the state may amendments and was completed by the (‘‘Air quality data (portion)’’). Id. at
choose to submit. As EPA stated in 1990 amendments—the regulations 40660. Thus, the present-day 40 CFR
‘‘Guidance on Infrastructure State apply to I–SIPs.’’ The commenter relies 51.112 contains consolidated provisions
Implementation Plan (SIP) Elements on a statement in the preamble to the
that are focused on control strategy SIPs,
under CAA Sections 110(a)(1) and 1986 action restructuring and
and the infrastructure SIP is not such a
110(a)(2),’’ dated September 13, 2013 consolidating provisions in part 51, in
plan.
(Infrastructure SIP Guidance), ‘‘[t]he which EPA stated that ‘‘[i]t is beyond
conceptual purpose of an infrastructure the scope of th[is] rulemaking to address Comment 4: Sierra Club references
SIP submission is to assure that the air the provisions of Part D of the Act. . . .’’ two prior EPA rulemaking actions
agency’s SIP contains the necessary 51 FR 40656 (November 7, 1986). where EPA disapproved or proposed to
structural requirements for the new or Response 3: The commenter’s reliance disapprove SIPs, and claimed they were
revised NAAQS, whether by on 40 CFR 51.112 to support its actions in which EPA relied on section
establishing that the SIP already argument that infrastructure SIPs must 110(a)(2)(A) and 40 CFR 51.112 to reject
contains the necessary provisions, by contain emission limits ‘‘adequate to infrastructure SIPs. The commenter first
making a substantive SIP revision to prohibit NAAQS violations’’ and points to a 2006 partial approval and
update the SIP, or both. Overall, the adequate or sufficient to ensure the partial disapproval of revisions to
infrastructure SIP submission process maintenance of the NAAQS is not Missouri’s existing plan addressing the
provides an opportunity . . . to review supported. As an initial matter, EPA sulfur dioxide (SO2) NAAQS. In that
the basic structural requirements of the notes and the commenter recognizes action, EPA cited section 110(a)(2)(A) as
air agency’s air quality management this regulatory provision was initially a basis for disapproving a revision to the
program in light of each new or revised promulgated and ‘‘restructured and state plan on the basis that the state
NAAQS.’’ Infrastructure SIP Guidance consolidated’’ prior to the CAA failed to demonstrate the SIP was
at p. 2. Amendments of 1990, in which sufficient to ensure maintenance of the
Comment 2: Sierra Club cites two Congress removed all references to SO2 NAAQS after revision of an
excerpts from the legislative history of ‘‘attainment’’ in section 110(a)(2)(A). In emission limit and cited to 40 CFR
the CAA Amendments of 1970 asserting addition, it is clear on its face that 40 51.112 as requiring that a plan
that they support an interpretation that CFR 51.112 applies to plans specifically demonstrates the rules in a SIP are
SIP revisions under CAA section 110 designed to attain the NAAQS. EPA adequate to attain the NAAQS. Second,
must include emissions limitations interprets these provisions to apply commenter cites a 2013 proposed
sufficient to show maintenance of the when states are developing ‘‘control disapproval of a revision to the SO2 SIP
NAAQS in all areas of Indiana. Sierra strategy’’ SIPs such as the detailed for Indiana, where the revision removed
Club also contends that the legislative attainment and maintenance plans an emission limit that applied to a
history of the CAA supports the required under other provisions of the specific emissions source at a facility in
interpretation that infrastructure SIPs CAA, as amended in 1977 and again in the state. EPA relied on 40 CFR
under section 110(a)(2) must include 1990, such as section 175A and 182. 51.112(a) in proposing to reject the
enforceable emission limitations, citing The commenter suggests that these revision, stating that the state had not
the Senate Committee Report and the provisions must apply to section 110 demonstrated that the emission limit
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subsequent Senate Conference Report SIPs because in the preamble to EPA’s was ‘‘redundant, unnecessary, or that its
