62022 Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 

1 In EPA’s May 14, 2014 NPR, EPA stated it 

would take separate action on the portions of CAA 

section 110(a)(2) infrastructure elements for the 

2010 SO2 NAAQS as they relate to West Virginia’s 

prevention of significant deterioration (PSD) 

permitting program, as required by part C of Title 

I of the CAA. 79 FR 27524. This included portions 

of the following infrastructure elements: section 

110(a)(2)(C), (D)(i)(II), and (J). In the ‘‘Proposed 

Action’’ section of the NPR, EPA inadvertently 

listed section 110(a)(2)(J) in our proposed approval 

without clarifying the proposed approval was 

limited to the portions of 110(a)(2)(J) related only 

to consultation, public notification and visibility 

protection. As the NPR and accompanying 

Technical Support Document discussed the 

elements EPA intended to propose for approval for 

section 110(a)(2)(J) to the exclusion of PSD portions, 

EPA believes this omission was inadvertent, and 

EPA clarifies in this action that our approval of 

West Virginia’s 2010 SO2 infrastructure SIP for 

section 110(a)(2)(J) is limited to the portions 

addressing consultation, public notification, and 

visibility protection. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2014–0299; FRL–9917–84– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; West 

Virginia; Infrastructure Requirements 

for the 2010 Sulfur Dioxide National 

Ambient Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

Implementation Plan (SIP) revision 

submitted by the State of West Virginia 

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 attainment 

and maintenance of the standards. 

These elements are referred to as 

infrastructure requirements. The State of 

West Virginia has made a submittal 

addressing the infrastructure 

requirements for the 2010 sulfur dioxide 

(SO2) NAAQS. 

DATES: This final rule is effective on 

November 17, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2014–0299. 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 West Virginia 

Department of Environmental 

Protection, Division of Air Quality, 601 

57th Street SE., Charleston, West 

Virginia 25304. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Schmitt, (215) 814–5787, or by 

email at schmitt.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision 

On June 22, 2010 (75 FR 35520), EPA 

promulgated a revised NAAQS for the 1- 

hour primary SO2 at a level of 75 parts 

per billion (ppb), based on a 3-year 

average of the annual 99th percentile of 

1-hour daily maximum concentrations. 

Pursuant to section 110(a)(1) of the 

CAA, states are required to submit SIPs 

meeting the applicable requirements of 

section 110(a)(2) within three years after 

promulgation of a new or revised 

NAAQS or within such shorter period 

as EPA may prescribe. 

On June 25, 2013, the West Virginia 

Department of Environmental Protection 

(WV DEP) submitted a SIP revision that 

addresses the infrastructure elements 

specified in section 110(a)(2) of the 

CAA, necessary to implement, maintain, 

and enforce the 2010 sulfur dioxide 

NAAQS. On May 14, 2014 (79 FR 

27524), EPA published a notice of 

proposed rulemaking (NPR) for the State 

of West Virginia proposing approval of 

West Virginia’s submittal. In the NPR, 

EPA proposed approval of the following 

infrastructure elements: Section 

110(a)(2)(A), (B), (C) (enforcement and 

minor new source review), (D)(ii), (E)(i) 

and (iii), (F), (G), (H), (J) (consultation, 

public notification, and visibility 

protection), (K), (L), and (M), or portions 

thereof.1

West Virginia did not submit section 

110(a)(2)(I) which pertains to the 

nonattainment requirements of part D, 

Title I of the CAA, since this element is 

not required to be submitted by the 3- 

year submission deadline of section 

110(a)(1), and will be addressed in a 

separate process. EPA will take separate 

action on the portions of section 

110(a)(2)(C), (D)(i)(II), and (J) as they 

relate to West Virginia’s prevention of 

significant deterioration (PSD) program. 

EPA had previously approved West 

Virginia’s PSD program with the narrow 

exception of the definition of regulated 

new source review pollutant for its 

failure to include condensables. See 77 

FR 63736 (October 17, 2012) and 78 FR 

27062 (May 9, 2013) (finalizing limited, 

narrow disapproval). At this time, EPA 

is not proposing action on section 

110(a)(2)(D)(i)(II) for visibility 

protection for the 2010 SO2 NAAQS. 

Although West Virginia’s infrastructure 

SIP submittal for the 2010 SO2 NAAQS 

referred to West Virginia’s regional haze 

SIP for section 110(a)(2)(D)(i)(II) for 

visibility protection, EPA intends to 

take separate action on West Virginia’s 

submittal for this element at a later date 

as explained in the technical support 

document (TSD) for the May 14, 2014 

NPR. The Agency will also take separate 

action on section 110(a)(2)(E)(ii) as it 

relates to section 128 (State Boards). 

This rulemaking action also does not 

include action on section 

110(a)(2)(D)(i)(I) of the CAA because 

West Virginia’s June 25, 2013 

infrastructure SIP submittal did not 

include provisions for this element. EPA 

will take later, separate action on 

section 110(a)(2)(D)(i)(I) for the 2010 

SO2 NAAQS for West Virginia. 

The rationale supporting EPA’s 

proposed rulemaking action, including 

the scope of infrastructure SIPs in 

general, is explained in the published 

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–2014–0299. 

II. Public Comments and EPA’s 

Responses 

EPA received comments from the 

Sierra Club on the May 14, 2014 

proposed rulemaking action on West 

Virginia’s 2010 SO2 infrastructure SIP. 

A full set of these comments is provided 

in the docket for today’s final 

rulemaking action. 

A. Background Comments 

1. The Plain Language of the CAA 

Comment 1: Sierra Club contends in 

background comments 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 


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Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 62023 

2The TSD for this action is available on line at 

www.regulations.gov, Docket ID Number EPA–R03– 

OAR–2014–0299. 

infrastructure SIP to prevent NAAQS 

exceedances in areas not designated 

nonattainment. Sierra Club then 

contends that the West Virginia 2010 

SO2 infrastructure SIP revision did not 

revise the existing SO2 emission limits 

in response to the 2010 SO2 NAAQS 

and fails to comport with CAA 

requirements for SIPs to establish 

enforceable emission limits that are 

adequate to prohibit NAAQS 

exceedances in areas not designated 

nonattainment. 

The Commenter states that on its face 

the CAA ‘‘requires I–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 and which commenter claims 

include the maintenance plan 

requirement. Sierra Club notes the CAA 

definition of emission limit and reads 

these provisions together to require 

‘‘enforceable emission limits on source 

emissions sufficient to ensure 

maintenance of the NAAQS.’’ 

Response 1: EPA disagrees that 

section 110 is clear ‘‘on its face’’ and 

must be interpreted in the manner 

suggested by Sierra Club. Section 110 is 

only one provision that is part of the 

complicated structure governing 

implementation of the NAAQS program 

under the CAA, as amended in 1990, 

and it must be interpreted in the context 

of not only that structure, but also of the 

historical evolution of that structure. In 

light of the revisions to section 110 

since 1970 and the later-promulgated 

and more specific planning 

requirements of the CAA, EPA 

interprets the requirement in section 

110(a)(2)(A) that the plan provide for 

‘‘implementation, maintenance and 

enforcement’’ to mean that the 

infrastructure SIP must contain 

enforceable emission limits that will aid 

in attaining and/or maintaining the 

NAAQS and that the state demonstrate 

that it has the necessary tools to 

implement and enforce a NAAQS, such 

as adequate state personnel and an 

enforcement program. With regard to 

the requirement for emission 

limitations, EPA has interpreted this to 

mean for purposes of section 110, that 

the state may rely on measures already 

in place to address the pollutant at issue 

or any new control measures that the 

state may choose to submit. As EPA 

stated in ‘‘Guidance on Infrastructure 

State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 

110(a)(1) and 110(a)(2),’’ dated 

September 13, 2013 (Infrastructure SIP 

Guidance), ‘‘[t]he conceptual purpose of 

an infrastructure SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS, whether 

by establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both. Overall, the 

infrastructure SIP submission process 

provides an opportunity . . . to review 

the basic structural requirements of the 

air agency’s air quality management 

program in light of each new or revised 

NAAQS.’’ Infrastructure SIP Guidance 

at p. 2. 

The Commenter makes general 

allegations that West Virginia does not 

have sufficient protective measures to 

prevent SO2 NAAQS exceedances. EPA 

addressed the adequacy of West 

Virginia’s infrastructure SIP for 

110(a)(2)(A) purposes to meet applicable 

requirements of the CAA in the TSD 

accompanying the May 14, 2014 NPR 

and explained why the SIP includes 

enforceable emission limitations and 

other control measures necessary for 

maintenance of the 2010 SO2 NAAQS 

throughout the state.2 These include 

applicable portions of 45CSR10 (To 

Prevent and Control Air Pollution from 

the Emissions of Sulfur Oxides), 

45CSR11 (Prevention of Air Pollution 

Emergency Episodes), 45CSR13 (Permits 

for Construction, Modification, 

Relocation and Operation of Stationary 

Sources of Air Pollutants, Notification 

Requirements, Temporary Permits, 

General Permits, and Procedures for 

Evaluation), 45CSR14 (Permits for 

Construction and Major Modification of 

Major Stationary Sources of Air 

Pollution for the Prevention of 

Significant Deterioration), 45CSR19 

(Permits for Construction and Major 

Modification of Major Stationary 

Sources of Air Pollution Which Cause or 

Contribute to Nonattainment), and 

45CSR41 (Control of Annual Sulfur 

Dioxide Emissions to Mitigate Interstate 

Transport of Fine Particulate Matter and 

Sulfur Dioxide). Additionally, the 

following state rules are applicable to 

sulfur oxide emission limitations and 

control measures: 45CSR10A (Testing, 

Monitoring, Recordkeeping and 

Reporting Requirements Under 

45CSR10), 45CSR16 (Standards of 

Performance for New Stationary 

Sources), and 45CSR18 (Control of Air 

Pollution from Combustion of Solid 

Waste), 45CSR33 (Acid Rain Provisions 

and Permits). Further, in 2012, EPA 

granted limited approval and limited 

disapproval of West Virginia’s regional 

haze SIP which also includes emission 

measures related to SO2. 77 FR 16932 

(March 23, 2012). As discussed in the 

TSD for this rulemaking, EPA finds 

these provisions adequately address 

section 110(a)(2)(A) to aid in attaining 

and/or maintaining the NAAQS and 

finds West Virginia demonstrated that it 

has the necessary tools to implement 

and enforce the NAAQS. 

