80 FR 46494 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Infrastructure Requirements for the 2008 Ozone and 2010 Sulfur Dioxide National Ambient Air Quality Standards
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 80, Issue 150 (August 5, 2015)
Federal Register Volume 80, Issue 150 (August 5, 2015)
| Page Range | 46494-46508 | |
| FR Document | 2015-19090 |
[Federal Register Volume 80, Number 150 (Wednesday, August 5, 2015)] [Rules and Regulations] [Pages 46494-46508] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-19090] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2014-0910; FRL-9931-80-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Infrastructure Requirements for the 2008 Ozone and 2010 Sulfur Dioxide National Ambient Air Quality Standards AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is approving portions of two State Implementation Plan (SIP) revisions submitted by the Commonwealth of Pennsylvania through the Pennsylvania Department of Environmental Protection (PADEP) pursuant to the Clean Air Act (CAA). Whenever new or revised National Ambient Air Quality Standards (NAAQS) are promulgated, the CAA requires states to submit a plan for the implementation, maintenance, and enforcement of such NAAQS. The plan is required to address basic program elements, including but not limited to regulatory structure, monitoring, modeling, legal authority, and adequate resources necessary to assure implementation, maintenance, and enforcement of the NAAQS. These elements are referred to as infrastructure requirements. PADEP made submittals addressing the infrastructure requirements for the 2008 ozone NAAQS and the 2010 sulfur dioxide (SO2 ) primary NAAQS. DATES: This final rule is effective on September 4, 2015. ADDRESSES: EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2014-0910. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P. O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: Ruth Knapp, (215) 814-2191, or by email at [email protected]. SUPPLEMENTARY INFORMATION: I. Summary of SIP Revision On March 27, 2008 (73 FR 16436), EPA promulgated a revised ozone NAAQS based on 8-hour average concentrations. EPA revised the level of the 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm. On June 22, 2010 (75 FR 35520), EPA promulgated a 1-hour primary SO2 NAAQS at a level of 75 parts per billion (ppb), based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. On July 15, 2014, the Commonwealth of Pennsylvania, through the PADEP, submitted SIP revisions that address the infrastructure elements specified in section 110(a)(2) of the CAA necessary to implement, maintain, and enforce the 2008 ozone NAAQS and the 2010 SO2 NAAQS. On February 6, 2015 (80 FR 6672), EPA published a notice of proposed rulemaking (NPR) for Pennsylvania proposing approval of portions of both SIP revisions as well as portions of SIP submittals for other NAAQS.\1\ In the NPR, EPA proposed approval of Pennsylvania's submissions addressing the following infrastructure elements: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). --------------------------------------------------------------------------- \1\ On July 15, 2014, PADEP also submitted SIP revisions addressing the infrastructure requirements for the 2010 nitrogen dioxide (NO2 ) NAAQS and the 2012 fine particulate matter (PM2.5 ) NAAQS. In the February 6, 2015 NPR, EPA also proposed approval of portions of these infrastructure SIPs. Because EPA did not receive adverse comments applicable to Pennsylvania's infrastructure SIPs for the 2010 NO2 NAAQS or the 2012 PM2.5 NAAQS or applicable to EPA's proposed approval of those specific SIPs, EPA took final action to approve portions of the infrastructure SIPs for the 2010 NO2 NAAQS and 2012 PM2.5 NAAQS on May 8, 2015. 80 FR 26461. Thus, this final action only addresses the July 15, 2014 infrastructure SIPs PADEP submitted addressing the 2008 ozone NAAQS and the 2010 SO2 NAAQS. --------------------------------------------------------------------------- Pennsylvania's July 15, 2014 infrastructure SIP submittals for the 2008 ozone NAAQS and the 2010 SO2 NAAQS did not contain any provisions addressing section 110(a)(2)(I) which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) and will be addressed in a separate process. In addition, Pennsylvania's July 15, 2014 infrastructure SIP submittals for the 2008 ozone NAAQS and the 2010 SO2 NAAQS did not contain any provisions addressing CAA section 110(a)(2)(D)(i)(I), and therefore EPA's February 6, 2015 NPR did not propose any action on the SIP submittals for section 110(a)(2)(D)(i)(I) for either SIP submittal. Thus, this rulemaking action likewise does not include action on CAA section 110(a)(2)(D)(i)(I) for either the 2008 ozone NAAQS or the 2010 SO2 NAAQS because PADEP's July 15, 2014 infrastructure SIP submittals did not include provisions for this element. Finally, at this time, EPA is not taking action on section 110(a)(2)(D)(i)(II) (which addresses visibility protection) for the 2008 ozone or 2010 SO2 NAAQS as explained in the NPR. Although Pennsylvania's July 15, 2014 infrastructure SIP submittals for the 2008 ozone NAAQS and the 2010 SO2 NAAQS referred to Pennsylvania's regional haze SIP to address section 110(a)(2)(D)(i)(II) for visibility protection, EPA intends to take later, separate action on Pennsylvania's SIP submittals for these elements as explained in the NPR and the Technical Support Document (TSD) which accompanied the NPR. The rationale supporting EPA's proposed rulemaking action approving portions of the July 15, 2014 infrastructure SIP submittals for the 2008 ozone and 2010 SO2 NAAQS, including the scope of infrastructure SIPs in general, is explained in the NPR and the TSD accompanying the NPR and will not be restated here. The NPR and TSD are available in the docket for this rulemaking at www.regulations.gov, Docket ID Number EPA-R03-OAR- [[Page 46495]] 2014-0910.\2\ EPA received public comments on the NPR. Summaries of the comments as well as EPA's responses are in section II of this rulemaking notice. EPA's responses provide further explanation and rationale where appropriate to support the final action approving portions of the July 15, 2014 infrastructure SIPs. --------------------------------------------------------------------------- \2\ EPA's final rulemaking action on Pennsylvania's infrastructure SIP revisions for the 2010 NO2 NAAQS and the 2012 PM2.5 NAAQS can also be found in this docket with Docket ID Number EPA-R03-OAR-2014-0910. --------------------------------------------------------------------------- II. Public Comments and EPA's Responses EPA received substantive comments from two commenters, the State of New Jersey Department of Environmental Protection (NJDEP) and the Sierra Club, on the February 6, 2015 proposed rulemaking action on Pennsylvania's 2008 ozone and 2010 SO2 infrastructure SIP revisions. The Sierra Club's comments on the NPR include general comments on infrastructure SIP requirements for emission limitations and specific comments on emission limitations to address the 2010 SO2 NAAQS and the 2008 ozone NAAQS. A full set of all comments is provided in the docket for today's final rulemaking action. A. NJDEP Comment: NJDEP asserts that Pennsylvania's infrastructure SIP is deficient because it does not include any information relating to Pennsylvania's ``good neighbor'' obligation to address CAA section 110(a)(2)(D).\3\ NJDEP asserts the ability of downwind states including New Jersey to attain the 2008 ozone NAAQS is substantially impacted by interstate transport of pollution from Pennsylvania. NJDEP asserts recent EPA modeling for the 2008 ozone NAAQS demonstrates Pennsylvania significantly contributes to ozone nonattainment areas in New Jersey and other states. New Jersey further asserts that EPA must ``make a finding that Pennsylvania has failed to submit a SIP that complies with Section 110(a)(2)(D) of the Clean Air Act'' because Pennsylvania did not make a submission to address 110(a)(2)(D). --------------------------------------------------------------------------- \3\ EPA believes NJDEP refers specifically to CAA section 110(a)(2)(D)(i)(I) which addresses interstate transport of pollution and not to section 110(a)(2)(D)(i)(II) which addresses visibility protection and prevention of significant deterioration. --------------------------------------------------------------------------- Response: In this rulemaking EPA is not taking any final action with respect to the provisions in section 110(a)(2)(D)(i)(I)--the portion of the good neighbor provision which addresses emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state. In its July 15, 2014 infrastructure SIP revisions for several NAAQS, the Commonwealth of Pennsylvania did not include any provisions in its SIP revision submittals to address the requirements of section 110(a)(2)(D)(i)(I). In the NPR, EPA did not propose to take any action with respect to Pennsylvania's obligations pursuant to section 110(a)(2)(D)(i)(I) for the July 15, 2014 infrastructure SIP submittals and is not, in this rulemaking action, taking any final action on the 110(a)(2)(D)(i)(I) obligations. Because Pennsylvania did not make a submission in its July 15, 2014 SIP submittals to address the requirements of section 110(a)(2)(D)(i)(I), EPA is not required to have proposed or to take final SIP approval or disapproval action on this element under section 110(k) of the CAA. In this case, there has been no substantive submission for EPA to evaluate under section 110(k). EPA interprets its authority under section 110(k)(3) of the CAA as affording EPA the discretion to approve, or conditionally approve, individual elements of Pennsylvania's infrastructure SIP submissions, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA. EPA views discrete infrastructure SIP requirements in section 110(a)(2), such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. EPA acknowledges NJDEP's concern for the interstate transport of air pollutants and agrees in general that sections 110(a)(1) and (a)(2) of the CAA require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses cross-state air pollution under section 110(a)(2)(D)(i)(I). However, in this rulemaking, EPA is only approving portions of Pennsylvania's infrastructure SIP submissions for the 2008 ozone and 2010 SO2 NAAQS which did not include provisions for 110(a)(2)(D)(i)(I) for interstate transport. Findings of failure to submit a SIP submission for a NAAQS addressing a specific element, such as CAA section 110(a)(2)(D)(i)(I), would need to occur in separate rulemakings. As that issue was not addressed in the February 6, 2015 NPR and is therefore not pertinent to this rulemaking, EPA provides no further response. Pennsylvania's obligations regarding interstate transport of ozone pollution for the 2008 ozone NAAQS will be addressed in another rulemaking. B. Sierra Club General Comments on Emission Limitations 1. The Plain Language of the CAA Comment 1: Sierra Club (hereafter referred to as Commenter) contends that the plain language of section 110(a)(2)(A) of the CAA, legislative history of the CAA, case law, EPA regulations such as 40 CFR 51.112(a), and EPA interpretations in rulemakings require the inclusion of enforceable emission limits in an infrastructure SIP to aid in attaining and maintaining the NAAQS and contends an infrastructure SIP must be disapproved where emission limits are inadequate to prevent exceedances of the NAAQS. The Commenter states EPA may not approve an infrastructure SIP that fails to ensure attainment and maintenance of the NAAQS. The Commenter states that the main objective of the infrastructure SIP process ``is to ensure that all areas of the country meet the NAAQS'' and states that nonattainment areas are addressed through ``nonattainment SIPs.'' The Commenter asserts the NAAQS ``are the foundation upon which air emission standards for the entire country are set'' including specific emission limitations for most large stationary sources, such as coal-fired power plants. The Commenter discusses the CAA's framework whereby states have primary responsibility to assure air quality within the state pursuant to CAA section 107(a) which the states carry out through SIPs such as infrastructure SIPs required by section 110(a)(2). The Commenter also states that on its face the CAA requires infrastructure SIPs ``to be adequate to prevent exceedances of the NAAQS.'' In support, the Commenter quotes the language in section 110(a)(1) which requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) which requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA which the Commenter claims includes attainment and maintenance of the NAAQS. The Commenter notes the CAA definition of emission limit and reads these CAA provisions together to require ``enforceable emission limits on source emissions sufficient to ensure maintenance of the NAAQS.'' Response 1: EPA disagrees that section 110 is clear ``on its face'' and must be interpreted in the manner [[Page 46496]] suggested by the Commenter. As we have previously explained in response to the Commenter's similar comments on EPA's action approving other states' infrastructure SIPs, section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure.\4\ --------------------------------------------------------------------------- \4\ See 80 FR 11557 (March 4, 2015) (approval of Virginia SO2 infrastructure SIP); 79 FR 62022 (October 16, 2014) (approval of West Virginia SO2 infrastructure SIP); 79 FR 19001 (April 7, 2014) (approval of West Virginia ozone infrastructure SIP); and 79 FR 17043 (March 27, 2014) (approval of Virginia ozone infrastructure SIP). --------------------------------------------------------------------------- EPA interprets infrastructure SIPs as more general planning SIPs, consistent with the CAA as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in ``air quality control regions'' (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with a new NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for ``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the plan must include ``emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].'' In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of a state were violating the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the clause ``as may be necessary to insure attainment and maintenance [of the NAAQS]'' with ``as may be necessary or appropriate to meet the applicable requirements of this chapter.'' Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 of the CAA did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. More detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS. Thus, EPA believes that section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of that structure and the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for ``implementation, maintenance and enforcement'' to mean that the SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. EPA has interpreted the requirement for emission limitations in section 110 to mean that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Finally, as EPA stated in the Infrastructure SIP Guidance which specifically provides guidance to states in addressing the 2008 ozone and 2010 SO2 NAAQS, ``[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both.'' Infrastructure SIP Guidance at p. 2.\5\ --------------------------------------------------------------------------- \5\ Thus, EPA disagrees with the Commenter's general assertion that the main objective of infrastructure SIPs is to ensure all areas of the country meet the NAAQS, as we believe the infrastructure SIP process is the opportunity to review the structural requirements of a state's air program. While the NAAQS can be a foundation upon which emission limitations are set, as explained in responses to subsequent comments, these emission limitations are generally set in the attainment planning process envisioned by part D of title I of the CAA, including, but not limited to, CAA sections 172, 181-182, and 191-192. --------------------------------------------------------------------------- The Commenter makes general allegations that Pennsylvania does not have sufficient protective measures to prevent ozone violations/ exceedances and SO2 NAAQS exceedances. EPA addressed the adequacy of Pennsylvania's infrastructure SIP for 110(a)(2)(A) purposes to meet applicable requirements of the CAA in the TSD accompanying the February 6, 2015 NPR and explained why the SIP includes enforceable emission limitations and other control measures necessary for maintenance of the 2008 ozone and 2010 SO2 NAAQS throughout the Commonwealth.\6\ --------------------------------------------------------------------------- \6\ The TSD for this action is available on line at www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-0910. --------------------------------------------------------------------------- 2. The Legislative History of the CAA Comment 2: The Commenter cites two excerpts from the legislative history of the 1970 CAA claiming they support an interpretation that SIP revisions under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of the state. The Commenter also contends that the legislative history of the CAA supports the interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA. Response 2: As provided in the previous response, the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning demonstrating attainment. See also 79 FR at 17046 (responding to comments on Virginia's ozone infrastructure SIP). In any event, the two excerpts of legislative history the Commenter cites merely provide that states should include enforceable emission limits in their SIPs, and they do not mention or otherwise address whether states are required to include maintenance plans for all areas of the state as part of the infrastructure SIP. As provided in [[Page 46497]] response to another comment in this rulemaking, the TSD for the proposed rule explains why the Pennsylvania SIP includes enforceable emissions limitations for ozone precursors and for SO2 for the relevant areas. 