accompanying the 1970 CAA. action ‘‘restructuring and consolidating’’ removal would not result in or allow an
Response 2: The CAA, as enacted in provisions in part 51, EPA stated that increase in actual SO2 emissions.’’ EPA
1970, including its legislative history, the new attainment demonstration further stated in that proposed
cannot be interpreted in isolation from provisions in the 1977 Amendments to disapproval that the state had not
the later amendments that refined that the CAA were ‘‘beyond the scope’’ of demonstrated that removal of the limit
structure and deleted relevant language the rulemaking. It is important to note, would not ‘‘affect the validity of the
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![23716 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations
emission rates used in the existing which quoted section 110(a)(2)(B) of the CAA of 1970, which contained
attainment demonstration.’’ CAA of 1970. The commenter contends prescriptive criteria. The court
Response 4: EPA does not agree that that the 1990 Amendments do not alter concluded that EPA reasonably
the two prior actions referenced by the how courts have interpreted the interpreted section 110(f) not to restrict
commenter establish how EPA reviews requirements of section 110, quoting a state’s choice of the mix of control
infrastructure SIPs. It is clear from both Alaska Dept. of Envtl. Conservation v. measures needed to attain the NAAQS
the final Missouri rule and the now final EPA, 540 U.S. 461, 470 (2004) which in and that revisions to SIPs that would
Indiana rule that EPA was not reviewing turn quoted section 110(a)(2)(A) of the not impact attainment of the NAAQS by
initial infrastructure SIP submissions CAA and also stated that ‘‘SIPs must the attainment date were not subject to
under section 110 of the CAA, but rather include certain measures Congress the limits of section 110(f). Thus, the
reviewing revisions that would make an specified’’ to ensure attainment of the issue was not whether a section 110 SIP
already approved SIP designed to NAAQS. The commenter also quotes needs to provide for attainment or
demonstrate attainment of the NAAQS several additional opinions in this vein. whether emissions limits are needed as
less stringent. Mont. Sulphur & Chem. Co. v. EPA, 666 part of the SIP; rather the issue was
EPA’s partial approval and partial F.3d 1174, 1180 (9th Cir. 2012) (‘‘The which statutory provision governed
disapproval of revisions to restrictions Clean Air Act directs states to develop when the state wanted to revise the
on emissions of sulfur compounds for implementation plans—SIPs—that emission limits in its SIP if such
the Missouri SIP addressed a control ‘assure’ attainment and maintenance of revision would not impact attainment or
strategy SIP and not an infrastructure [NAAQS] through enforceable emissions maintenance of the NAAQS. To the
SIP (71 FR 12623). limitations’’); Hall v. EPA 273 F.3d extent the holding in the case has any
The Indiana action provides even less 1146, 1153 (9th Cir. 2001) (‘‘Each State bearing on how section 110(a)(2)(A)
support for the commenter’s position must submit a [SIP] that specif[ies] the might be interpreted, it is important to
(78 FR 78720). The review in that rule manner in which [NAAQS] will be realize that in 1975, when the opinion
was of a completely different achieved and maintained within each was issued, section 110(a)(2)(B) (the
requirement than the 110(a)(2)(A) SIP. air quality control region in the state’’). predecessor to section 110(a)(2)(A))
Rather, in that case, the state had an The commenter also cites Mich. Dept. of expressly referenced the requirement to
approved SO2 attainment plan and was Envtl. Quality v. Browner, 230 F.3d 181 attain the NAAQS, a reference that was
seeking to remove from the SIP, (6th Cir. 2000) for the proposition that removed in 1990.
provisions relied on as part of the EPA may not approve a SIP revision that The decision in Pennsylvania Dept. of
modeled attainment demonstration. does not demonstrate how the rules Envtl. Resources was also decided based
EPA determined that the state had failed would not interfere with attainment and on the pre-1990 provision of the CAA.