1. The Legislative History of the CAA 

Comment 2: Sierra Club 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 West Virginia. Sierra Club also 

contends that the legislative history of 

the CAA supports the interpretation that 

infrastructure SIPs under section 

110(a)(2) must include enforceable 

emission limitations, citing the Senate 

Committee Report and the subsequent 

Senate Conference Report 

accompanying the 1970 CAA. 

Response 2: 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. 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 earlier in this rulemaking 

action, the TSD for the proposed rule 

explains why the SIP includes 

enforceable emissions limitations for the 

relevant area. 

2. Case Law 

Comment 3: Sierra Club also 

discusses several cases applying the 

CAA which Sierra Club claims support 

their contention that courts have been 

clear that section 110(a)(2)(A) requires 

enforceable emissions limits in 

infrastructure SIPs to prevent violations 

of the NAAQS. Sierra Club first cites to 

language in Train v. NRDC, 421 U.S. 60, 

78 (1975), addressing the requirement 

for ‘‘emission limitations’’ and stating 

that emission limitations ‘‘are specific 

rules to which operators of pollution 

sources are subject, and which if 


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3While the commenter does contend that the 

State shouldn’t be allowed to rely on emission 

reductions that were developed for the prior SO2

standards (which we address herein), it does not 

claim that any of the measures are not ‘‘emissions 

limitations’’ within the definition of the CAA. 

enforced should result in ambient air 

which meet the national standards.’’ 

Sierra Club also cites to Pennsylvania 

Dept. of Envtl. Resources v. EPA, 932 

F.2d 269, 272 (3d Cir. 1991) for the 

proposition that the CAA directs EPA to 

withhold approval of a SIP where it 

does not ensure maintenance of the 

NAAQS, and to Mision Industrial, Inc. 

v. EPA, 547 F.2d 123, 129 (1st Cir. 

1976), which quoted section 110(a)(2)(B) 

of the CAA of 1970. The 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 the 

Commenter’s 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 section of decisions in the 

context of a challenge to an EPA action 

on revisions to a SIP that was required 

and approved as meeting other 

provisions of the CAA or in the context 

of an enforcement action. 

In Train, 421 U.S. 60, the Court was 

addressing a state revision to an 

attainment plan submission made 

pursuant to section 110 of the CAA, the 

sole statutory provision at that time 

regulating such submissions. The issue 

in that case concerned whether changes 

to requirements that would occur before 

attainment was required were variances 

that should be addressed pursuant to 

the provision governing SIP revisions or 

were ‘‘postponements’’ that must be 

addressed under section 110(f) of the 

CAA of 1970, which contained 

prescriptive criteria. The Court 

concluded that EPA reasonably 

interpreted section 110(f) not to restrict 

a state’s choice of the mix of control 

measures needed to attain the NAAQS 

and that revisions to SIPs that would 

not impact attainment of the NAAQS by 

the attainment date were not subject to 

the limits of section 110(f). Thus the 

issue was not whether a section 110 SIP 

needs to provide for attainment or 

whether emissions limits are needed as 

part of the SIP; rather the issue was 

which statutory provision governed 

when the state wanted to revise the 

emission limits in its SIP if such 

revision would not impact attainment or 

maintenance of the NAAQS. To the 

extent the holding in the case has any 

bearing on how section 110(a)(2)(A) 

might be interpreted, it is important to 

realize that in 1975, when the opinion 

was issued, section 110(a)(2)(B) (the 

predecessor to section 110(a)(2)(A)) 

expressly referenced the requirement to 

attain the NAAQS, a reference that was 

removed in 1990. 

The decision in Pennsylvania Dept. of 

Envtl. Resources was also decided based 

on the pre-1990 provision of the CAA. 

At issue was whether EPA properly 

rejected a revision to an approved plan 

where the inventories relied on by the 

state for the updated submission had 

gaps. The Court quoted section 

110(a)(2)(B) of the pre-1990 CAA in 

support of EPA’s disapproval, but did 

not provide any interpretation of that 

provision. Yet, even if the Court had 

interpreted that provision, EPA notes 

that it was modified by Congress in 

1990; thus, this decision has little 

bearing on the issue here. 

At issue in Mision Industrial, 547 

F.2d 123, was the definition of 

‘‘emissions limitation’’ not whether 

section 110 requires the state to 

demonstrate how all areas of the state 

will attain and maintain the NAAQS as 

part of their infrastructure SIPs. The 

language from the opinion the 

Commenter quotes does not interpret 

but rather merely describes section 

110(a)(2)(A). The Commenter does not 

raise any concerns about whether the 

measures relied on by the state in the 

infrastructure SIP are ‘‘emissions 

limitations’’ and the decision in this 

case has no bearing here.3 In Mont. 

Sulphur & Chem. Co., 666 F.3d 1174, 

the Court was reviewing a federal 

implementation plan (FIP) that EPA 

promulgated after a long history of the 

state failing to submit an adequate state 

implementation plan in response to 

EPA’s finding under section 110(k)(5) 

that the previously approved SIP was in 

substantially adequate to attain or 

maintain the NAAQS, which triggered 

the state’s duty to submit a new SIP to 

show how it would remedy that 

deficiency and attain the NAAQS. The 

Court cited generally 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 and adoption of a remedial 

FIP 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 

makes no mention of the changed 

language. Furthermore, the Commenter 

also quotes the Court’s statement that 

‘‘SIPs must include certain measures 

Congress specified,’’ but that statement 

specifically referenced the requirement 

in section 110(a)(2)(C), which requires 

an enforcement program and a program 

for the regulation of the modification 

and construction of new sources. 

Notably, at issue in that case was the 

state’s ‘‘new source’’ permitting 

program, not its infrastructure SIP. 

Two of the cases the commenter cites, 

Mich. Dept. of Envtl. Quality, 230 F.3d 

181, and Hall, 273 F.3d 1146, interpret 

CAA section 110(l), the provision 

governing ‘‘revisions’’ to plans, and not 

the initial plan submission requirement 

under section 110(a)(2) for a new or 

revised NAAQS, such as the 

infrastructure SIP at issue in this 

instance. In those cases, the courts cited 

to section 110(a)(2)(A) solely for the 


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purpose of providing a brief background 

of the CAA. 

Finally, in Conn. Fund for Env’t, Inc. 

v. EPA, the D.C. Circuit was reviewing 

EPA action on a control measure SIP 

provision which adjusted the percent of 

sulfur permissible in fuel oil. 696 F.2d 

169 (D.C. Cir. 1982). The D.C. Circuit 

focused on whether EPA needed to 

evaluate effects of SIP revision on one 

pollutant or effects of change on all 

possible pollutants; therefore, the D.C. 

Circuit did not address required 

measures for infrastructure SIPs and 

nothing in the opinion addressed 

whether infrastructure SIPs needed to 

contain measures to ensure attainment 

and maintenance of the NAAQS. 

3. 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 all SIPs to include emissions 

limits necessary to ensure attainment of 

the NAAQS. The Commenter states that 

‘‘[a]lthough these regulations were 

developed before the Clean Air Act 

separated infrastructure SIPs from 

nonattainment SIPs—a process that 

began with the 1977 amendments and 

was completed by the 1990 

amendments—the regulations apply to 

I–SIPs.’’ The Commenter relies on a 

statement in the preamble to the 1986 

action restructuring and consolidating 

provisions in part 51, in which EPA 

stated that ‘‘[i]t is beyond the scope of 

th[is] rulemaking to address the 

provisions of Part D of the Act. . . .’’ 51 

FR 40656, 40656 (November 7, 1986). 

Response 4: The Commenter’s 

reliance on 40 CFR 51.112 to support its 

argument that infrastructure SIPs must 

contain emission limits ‘‘adequate to 

prohibit NAAQS exceedances’’ and 

adequate or sufficient to ensure the 

maintenance of the NAAQS is not 

supported. As an initial matter, EPA 

notes and the Commenter recognizes 

this regulatory provision was initially 

promulgated and ‘‘restructured and 

consolidated’’ prior to the CAA 

Amendments of 1990, in which 

Congress removed all references to 

‘‘attainment’’ in section 110(a)(2)(A). 

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 section 175A and 182. 

The Commenter suggests that these 

provisions must apply to section 110 

SIPs because in the preamble to EPA’s 

action ‘‘restructuring and consolidating’’ 

provisions in part 51, EPA stated that 

the new attainment demonstration 

provisions in the 1977 Amendments to 

the CAA were ‘‘beyond the scope’’ of 

the rulemaking. It is important to note, 

however, that EPA’s action in 1986 was 

not to establish new substantive 

planning requirements, but rather was 

meant merely to consolidate and 

restructure provisions that had 

previously been promulgated. EPA 

noted that it had already issued 

guidance addressing the new ‘‘Part D’’ 

attainment planning obligations. Also, 

as to maintenance regulations, EPA 

expressly stated that it was not making 

any revisions other than to re-number 

those provisions. 51 FR at 40657. 

Although EPA was explicit that it was 

not establishing requirements 

interpreting the provisions of new ‘‘Part 

D’’ of the CAA, it is clear 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. 

4. EPA Interpretations in Other 

Rulemakings 

Comment 5: The Commenter also 

references two prior EPA rulemaking 

actions where EPA disapproved or 

proposed to disapprove SIPs and 

claimed they were actions in which EPA 

relied on section 110(a)(2)(A) and 40 

CFR 51.112 to reject infrastructure SIPs. 

The Commenter first points to a 2006 

partial approval and partial disapproval 

of revisions to Missouri’s existing plan 

addressing the SO2 NAAQS. In that 

action, EPA cited section 110(a)(2)(A) as 

a basis for disapproving a revision to the 

state plan on the basis that the State 

failed to demonstrate the SIP was 

sufficient to ensure maintenance of the 

SO2 NAAQS after revision of an 

emission limit and cited to 40 CFR 

51.112 as requiring that a plan 

demonstrates the rules in a SIP are 

adequate to attain the NAAQS. Second, 

Sierra Club cites a 2013 disapproval of 

a revision to the SO2 SIP for Indiana, 

where the revision removed an emission 

limit that applied to a specific emissions 

source at a facility in the State. In its 

proposed disapproval, EPA relied on 40 

CFR 51.112(a) in proposing to reject the 

revision, stating that the State had not 

demonstrated that the emission limit 

was ‘‘redundant, unnecessary, or that its 

removal would not result in or allow an 

increase in actual SO2 emissions.’’ EPA 

further stated in that proposed 

disapproval that the State had not 

demonstrated that removal of the limit 

would not ‘‘affect the validity of the 

emission rates used in the existing 

attainment demonstration.’’ 

