46494 Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations 

1On July 15, 2014, PADEP also submitted SIP 

revisions addressing the infrastructure requirements 

for the 2010 nitrogen dioxide (NO2) NAAQS and the 

2012 fine particulate matter (PM2.5) NAAQS. In the 

February 6, 2015 NPR, EPA also proposed approval 

of portions of these infrastructure SIPs. Because 

EPA did not receive adverse comments applicable 

to Pennsylvania’s infrastructure SIPs for the 2010 

NO2 NAAQS or the 2012 PM2.5 NAAQS or 

applicable to EPA’s proposed approval of those 

specific SIPs, EPA took final action to approve 

portions of the infrastructure SIPs for the 2010 NO2

NAAQS and 2012 PM2.5 NAAQS on May 8, 2015. 

80 FR 26461. Thus, this final action only addresses 

the July 15, 2014 infrastructure SIPs PADEP 

submitted addressing the 2008 ozone NAAQS and 

the 2010 SO2 NAAQS. 

operating schedule immediately at the 

end of this temporary deviation’s 

effective period. This deviation from the 

operating regulations is authorized 

under 33 CFR 117.35. 

Dated: July 24, 2015. 

Barry Dragon, 

Bridge Administrator, U.S. Coast Guard, 

Seventh Coast Guard District. 

[FR Doc. 2015–19112 Filed 8–4–15; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2014–0910; FRL–9931–80– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania; Infrastructure 

Requirements for the 2008 Ozone and 

2010 Sulfur Dioxide National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving portions of 

two State Implementation Plan (SIP) 

revisions submitted by the 

Commonwealth of Pennsylvania 

through the Pennsylvania Department of 

Environmental Protection (PADEP) 

pursuant to the Clean Air Act (CAA). 

Whenever new or revised National 

Ambient Air Quality Standards 

(NAAQS) are promulgated, the CAA 

requires states to submit a plan for the 

implementation, maintenance, and 

enforcement of such NAAQS. The plan 

is required to address basic program 

elements, including but not limited to 

regulatory structure, monitoring, 

modeling, legal authority, and adequate 

resources necessary to assure 

implementation, maintenance, and 

enforcement of the NAAQS. These 

elements are referred to as infrastructure 

requirements. PADEP made submittals 

addressing the infrastructure 

requirements for the 2008 ozone 

NAAQS and the 2010 sulfur dioxide 

(SO2) primary NAAQS. 

DATES: This final rule is effective on 

September 4, 2015. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2014–0910. All 

documents in the docket are listed in 

the www.regulations.gov Web site. 

Although listed in the electronic docket, 

some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy for 

public inspection during normal 

business hours at the Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Pennsylvania 

Department of Environmental 

Protection, Bureau of Air Quality 

Control, P. O. Box 8468, 400 Market 

Street, Harrisburg, Pennsylvania 17105. 

FOR FURTHER INFORMATION CONTACT: 

Ruth Knapp, (215) 814–2191, or by 

email at knapp.ruth@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision 

On March 27, 2008 (73 FR 16436), 

EPA promulgated a revised ozone 

NAAQS based on 8-hour average 

concentrations. EPA revised the level of 

the 8-hour ozone NAAQS from 0.08 

parts per million (ppm) to 0.075 ppm. 

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

promulgated a 1-hour primary SO2

NAAQS at a level of 75 parts per billion 

(ppb), based on a 3-year average of the 

annual 99th percentile of 1-hour daily 

maximum concentrations. Pursuant to 

section 110(a)(1) of the CAA, states are 

required to submit SIPs meeting the 

applicable requirements of section 

110(a)(2) within three years after 

promulgation of a new or revised 

NAAQS or within such shorter period 

as EPA may prescribe. 