3. Case Law Comment 3: The Commenter also discusses several cases applying the CAA which the Commenter claims support its contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent exceedances of the NAAQS. The Commenter first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for ``emission limitations'' and stating that emission limitations ``are specific rules to which operators of pollution sources are subject, and which, if enforced, should result in ambient air which meet the national standards.'' The Commenter also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS, and to Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The Commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that ``SIPs must include certain measures Congress specified'' to ensure attainment of the NAAQS. The Commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to develop implementation plans--SIPs--that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations''); Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region in the State''); Conn. Fund for Env't, Inc. v. EPA, 696 F.2d 169, 172 (D.C. Cir. 1982) (CAA requires SIPs to contain ``measures necessary to ensure attainment and maintenance of NAAQS''). Finally, the Commenter cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS. Response 3: None of the cases the Commenter cites support its contention that section 110(a)(2)(A) is clear that infrastructure SIPs must include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, none of the cases the Commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the courts reference section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background sections of decisions in the context of a challenge to an EPA action on revisions to a SIP that was required and approved or disapproved as meeting other provisions of the CAA or in the context of an enforcement action. In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were ``postponements'' that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The Court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits providing such are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, a reference that was removed in 1990. The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. Yet, even if the Court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here. At issue in Mision Industrial, 547 F.2d 123, was the definition of ``emissions limitation,'' not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the Commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The Commenter does not raise any concerns about whether the measures relied on by the Commonwealth in the infrastructure SIPs are ``emissions limitations'' and the decision in this case has no bearing here.\7\ In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was not reviewing an infrastructure SIP, but rather EPA's disapproval of a SIP and promulgation of a federal implementation plan (FIP) after a long history of the state failing to submit an adequate SIP in response to EPA's finding under section 110(k)(5) that the previously approved SIP was substantially inadequate to attain or maintain the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations, but this language was not part of the Court's holding in the case, which focused instead on whether EPA's finding of SIP inadequacy, disapproval of the state's required responsive attainment demonstration under section 110(k)(5), and adoption of a remedial FIP under section 110(c) were lawful. The Commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the Court [[Page 46498]] made no mention of the changed language. Furthermore, the Commenter also quotes the Court's statement that ``SIPs must include certain measures Congress specified,'' but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state's ``new source'' permitting program, not its infrastructure SIP. --------------------------------------------------------------------------- \7\ While the Commenter does contend that the Commonwealth shouldn't be allowed to rely on emission reductions that were developed for the prior standards (which we address herein), it does not claim that any of the measures are not ``emissions limitations'' within the definition of the CAA. --------------------------------------------------------------------------- Two of the other cases the Commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing ``revisions'' to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA. EPA does not believe any of these court decisions addressed required measures for infrastructure SIPs and believes nothing in the opinions addressed whether infrastructure SIPs need to contain measures to ensure attainment and maintenance of the NAAQS. 4. EPA Regulations, Such as 40 CFR 51.112(a) Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that ``[e]ach plan must demonstrate that the measures, rules and regulations contained in it are adequate to provide for the timely attainment and maintenance of the [NAAQS].'' The Commenter asserts that this regulation requires infrastructure SIPs to include emissions limits necessary to ensure attainment and maintenance of the NAAQS. The Commenter states that the provisions of 40 CFR 51.112 are not limited to nonattainment SIPs and instead applies to infrastructure SIPs which are required to attain and maintain the NAAQS in areas not designated nonattainment. The Commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that ``[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . .'' 51 FR 40656, 40656 (November 7, 1986). The Commenter asserts 40 CFR 51.112(a) identifies the plans to which it applies as those that implement the NAAQS. Response 4: The Commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits adequate to ensure attainment and maintenance of the NAAQS is not supported. As an initial matter, EPA notes this regulatory provision was initially promulgated and later restructured and consolidated prior to the CAA Amendments of 1990, in which Congress removed all references to ``attainment'' in section 110(a)(2)(A). And, it is clear on its face that 40 CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these provisions to apply when states are developing ``control strategy'' SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as sections 175A, 181-182, and 191-192. The Commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action ``restructuring and consolidating'' provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were ``beyond the scope'' of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new ``Part D'' attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. 51 FR 40657. Although EPA was explicit that it was not establishing requirements interpreting the provisions of new ``Part D'' of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: SOx and PM (portion)''), 51.14 (``Control strategy: CO, HC, Ox and NO2 (portion)''), 51.80 (``Demonstration of attainment: Pb (portion)''), and 51.82 (``Air quality data (portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan. 5. EPA Interpretations in Other Rulemakings Comment 5: The Commenter also references a prior EPA rulemaking action where EPA disapproved a SIP and claims that action shows EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject the SIP. The Commenter points to a 2006 partial approval and partial disapproval of revisions to Missouri's existing control strategy plans addressing the SO2 NAAQS. The Commenter claims EPA cited section 110(a)(2)(A) for disapproving a revision to the state plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure maintenance of the SO2 NAAQS after revision of an emission limit and claims EPA cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. The Commenter claims the revisions to Missouri's control strategy SIP for SO2 were rejected by EPA because the revised control strategy limits were also in Missouri's infrastructure SIP and thus the weakened limits would have impacted the infrastructure SIP's ability to aid in attaining and maintaining the NAAQS. Response 5: EPA does not agree that the prior Missouri rulemaking action referenced by the Commenter establishes how EPA reviews infrastructure SIPs. It is clear from the final Missouri rule that EPA was not reviewing initial infrastructure SIP submissions under section 110 of the CAA, but rather reviewing revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an infrastructure SIP. Nothing in that action addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. C. Sierra Club Comments on Pennsylvania SIP SO2 Emission Limits The Commenter contends that the Pennsylvania 2008 ozone and 2010 SO2 infrastructure SIP revisions did not revise the existing ozone precursor emission limits and SO2 emission limits in response to the 2008 ozone and 2010 SO2 NAAQS and fail to comport with assorted CAA requirements for SIPs to establish enforceable emission limits that are adequate to prohibit NAAQS exceedances in areas not designated nonattainment. EPA will address SO2 comments and ozone comments respectively. Comment 6: Citing section 110(a)(2)(A) of the CAA, the Commenter contends that EPA may not approve Pennsylvania's proposed 2010 SO2 infrastructure SIP because it does not include enforceable 1-hour SO2 emission limits for sources currently [[Page 46499]] allowed to cause ``NAAQS exceedances.'' The Commenter asserts the proposed infrastructure SIP fails to include enforceable 1-hour SO2 emissions limits or other required measures to ensure attainment and maintenance of the SO2 NAAQS in areas not designated nonattainment as the Commenter claims is required by section 110(a)(2)(A). The Commenter asserts an infrastructure SIP must ensure, through state-wide regulations or source specific requirements, proper mass limitations and emissions rates with short term averaging on specific large sources of pollutants such as power plants. The Commenter asserts that emission limits are especially important for meeting the 1-hour SO2 NAAQS because SO2 impacts are strongly source-oriented. The Commenter states coal-fired electric generating units (EGUs) are large contributors to SO2 emissions but contends Pennsylvania did not demonstrate that emissions allowed by the proposed infrastructure SIP from such large sources of SO2 will ensure compliance with the 2010 1-hour SO2 NAAQS. The Commenter claims the proposed infrastructure SIP would allow major sources to continue operating with present emission limits.\8\ The Commenter then refers to air dispersion modeling it conducted for five coal-fired EGUs in Pennsylvania, including Brunner Island Steam Electric Station, Montour Steam Electric Station, Cheswick Power Station, New Castle Power Plant, and Shawville Coal Plant. The Commenter asserts the results of the air dispersion modeling it conducted employing EPA's AERMOD program for modeling used the plants' allowable emissions and showed the plants could cause exceedances of the 2010 SO2 NAAQS with allowable emissions.\9\ Based on the modeling, the Commenter asserts the Pennsylvania SO2 infrastructure SIP submittal authorizes the EGUs to cause exceedances of the NAAQS with allowable emission rates and therefore the infrastructure SIP fails to include adequate enforceable emission limitations or other required measures for sources of SO2 sufficient to ensure attainment and maintenance of the 2010 SO2 NAAQS.\10\ The Commenter therefore asserts EPA must disapprove Pennsylvania's proposed 2010 SO2 infrastructure SIP revision. In addition, the Commenter asserts ``EPA may only approve an I-SIP that incorporates enforceable emission limitations on major sources of SO2 pollution in the state, including coal-fired power plants, with one-hour averaging times that are no less stringent than the modeling based limits . . . necessary to protect the one-hour SO2 NAAQS and attain and maintain the standard in Pennsylvania. These emission limits must apply at all times . . . to ensure that Pennsylvania is able to attain and maintain the 2010 SO2 NAAQS.'' The Commenter claimed additional modeling for two EGUs, Brunner Island and Montour, done with actual historical hourly SO2 emissions show these facilities have actually been causing ``exceedances of the NAAQS'' while operating pursuant to existing emission limits which the Commenter claims Pennsylvania included as part of the SO2 infrastructure SIP submission. The Commenter also asserts that any coal-fired units slated for retirement should be incorporated into the infrastructure SIP with an enforceable emission limit or control measure. --------------------------------------------------------------------------- \8\ The Commenter provides a chart in its comments claiming 80 percent of SO2 emissions in Pennsylvania are from coal- electric generating units based on 2011 data. \9\ The Commenter asserts its modeling followed protocols pursuant to 40 CFR part 51, Appendix W and EPA's modeling guidance issued March 2011 and December 2013. \10\ The Commenter again references 40 CFR 51.112 in support of its position that the infrastructure SIP must include emission limits for attainment and maintenance of the 2010 SO2 NAAQS. --------------------------------------------------------------------------- Response 6: EPA disagrees with the Commenter that EPA must disapprove Pennsylvania's SO2 infrastructure SIP for the reasons provided by the Commenter including the Commenter's modeling results and insufficient SO2 emission limits. EPA is not in this action making a determination regarding the Commonwealth's current air quality status or regarding whether its control strategy is sufficient to attain and maintain the NAAQS. Therefore, EPA is not making any judgment on whether the Commenter's submitted modeling demonstrates the NAAQS exceedances that the Commenter claims. EPA believes that section 110(a)(2)(A) of the CAA is reasonably interpreted to require states to submit infrastructure SIPs that reflect the first step in their planning for attainment and maintenance of a new or revised NAAQS. These SIP revisions should contain a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS and show that the SIP has enforceable control measures. In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state. As mentioned above, EPA has interpreted this to mean, with regard to the requirement for emission limitations that states may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. As stated in response to a previous more general comment, section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for ``implementation, maintenance and enforcement'' to mean that the SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the Commonwealth demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. As discussed above, EPA has interpreted the requirement for emission limitations in section 110 to mean that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Finally, as EPA stated in the Infrastructure SIP Guidance which specifically provides guidance to states in addressing the 2010 SO2 NAAQS and the 2008 Ozone NAAQS, ``[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both.'' Infrastructure SIP Guidance at p. 2. On April 12, 2012, EPA explained its expectations regarding implementation of the 2010 SO2 NAAQS via letters to each of the states. EPA communicated in the April 2012 letters that all states were expected to submit SIPs meeting the ``infrastructure'' SIP requirements under section 110(a)(2) of the CAA by June 2013. At the time, EPA was undertaking a stakeholder outreach process to continue to develop possible approaches for determining attainment status under the SO2 NAAQS and [[Page 46500]] implementing this NAAQS. EPA was abundantly clear in the April 2012 letters that EPA did not expect states to submit substantive attainment demonstrations or modeling demonstrations showing attainment for areas not designated nonattainment in infrastructure SIPs due in June 2013. Although EPA had previously suggested in its 2010 SO2 NAAQS preamble and in prior draft implementation guidance in 2011 that states should, in the unique SO2 context, use the section 110(a) SIP process as the vehicle for demonstrating attainment of the NAAQS, this approach was never adopted as a binding requirement and was subsequently discarded in the April 2012 letters to states. The April 2012 letters recommended states focus infrastructure SIPs due in June 2013, such as Pennsylvania's SO2 infrastructure SIP, on traditional ``infrastructure elements'' in section 110(a)(1) and (2) rather than on modeling demonstrations for future attainment for areas not designated as nonattainment.