Response 5: EPA does not agree that 

the two prior actions referenced by the 

Commenter establish how EPA reviews 

infrastructure SIPs. It is clear from both 

the final Missouri rule and the proposed 

and final Indiana rule that EPA was not 

reviewing initial infrastructure SIP 

submissions under section 110 of the 

CAA, but rather reviewing revisions that 

would make an already approved SIP 

designed to demonstrate attainment of 

the NAAQS less stringent. EPA’s partial 

approval and partial disapproval of 

revisions to restrictions on emissions of 

sulfur compounds for the Missouri SIP 

in 71 FR 12623 addressed a control 

strategy SIP and not an infrastructure 

SIP. The Indiana action provides even 

less support for the Commenter’s 

position. The review in that rule was of 

a completely different requirement than 

the section 110(a)(2)(A) SIP. Rather, in 

that case, the State had an approved SO2

attainment plan and was seeking to 

remove from the SIP provisions relied 

on as part of the modeled attainment 

demonstration. EPA proposed that the 

State had failed to demonstrate under 

section 110(l) of the CAA why the SIP 

revision would not result in increased 

SO2 emissions and thus interfere with 

attainment of the NAAQS. Nothing in 

that rulemaking addresses the necessary 

content of the initial infrastructure SIP 

for a new or revised NAAQS. Rather, it 

is simply applying the clear statutory 

requirement that a state must 

demonstrate why a revision to an 

approved attainment plan will not 

interfere with attainment of the NAAQS. 

As discussed in detail in the TSD and 

NPR, EPA finds the West Virginia SIP 

meets the appropriate and relevant 

structural requirements of section 

110(a)(2) of the CAA that will aid in 

attaining and/or maintaining the 

NAAQS and that the State demonstrated 

that it has the necessary tools to 

implement and enforce a NAAQS. 


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4As stated previously, EPA will take later, 

separate action on several portions of West 

Virginia’s SO2 infrastructure SIP submittal 

including the portions of the SIP submittal 

addressing section 110(a)(2)(C), (D)(i)(II), and (J) for 

PSD, 110(a)(2)(D)(i)(II) (visibility protection), and 

110(a)(2)(E)(ii) for State Boards. 

5Sierra Club asserts its modeling followed 

protocols pursuant to 40 CFR Part 50, Appendix W 

and EPA’s March 2011 guidance for implementing 

the 2010 SO2 NAAQS. 

Therefore, EPA approves the West 

Virginia SO2 infrastructure SIP.4

B. Comments on West Virginia SIP SO2

Emission Limits 

Comment 6: Citing section 

110(a)(2)(A) of the CAA, Sierra Club 

contends that EPA may not approve the 

proposed infrastructure SIP because it 

does not include enforceable 1-hour SO2

emission limits for sources currently 

allowed to cause NAAQS exceedances. 

Sierra Club asserts the proposed 

infrastructure SIP fails to include 

enforceable 1-hour SO2 emissions limits 

or other required measures to ensure 

attainment and maintenance of the SO2

NAAQS in areas not designated 

nonattainment as required by section 

110(a)(2)(A). Sierra Club asserts that 

emission limits are especially important 

for meeting the 1-hour SO2 NAAQS 

because SO2 impacts are strongly 

source-oriented. Sierra Club states coalfired electric generating units (EGUs) are 

large contributors to SO2 emissions but 

contends West Virginia 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. 

Sierra Club then refers to air dispersion 

modeling it conducted for three coalfired EGUs in West Virginia including 

the John E. Amos Plant (Amos), the 

Harrison Power Station (Harrison), and 

the Kanawha River Plant (Kanawha). 

Sierra Club asserts the results of the air 

dispersion modeling it conducted 

employing EPA’s AERMOD program for 

modeling used the plants’ allowable and 

maximum emissions and showed the 

plants could cause exceedances of the 

2010 SO2 NAAQS with either allowable 

or maximum emissions.5 Based on the 

modeling, Sierra Club asserts the West 

Virginia SO2 infrastructure SIP 

submittal authorizes the three EGUs to 

cause exceedances of the NAAQS with 

allowable and maximum 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 and, therefore, 

EPA must disapprove West Virginia’s 

proposed SIP revision. In addition, 

Sierra Club asserts ‘‘EPA must impose 

additional emission limits on the plants 

that ensure attainment and maintenance 

of the NAAQS at all times.’’ 

Response 6: EPA believes that section 

110(a)(2)(A) of the CAA is reasonably 

interpreted to require states to submit 

SIPs that reflect the first step in their 

planning for attainment and 

maintenance of a new or revised 

NAAQS. These SIP revisions, also 

known as infrastructure SIPs, should 

contain enforceable control measures 

and a demonstration that the state has 

the available tools and authority to 

develop and implement plans to attain 

and maintain the NAAQS. In light of the 

structure of the CAA, EPA’s longstanding position regarding 

infrastructure SIPs is that they are 

general planning SIPs to ensure that the 

state has adequate resources and 

authority to implement a NAAQS in 

general throughout the state and not 

detailed attainment and maintenance 

plans for each individual area of the 

state. As mentioned above, with regard 

to the requirement for emission 

limitations, EPA has interpreted this to 

mean that states may rely on measures 

already in place to address the pollutant 

at issue or any new control measures 

that the state may choose to submit. 

EPA’s interpretation that 

infrastructure SIPs are more general 

planning SIPs is consistent with the 

CAA as understood in light of its history 

and structure. When Congress enacted 

the CAA in 1970, it did not include 

provisions requiring states and the EPA 

to label areas as attainment or 

nonattainment. Rather, states were 

required to include all areas of the state 

in ‘‘air quality control regions’’ (AQCRs) 

and section 110 set forth the core 

substantive planning provisions for 

these AQCRs. At that time, Congress 

anticipated that states would be able to 

address air pollution quickly pursuant 

to the very general planning provisions 

in section 110 and could bring all areas 

into compliance with a new NAAQS 

within five years. Moreover, at that 

time, section 110(a)(2)(A)(i) specified 

that the section 110 plan provide for 

‘‘attainment’’ of the NAAQS and section 

110(a)(2)(B) specified that the plan must 

include ‘‘emission limitations, 

schedules, and timetables for 

compliance with such limitations, and 

such other measures as may be 

necessary to insure attainment and 

maintenance [of the NAAQS].’’ In 1977, 

Congress recognized that the existing 

structure was not sufficient and 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. And, more detailed, laterenacted provisions govern the 

substantive planning process, including 

planning for attainment of the NAAQS. 

As stated in response to a previous 

comment, EPA asserts that section 110 

of the CAA is only one provision that 

is part of the complicated structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be 

interpreted in the context of not only 

that structure, but also of the historical 

evolution of that structure. In light of 

the revisions to section 110 since 1970 

and the later-promulgated and more 

specific planning requirements of the 

CAA, EPA reasonably interprets the 

requirement in section 110(a)(2)(A) of 

the CAA that the plan provide for 

‘‘implementation, maintenance and 

enforcement’’ to mean that the 

infrastructure SIP must contain 

enforceable emission limits that will aid 

in attaining and/or maintaining the 

NAAQS and that the state demonstrate 

that it has the necessary tools to 

implement and enforce a NAAQS, such 

as adequate state personnel and an 

enforcement program. As discussed 


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6 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 (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. 

above, EPA has interpreted the 

requirement for emission limitations in 

section 110 to mean that the state may 

rely on measures already in place to 

address the pollutant at issue or any 

new control measures that the state may 

choose to submit. Finally, as EPA stated 

in the Infrastructure SIP Guidance 

which specifically provides guidance to 

states in addressing the 2010 SO2

NAAQS, ‘‘[t]he conceptual purpose of 

an infrastructure SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS, whether 

by establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ Infrastructure 

SIP Guidance at p. 2. 

On April 12, 2012, EPA explained its 

expectations regarding the 2010 SO2

NAAQS via letters to each of the states. 

EPA communicated in the April 2012 

letters that all states were expected to 

submit SIPs meeting the 

‘‘infrastructure’’ SIP requirements under 

section 110(a)(2) of the CAA by June 

2013. At the time, the EPA was 

undertaking a stakeholder outreach 

process to continue to develop possible 

approaches for determining attainment 

with the SO2 NAAQS and implementing 

this NAAQS. EPA was abundantly clear 

in the April 2012 letters to states that 

EPA did not expect states to submit 

substantive attainment demonstrations 

or modeling demonstrations showing 

attainment for unclassifiable areas in 

infrastructure SIPs due in June 2013 as 

EPA had previously suggested in its 

2010 SO2 NAAQS preamble based upon 

information available at the time and in 

prior draft implementation guidance in 

2011 while EPA was gathering public 

comment. The April 2012 letters to 

states recommended states focus 

infrastructure SIPs due in June 2013, 

such as West Virginia’s SO2

infrastructure SIP, on traditional 

infrastructure elements’’ in section 

110(a)(1) and (2) rather than on 

modeling demonstrations for future 

attainment for unclassifiable areas.6

Therefore, EPA asserts the elements of 

section 110(a)(2) which address SIP 

revisions for nonattainment areas 

including measures and modeling 

demonstrating attainment are due by the 

dates statutorily prescribed under 

subparts 2 through 5 under part D, 

extending as far as 10 years following 

area designations for some elements. 

The CAA directs states to submit these 

110(a)(2) elements for nonattainment 

areas on a separate schedule from the 

‘‘structural requirements’’ of 110(a)(2) 

which are due within three years of 

adoption or revision of a NAAQS. The 

infrastructure SIP submission 

requirement does not move up the date 

for any required submission of a part D 

plan for areas designated nonattainment 

for the new NAAQS. Thus, elements 

relating to demonstrating attainment for 

areas not attaining the NAAQS are not 

necessary for states to include in the 

infrastructure SIP submission, and the 

CAA does not provide explicit 

requirements for demonstrating 

attainment for areas designated as 

‘‘unclassifiable’’ (or that have not yet 

been designated) regarding attainment 

with a particular NAAQS. 

As stated previously, EPA believes 

that the proper inquiry at this juncture 

is whether West Virginia 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 

West Virginia, may reference preexisting SIP emission limits or other 

rules contained in part D plans for 

previous NAAQS in an infrastructure 

SIP submission. For example, West 

Virginia submitted a list of existing 

emission reduction measures in the SIP 

that control emissions of SO2 as 

discussed above in response to a prior 

comment and discussed in detail in our 

TSD. West Virginia’s SIP revision 

reflects several provisions that have the 

ability to reduce SO2. Although the 

West Virginia SIP relies on measures 

and programs used to implement 

previous SO2 NAAQS, these provisions 

will provide benefits for the 2010 SO2

NAAQS. The identified West Virginia 

SIP measures help to reduce overall SO2

and are not limited to reducing SO2

levels to meet one specific NAAQS. 