On July 15, 2014, the Commonwealth 

of Pennsylvania, through the PADEP, 

submitted SIP revisions that address the 

infrastructure elements specified in 

section 110(a)(2) of the CAA necessary 

to implement, maintain, and enforce the 

2008 ozone NAAQS and the 2010 SO2

NAAQS. On February 6, 2015 (80 FR 

6672), EPA published a notice of 

proposed rulemaking (NPR) for 

Pennsylvania proposing approval of 

portions of both SIP revisions as well as 

portions of SIP submittals for other 

NAAQS.1 In the NPR, EPA proposed 

approval of Pennsylvania’s submissions 

addressing the following infrastructure 

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

(D)(i)(II) (prevention of significant 

deterioration), (D)(ii), (E), (F), (G), (H), 

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

Pennsylvania’s July 15, 2014 

infrastructure SIP submittals for the 

2008 ozone NAAQS and the 2010 SO2

NAAQS did not contain any provisions 

addressing section 110(a)(2)(I) which 

pertains to the nonattainment 

requirements of part D, Title I of the 

CAA, because this element is not 

required to be submitted by the 3-year 

submission deadline of section 110(a)(1) 

and will be addressed in a separate 

process. In addition, Pennsylvania’s July 

15, 2014 infrastructure SIP submittals 

for the 2008 ozone NAAQS and the 

2010 SO2 NAAQS did not contain any 

provisions addressing CAA section 

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

February 6, 2015 NPR did not propose 

any action on the SIP submittals for 

section 110(a)(2)(D)(i)(I) for either SIP 

submittal. Thus, this rulemaking action 

likewise does not include action on 

CAA section 110(a)(2)(D)(i)(I) for either 

the 2008 ozone NAAQS or the 2010 SO2

NAAQS because PADEP’s July 15, 2014 

infrastructure SIP submittals did not 

include provisions for this element. 

Finally, at this time, EPA is not taking 

action on section 110(a)(2)(D)(i)(II) 

(which addresses visibility protection) 

for the 2008 ozone or 2010 SO2 NAAQS 

as explained in the NPR. Although 

Pennsylvania’s July 15, 2014 

infrastructure SIP submittals for the 

2008 ozone NAAQS and the 2010 SO2

NAAQS referred to Pennsylvania’s 

regional haze SIP to address section 

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

protection, EPA intends to take later, 

separate action on Pennsylvania’s SIP 

submittals for these elements as 

explained in the NPR and the Technical 

Support Document (TSD) which 

accompanied the NPR. 

The rationale supporting EPA’s 

proposed rulemaking action approving 

portions of the July 15, 2014 

infrastructure SIP submittals for the 

2008 ozone and 2010 SO2 NAAQS, 

including the scope of infrastructure 

SIPs in general, is explained in the NPR 

and the TSD accompanying the NPR 

and will not be restated here. The NPR 

and TSD are available in the docket for 

this rulemaking at www.regulations.gov, 

Docket ID Number EPA–R03–OAR– 


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Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations 46495 

2EPA’s final rulemaking action on Pennsylvania’s 

infrastructure SIP revisions for the 2010 NO2

NAAQS and the 2012 PM2.5 NAAQS can also be 

found in this docket with Docket ID Number EPA– 

R03–OAR–2014–0910. 

3EPA believes NJDEP refers specifically to CAA 

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

transport of pollution and not to section 

110(a)(2)(D)(i)(II) which addresses visibility 

protection and prevention of significant 

deterioration. 

2014–0910.2 EPA received public 

comments on the NPR. Summaries of 

the comments as well as EPA’s 

responses are in section II of this 

rulemaking notice. EPA’s responses 

provide further explanation and 

rationale where appropriate to support 

the final action approving portions of 

the July 15, 2014 infrastructure SIPs. 

II. Public Comments and EPA’s 

Responses 

EPA received substantive comments 

from two commenters, the State of New 

Jersey Department of Environmental 

Protection (NJDEP) and the Sierra Club, 

on the February 6, 2015 proposed 

rulemaking action on Pennsylvania’s 

2008 ozone and 2010 SO2 infrastructure 

SIP revisions. The Sierra Club’s 

comments on the NPR include general 

comments on infrastructure SIP 

requirements for emission limitations 

and specific comments on emission 

limitations to address the 2010 SO2

NAAQS and the 2008 ozone NAAQS. A 

full set of all comments is provided in 

the docket for today’s final rulemaking 

action. 