to demonstrate under section 110(l) of maintenance of the NAAQS. At issue was whether EPA properly
the CAA that the SIP revision would not Response 5: None of the cases the rejected a revision to an approved plan
result in increased SO2 emissions and commenter cites supports the where the inventories relied on by the
thus not interfere with attainment of the commenter’s contention that section state for the updated submission had
NAAQS. Nothing in that rulemaking 110(a)(2)(A) requires that infrastructure gaps. The court quoted section
addresses the necessary content of the SIPs include detailed plans providing 110(a)(2)(B) of the pre-1990 CAA in
initial infrastructure SIP for a new or for attainment and maintenance of the support of EPA’s disapproval, but did
revised NAAQS. Rather, it is simply NAAQS in all areas of the state, nor do not provide any interpretation of that
applying the clear statutory requirement they shed light on how section provision. Yet, even if the court had
that a state must demonstrate why a 110(a)(2)(A) may reasonably be interpreted that provision, EPA notes
revision to an approved attainment plan interpreted. With the exception of that it was modified by Congress in
will not interfere with attainment of the Train, 421 U.S. 60, none of the cases the 1990; thus, this decision has little
NAAQS. commenter cites concerned the bearing on the issue here.
Comment 5: Sierra Club discusses interpretation of CAA section At issue in Mision Industrial, 547
several cases applying to the CAA 110(a)(2)(A) (or section 110(a)(2)(B) of F.2d 123, was the definition of
which it claims support its contention the pre-1990 Act). Rather, in the context ‘‘emissions limitation’’ not whether
that courts have been clear that section of a challenge to an EPA action, section 110 requires the state to
110(a)(2)(A) requires enforceable revisions to a SIP that were required and demonstrate how all areas of the state
emissions limits in infrastructure SIPs approved as meeting other provisions of will attain and maintain the NAAQS as
to prevent violations of the NAAQS and the CAA or in the context of an part of their infrastructure SIPs. The
demonstrate maintenance throughout enforcement action, the court references language from the opinion the
the area. Sierra Club first cites to section 110(a)(2)(A) (or section commenter quotes does not interpret but
language in Train v. NRDC, 421 U.S. 60, 110(a)(2)(B) of the pre-1990 CAA) in the rather merely describes section
78 (1975), addressing the requirement background section of its decision. 110(a)(2)(A). The commenters do not
for ‘‘emission limitations’’ and stating In Train, a case that was decided raise any concerns about whether the
that emission limitations ‘‘are specific almost 40 years ago, the court was measures relied on by the state in the
rules to which operators of pollution addressing a state revision to an infrastructure SIP are ‘‘emissions
sources are subject, and which if attainment plan submission made limitations’’ and the decision in this
enforced should result in ambient air pursuant to section 110 of the CAA, the case has no bearing here.
which meet the national standards.’’ sole statutory provision at that time In Mont. Sulphur & Chem. Co., 666
Sierra Club also cites to Pennsylvania regulating such submissions. The issue F.3d 1174, the court was reviewing a
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Dept. of Envtl. Resources v. EPA, 932 in that case concerned whether changes Federal implementation plan that EPA
F.2d 269, 272 (3d Cir. 1991) for the to requirements that would occur before promulgated after a long history of the
proposition that the CAA directs EPA to attainment was required were variances state failing to submit an adequate state
withhold approval of a SIP where it that should be addressed pursuant to implementation plan. The court cited
does not ensure maintenance of the the provision governing SIP revisions or generally to sections 107 and
NAAQS and Mision Industrial, Inc. v. were ‘‘postponements’’ that must be 110(a)(2)(A) of the CAA for the
EPA, 547 F.2d 123, 129 (1st Cir. 1976), addressed under section 110(f) of the proposition that SIPs should assure
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attainment and maintenance of NAAQS they contend are cost-effective for infrastructure SIPs is that they are
through emission limitations but this reducing NOx, a precursor to ozone. general planning SIPs to ensure that the
language was not part of the court’s Response 6: We disagree with the state has adequate resources and
holding in the case. commenter that infrastructure SIPs must authority to implement a NAAQS in
The commenter suggests that Alaska include detailed attainment and general throughout the state and not
Dept. of Envtl. Conservation, 540 U.S. maintenance plans for all areas of the detailed attainment and maintenance
461, stands for the proposition that the state and must be disapproved if air plans for each individual area of the