\11\ --------------------------------------------------------------------------- \11\ In EPA's final SO2 NAAQS preamble (75 FR 35520 (June 22, 2010)) and subsequent draft guidance in March and September 2011, EPA had expressed its expectation that many areas would be initially designated as unclassifiable due to limitations in the scope of the ambient monitoring network and the short time available before which states could conduct modeling to support their designations recommendations due in June 2011. In order to address concerns about potential violations in these unclassifiable areas, EPA initially recommended that states submit substantive attainment demonstration SIPs based on air quality modeling by June 2013 (under section 110(a)) that show how their unclassifiable areas would attain and maintain the NAAQS in the future. Implementation of the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper for Discussion, May 2012 (2012 Draft White Paper) (for discussion purposes with Stakeholders at meetings in May and June 2012), available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. However, EPA clearly stated in this 2012 Draft White Paper its clarified implementation position that it was no longer recommending such attainment demonstrations for unclassifiable areas for June 2013 infrastructure SIPs. Id. EPA had stated in the preamble to the NAAQS and in the prior 2011 draft guidance that EPA intended to develop and seek public comment on guidance for modeling and development of SIPs for sections 110 and 191 of the CAA. Section 191 of the CAA requires states to submit SIPs in accordance with section 172 for areas designated nonattainment with the SO2 NAAQS. After seeking such comment, EPA has now issued guidance for the nonattainment area SIPs due pursuant to sections 191 and 172. See Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions, Stephen D. Page, Director, EPA's Office of Air Quality Planning and Standards, to Regional Air Division Directors Regions 1-10, April 23, 2014. In September 2013, EPA had previously issued specific guidance relevant to infrastructure SIP submissions due for the NAAQS, including the 2010 SO2 NAAQS. See Infrastructure SIP Guidance. --------------------------------------------------------------------------- Therefore, EPA asserts that evaluations of modeling demonstrations such as those submitted by the Commenter are more appropriately to be considered in actions that make determinations regarding states' current air quality status or regarding future air quality status. EPA also asserts that SIP revisions for SO2 nonattainment areas including measures and modeling demonstrating attainment are due by the dates statutorily prescribed under subpart 5 under part D. Those submissions are due no later than 18 months after an area is designed nonattainment for SO2 , under CAA section 191(a). Thus, the CAA directs states to submit these SIP requirements that are specific for nonattainment areas on a separate schedule from the ``structural requirements'' of 110(a)(2) which are due within three years of adoption or revision of a NAAQS and which apply statewide. The infrastructure SIP submission requirement does not move up the date for any required submission of a part D plan for areas designated nonattainment for the new NAAQS. Thus, elements relating to demonstrating attainment for areas not attaining the NAAQS are not necessary for infrastructure SIP submissions, and the CAA does not provide explicit requirements for demonstrating attainment for areas that have not yet been designated regarding attainment with a particular NAAQS. As stated previously, EPA believes that the proper inquiry at this juncture is whether Pennsylvania has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submittal. Emissions limitations and other control measures needed to attain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure elements. A state, like Pennsylvania, may reference pre- existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission. Pennsylvania's existing rules and emission reduction measures in the SIP that control emissions of SO2 were discussed in the TSD. These provisions have the ability to reduce SO2 overall. Although the Pennsylvania SIP relies on measures and programs used to implement previous SO2 NAAQS, these provisions are not limited to reducing SO2 levels to meet one specific NAAQS and will continue to provide benefits for the 2010 SO2 NAAQS. Additionally, as discussed in EPA's TSD supporting the NPR, Pennsylvania has the ability to revise its SIP when necessary (e.g. in the event the Administrator finds the plan to be substantially inadequate to attain the NAAQS or otherwise meet all applicable CAA requirements) as required under element H of section 110(a)(2). See Section 4(1) of the APCA, 35 P.S. Sec. 4004(1), which empowers PADEP to implement the provisions of the CAA. Section 5 of the APCA, 35 P.S. Sec. 4005, authorizes the Environmental Quality Board (EQB) to adopt rules and regulations for the prevention, control, reduction and abatement of air pollution throughout the Commonwealth. EPA believes the requirements for emission reduction measures for an area designated nonattainment for the 2010 primary SO2 NAAQS are in sections 172 and 191-192 of the CAA, and therefore, the appropriate avenue for implementing requirements for necessary emission limitations for demonstrating attainment with the 2010 SO2 NAAQS is through the attainment planning process contemplated by those sections of the CAA. On August 5, 2013, EPA designated as nonattainment most areas in locations where existing monitoring data from 2009-2011 indicated violations of the 1-hour SO2 standard. 78 FR 47191. At that time, four areas in Pennsylvania had monitoring data from 2009-2011 indicating violations of the 1-hour SO2 standard, and these areas were designated nonattainment in Pennsylvania. See 40 CFR 81.339. Also on March 2, 2015 the United States District Court for the Northern District of California entered a Consent Decree among the EPA, Sierra Club and Natural Resources Defense Council to resolve litigation concerning the deadline for completing designations for the 2010 SO2 NAAQS. Pursuant to the terms of the Consent Decree, EPA will complete additional designations for all remaining areas of the country including remaining areas in Pennsylvania.\12\ --------------------------------------------------------------------------- \12\ The Consent Decree, entered March 2, 2015 by the United States District Court for the Northern District of California in Sierra Club and NRDC v. EPA, Case 3:13-cv-03953-SI (N.D. Cal.) is available at http://www.epa.gov/airquality/sulfurdioxide/designations/pdfs/201503FinalCourtOrder.pdf. --------------------------------------------------------------------------- For the four areas designated nonattainment in Pennsylvania in August 2013, attainment SIPs were due by April 4, 2015 and must contain demonstrations that the areas will attain the 2010 SO2 NAAQS as expeditiously as practicable, but no later than October 4, 2018 pursuant to sections 172, 191 and 192, including a plan for enforceable measures to reach attainment of the NAAQS. Similar attainment planning SIPs for any additional areas which EPA subsequently designates nonattainment with the 2010 SO2 NAAQS will be due for such areas within the timeframes specified in CAA section 191. EPA [[Page 46501]] believes it is not appropriate to interpret the overall section 110(a)(2) infrastructure SIP obligation to require bypassing the attainment planning process by imposing separate requirements outside the attainment planning process. Such actions would be disruptive and premature absent exceptional circumstances and would interfere with a state's planning process. See In the Matter of EME Homer City Generation LP and First Energy Generation Corp., Order on Petitions Numbers III-2012-06, III-2012-07, and III 2013-01 (July 30, 2014) (hereafter, Homer City/Mansfield Order) at 10-19 (finding Pennsylvania SIP did not require imposition of 1-hour SO2 emission limits on sources independent of the part D attainment planning process contemplated by the CAA). EPA believes that the history of the CAA and intent of Congress for the CAA as described above demonstrate clearly that it is within the section 172 and general part D attainment planning process that Pennsylvania must include 1-hour SO2 emission limits on sources, where needed, for the four areas designated nonattainment to reach attainment with the 2010 1-hour SO2 NAAQS and for any additional areas EPA may subsequently designate nonattainment. The Commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits adequate to provide for timely attainment and maintenance of the standard is also not supported. As explained previously in response to the background comments, EPA notes this regulatory provision applies to planning SIPs, such as those demonstrating how an area will attain a specific NAAQS and not to infrastructure SIPs which are intended to support that the states have in place structural requirements necessary to implement the NAAQS. As noted in EPA's preamble for the 2010 SO2 NAAQS, determining compliance with the SO2 NAAQS will likely be a source-driven analysis and EPA has explored options to ensure that the SO2 designations process realistically accounts for anticipated SO2 reductions at sources that we expect will be achieved by current and pending national and regional rules. See 75 FR 35520. As mentioned previously, EPA will act in accordance with the entered Consent Decree's schedule for conducting additional designations for the 2010 SO2 NAAQS and any areas designated nonattainment must meet the applicable part D requirements for these areas. However, because the purpose of an infrastructure SIP submission is for more general planning purposes, EPA does not believe Pennsylvania was obligated during this infrastructure SIP planning process to account for controlled SO2 levels at individual sources. See Homer City/Mansfield Order at 10-19. Regarding the air dispersion modeling conducted by the Commenter pursuant to AERMOD for the coal-fired plants including the Brunner Island, Montour, Cheswick, New Castle and Shawville facilities, EPA does not find the modeling information relevant at this time for review of an infrastructure SIP. While EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations, EPA has affirmatively stated such modeling was not needed to demonstrate attainment for the SO2 infrastructure SIPs under the 2010 SO2 NAAQS. See April 12, 2012 letters to states regarding SO2 implementation and Implementation of the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper for Discussion, May 2012, available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.\13\ --------------------------------------------------------------------------- \13\ EPA has provided draft guidance for states regarding modeling analyses to support the designations process for the 2010 SO2 NAAQS. SO2 NAAQS Designations Modeling Technical Assistance Document (draft), EPA Office of Air and Radiation and Office of Air Quality Planning and Standards, December 2013, available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. --------------------------------------------------------------------------- EPA has proposed a Data Requirements Rule which, if promulgated, will be relevant to the SO2 designations process. See, e.g., 79 FR 27446 (May 13, 2014) (proposing process by which state air agencies would characterize air quality around SO2 sources through ambient monitoring and/or air quality modeling techniques and submit such data to the EPA). The proposed rule includes a lengthy discussion of how EPA anticipates addressing modeling that informs determinations of states' air quality status under the 2010 SO2 NAAQS. As stated above, EPA believes it is not appropriate to bypass the attainment planning process by imposing separate attainment planning process requirements outside part D and into the infrastructure SIP process. Finally, EPA also disagrees with the Commenter that the Pennsylvania infrastructure SIP must, to be approved, incorporate the planned retirement dates of coal-fired EGUs to ensure attainment and maintenance of the SO2 NAAQS. Because EPA does not believe Pennsylvania's infrastructure SIP requires at this time 1-hour SO2 emission limits on these sources or other large stationary sources to ensure attainment or maintenance or ``prevent exceedances'' of the 2010 SO2 NAAQS, EPA likewise does not believe incorporating planned retirement dates for SO2 emitters is necessary for our approval of an infrastructure SIP which we have explained meets the structural requirements of section 110(a)(2). Pennsylvania can address any SO2 emission reductions that may be needed to attain the 2010 SO2 NAAQS, including reductions through source retirements, in the separate attainment planning process of part D of title I of the CAA for areas designated nonattainment. In conclusion, EPA disagrees with the Commenter's statements that EPA must disapprove Pennsylvania's infrastructure SIP submission because it does not establish specific enforceable SO2 emission limits, either on coal-fired EGUs or other large SO2 sources, in order to demonstrate attainment and maintenance with the NAAQS at this time.\14\ --------------------------------------------------------------------------- \14\ Finally, EPA does not disagree with the Commenter's claim that coal fired EGUs are a large source of SO2 emissions in Pennsylvania based on the 2011 NEI. However, EPA does not agree that this information is relevant to our approval of the infrastructure SIP which EPA has explained meets requirements in CAA section 110(a)(2). --------------------------------------------------------------------------- Comment 7: The Commenter asserts that modeling is the appropriate tool for evaluating adequacy of infrastructure SIPs and ensuring attainment and maintenance of the 2010 SO2 NAAQS. The Commenter refers to EPA's historic use of air dispersion modeling for attainment designations as well as ``SIP revisions.'' The Commenter cites to prior EPA statements that the Agency has used modeling for designations and attainment demonstrations, including statements in the 2010 SO2 NAAQS preamble, EPA's 2012 Draft White Paper for Discussion on Implementing the 2010 SO2 NAAQS, and a 1994 SO2 Guideline Document, as modeling could better address the source-specific impacts of SO2 emissions and historic challenges from monitoring SO2 emissions.\15\ --------------------------------------------------------------------------- \15\ The Commenter also cites to a 1983 EPA Memorandum on section 107 designations policy regarding use of modeling for designations and to the 2012 Mont. Sulphur & Chem. Co. case which upheld EPA's finding that the previously approved SIP for an area in Montana was substantially inadequate to attain the NAAQS due to modeled violations of the NAAQS. --------------------------------------------------------------------------- The Commenter also cited to several cases upholding EPA's use of modeling in NAAQS implementation actions, including the Montana Sulphur case, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), Republic Steel Corp. v. Costle, 621 F.2d 797 (6th Cir. 1980), and Catawba County v. EPA, 571 F.3d 20 [[Page 46502]] (D.C. Cir. 2009).\16\ The Commenter discusses statements made by EPA staff regarding the use of modeling and monitoring in setting emission limitations or determining ambient concentrations as a result of a source's emissions, discussing performance of AERMOD as a model, if AERMOD is capable of predicting whether the NAAQS is attained, and whether individual sources contribute to SO2 NAAQS violations. The Commenter cites to EPA's history of employing air dispersion modeling for increment compliance verifications in the permitting process for the Prevention of Significant Deterioration (PSD) program required in part C of Title I of the CAA. The Commenter claims several coal-fired EGUs including Brunner Island, Montour, Cheswick, New Castle, and Shawville are examples of sources located in elevated terrain where the AERMOD model functions appropriately in evaluating ambient impacts. --------------------------------------------------------------------------- \16\ Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174 (9th Cir. 2012). --------------------------------------------------------------------------- The Commenter asserts EPA's use of air dispersion modeling was upheld in GenOn REMA, LLC v. EPA, 722 F.3d 513 (3rd Cir. 2013) where an EGU challenged EPA's use of CAA section 126 to impose SO2 emission limits on a source due to cross-state impacts. The Commenter claims the Third Circuit in GenOn REMA upheld EPA's actions after examining the record which included EPA's air dispersion modeling of the one source as well as other data. The Commenter cites to Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254 (D.C. Cir. 2009) for the general proposition that it would be arbitrary and capricious for an agency to ignore an aspect of an issue placed before it and that an agency must consider information presented during notice-and-comment rulemaking.\17\ --------------------------------------------------------------------------- \17\ The Commenter also claims it raised similar arguments to Pennsylvania during the Pennsylvania proposal process for the infrastructure SIPs. --------------------------------------------------------------------------- Finally, the Commenter claims that Pennsylvania's proposed SO2 infrastructure SIP lacks emission limitations informed by air dispersion modeling and therefore fails to ensure Pennsylvania will attain and maintain the 2010 SO2 NAAQS. The Commenter claims EPA must disapprove the SO2 infrastructure SIP as it does not ``prevent exceedances'' or ensure attainment and maintenance of the SO2 NAAQS. Response 7: EPA agrees with the Commenter that air dispersion modeling, such as AERMOD, can be an important tool in the CAA section 107 designations process for SO2 and in developing SIPs for nonattainment areas as required by sections 172 and 191-192, including supporting required attainment demonstrations. EPA agrees that prior EPA statements, EPA guidance, and case law support the use of air dispersion modeling in the SO2 designations process and attainment demonstration process, as well as in analyses of the interstate impact of transported emissions and whether existing approved SIPs remain adequate to show attainment and maintenance of the SO2 NAAQS. However, as provided in the previous responses, EPA disagrees with the Commenter that EPA must disapprove the Pennsylvania SO2 infrastructure SIP for its alleged failure to include source-specific SO2 emission limits that show no exceedances of the NAAQS when modeled or ensure attainment and maintenance of the NAAQS. In acting to approve or disapprove an infrastructure SIP, EPA is not required to make findings regarding current air quality status of areas within the state, regarding such area's projected future air quality status, or regarding whether existing emissions limits in such area are sufficient to meet a NAAQS in the area. All of the actions the Commenter cites, instead, do make findings regarding at least one of those issues. The attainment planning process detailed in part D of the CAA, including sections 172 and 191-192 attainment SIPs, is the appropriate place for the state to evaluate measures needed to bring in-state nonattainment areas into attainment with a NAAQS and to impose additional emission limitations such as SO2 emission limits on specific sources. EPA had initially recommended that states submit substantive attainment demonstration SIPs based on air quality modeling in the final 2010 SO2 NAAQS preamble (75 FR 35520) and in subsequent draft guidance issued in September 2011 for the section 110(a) SIPs due in June 2013 in order to show how areas then-expected to be designated as unclassifiable would attain and maintain the NAAQS. These initial statements in the preamble and 2011 draft guidance, presented only in the context of the new 1-hour SO2 NAAQS and not suggested as a matter of general infrastructure SIP policy, were based on EPA's expectation at the time, that by June 2012, most areas would initially be designated as unclassifiable due to limitations in the scope of the ambient monitoring network and the short time available before which states could conduct modeling to support designations recommendations in 2011. However, after conducting extensive stakeholder outreach and receiving comments from the states regarding these initial statements and the timeline for implementing the NAAQS, EPA subsequently stated in the April 12, 2012 letters and in the 2012 Draft White Paper that EPA was clarifying its 2010 SO2 NAAQS implementation position and was no longer recommending such attainment demonstrations supported by air dispersion modeling for unclassifiable areas (which had not yet been designated) for the June 2013 infrastructure SIPs. Instead, EPA explained that it expected states to submit infrastructure SIPs that followed the general policy EPA had applied under other NAAQS. EPA then reaffirmed this position in the February 6, 2013 memorandum, ``Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard.'' \18\ As previously mentioned, EPA had stated in the preamble to the NAAQS and in the prior 2011 draft guidance that EPA intended to develop and seek public comment on guidance for modeling and development of SIPs for sections 110, 172 and 191-192 of the CAA. After receiving such further comment, EPA has now issued guidance for the nonattainment area SIPs due pursuant to sections 172 and 191-192. See April 23, 2014 Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. In addition, modeling may be an appropriate consideration for states and EPA in further designations for the SO2 NAAQS in accordance with the Sierra Club and NRDC Consent Decree and proposed data requirements rule mentioned previously.