Additionally, as discussed in EPA’s 

TSD supporting the NPR, West Virginia 

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 W.Va. Code section 22–5– 

4(a)(16) (authorizing WV DEP to do all 

things necessary to prepare and submit 

SIPs). 

EPA believes the requirements for 

emission reduction measures for an area 

designated nonattainment to come into 

attainment with the 2010 primary SO2

NAAQS are in sections 172 and 192 of 

the CAA, and, therefore, the appropriate 

time for implementing requirements for 

necessary emission limitations for 

demonstrating attainment with the 2010 

1-hour 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. 

EPA designated portions of Brooke and 

Marshall Counties in West Virginia as 

nonattainment areas for the 2010 1-hour 

SO2 NAAQS. 78 FR 47191 (August 5, 

2013). In separate future actions, EPA 

intends to address the designations for 

all other areas for which the Agency has 

yet to issue designations. See 79 FR 

27446 (May 13, 2014) (proposing 

process and timetables by which state 

air agencies would characterize air 

quality around SO2 sources through 

ambient monitoring and/or air quality 

modeling techniques and submit such 

data to the EPA for designations with 

2010 SO2 NAAQS). For the partial areas 

designated nonattainment in August 

2013 within West Virginia, attainment 

SIPs are due by April 4, 2015 and must 

contain demonstrations that the areas 

will attain as expeditiously as 


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62028 Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 

7The Commenter also cites to a 1983 EPA 

Memorandum on section 107 designations policy 

regarding use of modeling for designations and to 

the 2012 Mont. Sulphur & Chem. Co. case where 

EPA had designated an area in Montana as 

nonattainment due to modeled violations of the 

NAAQS. 

practicable, but no later than October 4, 

2018 pursuant to sections 172, 191 and 

192, including a plan for enforceable 

measures to reach attainment of the 

NAAQS. EPA believes it is not 

appropriate to bypass the attainment 

planning process by imposing separate 

requirements outside the attainment 

planning process. Such actions would 

be disruptive and premature absent 

exceptional circumstances and would 

interfere with a state’s planning process. 

See In the Matter of EME Homer City 

Generation LP and First Energy 

Generation Corp., Order on Petitions 

Numbers III–2012–06, III–2012–07, and 

III 2013–01 (July 30, 2014) (hereafter, 

Homer City/Mansfield Order) at 10–19 

(finding Pennsylvania SIP did not 

require imposition of SO2 emission 

limits on sources independent of the 

part D attainment planning process 

contemplated by the CAA). EPA 

believes that the history of the CAA and 

intent of Congress for the CAA as 

described above demonstrate clearly 

that it is within the section 172 and 

general part D attainment planning 

process that West Virginia must include 

additional SO2 emission limits on 

sources in order to demonstrate future 

attainment, where needed, for the 

portions of Brooke and Marshall 

Counties designated nonattainment to 

reach attainment with the 2010 1-hour 

SO2 NAAQS. 

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 clearly on its face 

applies to plans specifically designed to 

attain the NAAQS and not to 

infrastructure SIPs which show the 

states have in place structural 

requirements necessary to implement 

the NAAQS. Therefore, EPA finds 40 

CFR 51.112 inapplicable to its analysis 

of the West Virginia SO2 infrastructure 

SIP. 

As noted in EPA’s preamble for the 

2010 SO2 NAAQS, determining 

compliance with the SO2 NAAQS will 

likely be a source-driven analysis and 

EPA has explored options to ensure that 

the SO2 designations process 

realistically accounts for anticipated 

SO2 reductions at sources that we 

expect will be achieved by current and 

pending national and regional rules. See 

75 FR 35520. As mentioned previously 

above, EPA has proposed a process to 

address additional areas in states which 

may not be attaining the 2010 SO2

NAAQS. 79 FR 27446 (proposing 

process for further designations with 

additional monitoring or modeling). In 

addition, in response to lawsuits in 

district courts seeking to compel EPA’s 

remaining designations of undesignated 

areas under the NAAQS, EPA has 

proposed to enter a settlement under 

which this process would require an 

earlier round of designations focusing 

on areas with larger sources of SO2

emissions, as well as enforceable 

deadlines for the later rounds of 

designations. However, because the 

purpose of an infrastructure SIP 

submission is for more general planning 

purposes, EPA does not believe West 

Virginia 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 Sierra Club pursuant to 

AERMOD for the coal-fired EGUs 

including Amos, Harrison, and 

Kanawha, EPA is not at this stage 

prepared to opine on whether it 

demonstrates violations of the NAAQS, 

and does not find the modeling 

information relevant at this time for 

review of an infrastructure SIP. EPA has 

issued non-binding guidance for states 

to use in conducting, if they choose, 

additional analysis to support 

designations for the 2010 SO2 NAAQS. 

SO2 NAAQS Designations Modeling 

Technical Assistance Document, 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. Sierra Club’s AERMOD 

modeling for the West Virginia EGUs 

was conducted prior to the issuance of 

this guidance and may not address all 

recommended elements EPA may 

consider important to modeling for 2010 

SO2 NAAQS for designations purposes 

or for eventual attainment 

demonstration purposes for the counties 

in West Virginia designated 

nonattainment. In addition, while EPA 

has extensively discussed the use of 

modeling for attainment demonstration 

purposes and for designations, EPA has 

recommended that such modeling was 

not needed for the SO2 infrastructure 

SIPs needed for the 2010 SO2 NAAQS. 

See April 12, 2012 letters to states 

regarding SO2 implementation and 

Implementation of the 2010 Primary 1- 

Hour SO2 NAAQS, Draft White Paper 

for Discussion, May 2012, available at 

http://www.epa.gov/airquality/

sulfurdioxide/implement.html. In 

contrast, EPA recently discussed 

modeling for designations in our May 

14, 2014 proposal at 79 FR 27446 and 

for nonattainment planning in the April 

23, 2014 Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions. 

In conclusion, EPA disagrees with 

Sierra Club’s statements that EPA must 

disapprove West Virginia’s 

infrastructure SIP submission because it 

does not establish at this time specific 

enforceable SO2 emission limits either 

on coal-fired EGUs or other large SO2

sources in order to demonstrate 

attainment with the NAAQS. 

Comment 7: Sierra Club asserts that 

modeling is the appropriate tool for 

evaluating adequacy of infrastructure 

SIPs and ensuring attainment and 

maintenance of the 2010 SO2 NAAQS. 

The commenter refers to EPA’s historic 

use of air dispersion modeling for 

attainment designations as well as ‘‘SIP 

revisions.’’ The Commenter cites to 

prior EPA statements that the Agency 

has used modeling for designations and 

attainment demonstrations, including 

statements in the 2010 SO2 NAAQS 

preamble, EPA’s 2012 Draft White Paper 

for Discussion on Implementing the 

2010 SO2 NAAQS, and a 1994 SO2

Guideline Document, as modeling could 

better address the source-specific 

impacts of SO2 emissions and historic 

challenges from monitoring SO2

emissions.7

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 

(D.C. Cir. 2009). The Commenter 

discusses statements made by EPA staff 

discussing use of modeling and 

monitoring in setting emission 

limitations or determining ambient 

concentrations resulting from sources, 

discussing performance of AERMOD as 

a model, and discussing that modeling 

is capable of predicting whether the 

NAAQS is attained and whether 

individual sources contribute to SO2

NAAQS violations. The Commenter 

cites to EPA’s history of employing air 

dispersion modeling for increment 

compliance verifications in the 

permitting process for the PSD program 

required in part C of the CAA. The 

Commenter claims the Amos, Kanawha, 

and Harrison plants are examples of 

sources in elevated terrain where the 

AERMOD model functions 


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Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 62029 

8The 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. 

appropriately in evaluating ambient 

impacts. 

The Commenter asserts EPA’s use of 

air dispersion modeling was upheld in 

GenOn REMA, LLC v. EPA, 722 F.3d 513 

(3rd Cir. 2013) where an EGU 

challenged EPA’s use of CAA section 

126 to impose SO2 emission limits on a 

source due to cross-state impacts. The 

Commenter claims the Third Circuit in 

GenOn REMA upheld EPA’s actions 

after examining the record which 

included EPA’s air dispersion modeling 

of the one source as well as other data. 

The Commenter cites to Vehicle Mfrs. 

Ass’n v. State Farm Mut. Auto Ins. Co., 

463 U.S. 29,43 (1983) and NRDC v. EPA, 

571 F.3d 1245, 1254 (D.C. Cir. 2009) for 

the general proposition that it would be 

arbitrary and capricious for an agency to 

ignore an aspect of an issue placed 

before it and for the statement that an 

agency must consider information 

presented during notice-and-comment 

rulemaking. 

Finally, the Commenter claims that 

West Virginia’s proposed SO2

infrastructure SIP lacks emission 

limitations informed by air dispersion 

modeling and therefore fails to ensure 

West Virginia will achieve and maintain 

the 2010 SO2 NAAQS. Sierra Club 

claims EPA must require adequate, 1- 

hour SO2 emission limits in the 

infrastructure SIP that show no 

exceedances of NAAQS when modeled. 

Response 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 and in the 

attainment SIP process pursuant to 

sections 172 and 192, including 

supporting required attainment 

demonstrations. EPA agrees that prior 

EPA statements, EPA guidance, and case 

law support the use of air dispersion 

modeling in the designations process 

and attainment demonstration process, 

as well as in analyses of whether 

existing approved SIPs remain adequate 

to show attainment and maintenance of 

the SO2 NAAQS. However, EPA 

disagrees with the Commenter that EPA 

must disapprove the West Virginia SO2

infrastructure SIP for its alleged failure 

to include source-specific SO2 emission 

limits that show no exceedances of the 

NAAQS when modeled. 

As discussed previously above and in 

the Infrastructure SIP Guidance, EPA 

believes the conceptual purpose of an 

infrastructure SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS and that 

the infrastructure SIP submission 

process provides an opportunity to 

review the basic structural requirements 

of the air agency’s air quality 

management program in light of the new 

or revised NAAQS. See Infrastructure 

SIP Guidance at p. 2. EPA believes the 

attainment planning process detailed in 

part D of the CAA, including attainment 

SIPs required by sections 172 and 192 

for areas not attaining the NAAQS, is 

the appropriate place for the state to 

evaluate measures needed to bring 

nonattainment areas into attainment 

with a NAAQS and to impose additional 

emission limitations such as SO2

emission limits on specific sources. 