1990 CAA Amendments do not alter quality data that became available late state.
how courts interpret section 110. This in the process or after the SIP was due Our interpretation that infrastructure
claim is inaccurate. Rather, the court and submitted changes the status of SIPs are more general planning SIPs is
quoted section 110(a)(2)(A), which, as areas within the state. We believe that consistent with the statute as
noted previously, differs from the pre- section 110(a)(2)(A) is reasonably understood in light of its history and
1990 version of that provision and the interpreted to require states to submit structure. When Congress enacted the
court makes no mention of the changed SIPs that reflect the first step in their CAA in 1970, it did not include
language. Furthermore, the commenter planning for attaining and maintaining provisions requiring states and the EPA
also quotes the court’s statement that a new or revised NAAQS and that they to label areas as attainment or
‘‘SIPs must include certain measures contain enforceable control measures nonattainment. Rather, states were
Congress specified’’ but that statement and a demonstration that the state has required to include all areas of the state
specifically referenced the requirement the available tools and authority to in ‘‘air quality control regions’’ (AQCRs)
in section 110(a)(2)(C), which requires develop and implement plans to attain and section 110 set forth the core
an enforcement program and a program and maintain the NAAQS. substantive planning provisions for
for the regulation of the modification The suggestion that the infrastructure these AQCRs. At that time, Congress
and construction of new sources. SIP must include measures addressing anticipated that states would be able to
Notably, at issue in that case was the violations of the standard that did not address air pollution quickly pursuant
state’s ‘‘new source’’ permitting occur until shortly before or even after to the very general planning provisions
program, not its infrastructure SIP. the SIP was due and submitted cannot in section 110 and could bring all areas
Two of the cases the commenter cites, be supported. The CAA provides states into compliance with the NAAQS
Mich. Dept. of Envtl. Quality, 230 F.3d with three years to develop within five years. Moreover, at that
181, and Hall, 273 F.3d 1146, interpret infrastructure SIPs and states cannot time, section 110(a)(2)(A)(i) specified
CAA section 110(l), the provision reasonably be expected to address the that the section 110 plan provide for
governing ‘‘revisions’’ to plans, and not annual change in an area’s design value ‘‘attainment’’ of the NAAQS and section
the initial plan submission requirement for each year over that period. 110(a)(2)(B) specified that the plan must
under section 110(a)(2) for a new or Moreover, the CAA recognizes and has include ‘‘emission limitations,
revised NAAQS, such as the provisions to address changes in air schedules, and timetables for
infrastructure SIP at issue in this quality over time, such as an area compliance with such limitations, and
instance. In those cases, the courts cited slipping from attainment to such other measures as may be
to section 110(a)(2)(A) solely for the nonattainment or changing from necessary to insure attainment and
purpose of providing a brief background nonattainment to attainment. These maintenance [of the NAAQS].’’
of the CAA. include provisions providing for In 1977, Congress recognized that the
Comment 6: Sierra Club contends that redesignation in section 107(d) and existing structure was not sufficient and
EPA cannot approve the section provisions in section 110(k)(5) allowing many areas were still violating the
110(a)(2)(A) portion of Indiana’s 2008 EPA to call on the state to revise its SIP, NAAQS. At that time, Congress for the
ozone infrastructure SIP revision as appropriate. first time added provisions requiring
because an infrastructure SIP should We do not believe that section states and EPA to identify whether areas
include enforceable emission limits to 110(a)(2)(A) requires detailed planning of the state were violating the NAAQS
prevent NAAQS violations in areas not SIPs demonstrating either attainment or (i.e., were nonattainment) or were
designated nonattainment. Specifically, maintenance for specific geographic meeting the NAAQS (i.e., were
Sierra Club cited air monitoring reports areas of the state. The infrastructure SIP attainment) and established specific
for Clark, Floyd, and LaPorte Counties is triggered by promulgation of the planning requirements in section 172
indicating violations of the NAAQS NAAQS, not designation. Moreover, for areas not meeting the NAAQS.