\19\ While the EPA guidance for attainment SIPs and for designations for CAA section 107 and proposed process for characterizing SO2 emissions from larger sources discuss the use of air dispersion modeling, EPA's 2013 Infrastructure SIP Guidance did not suggest that states use [[Page 46503]] air dispersion modeling for purposes of the section 110(a)(2) infrastructure SIP. Therefore, as discussed previously, EPA believes the Pennsylvania SO2 infrastructure SIP submittal contains the structural requirements to address elements in section 110(a)(2) as discussed in detail in the TSD accompanying the proposed approval. EPA believes infrastructure SIPs are general planning SIPs to ensure that a state has adequate resources and authority to implement a NAAQS. Infrastructure SIP submissions are not intended to act or fulfill the obligations of a detailed attainment and/or maintenance plan for each individual area of the state that is not attaining the NAAQS. While infrastructure SIPs must address modeling authorities in general for section 110(a)(2)(K), EPA believes 110(a)(2)(K) requires infrastructure SIPs to provide the state's authority for air quality modeling and for submission of modeling data to EPA, not specific air dispersion modeling for large stationary sources of pollutants. In the TSD for this rulemaking action, EPA provided a detailed explanation of Pennsylvania's ability and authority to conduct air quality modeling when required and its authority to submit modeling data to the EPA. --------------------------------------------------------------------------- \18\ The February 6, 2013 ``Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard,'' one of the April 12, 2012 state letters, and the May 2012 Draft White Paper are available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. \19\ The Consent Decree in Sierra Club and NRDC v. EPA, Case 3:13-cv-03953-SI (N.D. Cal.) is available at http://www.epa.gov/airquality/sulfurdioxide/designations/pdfs/201503FinalCourtOrder.pdf. See 79 FR 27446 (EPA's proposed data requirements rule). See also Updated Guidance for Area Designations for the 2010 Primary Sulfur Dioxide National Ambient Air Quality Standard, Stephen D. Page, Director, EPA's Office of Air Quality Planning Standards, March 20, 2015, available at http://www.epa.gov/airquality/sulfurdioxide/pdfs/20150320SO2designations.pdf.> --------------------------------------------------------------------------- EPA finds the Commenter's discussion of case law, guidance, and EPA staff statements regarding advantages of AERMOD as an air dispersion model for purposes of demonstrating attainment of the NAAQS to be irrelevant to the analysis of Pennsylvania's infrastructure SIP, which as we have explained is separate from the SIP required to demonstrate attainment of the NAAQS pursuant to sections 172 or 192. In addition, the Commenter's comments relating to EPA's use of AERMOD or modeling in general in designations pursuant to section 107, including its citation to Catawba County, are likewise irrelevant as EPA's present approval of Pennsylvania's infrastructure SIP is unrelated to the section 107 designations process. Nor is EPA's action on this infrastructure SIP related to any new source review (NSR) or PSD permit program issue. As outlined in the August 23, 2010 clarification memo, ``Applicability of Appendix W Modeling Guidance for the 1-hour SO2 National Ambient Air Quality Standard'' (U.S. EPA, 2010a), AERMOD is the preferred model for single source modeling to address the 1-hour SO2 NAAQS as part of the NSR/PSD permit programs. Therefore, as attainment SIPs, designations, and NSR/PSD actions are outside the scope of a required infrastructure SIP for the 2010 SO2 NAAQS for section 110(a), EPA provides no further response to the Commenter's discussion of air dispersion modeling for these applications. If the Commenter resubmits its air dispersion modeling for the Pennsylvania EGUs, or updated modeling information in the appropriate context, EPA will address the resubmitted modeling or updated modeling at that time. The Commenter correctly noted that the Third Circuit upheld EPA's section 126 finding imposing SO2 emissions limitations on an EGU pursuant to CAA section 126. GenOn REMA, LLC v. EPA, 722 F.3d 513. Pursuant to section 126, any state or political subdivision may petition EPA for a finding that any major source or group of stationary sources emits, or would emit, any air pollutant in violation of the prohibition of section 110(a)(2)(D)(i) which relates to significant contributions to nonattainment or interference with maintenance of a NAAQS in another state. The Third Circuit upheld EPA's authority under section 126 and found EPA's actions neither arbitrary nor capricious after reviewing EPA's supporting docket which included air dispersion modeling as well as ambient air monitoring data showing exceedances of the NAAQS. The Commenter appears to have cited to this matter to demonstrate EPA's use of modeling for certain aspects of the CAA. We do not disagree that such modeling is appropriate for other actions, such as those under section 126. But, for the reasons explained above, such modeling is not required for determining whether Pennsylvania's infrastructure SIP has the required structural requirements pursuant to section 110(a)(2). As noted above, EPA is not acting on an interstate transport SIP in this action because Pennsylvania has not made such a submission. The decision in GenOn Rema does not otherwise speak to the role of air dispersion modeling as to any other planning requirements in the CAA. In its comments, the Commenter relies on Motor Vehicle Mfrs. Ass'n and NRDC v. EPA to support its comments that EPA must consider the Commenter's modeling data on several Pennsylvania EGUs including Brunner Island, Montour, Cheswick, New Castle, and Shawville based on administrative law principles regarding consideration of comments provided during a rulemaking process. For the reasons previously explained, the purpose for which the Commenter submitted the modeling-- namely, to assert that current air quality in the areas in which those sources are located does not meet the NAAQS--is not relevant to EPA's action on this infrastructure SIP, and consequently EPA is not required to consider the modeling in evaluating the approvability of the infrastructure SIP.\20\ EPA does not believe infrastructure SIPs must contain emission limitations informed by air dispersion modeling in order to meet the requirements of section 110(a)(2)(A). Thus, EPA has evaluated the persuasiveness of the Commenter's submitted modeling in finding that it is not relevant to the approvability of Pennsylvania's proposed infrastructure SIP for the 2010 SO2 NAAQS, but EPA has made no judgment regarding whether the Commenter's submitted modeling is sufficient to show violations of the NAAQS. --------------------------------------------------------------------------- \20\ EPA notes that PADEP provided similar responses to the Commenter's claims regarding evaluation of modeling data for an infrastructure SIP as specifically recounted by the Commenter in its March 9, 2015 comments to EPA on this rulemaking action. EPA agrees with PADEP's responses that emissions limitations for attainment of the NAAQS are appropriate for consideration in the part D planning process and not for the infrastructure SIP process. Thus, EPA provides no further response on this issue as PADEP responded to the Commenter in Pennsylvania's rulemaking and EPA's responses are provided in this action. --------------------------------------------------------------------------- While EPA does not believe that infrastructure SIP submissions are required to contain emission limits assuring in-state attainment of the NAAQS, as suggested by the Commenter, EPA does recognize that in the past, states have, in their discretion, used infrastructure SIP submittals as a `vehicle' for incorporating regulatory revisions or source-specific emission limits into the state's plan. See 78 FR 73442 (December 6, 2013) (approving regulations Maryland submitted for incorporation into the SIP along with the 2008 ozone infrastructure SIP to address ethics requirements for State Boards in sections 128 and 110(a)(2)(E)(ii)). While these SIP revisions are intended to help the state meet the requirements of section 110(a)(2), these ``ride-along'' SIP revisions are not intended to signify that all infrastructure SIP submittals must, in order to be approved by EPA, have similar regulatory revisions or source-specific emission limits. Rather, the regulatory provisions and source-specific emission limits the state relies on when showing compliance with section 110(a)(2) have, in many cases, likely already been incorporated into the state's SIP prior to each new infrastructure SIP submission; in some cases this was done for entirely separate CAA requirements, such as attainment [[Page 46504]] plans required under section 172, or for previous NAAQS. Comment 8: The Commenter asserts that EPA may not approve the Pennsylvania proposed SO2 infrastructure SIP because it fails to include enforceable emission limitations with a 1-hour averaging time that applies at all times. The Commenter cites to CAA section 302(k) which requires emission limits to apply on a continuous basis. The Commenter claims EPA has stated that 1-hour averaging times are necessary for the 2010 SO2 NAAQS citing to EPA's April 23, 2014 Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions, a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding the need for 1-hour SO2 emission limits in a PSD permit, an EPA Environmental Hearing Board (EHB) decision rejecting use of a 3-hour averaging time for a SO2 limit in a PSD permit, and EPA's disapproval of a Missouri SIP which relied on annual averaging for SO2 emission rates.\21\ --------------------------------------------------------------------------- \21\ Sierra Club cited to In re: Mississippi Lime Co., PSDAPLPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy SO2 SIP). --------------------------------------------------------------------------- Thus, the Commenter contends EPA must disapprove Pennsylvania's infrastructure SIP which the Commenter claims fails to require emission limits with adequate averaging times. Response 8: EPA disagrees that EPA must disapprove the proposed Pennsylvania infrastructure SIP because the SIP does not contain enforceable SO2 emission limitations with 1-hour averaging periods that apply at all times, as this issue is not appropriate for resolution at this stage. The comment does not assert that the SO2 emission limits in Pennsylvania's SIP are not enforceable or that they do not apply at all times, instead the comment focuses on the lack of 1-hour averaging times. We do not believe, as suggested by the Commenter, that the emission limits are not ``continuous'' within the meaning of section 302(k). As EPA has noted previously, the purpose of the section 110(a)(2) SIP is to ensure that the State has the necessary structural components to implement programs for attainment and maintenance of the NAAQS.\22\ While EPA does agree that the averaging time is a critical consideration for purposes of substantive SIP revisions, such as attainment demonstrations, the averaging time of existing rules in the SIP is not relevant for determining that the State has met the applicable requirements of section 110(a)(2) with respect to the infrastructure elements addressed in the present SIP action.\23\ Therefore, because EPA finds Pennsylvania's SO2 infrastructure SIP approvable without the additional SO2 emission limitations showing in-state attainment of the NAAQS, EPA finds the issues of appropriate averaging periods for such future limitations not relevant at this time. The Commenter has cited to prior EPA discussion on emission limitations required in PSD permits (from an EAB decision and EPA's letter to Kansas' permitting authority) pursuant to part C of the CAA, which is neither relevant nor applicable to the present SIP action. In addition, as previously discussed, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to a control strategy SIP required pursuant to part D attainment planning and is likewise not relevant to the analysis of infrastructure SIP requirements. --------------------------------------------------------------------------- \22\ As EPA has stated, some areas are designated nonattainment areas pursuant to CAA section 107 for the 2010 SO2 NAAQS in the Commonwealth. Thus, while the Commonwealth, at this time, has an obligation to submit attainment plans for the 2010 SO2 NAAQS for sections 172, 191 and 192, EPA believes the appropriate time for examining necessity of the averaging periods within any submitted SO2 emission limits on specific sources is within the attainment planning process. \23\ For a discussion on emission averaging times for emissions limitations for SO2 attainment SIPs, see the April 23, 2014 Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions. EPA explained that it is possible, in specific cases, for states to develop control strategies that account for variability in 1-hour emissions rates through emission limits with averaging times that are longer than 1-hour, using averaging times as long as 30-days, but still provide for attainment of the 2010 SO2 NAAQS as long as the limits are of at least comparable stringency to a 1-hour limit at the critical emission value. EPA has not yet evaluated any specific submission of such a limit, and so is not at this time prepared to take final action to implement this concept. --------------------------------------------------------------------------- Comment 9: The Commenter states that enforceable emission limits in SIPs or permits are necessary to avoid nonattainment designations in areas where modeling or monitoring shows SO2 levels exceed the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA document, Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard, which the Commenter contends discusses how states could avoid future nonattainment designations. The Commenter asserts EPA must ensure enforceable emission limits in the Pennsylvania infrastructure SIP will not allow ``exceedances'' of the SO2 NAAQS. The Commenter claims the modeling it conducted for Brunner Island, Montour, Cheswick, New Castle, and Shawville indicates at least 28 additional counties in Pennsylvania must be designated nonattainment with the 2010 SO2 NAAQS without such enforceable SO2 limits. In summary, the Commenter asserts EPA must disapprove the Pennsylvania infrastructure SIP and ensure emission limits will not allow large sources of SO2 to cause exceedances of the 2010 SO2 NAAQS. Response 9: EPA appreciates the Commenter's concern with avoiding nonattainment designations in Pennsylvania for the 2010 SO2 NAAQS. However, Congress designed the CAA such that states have the primary responsibility for achieving and maintaining the NAAQS within their geographic area by submitting SIPs which will specify the details of how the state will meet the NAAQS. Pursuant to section 107(d), the states make initial recommendations of designations for areas within each state and EPA then promulgates the designations after considering the state's submission and other information. EPA promulgated initial designations for the 2010 SO2 NAAQS in August 2013 for areas in which monitoring at that time showed violations of the NAAQS, but has not yet issued designations for other areas and will complete the required designations pursuant to the schedule contained in the recently entered Consent Decree. EPA will designate additional areas for the 2010 SO2 NAAQS in accordance with the CAA section 107 and existing EPA policy and guidance. Pennsylvania may, on its own accord, decide to impose additional SO2 emission limitations to avoid future designations to nonattainment. If additional Pennsylvania areas are designated nonattainment, Pennsylvania will then have the initial opportunity to develop additional emissions limitations needed to attain the NAAQS, and EPA would be charged with reviewing whether the SIP is adequate to demonstrate attainment. See Commonwealth of Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (DCCir.1995)) (discussing that states have primary responsibility for determining an emission reductions program for its areas subject to EPA approval dependent upon whether the SIP as a whole meets applicable requirements of the CAA). However, such considerations are not required of Pennsylvania at the infrastructure SIP stage of NAAQS implementation, as the Commenter's statements concern the separate designations process under section 107.