A. NJDEP 

Comment: NJDEP asserts that 

Pennsylvania’s infrastructure SIP is 

deficient because it does not include 

any information relating to 

Pennsylvania’s ‘‘good neighbor’’ 

obligation to address CAA section 

110(a)(2)(D).3 NJDEP asserts the ability 

of downwind states including New 

Jersey to attain the 2008 ozone NAAQS 

is substantially impacted by interstate 

transport of pollution from 

Pennsylvania. NJDEP asserts recent EPA 

modeling for the 2008 ozone NAAQS 

demonstrates Pennsylvania significantly 

contributes to ozone nonattainment 

areas in New Jersey and other states. 

New Jersey further asserts that EPA 

must ‘‘make a finding that Pennsylvania 

has failed to submit a SIP that complies 

with Section 110(a)(2)(D) of the Clean 

Air Act’’ because Pennsylvania did not 

make a submission to address 

110(a)(2)(D). 

Response: In this rulemaking EPA is 

not taking any final action with respect 

to the provisions in section 

110(a)(2)(D)(i)(I)—the portion of the 

good neighbor provision which 

addresses emissions that significantly 

contribute to nonattainment or interfere 

with maintenance of the NAAQS in 

another state. In its July 15, 2014 

infrastructure SIP revisions for several 

NAAQS, the Commonwealth of 

Pennsylvania did not include any 

provisions in its SIP revision submittals 

to address the requirements of section 

110(a)(2)(D)(i)(I). In the NPR, EPA did 

not propose to take any action with 

respect to Pennsylvania’s obligations 

pursuant to section 110(a)(2)(D)(i)(I) for 

the July 15, 2014 infrastructure SIP 

submittals and is not, in this rulemaking 

action, taking any final action on the 

110(a)(2)(D)(i)(I) obligations. 

Because Pennsylvania did not make a 

submission in its July 15, 2014 SIP 

submittals to address the requirements 

of section 110(a)(2)(D)(i)(I), EPA is not 

required to have proposed or to take 

final SIP approval or disapproval action 

on this element under section 110(k) of 

the CAA. In this case, there has been no 

substantive submission for EPA to 

evaluate under section 110(k). EPA 

interprets its authority under section 

110(k)(3) of the CAA as affording EPA 

the discretion to approve, or 

conditionally approve, individual 

elements of Pennsylvania’s 

infrastructure SIP submissions, separate 

and apart from any action with respect 

to the requirements of section 

110(a)(2)(D)(i)(I) of the CAA. EPA views 

discrete infrastructure SIP requirements 

in section 110(a)(2), such as the 

requirements of 110(a)(2)(D)(i)(I), as 

severable from the other infrastructure 

elements and interprets section 

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

individual severable measures in a plan 

submission. 

EPA acknowledges NJDEP’s concern 

for the interstate transport of air 

pollutants and agrees in general that 

sections 110(a)(1) and (a)(2) of the CAA 

require states to submit, within three 

years of promulgation of a new or 

revised NAAQS, a plan which addresses 

cross-state air pollution under section 

110(a)(2)(D)(i)(I). However, in this 

rulemaking, EPA is only approving 

portions of Pennsylvania’s 

infrastructure SIP submissions for the 

2008 ozone and 2010 SO2 NAAQS 

which did not include provisions for 

110(a)(2)(D)(i)(I) for interstate transport. 

Findings of failure to submit a SIP 

submission for a NAAQS addressing a 

specific element, such as CAA section 

110(a)(2)(D)(i)(I), would need to occur in 

separate rulemakings. As that issue was 

not addressed in the February 6, 2015 

NPR and is therefore not pertinent to 

this rulemaking, EPA provides no 

further response. Pennsylvania’s 

obligations regarding interstate transport 

of ozone pollution for the 2008 ozone 

NAAQS will be addressed in another 

rulemaking. 