based on 2010–2012 and 2011–2013 infrastructure SIPs are due three years In 1990, many areas still had air
design values and air quality monitoring following promulgation of the NAAQS quality not meeting the NAAQS and
reports for Greene County indicating and designations are not due until two Congress again amended the CAA and
violations based on data from 2010– years (or in some cases three years) added yet another layer of more
2012. The commenter alleges that these following promulgation of the NAAQS. prescriptive planning requirements for
violations demonstrate that the Thus, during a significant portion of the each of the NAAQS, with the primary
infrastructure SIP fails to ensure that air period that the state has available for provisions for ozone in section 182. At
pollution levels meet or are below the developing the infrastructure SIP, it that same time, Congress modified
level of the NAAQS and thus the does not know what the designation section 110 to remove references to the
infrastructure SIP must be disapproved. will be for individual areas of the state.1 section 110 SIP providing for
Sierra Club noted that the violation of In light of the structure of the CAA, attainment, including removing pre-
the NAAQS based on data from 2010– EPA’s long-standing position regarding existing section 110(a)(2)(A) in its
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2012 had been known for over four entirety and renumbering subparagraph
months, and that Indiana failed to 1 While it is true that there may be some monitors (B) as section 110(a)(2)(A).
strengthen its infrastructure SIP and within a state with values so high as to make a Additionally, Congress replaced the
address the violations by enacting nonattainment designation of the county with that clause ‘‘as may be necessary to insure
monitor almost a certainty, the geographic
enforceable limits. boundaries of the nonattainment area associated
attainment and maintenance [of the
Furthermore, the commenter suggests with that monitor would not be known until EPA NAAQS]’’ with ‘‘as may be necessary or
that the state adopt specific controls that issues final designations. appropriate to meet the applicable
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List of Subjects in 40 CFR Part 52 Dated: April 16, 2015. Authority: 42 U.S.C. 7401 et seq.
Susan Hedman,
Environmental protection, Air ■ 2. In § 52.770, the table in paragraph
Regional Administrator, Region 5.
pollution control, Incorporation by (e) is amended by adding an entry in
reference, Intergovernmental relations, 40 CFR part 52 is amended as follows: alphabetical order for ‘‘Section 110(a)(2)
Ozone, Reporting and recordkeeping Infrastructure Requirements for the 2008
PART 52—APPROVAL AND Ozone NAAQS’’ to read as follows:
requirements. PROMULGATION OF
IMPLEMENTATION PLANS § 52.770 Identification of plan.
■ 1. The authority citation for part 52 * * * * *
continues to read as follows: (e) * * *
EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Title Indiana date EPA Approval Explanation
* * * * * * *
Section 110(a)(2) Infrastructure 12/12/2011 4/29/2015, [insert Federal This action addresses the following CAA elements:
Requirements for the 2008 Register citation]. 110(a)(2)(A), (B), (C), (D)(i)(II) except visibility, (D)(ii), (E),
Ozone NAAQS. (F), (G), (H), (J) except visibility, (K), (L), and (M).
* * * * * * *
[FR Doc. 2015–09883 Filed 4–28–15; 8:45 am] DATES: This final rule is effective on (ii) The words ‘‘EPA’’, ‘‘we’’, ‘‘us’’ or
BILLING CODE 6560–50–P May 29, 2015. ‘‘our’’ mean or refer to the
ADDRESSES: The EPA has established a Environmental Protection Agency.
docket for this action under Docket ID (iii) The initials ‘‘SIP’’ mean or refer
ENVIRONMENTAL PROTECTION No. EPA–R10–OAR–2014–0755. All to State Implementation Plan.