\24\ EPA disagrees that the [[Page 46505]] infrastructure SIP must be disapproved for not including enforceable emissions limitations to prevent future 1-hour SO2 nonattainment designations. --------------------------------------------------------------------------- \24\ EPA also notes that in EPA's final rule regarding the 2010 SO2 NAAQS, EPA noted that it anticipates several forthcoming national and regional rules, such as the Industrial Boilers standard under CAA section 112, are likely to require significant reductions in SO2 emissions over the next several years. See 75 FR 35520. EPA continues to believe similar national and regional rules will lead to SO2 reductions that will help achieve compliance with the 2010 SO2 NAAQS. If it appears that states with areas designated nonattainment in 2013 will nevertheless fail to attain the NAAQS as expeditiously as practicable (but no later than October 2018) during EPA's review of attainment SIPs required by section 172, the CAA provides authorities and tools for EPA to solve such failure, including, as appropriate, disapproving submitted SIPs and promulgating federal implementation plans. Likewise, for any areas designated nonattainment after 2013, EPA has the same authorities and tools available to address any areas which do not timely attain the NAAQS. --------------------------------------------------------------------------- D. Sierra Club Comments on Pennsylvania 2008 Ozone Infrastructure SIP Comment 10: The Commenter claims EPA must disapprove the proposed infrastructure SIP for the 2008 ozone NAAQS for its failure to include enforceable measures on sources of volatile organic compounds (VOCs) and nitrogen oxides (NOX ) to ensure attainment and maintenance of the NAAQS in areas not designated nonattainment and to ensure compliance with section 110(a)(2)(A) for the 2008 ozone NAAQS. The Commenter specifically mentions EGUs as well as the oil and gas production industry as sources needing additional controls as they are major sources of ozone precursors. The Commenter claims stringent emission limits must apply at all times to ensure all areas in Pennsylvania attain and maintain the ozone NAAQS. The Commenter claims the provisions listed by Pennsylvania for section 110(a)(2)(A) in its 2008 ozone NAAQS infrastructure SIP are insufficient for attaining and maintaining the 2008 ozone NAAQS as evidenced by the Commenter's review of air quality monitoring data in areas which are not presently designated nonattainment for the 2008 ozone NAAQS. Specifically, the Commenter cites air monitoring in a number of Pennsylvania counties including Mercer, Indiana, Lebanon, Dauphin, Erie and York counties indicating ``exceedances'' of the NAAQS and what the Commenter asserts are design values above the NAAQS in 2010-2012, 2011-2013, and 2012- 2014. The Commenter alleges that these ``exceedances'' demonstrate that the Pennsylvania 2008 ozone infrastructure SIP with existing regulations, statutes, source-specific limits and programs fails to demonstrate the infrastructure SIP will ensure attainment and maintenance of the 2008 ozone NAAQS. Thus, the Commenter asserts EPA must disapprove the 2008 ozone infrastructure SIP. In addition, the Commenter asserts that the infrastructure SIP required by section 110(a) must provide assurances that the NAAQS will be attained and maintained for areas not designated nonattainment and asserts that the Pennsylvania infrastructure SIP must contain state- wide regulations and emission limits that ``ensure that the proper mass limitations and short term averaging periods are imposed on certain specific large sources of NOX such as power plants. These emission limits must apply at all times . . . to ensure that all areas of Pennsylvania attain and maintain the 2008 eight-hour Ozone NAAQS.'' The Commenter suggests limits should be set on a pounds per hour (lbs/ hr) basis for EGUs to address variation in mass emissions and ensure protection of the ambient air quality. The Commenter cites to NOX limits from PSD permits issued to EGUs with low NOX emission rates, claiming such rates and related control efficiencies are achievable for EGUs. The Commenter suggests short-term averaging limits would ensure EGUs cannot emit NOX at higher rates on days when ozone levels are worst while meeting a longer-term average. The Commenter also contends that adding control devices and emission limits on EGUs are a ``cost effective option to reduce NOX pollution and attain and maintain the 2008 ozone NAAQS.'' Finally, the Commenter contends the proposed ozone infrastructure SIP cannot ensure Pennsylvania will attain and maintain the 2008 ozone NAAQS and contends EPA must disapprove the SIP for lack of emission limits to attain and maintain the ozone NAAQS statewide. Response 10: EPA disagrees with the commenter that the infrastructure SIPs must include detailed attainment and maintenance plans for all areas of the state and must be disapproved if ozone air quality data that became available late in the process or after the SIP was due and submitted changes the status of areas within the state.\25\ EPA has addressed in detail in prior responses above the Commenter's general arguments that the statutory language, legislative history, case law, EPA regulations, and prior rulemaking actions by EPA mandate the interpretation it advocates--i.e., that infrastructure SIPs must ensure attainment and maintenance of the NAAQS. EPA believes that section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and that they contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS, including the 2008 ozone NAAQS. --------------------------------------------------------------------------- \25\ EPA notes however that the data presented by the Commenter in table 5 of its March 9, 2015 comments indicates a general improving trend in ozone air quality for the specific counties the Commenter included. The data could equally be used to indicate improving ozone air quality based on existing measures in the Pennsylvania SIP. --------------------------------------------------------------------------- Moreover, the CAA recognizes and has provisions to address changes in air quality over time, such as an area slipping from attainment to nonattainment or changing from nonattainment to attainment. These include provisions providing for redesignation in section 107(d) and provisions in section 110(k)(5) allowing EPA to call on the state to revise its SIP, as appropriate. The Commenter suggests that EPA must disapprove the Pennsylvania ozone infrastructure SIP because the fact that a few areas in Pennsylvania recently had air quality data slightly above the standard therefore proves that the infrastructure SIP is inadequate to demonstrate maintenance of the ozone NAAQS for those areas. EPA disagrees with the Commenter because EPA does not believe that section 110(a)(2)(A) requires detailed planning SIPs demonstrating either attainment or maintenance for specific geographic areas of the state. The infrastructure SIP is triggered by promulgation of the NAAQS, not designation. Moreover, infrastructure SIPs are due three years following promulgation of the NAAQS and designations are not due until two years (or in some cases three years) following promulgation of the NAAQS. Thus, during a significant portion of the period that a state has available for developing the infrastructure SIP, it does not know what the designation will be for individual areas of the state.\26\ In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and [[Page 46506]] authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state. --------------------------------------------------------------------------- \26\ While it is true that there may be some monitors within a state with values so high as to make a nonattainment designation of the county with that monitor almost a certainty, the geographic boundaries of the nonattainment area associated with that monitor would not be known until EPA issues final designations. Moreover, the five areas of concern to the Commenter do not fit that description in any event. --------------------------------------------------------------------------- EPA's interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute as understood in light of its history and structure as explained previously in response to prior comments. While at one time section 110 did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, part D of title I of the CAA (not CAA section 110) governs the substantive planning process, including planning for attainment and maintenance of the NAAQS. For the reasons explained by EPA in this action, EPA disagrees with the Commenter that EPA must disapprove an infrastructure SIP revision if there are monitored violations of the standard in the state and the section 110(a)(2)(A) revision does not have detailed plans for demonstrating how the state will bring that area into attainment or ensure maintenance of the NAAQS. Rather, EPA believes that the proper inquiry at this juncture is whether the state has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon the submittal. EPA's NPR and TSD for this rulemaking address why the Pennsylvania SIP meets the basic structural SIP requirements as to the elements addressed in section 110(a)(2) in the NPR for the 2008 ozone NAAQS. As addressed in EPA's proposed approval for this rule, Pennsylvania submitted a list of existing emission reduction measures in the SIP that control emissions of NOX and VOCs. Pennsylvania's SIP revision reflects numerous provisions that have the ability to reduce ground level ozone and its precursors. The Pennsylvania SIP relies on measures and programs used to implement previous ozone NAAQS. Because there is no substantive difference between the previous ozone NAAQS and the more recent ozone NAAQS, other than the level of the standard, the provisions relied on by Pennsylvania will provide benefits for the new NAAQS; in other words, the measures reduce overall ground-level ozone and its precursors and are not limited to reducing ozone levels to meet one specific NAAQS. Although additional control measures for ozone precursors such as those mentioned by the Commenter may be considered by PADEP and could be submitted with an infrastructure SIP, these additional measures are not a requirement in order for Pennsylvania to meet CAA section 110(a)(2)(A). In approving Pennsylvania's infrastructure SIP revision, EPA is affirming that Pennsylvania has sufficient authority to take the types of actions required by the CAA in order to bring such areas back into attainment. Finally, EPA appreciates the Commenter's information regarding EGU NOX control measures and reduction efficiencies as well as emissions limitations applicable to new or modified EGUs which were set during the PSD or NSR permit process. Additional NOX regulations on emissions from EGUs would likely reduce ozone levels further in one or more areas in Pennsylvania. Congress established the CAA such that each state has primary responsibility for assuring air quality within the state and each state is first given the opportunity to determine an emission reduction program for its areas subject to EPA approval, with such approval dependent upon whether the SIP as a whole meets the applicable requirements of the CAA. See Virginia v. EPA, 108 F.3d at 1410. The Commonwealth could choose to consider additional control measures for NOX at EGUs to ensure attainment and maintenance of the ozone NAAQS as Pennsylvania moves forward to meet the more prescriptive planning requirements of the CAA in the future. However, as we have explained, the Commonwealth is not required to regulate such sources for purposes of meeting the infrastructure SIP requirements of CAA section 110(a)(2). In addition, emission limits with the shorter-term averaging rates suggested by the Commenter could be considered within the part D planning process to ensure attainment and maintenance of the 2008 ozone NAAQS. As EPA finds Pennsylvania's NOX and VOC provisions presently in the SIP sufficient for infrastructure SIP purposes and specifically for CAA section 110(a)(2)(A), further consideration of averaging times is not appropriate or relevant at this time. Thus, EPA disagrees with the Commenter that Pennsylvania's ozone infrastructure SIP must be disapproved for failure to contain sufficient measures to ensure attainment and maintenance of the NAAQS. Comment 11: The Commenter states enforceable emission limits are necessary to avoid future nonattainment designations in areas where Pennsylvania's monitoring network has shown ``exceedances'' with the 2008 ozone NAAQS in recent years. The Commenter stated EPA must address inadequacies in enforceable emission limitations relied upon by Pennsylvania for its ozone infrastructure SIP to comply with CAA section 110(a)(2)(A) and stated EPA must disapprove the ozone infrastructure SIP to ensure large sources of NOX and VOCs cannot contribute to exceedances of the ozone NAAQS and prohibit attainment and maintenance of the ozone NAAQS in all of Pennsylvania. Response 11: For the reasons previously discussed, EPA disagrees with the Commenter that we must disapprove the Pennsylvania ozone infrastructure SIP because it does not demonstrate how areas that may be newly violating the ozone NAAQS since the time of designation can be brought back into attainment. Enforceable emission limitations to avoid future nonattainment designations are not required for EPA to approve an infrastructure SIP under CAA section 110, and any emission limitations needed to assure attainment and maintenance with the ozone NAAQS will be determined by Pennsylvania and reviewed by EPA as part of the part D attainment SIP planning process. Thus, EPA disagrees with the Commenter that EPA must disapprove the ozone infrastructure SIP to ensure large sources of NOX and VOC do not contribute to exceedances of the NAAQS or prohibit implementation, attainment or maintenance of the ozone NAAQS. As explained in the NPR and TSD, Pennsylvania has sufficient emission limitations and measures to address NOX and VOC emissions for CAA section 110(a)(2)(A). III. Final Action EPA is approving the following elements of Pennsylvania's June 15, 2014 SIP revisions for the 2008 ozone NAAQS and the 2010 SO2 NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (PSD requirements), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Pennsylvania's SIP revisions provide the basic program elements specified in Section 110(a)(2) necessary to implement, maintain, and enforce the 2008 ozone NAAQS and the 2010 SO2 NAAQS. This final rulemaking action does not include action on section 110(a)(2)(I) which pertains to the nonattainment planning requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process. This final rulemaking action also does not include action on section 110(a)(2)(D)(i)(I) for interstate transport for the 2008 ozone or the 2010 SO2 NAAQS as Pennsylvania's July 15, [[Page 46507]] 2014 SIP submissions did not address this element for either NAAQS nor does this rulemaking include any action on section 110(a)(2)(D)(i)(II) for visibility protection for either NAAQS. While Pennsylvania's July 15, 2014 SIP submissions for the 2008 ozone and 2010 SO2 NAAQS included provisions addressing visibility protection, EPA will take later, separate action on this element for both of these NAAQS. IV. Statutory and Executive Order Reviews A. General Requirements Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:Is not a ``significant regulatory action'' subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. B. Submission to Congress and the Comptroller General The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). C. Petitions for Judicial Review Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 5, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to Pennsylvania's section 110(a)(2) infrastructure elements for the 2008 ozone NAAQS and 2010 SO 2 NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Dated: July 24, 2015. William C. Early, Acting Regional Administrator, Region III. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart NN--Pennsylvania 0 2. In Sec. 52.2020, the table in paragraph (e)(1) is amended by adding two entries for ``Section 110(a)(2) Infrastructure Requirements for the 2008 ozone NAAQS'' and ``Section 110(a)(2) Infrastructure Requirements for the 2010 SO2 NAAQS'' at the end of the table to read as follows: Sec. 52.2020 Identification of plan. * * * * * (e) * * * (1) * * * ---------------------------------------------------------------------------------------------------------------- State Name of non-regulatory SIP Applicable submittal EPA Approval date Additional explanation revision geographic area date ---------------------------------------------------------------------------------------------------------------- * * * * * * * Section 110(a)(2) Infrastructure Statewide.......... 7/15/14 8/5/15 [Insert This rulemaking action Requirements for the 2008 ozone Federal Register addresses the NAAQS. citation]. following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Section 110(a)(2) Infrastructure Statewide.......... 7/15/14 8/5/15 [Insert This rulemaking action Requirements for the 2010 SO2 Federal Register addresses the NAAQS. citation]. following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). ---------------------------------------------------------------------------------------------------------------- [[Page 46508]] [FR Doc. 2015-19090 Filed 8-4-15; 8:45 am] BILLING CODE 6560-50-P
![46494 Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
operating schedule immediately at the information (CBI) or other information approval of Pennsylvania’s submissions
end of this temporary deviation’s whose disclosure is restricted by statute. addressing the following infrastructure
effective period. This deviation from the Certain other material, such as elements: Section 110(a)(2)(A), (B), (C),
operating regulations is authorized copyrighted material, is not placed on (D)(i)(II) (prevention of significant
under 33 CFR 117.35. the Internet and will be publicly deterioration), (D)(ii), (E), (F), (G), (H),
Dated: July 24, 2015. available only in hard copy form. (J), (K), (L), and (M).
Publicly available docket materials are Pennsylvania’s July 15, 2014
Barry Dragon,
available either electronically through infrastructure SIP submittals for the
Bridge Administrator, U.S. Coast Guard, 2008 ozone NAAQS and the 2010 SO2
Seventh Coast Guard District.
www.regulations.gov or in hard copy for
public inspection during normal NAAQS did not contain any provisions
[FR Doc. 2015–19112 Filed 8–4–15; 8:45 am] addressing section 110(a)(2)(I) which
business hours at the Air Protection
BILLING CODE 9110–04–P
Division, U.S. Environmental Protection pertains to the nonattainment
Agency, Region III, 1650 Arch Street, requirements of part D, Title I of the
Philadelphia, Pennsylvania 19103. CAA, because this element is not
ENVIRONMENTAL PROTECTION Copies of the State submittal are required to be submitted by the 3-year
AGENCY available at the Pennsylvania submission deadline of section 110(a)(1)
Department of Environmental and will be addressed in a separate
40 CFR Part 52 process. In addition, Pennsylvania’s July
Protection, Bureau of Air Quality
[EPA–R03–OAR–2014–0910; FRL–9931–80– Control, P. O. Box 8468, 400 Market 15, 2014 infrastructure SIP submittals
Region 3] Street, Harrisburg, Pennsylvania 17105. for the 2008 ozone NAAQS and the
FOR FURTHER INFORMATION CONTACT:
2010 SO2 NAAQS did not contain any
Approval and Promulgation of Air provisions addressing CAA section
Ruth Knapp, (215) 814–2191, or by
Quality Implementation Plans; 110(a)(2)(D)(i)(I), and therefore EPA’s
email at knapp.ruth@epa.gov.