B. Sierra Club General Comments on 

Emission Limitations 

1. The Plain Language of the CAA 

Comment 1: Sierra Club (hereafter 

referred to as Commenter) contends that 

the plain language of section 

110(a)(2)(A) of the CAA, legislative 

history of the CAA, case law, EPA 

regulations such as 40 CFR 51.112(a), 

and EPA interpretations in rulemakings 

require the inclusion of enforceable 

emission limits in an infrastructure SIP 

to aid in attaining and maintaining the 

NAAQS and contends an infrastructure 

SIP must be disapproved where 

emission limits are inadequate to 

prevent exceedances of the NAAQS. 

The Commenter states EPA may not 

approve an infrastructure SIP that fails 

to ensure attainment and maintenance 

of the NAAQS. 

The Commenter states that the main 

objective of the infrastructure SIP 

process ‘‘is to ensure that all areas of the 

country meet the NAAQS’’ and states 

that nonattainment areas are addressed 

through ‘‘nonattainment SIPs.’’ The 

Commenter asserts the NAAQS ‘‘are the 

foundation upon which air emission 

standards for the entire country are set’’ 

including specific emission limitations 

for most large stationary sources, such 

as coal-fired power plants. The 

Commenter discusses the CAA’s 

framework whereby states have primary 

responsibility to assure air quality 

within the state pursuant to CAA 

section 107(a) which the states carry out 

through SIPs such as infrastructure SIPs 

required by section 110(a)(2). The 

Commenter also states that on its face 

the CAA requires infrastructure SIPs ‘‘to 

be adequate to prevent exceedances of 

the NAAQS.’’ In support, the 

Commenter quotes the language in 

section 110(a)(1) which requires states 

to adopt a plan for implementation, 

maintenance, and enforcement of the 

NAAQS and the language in section 

110(a)(2)(A) which requires SIPs to 

include enforceable emissions 

limitations as may be necessary to meet 

the requirements of the CAA which the 

Commenter claims includes attainment 

and maintenance of the NAAQS. The 

Commenter notes the CAA definition of 

emission limit and reads these CAA 

provisions together to require 

‘‘enforceable emission limits on source 

emissions sufficient to ensure 

maintenance of the NAAQS.’’ 

Response 1: EPA disagrees that 

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

must be interpreted in the manner 


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4See 80 FR 11557 (March 4, 2015) (approval of 

Virginia SO2 infrastructure SIP); 79 FR 62022 

(October 16, 2014) (approval of West Virginia SO2

infrastructure SIP); 79 FR 19001 (April 7, 2014) 

(approval of West Virginia ozone infrastructure 

SIP); and 79 FR 17043 (March 27, 2014) (approval 

of Virginia ozone infrastructure SIP). 

5Thus, EPA disagrees with the Commenter’s 

general assertion that the main objective of 

infrastructure SIPs is to ensure all areas of the 

country meet the NAAQS, as we believe the 

infrastructure SIP process is the opportunity to 

review the structural requirements of a state’s air 

program. While the NAAQS can be a foundation 

upon which emission limitations are set, as 

explained in responses to subsequent comments, 

these emission limitations are generally set in the 

attainment planning process envisioned by part D 

of title I of the CAA, including, but not limited to, 

CAA sections 172, 181–182, and 191–192. 

6The TSD for this action is available on line at 

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

OAR–2014–0910. 

suggested by the Commenter. As we 

have previously explained in response 

to the Commenter’s similar comments 

on EPA’s action approving other states’ 

infrastructure SIPs, section 110 is only 

one provision that is part of the 

complicated structure governing 

implementation of the NAAQS program 

under the CAA, as amended in 1990, 

and it must be interpreted in the context 

of not only that structure, but also of the 

historical evolution of that structure.4

EPA interprets infrastructure SIPs as 

more general planning SIPs, consistent 

with the CAA as understood in light of 

its history and structure. When Congress 

enacted the CAA in 1970, it did not 

include provisions requiring states and 

the EPA to label areas as attainment or 

nonattainment. Rather, states were 

required to include all areas of the state 

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

and section 110 set forth the core 

substantive planning provisions for 

these AQCRs. At that time, Congress 

anticipated that states would be able to 

address air pollution quickly pursuant 

to the very general planning provisions 

in section 110 and could bring all areas 

into compliance with a new NAAQS 

within five years. Moreover, at that 

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

that the section 110 plan provide for 

‘‘attainment’’ of the NAAQS and section 

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

include ‘‘emission limitations, 

schedules, and timetables for 

compliance with such limitations, and 

such other measures as may be 

necessary to insure attainment and 

maintenance [of the NAAQS].’’ 