While EPA had initially suggested in the 

final 2010 SO2 NAAQS preamble (75 FR 

35520) and subsequent draft guidance in 

March and September 2011 that EPA 

recommended states submit substantive 

attainment demonstration SIPs based on 

air quality modeling in section 110(a) 

SIPs due in June 2013 to show how 

areas expected to be designated as 

unclassifiable would attain and 

maintain the NAAQS, these initial 

statements in the preamble and 2011 

draft guidance were based on EPA’s 

initial expectation that most areas 

would by June 2012 be initially 

designated as unclassifiable due to 

limitations in the scope of the ambient 

monitoring network and the short time 

available before which states could 

conduct modeling to support 

designations recommendations in 2011. 

However, after receiving comments from 

the states regarding these initial 

statements and the timeline for 

implementing the NAAQS, EPA 

subsequently stated in the April 12, 

2012 letters to the states and in the May 

2012 Implementation of the 2010 

Primary 1-Hour SO2 NAAQS, Draft 

White Paper for Discussion that EPA 

was clarifying its implementation 

position and that EPA was no longer 

recommending such attainment 

demonstrations supported by air 

dispersion modeling for unclassifiable 

areas (which had not yet been 

designated) for June 2013 infrastructure 

SIPs. EPA reaffirmed this position that 

EPA did not expect attainment 

demonstrations for areas not designated 

nonattainment for infrastructure SIPs in 

the February 6, 2013 memorandum, 

‘‘Next Steps for Area Designations and 

Implementation of the Sulfur Dioxide 

National Ambient Air Quality 

Standard.’’ 8 As previously mentioned, 

EPA had stated in the preamble to the 

NAAQS and in the prior 2011 draft 

guidance that EPA intended to develop 

and seek public comment on guidance 

for modeling and development of SIPs 

for sections 110, 172 and 191–192 of the 

CAA. After receiving such further 

comment, EPA has now issued guidance 

for the nonattainment area SIPs due 

pursuant to sections 191–192 and 172 

and proposed a process for further 

designations for the 2010 SO2 NAAQS, 

which could include use of air 

dispersion modeling. See April 23, 2014 

Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions 

and 79 FR 27446 (proposing process and 

timetables for additional SO2

designations informed through ambient 

monitoring and/or air quality modeling). 

While the EPA guidance for attainment 

SIPs and the proposed process for 

additional designations discusses use of 

air dispersion modeling, EPA’s 2013 

Infrastructure SIP Guidance did not 

require use of air dispersion modeling to 

inform emission limitations for section 

110(a)(2)(A) to ensure no exceedances of 

the NAAQS when sources are modeled. 

Therefore, as discussed previously, EPA 

believes the West Virginia SO2

infrastructure SIP submittal contains the 

structural requirements to address 

elements in section 110(a)(2) as 

discussed in detail in our TSD 

supporting our proposed approval and 

in our Response to a prior comment. 

EPA believes infrastructure SIPs are 

general planning SIPs to ensure that a 

state has adequate resources and 

authority to implement a NAAQS. 

Infrastructure SIP submissions are not 

intended to act or fulfill the obligations 

of a detailed attainment and/or 

maintenance plan for each individual 

area of the state that is not attaining the 

NAAQS. While infrastructure SIPs must 

address modeling authorities in general 

for section 110(a)(2)(K), EPA believes 

110(a)(2)(K) requires infrastructure SIPs 

to provide the state’s authority for air 

quality modeling and for submission of 

modeling data to EPA, not specific air 

dispersion modeling for large stationary 

sources of pollutants such as SO2 in a 

SO2 infrastructure SIP. In the TSD for 

this rulemaking action, EPA provided a 

detailed explanation of West Virginia’s 

ability and authority to conduct air 

quality modeling when required and its 

authority to submit modeling data to the 

EPA. 

EPA finds Sierra Club’s discussion of 

case law, guidance, and EPA staff 

statements regarding advantages of 

AERMOD as an air dispersion model to 

be irrelevant to our analysis here of the 

West Virginia infrastructure SIP, as this 

SIP for section 110(a) is not an 

attainment SIP required to demonstrate 


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62030 Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 

9Sierra 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). 

attainment of the NAAQS pursuant to 

section 172. In addition, Sierra Club’s 

comments relating to EPA’s use of 

AERMOD or modeling in general in 

designations pursuant to section 107, 

including its citation to Catawba 

County, are likewise irrelevant as EPA’s 

present approval of West Virginia’s 

infrastructure SIP is unrelated to the 

section 107 designations process. Nor is 

our action on this infrastructure SIP 

related to any new source review (NSR) 

or PSD permit program issue. As 

outlined in the August 23, 2010 

clarification memo, ‘‘Applicability of 

Appendix W Modeling Guidance for the 

1-hour SO2 National Ambient Air 

Quality Standard’’ (U.S. EPA, 2010a), 

AERMOD is the preferred model for 

single source modeling to address the 1- 

hour SO2 NAAQS as part of the NSR/ 

PSD permit programs. Therefore, as 

attainment SIPs, designations, and NSR/ 

PSD actions are outside the scope of a 

required infrastructure SIP for the 2010 

SO2 NAAQS for section 110(a), EPA 

provides no further response to the 

Commenter’s discussion of air 

dispersion modeling for these 

applications. If Sierra Club resubmits its 

air dispersion modeling for the West 

Virginia EGUs or updated modeling 

information in the appropriate context, 

EPA will address the resubmitted 

modeling or updated modeling in the 

appropriate future context when an 

analysis of whether West Virginia’s 

emissions limits are adequate to show 

attainment and maintenance of the 

NAAQS is warranted. 

The Commenter correctly noted that 

the Third Circuit upheld EPA’s Section 

126 Order imposing SO2 emissions 

limitations on an EGU pursuant to CAA 

section 126. GenOn REMA, LLC v. EPA, 

722 F.3d 513. Pursuant to section 126, 

any state or political subdivision may 

petition EPA for a finding that any 

major source or group of stationary 

sources emits or would emit any air 

pollutant in violation of the prohibition 

of section 110(a)(2)(D)(i)(I) which relates 

to significant contributions to 

nonattainment or maintenance in 

another state. The Third Circuit upheld 

EPA’s authority under section 126 and 

found EPA’s actions neither arbitrary 

nor capricious after reviewing EPA’s 

supporting docket which included air 

dispersion modeling as well as ambient 

air monitoring data showing violations 

of the NAAQS. The Commenter appears 

to have cited to this matter to 

demonstrate again EPA’s use of 

modeling for certain aspects of the CAA. 

EPA agrees with the Commenter 

regarding the appropriate role air 

dispersion modeling has for 

designations, attainment SIPs, and 

demonstrating significant contributions 

to interstate transport. However, EPA’s 

approval of West Virginia’s 

infrastructure SIP is based on our 

determination that West Virginia has the 

required structural requirements 

pursuant to section 110(a)(2) in 

accordance with our explanation of the 

intent for infrastructure SIPs as 

discussed in the 2013 Infrastructure SIP 

Guidance. Therefore, while air 

dispersion modeling may be appropriate 

for consideration in certain 

circumstances, EPA does not find air 

dispersion modeling demonstrating no 

exceedances of the NAAQS to be a 

required element before approval of 

infrastructure SIPs for section 110(a) or 

specifically for 110(a)(2)(A). Thus, EPA 

disagrees with the Commenter that EPA 

must require additional emission 

limitations in the West Virginia SO2

infrastructure SIP informed by air 

dispersion modeling and demonstrating 

attainment and maintenance of the 2010 

NAAQS. 

In its comments, Sierra Club relies on 

Motor Vehicle Mfrs. Ass’n and NRDC v. 

EPA to support its comments that EPA 

must consider the Sierra Club’s 

modeling data on the Amos, Kanawha, 

and Harrison plants based on 

administrative law principles regarding 

consideration of comments provided 

during a rulemaking process. EPA 

asserts that it has considered the 

modeling submitted by the Commenter 

as well as all the submitted comments 

of Sierra Club. As discussed in detail in 

the Responses above, however, EPA 

does not believe the infrastructure SIPs 

required by section 110(a) are the 

appropriate place to require emission 

limits demonstrating future attainment 

with a NAAQS. Part D of the CAA 

contains numerous requirements for the 

NAAQS attainment planning process 

including requirements for attainment 

demonstrations in section 172 

supported by appropriate modeling. As 

also discussed previously, section 107 

supports EPA’s use of modeling in the 

designations process. In Catawba, the 

D.C. Circuit upheld EPA’s consideration 

of data or factors for designations other 

than ambient monitoring. EPA does not 

believe state infrastructure SIPs must 

contain emission limitations informed 

by air dispersion modeling in order to 

meet the requirements of section 

110(a)(2)(A). Thus, EPA has not 

evaluated the persuasiveness of the 

Commenter’s submitted modeling in 

finding that it is not relevant to the 

approvability of West Virginia’s 

proposed infrastructure SIP for the 2010 

SO2 NAAQS. 

Comment 8: Sierra Club asserts that 

EPA may not approve the West Virginia 

proposed SO2 infrastructure SIP because 

it fails to include enforceable emission 

limitations with a 1-hour averaging time 

that applies at all times. The Commenter 

cites to CAA section 302(k) which 

requires emission limits to apply on a 

continuous basis. The Commenter 

claims EPA has stated that 1-hour 

averaging times are necessary for the 

2010 SO2 NAAQS citing to a February 

3, 2011, EPA Region 7 letter to the 

Kansas Department of Health and 

Environment regarding need for 1-hour 

SO2 emission limits in a PSD permit, an 

EPA Environmental Hearing Board 

(EHB) decision rejecting use of 3-hour 

averaging time for a SO2 limit in a PSD 

permit, and EPA’s disapproval of a 

Missouri SIP which relied on annual 

averaging for SO2 emission rates.9

Sierra Club also contends EPA must 

include monitoring of SO2 emission 

limits on a continuous basis using a 

continuous emission monitor system or 

systems (CEMs) and cites to section 

110(a)(2)(F) which requires a SIP to 

establish a system to monitor emissions 

from stationary sources and to require 

submission of periodic emission reports. 

Sierra Club contends infrastructure SIPs 

must require such SO2 CEMs to monitor 

SO2 sources regardless of whether 

sources have control technology 

installed to ensure limits are protective 

of the NAAQS. Thus, Sierra Club 

contends EPA must require enforceable 

emission limits, applicable at all times, 

with 1-hour averaging periods, 

monitored continuously by large 

sources of SO2 emissions and must 

disapprove West Virginia’s 

infrastructure SIP which fails to require 

emission limits with adequate averaging 

times. 