Pennsylvania; Infrastructure February 6, 2015 NPR did not propose
Requirements for the 2008 Ozone and SUPPLEMENTARY INFORMATION:
any action on the SIP submittals for
2010 Sulfur Dioxide National Ambient I. Summary of SIP Revision section 110(a)(2)(D)(i)(I) for either SIP
Air Quality Standards submittal. Thus, this rulemaking action
On March 27, 2008 (73 FR 16436),
likewise does not include action on
AGENCY: Environmental Protection EPA promulgated a revised ozone
CAA section 110(a)(2)(D)(i)(I) for either
Agency (EPA). NAAQS based on 8-hour average
the 2008 ozone NAAQS or the 2010 SO2
ACTION: Final rule. concentrations. EPA revised the level of
NAAQS because PADEP’s July 15, 2014
the 8-hour ozone NAAQS from 0.08
SUMMARY: The Environmental Protection infrastructure SIP submittals did not
parts per million (ppm) to 0.075 ppm.
Agency (EPA) is approving portions of include provisions for this element.
On June 22, 2010 (75 FR 35520), EPA
two State Implementation Plan (SIP) Finally, at this time, EPA is not taking
promulgated a 1-hour primary SO2 action on section 110(a)(2)(D)(i)(II)
revisions submitted by the NAAQS at a level of 75 parts per billion
Commonwealth of Pennsylvania (which addresses visibility protection)
(ppb), based on a 3-year average of the for the 2008 ozone or 2010 SO2 NAAQS
through the Pennsylvania Department of annual 99th percentile of 1-hour daily
Environmental Protection (PADEP) as explained in the NPR. Although
maximum concentrations. Pursuant to Pennsylvania’s July 15, 2014
pursuant to the Clean Air Act (CAA). section 110(a)(1) of the CAA, states are
Whenever new or revised National infrastructure SIP submittals for the
required to submit SIPs meeting the 2008 ozone NAAQS and the 2010 SO2
Ambient Air Quality Standards applicable requirements of section
(NAAQS) are promulgated, the CAA NAAQS referred to Pennsylvania’s
110(a)(2) within three years after regional haze SIP to address section
requires states to submit a plan for the promulgation of a new or revised
implementation, maintenance, and 110(a)(2)(D)(i)(II) for visibility
NAAQS or within such shorter period protection, EPA intends to take later,
enforcement of such NAAQS. The plan as EPA may prescribe.
is required to address basic program separate action on Pennsylvania’s SIP
On July 15, 2014, the Commonwealth submittals for these elements as
elements, including but not limited to of Pennsylvania, through the PADEP,
regulatory structure, monitoring, explained in the NPR and the Technical
submitted SIP revisions that address the Support Document (TSD) which
modeling, legal authority, and adequate infrastructure elements specified in
resources necessary to assure accompanied the NPR.
section 110(a)(2) of the CAA necessary The rationale supporting EPA’s
implementation, maintenance, and to implement, maintain, and enforce the proposed rulemaking action approving
enforcement of the NAAQS. These 2008 ozone NAAQS and the 2010 SO2 portions of the July 15, 2014
elements are referred to as infrastructure NAAQS. On February 6, 2015 (80 FR infrastructure SIP submittals for the
requirements. PADEP made submittals 6672), EPA published a notice of 2008 ozone and 2010 SO2 NAAQS,
addressing the infrastructure proposed rulemaking (NPR) for including the scope of infrastructure
requirements for the 2008 ozone Pennsylvania proposing approval of SIPs in general, is explained in the NPR
NAAQS and the 2010 sulfur dioxide portions of both SIP revisions as well as and the TSD accompanying the NPR
(SO2) primary NAAQS. portions of SIP submittals for other and will not be restated here. The NPR
DATES: This final rule is effective on NAAQS.1 In the NPR, EPA proposed and TSD are available in the docket for
September 4, 2015. this rulemaking at www.regulations.gov,
1 On July 15, 2014, PADEP also submitted SIP
ADDRESSES: EPA has established a Docket ID Number EPA–R03–OAR–
revisions addressing the infrastructure requirements
docket for this action under Docket ID
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for the 2010 nitrogen dioxide (NO2) NAAQS and the
Number EPA–R03–OAR–2014–0910. All 2012 fine particulate matter (PM2.5) NAAQS. In the specific SIPs, EPA took final action to approve
documents in the docket are listed in February 6, 2015 NPR, EPA also proposed approval portions of the infrastructure SIPs for the 2010 NO2
the www.regulations.gov Web site. of portions of these infrastructure SIPs. Because NAAQS and 2012 PM2.5 NAAQS on May 8, 2015.
EPA did not receive adverse comments applicable 80 FR 26461. Thus, this final action only addresses
Although listed in the electronic docket, to Pennsylvania’s infrastructure SIPs for the 2010 the July 15, 2014 infrastructure SIPs PADEP
some information is not publicly NO2 NAAQS or the 2012 PM2.5 NAAQS or submitted addressing the 2008 ozone NAAQS and
available, i.e., confidential business applicable to EPA’s proposed approval of those the 2010 SO2 NAAQS.
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suggested by the Commenter. As we removing pre-existing section update the SIP, or both.’’ Infrastructure
have previously explained in response 110(a)(2)(A) in its entirety and SIP Guidance at p. 2.5
to the Commenter’s similar comments renumbering subparagraph (B) as The Commenter makes general
on EPA’s action approving other states’ section 110(a)(2)(A). Additionally, allegations that Pennsylvania does not
infrastructure SIPs, section 110 is only Congress replaced the clause ‘‘as may be have sufficient protective measures to
one provision that is part of the necessary to insure attainment and prevent ozone violations/exceedances
complicated structure governing maintenance [of the NAAQS]’’ with ‘‘as and SO2 NAAQS exceedances. EPA
implementation of the NAAQS program may be necessary or appropriate to meet addressed the adequacy of
under the CAA, as amended in 1990, the applicable requirements of this Pennsylvania’s infrastructure SIP for
and it must be interpreted in the context chapter.’’ Thus, the CAA has 110(a)(2)(A) purposes to meet applicable
of not only that structure, but also of the requirements of the CAA in the TSD
significantly evolved in the more than
historical evolution of that structure.4 accompanying the February 6, 2015
40 years since it was originally enacted.
EPA interprets infrastructure SIPs as NPR and explained why the SIP
more general planning SIPs, consistent While at one time section 110 of the includes enforceable emission
with the CAA as understood in light of CAA did provide the only detailed SIP limitations and other control measures
its history and structure. When Congress planning provisions for states and necessary for maintenance of the 2008
enacted the CAA in 1970, it did not specified that such plans must provide ozone and 2010 SO2 NAAQS throughout
include provisions requiring states and for attainment of the NAAQS, under the the Commonwealth.6
the EPA to label areas as attainment or structure of the current CAA, section
110 is only the initial stepping-stone in 2. The Legislative History of the CAA
nonattainment. Rather, states were
required to include all areas of the state the planning process for a specific Comment 2: The Commenter cites two
in ‘‘air quality control regions’’ (AQCRs) NAAQS. More detailed, later-enacted excerpts from the legislative history of
and section 110 set forth the core provisions govern the substantive the 1970 CAA claiming they support an
substantive planning provisions for planning process, including planning interpretation that SIP revisions under
these AQCRs. At that time, Congress for attainment of the NAAQS. CAA section 110 must include
anticipated that states would be able to emissions limitations sufficient to show
Thus, EPA believes that section 110 of
address air pollution quickly pursuant maintenance of the NAAQS in all areas
the CAA is only one provision that is
to the very general planning provisions of the state. The Commenter also
part of the complicated structure contends that the legislative history of
in section 110 and could bring all areas governing implementation of the
into compliance with a new NAAQS the CAA supports the interpretation that
NAAQS program under the CAA, as infrastructure SIPs under section
within five years. Moreover, at that
amended in 1990, and it must be 110(a)(2) must include enforceable
time, section 110(a)(2)(A)(i) specified
that the section 110 plan provide for interpreted in the context of that emission limitations, citing the Senate
‘‘attainment’’ of the NAAQS and section structure and the historical evolution of Committee Report and the subsequent
110(a)(2)(B) specified that the plan must that structure. In light of the revisions Senate Conference Report
include ‘‘emission limitations, to section 110 since 1970 and the later- accompanying the 1970 CAA.
schedules, and timetables for promulgated and more specific planning Response 2: As provided in the
compliance with such limitations, and requirements of the CAA, EPA previous response, the CAA, as enacted
such other measures as may be reasonably interprets the requirement in in 1970, including its legislative history,
necessary to insure attainment and section 110(a)(2)(A) of the CAA that the cannot be interpreted in isolation from
maintenance [of the NAAQS].’’ plan provide for ‘‘implementation, the later amendments that refined that
In 1977, Congress recognized that the maintenance and enforcement’’ to mean structure and deleted relevant language
existing structure was not sufficient and that the SIP must contain enforceable from section 110 concerning
many areas were still violating the emission limits that will aid in attaining demonstrating attainment. See also 79
NAAQS. At that time, Congress for the and/or maintaining the NAAQS and that FR at 17046 (responding to comments
first time added provisions requiring the state demonstrate that it has the on Virginia’s ozone infrastructure SIP).
states and EPA to identify whether areas necessary tools to implement and In any event, the two excerpts of
of a state were violating the NAAQS enforce a NAAQS, such as adequate legislative history the Commenter cites
(i.e., were nonattainment) or were state personnel and an enforcement merely provide that states should
meeting the NAAQS (i.e., were program. EPA has interpreted the include enforceable emission limits in
attainment) and established specific requirement for emission limitations in their SIPs, and they do not mention or
planning requirements in section 172 otherwise address whether states are
section 110 to mean that the state may
for areas not meeting the NAAQS. In required to include maintenance plans
rely on measures already in place to
1990, many areas still had air quality for all areas of the state as part of the
address the pollutant at issue or any
not meeting the NAAQS and Congress infrastructure SIP. As provided in
new control measures that the state may
again amended the CAA and added yet choose to submit. Finally, as EPA stated 5 Thus, EPA disagrees with the Commenter’s
another layer of more prescriptive in the Infrastructure SIP Guidance general assertion that the main objective of
planning requirements for each of the which specifically provides guidance to infrastructure SIPs is to ensure all areas of the
NAAQS. At that same time, Congress states in addressing the 2008 ozone and country meet the NAAQS, as we believe the
modified section 110 to remove infrastructure SIP process is the opportunity to
2010 SO2 NAAQS, ‘‘[t]he conceptual review the structural requirements of a state’s air
references to the section 110 SIP purpose of an infrastructure SIP program. While the NAAQS can be a foundation
providing for attainment, including submission is to assure that the air upon which emission limitations are set, as
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explained in responses to subsequent comments,
4 See 80 FR 11557 (March 4, 2015) (approval of
agency’s SIP contains the necessary these emission limitations are generally set in the
Virginia SO2 infrastructure SIP); 79 FR 62022 structural requirements for the new or attainment planning process envisioned by part D
(October 16, 2014) (approval of West Virginia SO2 revised NAAQS, whether by of title I of the CAA, including, but not limited to,
infrastructure SIP); 79 FR 19001 (April 7, 2014) establishing that the SIP already CAA sections 172, 181–182, and 191–192.
(approval of West Virginia ozone infrastructure 6 The TSD for this action is available on line at
SIP); and 79 FR 17043 (March 27, 2014) (approval
contains the necessary provisions, by www.regulations.gov, Docket ID Number EPA–R03–
of Virginia ozone infrastructure SIP). making a substantive SIP revision to OAR–2014–0910.
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response to another comment in this would not interfere with attainment and rejected a revision to an approved plan
rulemaking, the TSD for the proposed maintenance of the NAAQS. where the inventories relied on by the
rule explains why the Pennsylvania SIP Response 3: None of the cases the state for the updated submission had
includes enforceable emissions Commenter cites support its contention gaps. The Court quoted section
limitations for ozone precursors and for that section 110(a)(2)(A) is clear that 110(a)(2)(B) of the pre-1990 CAA in
SO2 for the relevant areas. infrastructure SIPs must include support of EPA’s disapproval, but did
detailed plans providing for attainment not provide any interpretation of that
3. Case Law and maintenance of the NAAQS in all provision. Yet, even if the Court had
Comment 3: The Commenter also areas of the state, nor do they shed light interpreted that provision, EPA notes
discusses several cases applying the on how section 110(a)(2)(A) may that it was modified by Congress in
CAA which the Commenter claims reasonably be interpreted. With the 1990; thus, this decision has little
support its contention that courts have exception of Train, none of the cases the bearing on the issue here.