AGENCY (iv) The words ‘‘Washington’’ and
documents in the docket are listed on
‘‘State’’ mean the State of Washington.
40 CFR Part 52 the www.regulations.gov Web site.
Although listed in the index, some Table of Contents
[EPA–R10–OAR–2014–0755; FRL–9926–95– information is not publicly available,
Region 10] I. Background Information
e.g., Confidential Business Information II. Response to Comments
(CBI) or other information the disclosure III. Final Action
Approval and Promulgation of
of which is restricted by statute. Certain IV. Incorporation by Reference
Implementation Plans; Washington: V. Statutory and Executive Orders Review
other material, such as copyrighted
Prevention of Significant Deterioration
material, is not placed on the Internet
and Visibility Protection I. Background Information
and will be publicly available only in
AGENCY: Environmental Protection hard copy form. Publicly available On January 27, 2014, Ecology
Agency (EPA). docket materials are available either submitted revisions to update the
ACTION: Final rule. electronically through general air quality regulations contained
www.regulations.gov or in hard copy at in Chapter 173–400 of the Washington
SUMMARY: The Environmental Protection the Air Planning Unit, Office of Air, Administrative Code (WAC) that apply
Agency (EPA) is approving revisions to Waste and Toxics, EPA Region 10, 1200 to sources within Ecology’s jurisdiction,
the Washington State Implementation Sixth Avenue, Seattle, WA 98101. The including minor new source review,
Plan (SIP) that were submitted by the EPA requests that if at all possible, you major source nonattainment new source
Department of Ecology (Ecology) on contact the individual listed in the FOR review (major NNSR), PSD, and the
January 27, 2014. These revisions FURTHER INFORMATION CONTACT section to visibility protection (visibility) program.
implement the preconstruction view the hard copy of the docket. You On October 3, 2014, the EPA finalized
permitting regulations for large may view the hard copy of the docket approval of provisions contained in
industrial (major source) facilities in Monday through Friday, 8:00 a.m. to Chapter 173–400 WAC that apply
attainment and unclassifiable areas, 4:00 p.m., excluding Federal holidays. generally to all sources under Ecology’s
called the Prevention of Significant jurisdiction, but stated that we would
FOR FURTHER INFORMATION CONTACT: Jeff
Deterioration (PSD) program. The PSD act separately on the major source-
Hunt at (206) 553–0256,
program in Washington has been specific permitting programs in a
hunt.jeff@epa.gov, or by using the above
historically operated under a Federal phased approach (79 FR 59653). On
EPA, Region 10 address.
Implementation Plan (FIP). This November 7, 2014, the EPA finalized the
approval of Ecology’s PSD program SUPPLEMENTARY INFORMATION: second phase in the series, approving
narrows the FIP to include only those Definitions the major NNSR regulations contained
few facilities, emission sources, in WAC 173–400–800 through 173–400–
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geographic areas, and permits for which For the purpose of this document, we 860, as well as other parts of Chapter
Ecology does not have PSD permitting are giving meaning to certain words or 173–400 WAC that support major NNSR
jurisdiction or authority. The EPA is initials as follows: (79 FR 66291).
also approving Ecology’s visibility (i) The words or initials ‘‘Act’’ or On January 7, 2015, the EPA proposed
protection permitting program which ‘‘CAA’’ mean or refer to the Clean Air approval of the remainder of Ecology’s
overlaps significantly with the PSD Act, unless the context indicates January 27, 2014 submittal, covering the
program. otherwise. PSD and visibility requirements for
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Document Created: 2015-12-16 08:25:52
Document Modified: 2015-12-16 08:25:52
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on May 29, 2015. | |
| Contact | Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR- 18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected] | |
| FR Citation | 80 FR 23713 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Ozone and Reporting and Recordkeeping Requirements |
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