Response 8: EPA disagrees that EPA 

must disapprove the proposed West 

Virginia infrastructure SIP without 

enforceable SO2 emission limitations 

with 1-hour averaging periods that 

apply at all times and with required 

CEMs, as these issues are not 

appropriate for resolution at this stage 

in advance of the state’s submission of 

an attainment demonstration for its 

designated nonattainment areas. As 

explained in detail in previous 

Responses, the purpose of the 

infrastructure SIP is to ensure that a 

state has the structural capability to 

attain and maintain the NAAQS and 

thus additional SO2 emission 

limitations to ensure attainment and 


rmajette on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 62031 

10For a discussion on emission averaging times 

for emissions limitations for SO2 attainment SIPs, 

see the April 23, 2014 Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions. EPA 

explained that it is possible, in specific cases, for 

states to develop control strategies that account for 

variability in 1-hour emissions rates through 

emission limits with averaging times that are longer 

than 1-hour, using averaging times as long as 30- 

days, but still provide for attainment of the 2010 

SO2 NAAQS as long as the limits are of at least 

comparable stringency to a 1-hour limit at the 

critical emission value. EPA has not yet evaluated 

any specific submission of such a limit, and so is 

not at this time prepared to take final action to 

implement this concept. If and when a state submits 

an attainment demonstration that relies upon a 

limit with such a longer averaging time, EPA will 

evaluate it then. 

11EPA believes the appropriate time for 

application of monitoring requirements to 

demonstrate continuous compliance by specific 

sources is when such 1-hour emission limits are set 

for specific sources whether in permits issued by 

West Virginia pursuant to the SIP or in attainment 

SIPs submitted in the part D planning process. 

maintenance of the NAAQS are not 

required for such infrastructure SIPs.10

Likewise, EPA need not address for the 

purpose of approving West Virginia’s 

infrastructure SIP whether CEMs or 

some other appropriate monitoring of 

SO2 emissions is necessary to 

demonstrate compliance with emission 

limits to show attainment of the 2010 

NAAQS as EPA believes such SO2

emission limits and an attainment 

demonstration are not a prerequisite to 

our approval of West Virginia’s 

infrastructure SIP.11 Therefore, because 

EPA finds West Virginia’s SO2

infrastructure SIP approvable without 

the additional SO2 emission limitations 

showing attainment of the NAAQS, EPA 

finds the issues of appropriate averaging 

periods and monitoring requirements 

for such future limitations not relevant 

at this time for our approval of the 

infrastructure SIP. Sierra Club has cited 

to prior EPA discussion on emission 

limitations required in PSD permits 

(from an EAB decision and EPA’s letter 

to Kansas’ permitting authority) 

pursuant to part C of the CAA which is 

not relevant nor applicable to section 

110 infrastructure SIPs. In addition, as 

discussed previously, the EPA 

disapproval of the 2006 Missouri SIP 

was a disapproval relating to a control 

strategy SIP required pursuant to part D 

attainment planning and is likewise not 

relevant to our analysis of infrastructure 

SIP requirements. 

EPA has explained in the TSD 

supporting this rulemaking action how 

the West Virginia SIP meets 

requirements in section 110(a)(2)(F) 

related to monitoring. W.Va. Code 

section 22–5–4(a)(15) authorizes West 

Virginia to require installation, 

maintenance, and replacement of 

equipment such as CEMs to monitor 

continuously SO2 emissions where 

necessary and required. Further, W.Va. 

Code section 22–5–4(a)(14) and (15) 

authorizes West Virginia to require 

information such as periodic reports on 

the nature and amounts of emissions 

and emissions-related data from owners 

or operators of stationary sources of SO2

emissions which West Virginia then 

requires through permits and 

compliance orders. Pursuant to 40 CFR 

Part 51, subpart A, ‘‘Air Emission 

Reporting Rule,’’ West Virginia provides 

source-specific emissions data to EPA. 

Thus, EPA finds West Virginia has the 

authority and responsibility to monitor 

air quality for the relevant NAAQS 

pollutants at appropriate locations and 

to submit data to EPA in a timely 

manner in accordance with 110(a)(2)(F) 

and the Infrastructure SIP Guidance. See 

Infrastructure SIP Guidance at p. 45–46. 

Comment 9: Sierra Club states that 

enforceable emission limits in SIPs or 

permits are necessary to avoid 

nonattainment designations in areas 

where modeling or monitoring shows 

SO2 levels exceed the 1-hour SO2

NAAQS and cites to a February 6, 2013 

EPA document, Next Steps for Area 

Designations and Implementation of the 

Sulfur Dioxide Nation Ambient Air 

Quality Standard, which Sierra Club 

contends discussed how states could 

avoid future nonattainment 

designations. The Commenter asserts 

EPA should add enforceable emission 

limits to the West Virginia Infrastructure 

SIP to prevent future nonattainment 

designations and to protect public 

health. The Commenter claims the 

modeling it conducted for Amos, 

Kanawha, and Harrison indicates thirtyone counties in West Virginia are at risk 

for being designated nonattainment with 

the 2010 SO2 NAAQS without such 

enforceable SO2 limits. The Commenter 

states EPA must ensure large sources 

cannot cause exceedances of the onehour SO2 NAAQS to comply with 

section 110(a)(2)(A) and to avoid future 

nonattainment designations. The 

Commenter asserts nonattainment 

designations create rigorous CAA 

requirements which could be avoided 

presently if states adopt and EPA 

approves such SO2 emission limitations. 

In addition, the Commenter asserts 

adding SO2 emission limitations on 

certain sources now would bring 

regulatory certainty for coal-fired EGUs 

and ultimately save such entities money 

as the sources could plan now for 

compliance with emission limits as well 

as with other CAA requirements such as 

the Mercury Air Toxic Standards, 

transport rules and regional haze 

requirements. In summary, the 

Commenter asserts EPA must 

disapprove the West Virginia 

infrastructure SIP and establish 

enforceable emission limits to ensure 

large sources of SO2 do not cause 

exceedances of the 2010 SO2 NAAQS 

which would avoid nonattainment 

designations and bring ‘‘regulatory 

certainty’’ to sources in West Virginia. 

Response 9: EPA appreciates the 

Commenter’s concern with assisting 

West Virginia in avoiding 

nonattainment designations with the 

2010 SO2 NAAQS and with assisting 

coal-fired EGUs in achieving regulatory 

certainty as EGUs make informed 

decisions on how to comply with CAA 

requirements. However, Congress 

designed the CAA such that states have 

the primary responsibility for assuring 

air quality within their geographic area 

by submitting SIPs which will specify 

how the state will achieve and maintain 

the NAAQS within the state. Pursuant 

to section 107(d), the states make initial 

recommendations of designations for 

areas within each state and EPA then 

promulgates the designations after 

considering the state’s submission and 

other information. EPA promulgated 

initial designations for the 2010 SO2

NAAQS in August 2013. EPA proposed 

on May 14, 2014 an additional process 

for further designations of additional 

areas in each state for the 2010 SO2

NAAQS. 79 FR 27446. EPA has also 

proposed to enter a settlement to resolve 

deadline suits reading the remaining 

designations that would, if entered by 

the court, impose deadlines for three 

more rounds of designations. Under 

these proposed schemes, West Virginia 

would have the initial opportunity for 

proposing additional areas for 

designations for the 2010 SO2 NAAQS. 

While EPA appreciates Sierra Club’s 

comments, further designations will 

occur pursuant to the section 107(d) 

process, and in accordance with any 

applicable future court orders 

addressing the designations deadline 

suits and, if promulgated, future EPA 

rules addressing additional monitoring 

or modeling to be conducted by states. 

West Virginia may on its own accord 

decide to impose additional SO2

emission limitations to avoid future 

designations to nonattainment. 

However, such considerations are not 

required of West Virginia to consider at 

the infrastructure SIP stage of NAAQS 

implementation, as this action relates to 

our approval of West Virginia’s SO2

infrastructure SIP submittal pursuant to 

section 110(a) of the CAA, and Sierra 

Club’s comments regarding designations 

under section 107 are neither relevant 

nor germane to EPA’s approval of West 

Virginia’s SO2 infrastructure SIP. 


rmajette on DSK2VPTVN1PROD with RULES
62032 Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 

12The February 6, 2013 memorandum is more 

completely the February 6, 2013 memorandum, 

‘‘Next Steps for Area Designations and 

Implementation of the Sulfur Dioxide National 

Ambient Air Quality Standard’’ available at 

http://www.epa.gov/airquality/sulfurdioxide/ 

implement.html. 

13EPA 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 

prior to 2017. 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 August 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, while EPA appreciates Sierra 

Club’s concern for providing ‘‘regulatory 

certainty’’ for coal-fired EGUs in West 

Virginia, such concerns for regulatory 

certainty are not requirements for 

infrastructure SIPs as outlined by 

Congress in section 110(a)(2) nor as 

discussed in EPA’s Infrastructure SIP 

Guidance. See Commonwealth of 

Virginia, et al., v. EPA, 108 F.3d 1397, 

1410 (D.C. Cir. 1997) (citing Natural 

Resources Defense Council, Inc. v. 

Browner, 57 F.3d 1122, 1123 (D.C. Cir. 

1995)) (discussing that states have 

primary responsibility for determining 

an emission reductions program for its 

areas subject to EPA approval 

dependent upon whether the SIP as a 

whole meets applicable requirements of 

the CAA). Thus, EPA does not believe 

it is appropriate and necessary to 

condition approval of West Virginia’s 

infrastructure SIP upon inclusion of a 

particular emission reduction program 

as long as the SIP otherwise meets the 

requirements of the CAA. Sierra Club’s 

comments regarding emission limits 

providing ‘‘regulatory certainty’’ for 

EGUs are irrelevant to our approval of 

West Virginia’s infrastructure SIP for the 

2010 SO2 NAAQS, and EPA disagrees 

that we must disapprove the 

infrastructure SIP for not including 

enforceable emissions limitations to 

prevent future nonattainment 

designations or aid in providing 

‘‘regulatory certainty.’’ 

Comment 10: The Commenter claims 

EPA must disapprove the proposed 

2010 SO2 NAAQS for its failure to 

include measures to ensure compliance 

with section 110(a)(2)(A) for the 2010 

SO2 NAAQS. The Commenter claims 

the provisions listed by West Virginia 

for section 110(a)(2)(A) in its 2010 SO2

NAAQS infrastructure SIP are not 

appropriate for the NAAQS as 

evidenced by the Commenter’s 

modeling for plants which are not in 

areas presently designated 

nonattainment for the 2010 SO2

NAAQS. Sierra Club claims West 

Virginia wrongly relies on CAA part D 

attainment planning requirements to 

address NAAQS exceedances. 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. 