been clear that section 110(a)(2)(A) Commenter cites concerned the At issue in Mision Industrial, 547
requires enforceable emissions limits in interpretation of CAA section F.2d 123, was the definition of
infrastructure SIPs to prevent 110(a)(2)(A) (or section 110(a)(2)(B) of ‘‘emissions limitation,’’ not whether
exceedances of the NAAQS. The the pre-1990 Act). Rather, the courts section 110 requires the state to
Commenter first cites to language in reference section 110(a)(2)(A) (or section demonstrate how all areas of the state
Train v. NRDC, 421 U.S. 60, 78 (1975), 110(a)(2)(B) of the pre-1990 CAA) in the will attain and maintain the NAAQS as
background sections of decisions in the part of their infrastructure SIPs. The
addressing the requirement for
context of a challenge to an EPA action language from the opinion the
‘‘emission limitations’’ and stating that
on revisions to a SIP that was required Commenter quotes does not interpret
emission limitations ‘‘are specific rules
and approved or disapproved as but rather merely describes section
to which operators of pollution sources
meeting other provisions of the CAA or 110(a)(2)(A). The Commenter does not
are subject, and which, if enforced,
in the context of an enforcement action. raise any concerns about whether the
should result in ambient air which meet In Train, 421 U.S. 60, the Court was measures relied on by the
the national standards.’’ The addressing a state revision to an Commonwealth in the infrastructure
Commenter also cites to Pennsylvania attainment plan submission made SIPs are ‘‘emissions limitations’’ and the
Dept. of Envtl. Resources v. EPA, 932 pursuant to section 110 of the CAA, the decision in this case has no bearing
F.2d 269, 272 (3d Cir. 1991) for the sole statutory provision at that time here.7 In Mont. Sulphur & Chem. Co.,
proposition that the CAA directs EPA to regulating such submissions. The issue 666 F.3d 1174, the Court was not
withhold approval of a SIP where it in that case concerned whether changes reviewing an infrastructure SIP, but
does not ensure maintenance of the to requirements that would occur before rather EPA’s disapproval of a SIP and
NAAQS, and to Mision Industrial, Inc. attainment was required were variances promulgation of a federal
v. EPA, 547 F.2d 123, 129 (1st Cir. that should be addressed pursuant to implementation plan (FIP) after a long
1976), which quoted section 110(a)(2)(B) the provision governing SIP revisions or history of the state failing to submit an
of the CAA of 1970. The Commenter were ‘‘postponements’’ that must be adequate SIP in response to EPA’s
contends that the 1990 Amendments do addressed under section 110(f) of the finding under section 110(k)(5) that the
not alter how courts have interpreted CAA of 1970, which contained previously approved SIP was
the requirements of section 110, quoting prescriptive criteria. The Court substantially inadequate to attain or
Alaska Dept. of Envtl. Conservation v. concluded that EPA reasonably maintain the NAAQS. The Court cited
EPA, 540 U.S. 461, 470 (2004) which in interpreted section 110(f) not to restrict generally to sections 107 and
turn quoted section 110(a)(2)(A) of the a state’s choice of the mix of control 110(a)(2)(A) of the CAA for the
CAA and also stated that ‘‘SIPs must measures needed to attain the NAAQS proposition that SIPs should assure
include certain measures Congress and that revisions to SIPs that would attainment and maintenance of NAAQS
specified’’ to ensure attainment of the not impact attainment of the NAAQS by through emission limitations, but this
NAAQS. The Commenter also quotes the attainment date were not subject to language was not part of the Court’s
several additional opinions in this vein. the limits of section 110(f). Thus the holding in the case, which focused
Mont. Sulphur & Chem. Co. v. EPA, 666 issue was not whether a section 110 SIP instead on whether EPA’s finding of SIP
F.3d 1174, 1180 (9th Cir. 2012) (‘‘The needs to provide for attainment or inadequacy, disapproval of the state’s
Clean Air Act directs states to develop whether emissions limits providing required responsive attainment
implementation plans—SIPs—that such are needed as part of the SIP; demonstration under section 110(k)(5),
‘assure’ attainment and maintenance of rather the issue was which statutory and adoption of a remedial FIP under
[NAAQS] through enforceable emissions provision governed when the state section 110(c) were lawful. The
limitations’’); Hall v. EPA 273 F.3d wanted to revise the emission limits in Commenter suggests that Alaska Dept.
1146, 1153 (9th Cir. 2001) (‘‘Each State its SIP if such revision would not of Envtl. Conservation, 540 U.S. 461,
must submit a [SIP] that specif[ies] the impact attainment or maintenance of the stands for the proposition that the 1990
manner in which [NAAQS] will be NAAQS. To the extent the holding in CAA Amendments do not alter how
achieved and maintained within each the case has any bearing on how section courts interpret section 110. This claim
air quality control region in the State’’); 110(a)(2)(A) might be interpreted, it is is inaccurate. Rather, the Court quoted
Conn. Fund for Env’t, Inc. v. EPA, 696 important to realize that in 1975, when section 110(a)(2)(A), which, as noted
F.2d 169, 172 (D.C. Cir. 1982) (CAA the opinion was issued, section previously, differs from the pre-1990
requires SIPs to contain ‘‘measures 110(a)(2)(B) (the predecessor to section version of that provision and the Court
necessary to ensure attainment and 110(a)(2)(A)) expressly referenced the
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maintenance of NAAQS’’). Finally, the requirement to attain the NAAQS, a 7 While the Commenter does contend that the
Commenter cites Mich. Dept. of Envtl. reference that was removed in 1990. Commonwealth shouldn’t be allowed to rely on
Quality v. Browner, 230 F.3d 181 (6th The decision in Pennsylvania Dept. of emission reductions that were developed for the
prior standards (which we address herein), it does
Cir. 2000) for the proposition that EPA Envtl. Resources was also decided based not claim that any of the measures are not
may not approve a SIP revision that on the pre-1990 provision of the CAA. ‘‘emissions limitations’’ within the definition of the
does not demonstrate how the rules At issue was whether EPA properly CAA.
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made no mention of the changed argument that infrastructure SIPs must 51.112 to reject the SIP. The Commenter
language. Furthermore, the Commenter contain emission limits adequate to points to a 2006 partial approval and
also quotes the Court’s statement that ensure attainment and maintenance of partial disapproval of revisions to
‘‘SIPs must include certain measures the NAAQS is not supported. As an Missouri’s existing control strategy
Congress specified,’’ but that statement initial matter, EPA notes this regulatory plans addressing the SO2 NAAQS. The
specifically referenced the requirement provision was initially promulgated and Commenter claims EPA cited section
in section 110(a)(2)(C), which requires later restructured and consolidated prior 110(a)(2)(A) for disapproving a revision
an enforcement program and a program to the CAA Amendments of 1990, in to the state plan on the basis that the
for the regulation of the modification which Congress removed all references State failed to demonstrate the SIP was
and construction of new sources. to ‘‘attainment’’ in section 110(a)(2)(A). sufficient to ensure maintenance of the
Notably, at issue in that case was the And, it is clear on its face that 40 CFR SO2 NAAQS after revision of an
state’s ‘‘new source’’ permitting 51.112 applies to plans specifically emission limit and claims EPA cited to
program, not its infrastructure SIP. designed to attain the NAAQS. EPA 40 CFR 51.112 as requiring that a plan
Two of the other cases the Commenter interprets these provisions to apply demonstrates the rules in a SIP are
cites, Mich. Dept. of Envtl. Quality, 230 when states are developing ‘‘control adequate to attain the NAAQS. The
F.3d 181, and Hall, 273 F.3d 1146, strategy’’ SIPs such as the detailed Commenter claims the revisions to
interpret CAA section 110(l), the attainment and maintenance plans Missouri’s control strategy SIP for SO2
provision governing ‘‘revisions’’ to required under other provisions of the were rejected by EPA because the
plans, and not the initial plan CAA, as amended in 1977 and again in revised control strategy limits were also
submission requirement under section 1990, such as sections 175A, 181–182, in Missouri’s infrastructure SIP and thus
110(a)(2) for a new or revised NAAQS, and 191–192. The Commenter suggests the weakened limits would have
such as the infrastructure SIP at issue in that these provisions must apply to impacted the infrastructure SIP’s ability
this instance. In those cases, the courts section 110 SIPs because in the to aid in attaining and maintaining the
cited to section 110(a)(2)(A) solely for preamble to EPA’s action ‘‘restructuring NAAQS.
the purpose of providing a brief and consolidating’’ provisions in part Response 5: EPA does not agree that
background of the CAA. 51, EPA stated that the new attainment the prior Missouri rulemaking action
EPA does not believe any of these demonstration provisions in the 1977 referenced by the Commenter
court decisions addressed required Amendments to the CAA were ‘‘beyond establishes how EPA reviews
measures for infrastructure SIPs and the scope’’ of the rulemaking. It is infrastructure SIPs. It is clear from the
believes nothing in the opinions important to note, however, that EPA’s final Missouri rule that EPA was not
addressed whether infrastructure SIPs action in 1986 was not to establish new reviewing initial infrastructure SIP
need to contain measures to ensure substantive planning requirements, but submissions under section 110 of the
attainment and maintenance of the rather was meant merely to consolidate CAA, but rather reviewing revisions that
NAAQS. and restructure provisions that had would make an already approved SIP
4. EPA Regulations, Such as 40 CFR previously been promulgated. EPA designed to demonstrate attainment of
51.112(a) noted that it had already issued the NAAQS less stringent. EPA’s partial
guidance addressing the new ‘‘Part D’’ approval and partial disapproval of
Comment 4: The Commenter cites to attainment planning obligations. Also, revisions to restrictions on emissions of
40 CFR 51.112(a), providing that ‘‘[e]ach as to maintenance regulations, EPA sulfur compounds for the Missouri SIP
plan must demonstrate that the expressly stated that it was not making in 71 FR 12623 addressed a control
measures, rules and regulations any revisions other than to re-number strategy SIP and not an infrastructure
contained in it are adequate to provide those provisions. 51 FR 40657. SIP. Nothing in that action addresses the
for the timely attainment and Although EPA was explicit that it was necessary content of the initial
maintenance of the [NAAQS].’’ The not establishing requirements infrastructure SIP for a new or revised
Commenter asserts that this regulation interpreting the provisions of new ‘‘Part NAAQS.
requires infrastructure SIPs to include D’’ of the CAA, it is clear that the
emissions limits necessary to ensure C. Sierra Club Comments on
regulations being restructured and
attainment and maintenance of the Pennsylvania SIP SO2 Emission Limits
consolidated were intended to address
NAAQS. The Commenter states that the control strategy plans. In the preamble, The Commenter contends that the
provisions of 40 CFR 51.112 are not EPA clearly stated that 40 CFR 51.112 Pennsylvania 2008 ozone and 2010 SO2
limited to nonattainment SIPs and was replacing 40 CFR 51.13 (‘‘Control infrastructure SIP revisions did not
instead applies to infrastructure SIPs strategy: SOx and PM (portion)’’), 51.14 revise the existing ozone precursor
which are required to attain and (‘‘Control strategy: CO, HC, Ox and NO2 emission limits and SO2 emission limits
maintain the NAAQS in areas not (portion)’’), 51.80 (‘‘Demonstration of in response to the 2008 ozone and 2010
designated nonattainment. The attainment: Pb (portion)’’), and 51.82 SO2 NAAQS and fail to comport with
Commenter relies on a statement in the (‘‘Air quality data (portion)’’). Id. at assorted CAA requirements for SIPs to
preamble to the 1986 action 40660. Thus, the present-day 40 CFR establish enforceable emission limits
restructuring and consolidating 51.112 contains consolidated provisions that are adequate to prohibit NAAQS
provisions in part 51, in which EPA that are focused on control strategy SIPs, exceedances in areas not designated
stated that ‘‘[i]t is beyond the scope of and the infrastructure SIP is not such a nonattainment. EPA will address SO2
th[is] rulemaking to address the plan. comments and ozone comments
provisions of Part D of the Act . . .’’ 51 respectively.
FR 40656, 40656 (November 7, 1986). 5. EPA Interpretations in Other Comment 6: Citing section
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The Commenter asserts 40 CFR Rulemakings 110(a)(2)(A) of the CAA, the Commenter
51.112(a) identifies the plans to which Comment 5: The Commenter also contends that EPA may not approve
it applies as those that implement the references a prior EPA rulemaking Pennsylvania’s proposed 2010 SO2
NAAQS. action where EPA disapproved a SIP infrastructure SIP because it does not
Response 4: The Commenter’s and claims that action shows EPA relied include enforceable 1-hour SO2
reliance on 40 CFR 51.112 to support its on section 110(a)(2)(A) and 40 CFR emission limits for sources currently
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allowed to cause ‘‘NAAQS Commenter therefore asserts EPA must general throughout the state and not
exceedances.’’ The Commenter asserts disapprove Pennsylvania’s proposed detailed attainment and maintenance
the proposed infrastructure SIP fails to 2010 SO2 infrastructure SIP revision. In plans for each individual area of the
include enforceable 1-hour SO2 addition, the Commenter asserts ‘‘EPA state. As mentioned above, EPA has
emissions limits or other required may only approve an I–SIP that interpreted this to mean, with regard to
measures to ensure attainment and incorporates enforceable emission the requirement for emission limitations
maintenance of the SO2 NAAQS in areas limitations on major sources of SO2 that states may rely on measures already
not designated nonattainment as the pollution in the state, including coal- in place to address the pollutant at issue
Commenter claims is required by fired power plants, with one-hour or any new control measures that the
section 110(a)(2)(A). The Commenter averaging times that are no less stringent state may choose to submit.
asserts an infrastructure SIP must than the modeling based limits . . . As stated in response to a previous
ensure, through state-wide regulations necessary to protect the one-hour SO2 more general comment, section 110 of
or source specific requirements, proper NAAQS and attain and maintain the the CAA is only one provision that is
mass limitations and emissions rates standard in Pennsylvania. These part of the complicated structure
with short term averaging on specific emission limits must apply at all times governing implementation of the
large sources of pollutants such as . . . to ensure that Pennsylvania is able NAAQS program under the CAA, as
power plants. The Commenter asserts to attain and maintain the 2010 SO2 amended in 1990, and it must be
that emission limits are especially NAAQS.’’ The Commenter claimed interpreted in the context of not only
important for meeting the 1-hour SO2 additional modeling for two EGUs, that structure, but also of the historical
NAAQS because SO2 impacts are Brunner Island and Montour, done with evolution of that structure. In light of
strongly source-oriented. The actual historical hourly SO2 emissions the revisions to section 110 since 1970
Commenter states coal-fired electric show these facilities have actually been and the later-promulgated and more
generating units (EGUs) are large causing ‘‘exceedances of the NAAQS’’ specific planning requirements of the
contributors to SO2 emissions but while operating pursuant to existing CAA, EPA reasonably interprets the
contends Pennsylvania did not emission limits which the Commenter requirement in section 110(a)(2)(A) of
demonstrate that emissions allowed by claims Pennsylvania included as part of the CAA that the plan provide for
the proposed infrastructure SIP from the SO2 infrastructure SIP submission. ‘‘implementation, maintenance and
such large sources of SO2 will ensure The Commenter also asserts that any enforcement’’ to mean that the SIP must
coal-fired units slated for retirement contain enforceable emission limits that
compliance with the 2010 1-hour SO2
should be incorporated into the will aid in attaining and/or maintaining
NAAQS. The Commenter claims the
infrastructure SIP with an enforceable the NAAQS and that the
proposed infrastructure SIP would
emission limit or control measure. Commonwealth demonstrate that it has
allow major sources to continue
Response 6: EPA disagrees with the the necessary tools to implement and
operating with present emission limits.8
Commenter that EPA must disapprove enforce a NAAQS, such as adequate
The Commenter then refers to air
Pennsylvania’s SO2 infrastructure SIP state personnel and an enforcement
dispersion modeling it conducted for
for the reasons provided by the program. As discussed above, EPA has
five coal-fired EGUs in Pennsylvania,
Commenter including the Commenter’s interpreted the requirement for emission
including Brunner Island Steam Electric
modeling results and insufficient SO2 limitations in section 110 to mean that
Station, Montour Steam Electric Station, the state may rely on measures already
emission limits. EPA is not in this
Cheswick Power Station, New Castle action making a determination regarding in place to address the pollutant at issue
Power Plant, and Shawville Coal Plant. the Commonwealth’s current air quality or any new control measures that the
The Commenter asserts the results of the status or regarding whether its control state may choose to submit. Finally, as
air dispersion modeling it conducted strategy is sufficient to attain and EPA stated in the Infrastructure SIP
employing EPA’s AERMOD program for maintain the NAAQS. Therefore, EPA is Guidance which specifically provides
modeling used the plants’ allowable not making any judgment on whether guidance to states in addressing the
emissions and showed the plants could the Commenter’s submitted modeling 2010 SO2 NAAQS and the 2008 Ozone
cause exceedances of the 2010 SO2 demonstrates the NAAQS exceedances NAAQS, ‘‘[t]he conceptual purpose of
NAAQS with allowable emissions.9 that the Commenter claims. EPA an infrastructure SIP submission is to
Based on the modeling, the Commenter believes that section 110(a)(2)(A) of the assure that the air agency’s SIP contains
asserts the Pennsylvania SO2 CAA is reasonably interpreted to require the necessary structural requirements
infrastructure SIP submittal authorizes states to submit infrastructure SIPs that for the new or revised NAAQS, whether
the EGUs to cause exceedances of the reflect the first step in their planning for by establishing that the SIP already
NAAQS with allowable emission rates attainment and maintenance of a new or contains the necessary provisions, by
and therefore the infrastructure SIP fails revised NAAQS. These SIP revisions making a substantive SIP revision to
to include adequate enforceable should contain a demonstration that the update the SIP, or both.’’ Infrastructure
emission limitations or other required state has the available tools and SIP Guidance at p. 2.