In 1977, Congress recognized that the 

existing structure was not sufficient and 

many areas were still violating the 

NAAQS. At that time, Congress for the 

first time added provisions requiring 

states and EPA to identify whether areas 

of a state were violating the NAAQS 

(i.e., were nonattainment) or were 

meeting the NAAQS (i.e., were 

attainment) and established specific 

planning requirements in section 172 

for areas not meeting the NAAQS. In 

1990, many areas still had air quality 

not meeting the NAAQS and Congress 

again amended the CAA and added yet 

another layer of more prescriptive 

planning requirements for each of the 

NAAQS. At that same time, Congress 

modified section 110 to remove 

references to the section 110 SIP 

providing for attainment, including 

removing pre-existing section 

110(a)(2)(A) in its entirety and 

renumbering subparagraph (B) as 

section 110(a)(2)(A). Additionally, 

Congress replaced the clause ‘‘as may be 

necessary to insure attainment and 

maintenance [of the NAAQS]’’ with ‘‘as 

may be necessary or appropriate to meet 

the applicable requirements of this 

chapter.’’ Thus, the CAA has 

significantly evolved in the more than 

40 years since it was originally enacted. 

While at one time section 110 of the 

CAA did provide the only detailed SIP 

planning provisions for states and 

specified that such plans must provide 

for attainment of the NAAQS, under the 

structure of the current CAA, section 

110 is only the initial stepping-stone in 

the planning process for a specific 

NAAQS. More detailed, later-enacted 

provisions govern the substantive 

planning process, including planning 

for attainment of the NAAQS. 

Thus, EPA believes that section 110 of 

the CAA is only one provision that is 

part of the complicated structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be 

interpreted in the context of that 

structure and the historical evolution of 

that structure. In light of the revisions 

to section 110 since 1970 and the laterpromulgated and more specific planning 

requirements of the CAA, EPA 

reasonably interprets the requirement in 

section 110(a)(2)(A) of the CAA that the 

plan provide for ‘‘implementation, 

maintenance and enforcement’’ to mean 

that the SIP must contain enforceable 

emission limits that will aid in attaining 

and/or maintaining the NAAQS and that 

the state demonstrate that it has the 

necessary tools to implement and 

enforce a NAAQS, such as adequate 

state personnel and an enforcement 

program. EPA has interpreted the 

requirement for emission limitations in 

section 110 to mean that the state may 

rely on measures already in place to 

address the pollutant at issue or any 

new control measures that the state may 

choose to submit. Finally, as EPA stated 

in the Infrastructure SIP Guidance 

which specifically provides guidance to 

states in addressing the 2008 ozone and 

2010 SO2 NAAQS, ‘‘[t]he conceptual 

purpose of an infrastructure SIP 

submission is to assure that the air 

agency’s SIP contains the necessary 

structural requirements for the new or 

revised NAAQS, whether by 

establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ Infrastructure 

SIP Guidance at p. 2.5

The Commenter makes general 

allegations that Pennsylvania does not 

have sufficient protective measures to 

prevent ozone violations/exceedances 

and SO2 NAAQS exceedances. EPA 

addressed the adequacy of 

Pennsylvania’s infrastructure SIP for 

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

requirements of the CAA in the TSD 

accompanying the February 6, 2015 

NPR and explained why the SIP 

includes enforceable emission 

limitations and other control measures 

necessary for maintenance of the 2008 

ozone and 2010 SO2 NAAQS throughout 

the Commonwealth.6

2. The Legislative History of the CAA 

Comment 2: The Commenter cites two 

excerpts from the legislative history of 

the 1970 CAA claiming they support an 

interpretation that SIP revisions under 

CAA section 110 must include 

emissions limitations sufficient to show 

maintenance of the NAAQS in all areas 

of the state. The Commenter also 

contends that the legislative history of 

the CAA supports the interpretation that 

infrastructure SIPs under section 

110(a)(2) must include enforceable 

emission limitations, citing the Senate 

Committee Report and the subsequent 

Senate Conference Report 

accompanying the 1970 CAA. 