The Commenter claims the proposed 

infrastructure SIP relies on emission 

limits added to the SIP prior to the 2010 

SO2 NAAQS and does not include 

hourly SO2 emission limits. Sierra Club 

therefore contends the proposed 

infrastructure SIP cannot ensure West 

Virginia will attain and maintain the 

2010 SO2 NAAQS and EPA must 

disapprove the SIP and require 1-hour 

emission limits to address exceedances 

shown by Sierra Club’s submitted 

modeling. 

Response 10: EPA disagrees with 

Sierra Club that it must disapprove the 

West Virginia proposed infrastructure 

SIP for the 2010 SO2 NAAQS for the 

reasons already discussed in response to 

other comments from Sierra Club. 

Generally, it is not appropriate to bypass 

the attainment planning process by 

imposing separate requirements, such as 

additional SO2 emission limits on 

sources, outside the attainment 

planning process. Such actions would 

be disruptive and premature absent 

exceptional circumstances. See 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). As 

discussed in the Homer City/Mansfield 

Order, imposing different emission 

limitation requirements outside of the 

attainment planning process 

contemplated by Congress in part D of 

the CAA to address requirements for 

attaining the NAAQS might ultimately 

prove inconsistent with the attainment 

SIP West Virginia will submit for 

nonattainment areas even where one 

source is likely responsible for 

nonattainment. Id. As discussed in great 

detail above, the conceptual purpose of 

an infrastructure SIP submission is to 

assure that an air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS. 

Infrastructure SIP Guidance at p. 2. 

As mentioned previously, while EPA 

had in 2010 initially suggested that 

states submit in section 110(a) 

infrastructure SIPs substantive 

attainment demonstration SIPs for 

unclassifiable areas based on air 

dispersion modeling, EPA subsequently 

gathered additional information and 

clarified its position. The April 12, 2012 

letters to states, draft White Paper in 

May 2012 and February 6, 2013 

memorandum on next steps, as 

previously discussed, clearly 

recommend states focus section 110(a) 

infrastructure SIPs due in June 2013, 

such as West Virginia’s SO2

infrastructure SIP, on ‘‘traditional 

infrastructure elements’’ in section 

110(a)(1) and (2) rather than on 

modeling demonstrations for future 

attainment for unclassifiable areas.12

Therefore, EPA disagrees with the 

Commenter that the infrastructure SIP 

must be disapproved for failure to 

include measures to ensure compliance 

with the 2010 SO2 NAAQS. As Congress 

provided for state primacy in 

implementing the NAAQS, West 

Virginia will appropriately evaluate and 

impose necessary SO2 emission limits 

on sources where needed for areas in 

West Virginia designated nonattainment 

with the 2010 SO2 NAAQS under 

section 107.13

Comment 11: The Commenter alleges 

that the proposed SO2 infrastructure SIP 

does not address sources significantly 

contributing to nonattainment or 

interfering with maintenance of the 

NAAQS in other states as required by 

section 110(a)(2)(D)(i)(I) of the CAA, and 

states EPA must therefore disapprove 

the infrastructure SIP and impose a 

Federal implementation plan (FIP). 

Sierra Club claims its modeling shows 

that at least one plant in the State, 

Harrison, is contributing to exceedances 

in other states. Sierra Club states that 

the CAA requires infrastructure SIPs to 

address cross-state air pollution within 

three years of the NAAQS promulgation. 

The Commenter argues that West 

Virginia has not done so and that the 

EPA must disapprove the proposed 

infrastructure SIP and issue a FIP to 

correct these shortcomings. The 

Commenter references the recent 

Supreme Court decision, EPA v. EME 

Homer City Generation, L.P. et al., 134 

S. Ct. 1584 (2014), which supports the 

states’ mandatory duty to address crossstate pollution under section 

110(a)(2)(D)(i)(I) and affirmed EPA’s 

ability to impose a FIP upon states’ 

failures to address cross-state air 

pollution. 

Response 11: EPA disagrees with 

Sierra Club’s statement that EPA must 

disapprove the submitted 2010 SO2

infrastructure SIP due to West Virginia’s 

failure to address section 


rmajette on DSK2VPTVN1PROD with RULES
Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 62033 

14On March 23, 2012 (77 FR 16937), EPA 

finalized a limited approval and limited 

disapproval of West Virginia’s June 18, 2008 

regional haze SIP to address the first 

implementation period for regional haze. There was 

a limited disapproval of this SIP because of West 

Virginia’s reliance on the Clean Air Interstate Rule 

(CAIR) to meet certain regional haze requirements, 

which EPA replaced in August 2011 with the CrossState Air Pollution Rule (CSAPR) (76 FR 48208 

(August 8, 2011)). In a separate but related action, 

EPA issued a FIP that replaced West Virginia’s 

reliance on CAIR with reliance on CSAPR for 

certain regional haze requirements. 77 FR 33642 

(June 7, 2012). Later, the D.C. Circuit issued a 

decision in EME Homer City Generation, L.P. v. 

EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted 133 

U.S. 2857 (2013) vacating CSAPR and keeping CAIR 

in place pending the promulgation of a valid 

replacement rule. Subsequently, on April 30, 2014, 

the Supreme Court vacated the D.C. Circuit decision 

Continued 

110(a)(2)(D)(i)(I). In EPA’s NPR 

proposing to approve West Virginia’s 

infrastructure SIP for the 2010 SO2

NAAQS, EPA clearly stated that it was 

not taking any final action with respect 

to the good neighbor provision in 

section 110(a)(2)(D)(i)(I) which 

addresses emissions that significantly 

contribute to nonattainment or interfere 

with maintenance of the NAAQS in 

another state. West Virginia did not 

make a SIP submission to address the 

requirements of section 110(a)(2)(D)(i)(I) 

for the 2010 SO2 NAAQS, and thus 

there is no such submission upon which 

EPA could take action under section 

110(k) of the CAA. EPA cannot act 

under section 110(k) to disapprove a SIP 

submission that has not been submitted 

to EPA. EPA also disagrees with the 

Commenter that EPA cannot approve an 

infrastructure SIP submission without 

the good neighbor provision. EPA 

additionally believes there is no basis 

for the contention that EPA has 

triggered its obligation to issue a FIP 

addressing the good neighbor obligation 

under section 110(c), as EPA has neither 

found that West Virginia failed to timely 

submit a required 110(a)(2)(D)(i)(I) SIP 

submission as to the 2010 SO2 NAAQS 

or made such a submission that was 

incomplete, nor has EPA disapproved a 

SIP submission addressing 

110(a)(2)(D)(i)(I) with respect to the 

2010 SO2 NAAQS. 

EPA acknowledges the Commenter’s 

concern for the interstate transport of air 

pollutants and agrees in general with 

the Commenter that sections 110(a)(1) 

and (a)(2) of the CAA generally require 

states to submit, within three years of 

promulgation of a new or revised 

NAAQS, a plan which addresses crossstate air pollution under section 

110(a)(2)(D)(i)(I). However, EPA 

disagrees with the Commenter’s 

argument that EPA cannot approve an 

infrastructure SIP submission without 

the good neighbor provision. Section 

110(k)(3) of the CAA authorizes EPA to 

approve a plan in full, disapprove it in 

full, or approve it in part and 

disapprove it in part, depending on the 

extent to which such plan meets the 

requirements of the CAA. This authority 

to approve state SIP revisions in 

separable parts was included in the 

1990 Amendments to the CAA to 

overrule a decision in the Court of 

Appeals for the Ninth Circuit holding 

that EPA could not approve individual 

measures in a plan submission without 

either approving or disapproving the 

plan as a whole. See S. Rep. No. 101– 

228, at 22, 1990 U.S.C.C.A.N. 3385, 

3408 (discussing the express overruling 

of Abramowitz v. EPA, 832 F.2d 1071 

(9th Cir. 1987)). 

EPA interprets its authority under 

section 110(k)(3) of the CAA, as 

affording EPA the discretion to approve 

or conditionally approve individual 

elements of West Virginia’s 

infrastructure SIP submission for the 

2010 1-hour SO2 NAAQS, separate and 

apart from any action with respect to the 

requirements of section 110(a)(2)(D)(i)(I) 

of the CAA with respect to that NAAQS. 

EPA views discrete infrastructure SIP 

requirements, such as the requirements 

of 110(a)(2)(D)(i)(I), as severable from 

the other infrastructure elements and 

interprets section 110(k)(3) as allowing 

it to act on individual severable 

measures in a plan submission. In short, 

EPA believes that even if West Virginia 

had made a SIP submission for section 

110(a)(2)(D)(i)(I) of the CAA for the 2010 

SO2 NAAQS, which to date it has not, 

EPA would still have discretion under 

section 110(k) of the CAA to act upon 

the various individual elements of the 

state’s infrastructure SIP submission, 

separately or together, as appropriate. 

The Commenter raises no compelling 

legal or environmental rationale for an 

alternate interpretation. Nothing in the 

Supreme Court’s April 2014 decision in 

EME Homer City alters our 

interpretation that we may act on 

individual severable measures, 

including the requirements of section 

110(a)(2)(D)(i)(I), in a SIP submission. 

See EPA v. EME Homer City Generation, 

L.P., 134 S. Ct. 1584 (affirming a state’s 

obligation to submit a SIP revision 

addressing section 110(a)(2)(D)(i)(I) 

independent of EPA’s action finding 

significant contribution or interference 

with maintenance). In sum, the 

concerns raised by the Commenter do 

not establish that it is inappropriate or 

unreasonable for EPA to approve the 

portions of West Virginia’s June 25, 

2013 infrastructure SIP submission for 

the 2010 SO2 NAAQS. 

Furthermore, as discussed above, EPA 

has no obligation to issue a FIP pursuant 

to 110(c)(1) to address West Virginia’s 

obligations under section 

110(a)(2)(D)(i)(I) until EPA first either 

finds West Virginia failed to make the 

required submission addressing the 

element or the State has made such a 

submission but it is incomplete, or EPA 

disapproves a SIP submittal addressing 

that element. Until either occurs, EPA 

does not have the authority to issue a 

FIP pursuant to section 110(c) with 

respect to the good neighbor provision. 

Therefore, EPA disagrees with the 

Commenter’s contention that it must 

issue a FIP for West Virginia to address 

110(a)(2)(D)(i)(I) for the 2010 SO2

NAAQS at this time. 