measures for sources of SO2 sufficient to authority to develop and implement On April 12, 2012, EPA explained its
ensure attainment and maintenance of plans to attain and maintain the NAAQS expectations regarding implementation
the 2010 SO2 NAAQS.10 The and show that the SIP has enforceable of the 2010 SO2 NAAQS via letters to
control measures. In light of the each of the states. EPA communicated
8 The Commenter provides a chart in its
structure of the CAA, EPA’s long- in the April 2012 letters that all states
comments claiming 80 percent of SO2 emissions in
Pennsylvania are from coal-electric generating units standing position regarding were expected to submit SIPs meeting
infrastructure SIPs is that they are the ‘‘infrastructure’’ SIP requirements
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based on 2011 data.
9 The Commenter asserts its modeling followed
general planning SIPs to ensure that the under section 110(a)(2) of the CAA by
protocols pursuant to 40 CFR part 51, Appendix W
state has adequate resources and June 2013. At the time, EPA was
and EPA’s modeling guidance issued March 2011 undertaking a stakeholder outreach
and December 2013. authority to implement a NAAQS in
10 The Commenter again references 40 CFR process to continue to develop possible
51.112 in support of its position that the attainment and maintenance of the 2010 SO2 approaches for determining attainment
infrastructure SIP must include emission limits for NAAQS. status under the SO2 NAAQS and
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![Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations 46507
2014 SIP submissions did not address safety risks subject to Executive Order Court of Appeals for the appropriate
this element for either NAAQS nor does 13045 (62 FR 19885, April 23, 1997); circuit by October 5, 2015. Filing a
this rulemaking include any action on • is not a significant regulatory action petition for reconsideration by the
section 110(a)(2)(D)(i)(II) for visibility subject to Executive Order 13211 (66 FR Administrator of this final rule does not
protection for either NAAQS. While 28355, May 22, 2001); affect the finality of this action for the
Pennsylvania’s July 15, 2014 SIP • is not subject to requirements of purposes of judicial review nor does it
submissions for the 2008 ozone and Section 12(d) of the National extend the time within which a petition
2010 SO2 NAAQS included provisions Technology Transfer and Advancement for judicial review may be filed, and
addressing visibility protection, EPA Act of 1995 (15 U.S.C. 272 note) because shall not postpone the effectiveness of
will take later, separate action on this application of those requirements would such rule or action.
element for both of these NAAQS. be inconsistent with the CAA; and This action pertaining to
• does not provide EPA with the Pennsylvania’s section 110(a)(2)
IV. Statutory and Executive Order discretionary authority to address, as
Reviews infrastructure elements for the 2008
appropriate, disproportionate human
ozone NAAQS and 2010 SO2 NAAQS
A. General Requirements health or environmental effects, using
may not be challenged later in
practicable and legally permissible
Under the CAA, the Administrator is proceedings to enforce its requirements.
methods, under Executive Order 12898
required to approve a SIP submission (See section 307(b)(2).)
(59 FR 7629, February 16, 1994).
that complies with the provisions of the In addition, this rule does not have List of Subjects in 40 CFR Part 52
CAA and applicable Federal regulations. tribal implications as specified by
42 U.S.C. 7410(k); 40 CFR 52.02(a). Executive Order 13175 (65 FR 67249, Environmental protection, Air
Thus, in reviewing SIP submissions, November 9, 2000), because the SIP is pollution control, Incorporation by
EPA’s role is to approve state choices, not approved to apply in Indian country reference, Intergovernmental relations,
provided that they meet the criteria of located in the state, and EPA notes that Nitrogen dioxide, Ozone, Reporting and
the CAA. Accordingly, this action it will not impose substantial direct recordkeeping requirements, Sulfur
merely approves state law as meeting costs on tribal governments or preempt oxides, Volatile organic compounds.
Federal requirements and does not tribal law. Dated: July 24, 2015.
impose additional requirements beyond William C. Early,
those imposed by state law. For that B. Submission to Congress and the
Comptroller General Acting Regional Administrator, Region III.
reason, this action:
• Is not a ‘‘significant regulatory The Congressional Review Act, 5 40 CFR part 52 is amended as follows:
action’’ subject to review by the Office U.S.C. 801 et seq., as added by the Small
of Management and Budget under Business Regulatory Enforcement PART 52—APPROVAL AND
Executive Order 12866 (58 FR 51735, Fairness Act of 1996, generally provides PROMULGATION OF
October 4, 1993); that before a rule may take effect, the IMPLEMENTATION PLANS
• does not impose an information agency promulgating the rule must
collection burden under the provisions submit a rule report, which includes a ■ 1. The authority citation for part 52
of the Paperwork Reduction Act (44 copy of the rule, to each House of the continues to read as follows:
U.S.C. 3501 et seq.); Congress and to the Comptroller General Authority: 42 U.S.C. 7401 et seq.
• is certified as not having a of the United States. EPA will submit a
significant economic impact on a report containing this action and other Subpart NN—Pennsylvania
substantial number of small entities required information to the U.S. Senate,
under the Regulatory Flexibility Act (5 the U.S. House of Representatives, and ■ 2. In § 52.2020, the table in paragraph
U.S.C. 601 et seq.); the Comptroller General of the United (e)(1) is amended by adding two entries
• does not contain any unfunded States prior to publication of the rule in for ‘‘Section 110(a)(2) Infrastructure
mandate or significantly or uniquely the Federal Register. A major rule Requirements for the 2008 ozone
affect small governments, as described cannot take effect until 60 days after it NAAQS’’ and ‘‘Section 110(a)(2)
in the Unfunded Mandates Reform Act is published in the Federal Register. Infrastructure Requirements for the 2010
of 1995 (Pub. L. 104–4); This action is not a ‘‘major rule’’ as SO2 NAAQS’’ at the end of the table to
• does not have Federalism defined by 5 U.S.C. 804(2). read as follows:
implications as specified in Executive
Order 13132 (64 FR 43255, August 10, C. Petitions for Judicial Review § 52.2020 Identification of plan.
1999); Under section 307(b)(1) of the CAA, * * * * *
• is not an economically significant petitions for judicial review of this (e) * * *
regulatory action based on health or action must be filed in the United States (1) * * *
State
Name of non-regulatory Applicable geographic submittal EPA Approval date Additional explanation
SIP revision area date
* * * * * * *
Section 110(a)(2) Infra- Statewide ...................... 7/15/14 8/5/15 [Insert Federal This rulemaking action addresses the following
structure Require- Register citation]. CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II)
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ments for the 2008 (prevention of significant deterioration), (D)(ii),
ozone NAAQS. (E), (F), (G), (H), (J), (K), (L), and (M).
Section 110(a)(2) Infra- Statewide ...................... 7/15/14 8/5/15 [Insert Federal This rulemaking action addresses the following
structure Require- Register citation]. CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II)
ments for the 2010 (prevention of significant deterioration), (D)(ii),
SO2 NAAQS. (E), (F), (G), (H), (J), (K), (L), and (M).
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![46508 Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations
[FR Doc. 2015–19090 Filed 8–4–15; 8:45 am] SUPPLEMENTARY INFORMATION: certain televisions and audio-visual
BILLING CODE 6560–50–P displays in U.S. airports; and to
Background
negotiate in good faith with foreign air
On November 1, 1996, the U.S. carriers to provide, operate, and
DEPARTMENT OF TRANSPORTATION Department of Transportation amended maintain lifts for boarding and
its regulation implementing section 504 deplaning where level-entry loading
Office of the Secretary of the Rehabilitation Act of 1973 to bridges are not available. The
create a new section, 49 CFR 27.72, Department also proposed updates in
49 CFR Part 27 concerning regulatory requirements for the NPRM to outdated references that
U.S. airports to ensure the availability of existed in 49 CFR part 27 by deleting
RIN 2105–AD91
lifts to provide level-entry boarding for obsolete references to the Uniform
[Docket No. DOT–OST–2011–0182] passengers with disabilities flying on Federal Accessibility Standards in 49
small aircraft.1 See 61 FR 56409. This CFR 27.3(b), and changing the language
Nondiscrimination on the Basis of ‘‘appendix A to part 37 of this title’’ to
requirement paralleled the lift
Disability in Programs or Activities ‘‘appendices B and D of 36 CFR part
provisions applicable to U.S. carriers in
Receiving Federal Financial 1191, as modified by appendix A to part
the ACAA rule, 14 CFR part 382. On
Assistance (U.S. Airports) 37 of this title.’’
May 13, 2008, the Department of
AGENCY: Office of the Secretary, Transportation published a final rule The Department asked a series of
Department of Transportation (DOT). that amended part 382 by making it questions regarding the proposed
applicable to foreign air carriers. See 73 amendments to part 27. We received
ACTION: Final rule.
FR 27614. This amendment also 481 comments in response to the NPRM,
SUMMARY: The Department is issuing a included provisions that require U.S. the majority of which were received
final rule to amend its rules and foreign air carriers, in cooperation from individual commenters. The
implementing section 504 of the with airport operators, to provide Department also received a number of
Rehabilitation Act of 1973, which service animal relief areas for service comments from disability organizations,
requires accessibility in airport terminal animals that accompany passengers airports, and airport associations. We
facilities that receive Federal financial departing, connecting, or arriving at have carefully reviewed and considered
assistance. The final rule includes new U.S. airports. See 14 CFR 382.51(a)(5). these comments. The significant,
provisions related to service animal Part 382 also now requires U.S. and relevant issues raised by the public
relief areas and captioning of televisions foreign air carriers to enable captioning comments to the NPRM are set forth
and audio-visual displays that are on all televisions and other audio-visual below, as is the Department’s response.
similar to existing requirements displays that are capable of displaying Service Animal Relief Areas
applicable to U.S. and foreign air captioning and that are located in any
carriers under the Department’s Air In the NPRM, the Department sought
portion of the airport terminal to which
Carrier Access (ACAA) regulations. The comment on whether it should adopt
any passengers have access. See 14 CFR
final rule also reorganizes a provision requirements regarding the design of
382.51(a)(6). As a result of the 2008
concerning mechanical lifts for service animal relief areas and what, if
amendments to Part 382, the
enplaning and deplaning passengers any, provisions the rule should include
requirements in Part 27 no longer
with mobility impairments, and amends concerning the dimensions, materials
mirrored the requirements applicable to
this provision to require airports to used, and maintenance for service
airlines set forth in part 382 as had been
work not only with U.S. carriers but also animal relief areas. The Department
intended.
foreign air carriers to ensure that lifts explained that commenters should
On September 21, 2011, the consider the size and surface material of
are available where level entry loading Department issued a notice of proposed
bridges are not available. This final rule the area, maintenance, and distance to
rulemaking (NPRM) in Docket OST service animal relief areas, which could
applies to airport facilities located in the 2011–0182 titled, ‘‘Nondiscrimination
United States with 10,000 or more vary based on the size and configuration
on the Basis of Disability in Programs or of the airport. The Department also
annual enplanements that receive Activities Receiving Federal Financial
Federal financial assistance. sought comment on the compliance date
Assistance (U.S. Airports).’’ See 76 FR for these requirements.
DATES: This rule is effective October 5, 60426 et seq. (September 29, 2011). The
2015. Department proposed to amend part 27 Comments
FOR FURTHER INFORMATION CONTACT: by inserting provisions that would Commenters that indicated that they
Maegan L. Johnson, Senior Trial require airport operators to work with are service animal users, and other
Attorney, Office of the Assistant General carriers to establish relief areas for individual commenters, favor the
Counsel for Aviation Enforcement and service animals that accompany construction of service animal relief
Proceedings, Department of passengers with disabilities departing, areas on non-cement surfaces. These
Transportation, 1200 New Jersey connecting, or arriving at U.S. airports; commenters also expressed a desire to
Avenue SE., Room W96–409, to enable high-contrast captioning 2 on see overhangs covering service animal
Washington, DC 20590, (202) 366–9342. relief areas to protect service animal
You may also contact Blane A. Workie, 1 Recognizing the need for level-entry boarding
users from the elements. Airport and
Assistant General Counsel for Aviation for passengers with mobility impairments on larger
airport organization commenters,
Enforcement and Proceedings, aircraft, the Department extended the applicability
of its 1996 rule to aircraft with a seating capacity however, do not support specific
Department of Transportation, 1200 mandates regarding the design, number,
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of 31 or more passengers in 2001. See 66 FR 22107.
New Jersey Avenue SE., Room W96– 2 High-contrast captioning is defined in 14 CFR
or location of service animal relief areas,
464, Washington, DC 20590, (202) 366– 382.3 as ‘‘captioning that is at least as easy to read and encourage the Department to adopt
9342. Arrangements to receive this as white letters on a consistent black background.’’
As explained in the preamble to Part 382, defining the general language that appears in part
notice in an alternative format may be ‘‘high-contrast captioning’’ in such a way not only
made by contacting the above named ensures that captioning will be effective but also to achieve captioning that are as effective as white
individuals. allows carriers to use existing or future technologies on black or more so.
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Document Created: 2018-02-23 10:53:24
Document Modified: 2018-02-23 10:53:24
| 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 September 4, 2015. | |
| Contact | Ruth Knapp, (215) 814-2191, or by email at [email protected] | |
| FR Citation | 80 FR 46494 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Ozone; Reporting and Recordkeeping Requirements; Sulfur Oxides and Volatile Organic Compounds |
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