Comment 12: Sierra Club contends 

that the EPA must disapprove the 

proposed infrastructure SIP because it 

does not contain adequate provisions to 

prohibit sources and emissions in West 

Virginia from interfering with another 

state’s visibility as required by section 

110(a)(2)(D)(i)(II) of the CAA. The 

Commenter cites to the Supreme Court’s 

decision in EME Homer City in support 

of its statement that West Virginia’s 

duty to protect visibility is a mandatory 

duty. The Commenter asserts EPA 

ignores its deadline by not acting in the 

present rulemaking on the visibility 

prong of section 110(a)(2)(D)(i)(II) and 

asserts EPA cites no legally defensible 

reason for not acting. The Commenter 

also asserts EPA must also act on 

section 110(a)(2)(J) when a NAAQS is 

revised. Finally, the Commenter argues 

that the ‘‘deadline for state action has 

passed’’ and EPA must disapprove the 

SO2 infrastructure SIP and issue a FIP 

to address the failings of the 

infrastructure SIP to protect visibility in 

other states. 

Response 12: EPA disagrees with the 

Commenter that in today’s rulemaking 

action EPA must disapprove the West 

Virginia SO2 infrastructure SIP for its 

failure to protect visibility and issue a 

FIP for West Virginia addressing 

visibility protection. In EPA’s NPR 

proposing to approve West Virginia’s 

infrastructure SIP for the 2010 SO2

NAAQS, EPA clearly stated that it was 

not proposing to take final action at that 

time with respect to the visibility 

protection provisions in section 

110(a)(2)(D)(i)(II). While West Virginia 

did make a SIP submission to address 

the requirements of section 

110(a)(2)(D)(i)(II) for visibility 

protection and cited to its regional haze 

SIP as meeting these requirements, EPA 

did not propose to take any action in the 

NPR with respect to West Virginia’s 

visibility protection obligations 

pursuant to section 110(a)(2)(D)(i)(II).14


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and remanded the matter including CSAPR to the 

D.C. Circuit for further proceedings. EME Homer 

City, 134 S. Ct. 1584. EPA believes that the EME 

Homer City decision impacts the reasoning that 

formed the basis for EPA’s limited approval and 

limited disapproval of West Virginia’s regional haze 

SIP and the FIP. Depending upon the outcome of 

additional proceedings concerning CSAPR in the 

D.C. Circuit on remand, EPA will take further 

rulemaking action, if necessary or required, 

regarding the limited approval and limited 

disapproval of the West Virginia regional haze SIP. 

As of the time of this rulemaking, CSAPR remains 

stayed before the D.C. Circuit pending further 

proceedings. 

15One way in which section 110(a)(2)(D)(i)(II) for 

visibility protection may be satisfied for any 

relevant NAAQS is through an air agency’s 

confirmation in its infrastructure SIP submission 

that it has an approved regional haze SIP that fully 

meets the requirements of 40 CFR 51.308 or 51.309. 

Infrastructure SIP Guidance at p. 33. As previously 

indicated, West Virginia has a regional haze SIP 

with limited approval and limited disapproval and 

a FIP which addresses replacement of CSAPR for 

CAIR for certain regional haze requirements. 

16The TSD is available in the docket for this 

rulemaking at www.regulations.gov, Docket ID 

Number EPA–R03–OAR–2014–0299. 

As indicated in EPA’s NPR, EPA 

anticipates taking action in the future on 

the portion of West Virginia’s June 25, 

2013 SIP submission addressing 

visibility protection.15 EPA disagrees 

with the Commenter that EPA cannot 

approve a portion of an infrastructure 

SIP submittal without taking action on 

the visibility protection provision. 

Further, there is no basis for the 

contention that EPA must issue a FIP 

under section 110(c) within two years, 

as EPA has neither disapproved nor 

found that West Virginia failed to 

submit a required 110(a)(2)(D)(i)(II) SIP 

submission addressing visibility 

protection for the 2010 SO2 NAAQS. 

As previously discussed regarding 

good-neighbor SIP provisions for 

infrastructure SIPs, EPA disagrees with 

the Commenter’s argument that EPA 

cannot approve a SIP without certain 

elements such as the visibility 

protection element. Section 110(k)(3) of 

the CAA authorizes EPA to approve a 

plan in full, disapprove it in full, or 

approve it in part and disapprove it in 

part, depending on the extent to which 

such plan meets the requirements of the 

CAA. As discussed above, this authority 

to approve SIP revisions in separable 

parts was included in the 1990 

Amendments to the CAA. See S. Rep. 

No. 101–228, at 22, 1990 U.S.C.C.A.N. 

3385, 3408 (discussing the express 

overruling of Abramowitz v. EPA). 

As discussed above, EPA interprets its 

authority under section 110(k)(3) of the 

CAA, as affording EPA the discretion to 

approve individual elements of West 

Virginia’s infrastructure submission for 

the 2010 SO2 NAAQS, separate and 

apart from any action with respect to the 

requirements of section 

110(a)(2)(D)(i)(II) for visibility 

protection. EPA views discrete 

infrastructure SIP requirements as 

severable from the other infrastructure 

elements and interprets section 

110(k)(3) as allowing it to act on 

individual, severable measures. In short, 

EPA believes we have discretion under 

section 110(k) of the CAA to act upon 

the various individual elements of the 

state’s infrastructure SIP submission, 

separately or together, as appropriate. 

The concerns raised by the Commenter 

do not establish that it is inappropriate 

or unreasonable for EPA to approve 

portions of West Virginia’s June 25, 

2013 infrastructure SIP submission for 

the 2010 SO2 NAAQS. 

EPA also has no obligation to issue a 

FIP to address West Virginia’s 

obligations under section 

110(a)(2)(D)(i)(II) until EPA first finds 

West Virginia failed to satisfy its 

visibility protection obligations with a 

complete SIP submittal addressing that 

element or disapproves any SIP 

submittal addressing that element. Until 

such occurs, EPA may not issue any 

further FIP for visibility protection 

pursuant to section 110(c). 

With regards to the Commenter’s 

concerns for section 110(a)(2)(J), EPA 

also disagrees with the Commenter that 

EPA ‘‘must act’’ on section 110(a)(2)(J) 

when a NAAQS is revised. 

Preliminarily, EPA notes that we did 

propose to approve in the NPR the 

portion of the June 25, 2013 

infrastructure SIP submittal for the 2010 

SO2 NAAQS which addressed section 

110(a)(2)(J) for visibility protection. As 

discussed in the TSD accompanying the 

NPR for this rulemaking, EPA stated 

that it recognizes that states are subject 

to visibility and regional haze program 

requirements under part C of the CAA.16

In the establishment of a new NAAQS 

such as the 2010 SO2 NAAQS, however, 

the visibility and regional haze program 

requirements under part C of Title I of 

the CAA do not change and there are no 

applicable visibility obligations under 

part C ‘‘triggered’’ under section 

110(a)(2)(J) when a new NAAQS 

becomes effective. Therefore, EPA 

appropriately proposed approval of 

West Virginia’s 2010 SO2 infrastructure 

SIP revision for section 110(a)(2)(J) for 

the reasons identified in the TSD (i.e., 

West Virginia’s SIP addresses visibility 

protection for section 110(a)(2)(J) and 

for part C of the CAA through its 

regional haze SIP). 

III. Final Action 

EPA is approving the following 

infrastructure elements or portions 

thereof of West Virginia’s SIP revision: 

Section 110(a)(2)(A), (B), (C) 

(enforcement and minor new source 

review), (D)(ii), (E)(i) and (iii), (F), (G), 

(H), (J) (consultation, public 

notification, and visibility protection), 

(K), (L), and (M). EPA will take separate 

rulemaking action for the 2010 SO2

NAAQS on the portions of section 

110(a)(2)(C), (D)(i)(II), and (J) as they 

relate to West Virginia’s PSD program 

and will take separate action on section 

110(a)(2)(E)(ii) as it relates to section 

128 (State Boards) and section 

110(a)(2)(D)(i)(II) for visibility 

protection. This rulemaking action does 

not include section 110(a)(2)(I) of the 

CAA which pertains to the 

nonattainment requirements of part D, 

Title I of the CAA, since this element is 

not required to be submitted by the 3- 

year submission deadline of section 

110(a)(1), and will be addressed in a 

separate process. This rulemaking 

action also does not include action on 

section 110(a)(2)(D)(i)(I) for the 2010 

SO2 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); 


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Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 62035 

• 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 December 15, 2014. 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, which 

satisfies certain infrastructure 

requirements of section 110(a)(2) of the 

CAA for the 2008 ozone NAAQS for the 

State of West Virginia, 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, Reporting and recordkeeping 

requirements, Sulfur dioxide. 

Dated: September 30, 2014. 

William C. Early, 

Acting Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart XX—West Virginia 

■ 2. In § 52.2520, the table in paragraph 

(e) is amended by adding the entry for 

Section 110(a)(2) Infrastructure 

Requirements for the 2010 Sulfur 

Dioxide NAAQS at the end of the table 

to read as follows: 

§ 52.2520 Identification of plan. 

* * * * * 

(e) * * * 

Name of non-regulatory 

SIP revision 

Applicable 

geographic 

area 

State 

submittal 

date 

EPA approval 

date Additional explanation 

*******

Section 110(a)(2) Infrastructure Requirements for the 2010 1-Hour 

Sulfur Dioxide NAAQS.

Statewide ........... 6/25/13 10/16/14 [Insert 

Federal Register citation].

This action addresses the following CAA elements: 

110(a)(2)(A), (B), (C) (enforcement and minor new 

source review), (D)(ii), (E)(i) and (iii), (F), (G), (H), 

(J) (consultation, public notification, and visibility 

protection), (K), (L), and (M). 

[FR Doc. 2014–24658 Filed 10–15–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2011–0888; FRL–9917–61– 

Region 5] 

Approval and Promulgation of Air 

Quality Implementation Plans; Indiana; 

Infrastructure SIP Requirements for 

the 2008 Lead NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve elements of a state 

implementation plan (SIP) submission 

by Indiana regarding the infrastructure 

requirements of sections 110(a)(1) and 

(2) of the Clean Air Act (CAA) for the 

2008 lead (Pb) national ambient air 

quality standards (NAAQS). The 

infrastructure requirements are designed 

to ensure that the structural components 

of each state’s air quality management 

program are adequate to meet the state’s 

responsibilities under the CAA. The 

proposed rulemaking associated with 

today’s final action was published on 

August 19, 2013, and EPA received one 

comment letter during the comment 

period, which ended on September 18, 

2013. The concerns raised in this letter, 

as well as EPA’s responses, will be 

addressed in this final action. 

DATES: This final rule is effective on 

November 17, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2011–0888. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly-available only in hard 

copy. Publicly-available docket 

materials are available either 

electronically in www.regulations.gov or 


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