Response 2: As provided in the 

previous response, the CAA, as enacted 

in 1970, including its legislative history, 

cannot be interpreted in isolation from 

the later amendments that refined that 

structure and deleted relevant language 

from section 110 concerning 

demonstrating attainment. See also 79 

FR at 17046 (responding to comments 

on Virginia’s ozone infrastructure SIP). 

In any event, the two excerpts of 

legislative history the Commenter cites 

merely provide that states should 

include enforceable emission limits in 

their SIPs, and they do not mention or 

otherwise address whether states are 

required to include maintenance plans 

for all areas of the state as part of the 

infrastructure SIP. As provided in 


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7While the Commenter does contend that the 

Commonwealth shouldn’t be allowed to rely on 

emission reductions that were developed for the 

prior standards (which we address herein), it does 

not claim that any of the measures are not 

‘‘emissions limitations’’ within the definition of the 

CAA. 

response to another comment in this 

rulemaking, the TSD for the proposed 

rule explains why the Pennsylvania SIP 

includes enforceable emissions 

limitations for ozone precursors and for 

SO2 for the relevant areas. 

3. Case Law 

Comment 3: The Commenter also 

discusses several cases applying the 

CAA which the Commenter claims 

support its contention that courts have 

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

requires enforceable emissions limits in 

infrastructure SIPs to prevent 

exceedances of the NAAQS. The 

Commenter first cites to language in 

Train v. NRDC, 421 U.S. 60, 78 (1975), 

addressing the requirement for 

‘‘emission limitations’’ and stating that 

emission limitations ‘‘are specific rules 

to which operators of pollution sources 

are subject, and which, if enforced, 

should result in ambient air which meet 

the national standards.’’ The 

Commenter also cites to Pennsylvania 

Dept. of Envtl. Resources v. EPA, 932 

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

proposition that the CAA directs EPA to 

withhold approval of a SIP where it 

does not ensure maintenance of the 

NAAQS, and to Mision Industrial, Inc. 

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

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

of the CAA of 1970. The Commenter 

contends that the 1990 Amendments do 

not alter how courts have interpreted 

the requirements of section 110, quoting 

Alaska Dept. of Envtl. Conservation v. 

EPA, 540 U.S. 461, 470 (2004) which in 

turn quoted section 110(a)(2)(A) of the 

CAA and also stated that ‘‘SIPs must 

include certain measures Congress 

specified’’ to ensure attainment of the 

NAAQS. The Commenter also quotes 

several additional opinions in this vein. 

Mont. Sulphur & Chem. Co. v. EPA, 666 

F.3d 1174, 1180 (9th Cir. 2012) (‘‘The 

Clean Air Act directs states to develop 

implementation plans—SIPs—that 

‘assure’ attainment and maintenance of 

[NAAQS] through enforceable emissions 

limitations’’); Hall v. EPA 273 F.3d 

1146, 1153 (9th Cir. 2001) (‘‘Each State 

must submit a [SIP] that specif[ies] the 

manner in which [NAAQS] will be 

achieved and maintained within each 

air quality control region in the State’’); 

Conn. Fund for Env’t, Inc. v. EPA, 696 

F.2d 169, 172 (D.C. Cir. 1982) (CAA 

requires SIPs to contain ‘‘measures 

necessary to ensure attainment and 

maintenance of NAAQS’’). Finally, the 

Commenter cites Mich. Dept. of Envtl. 

Quality v. Browner, 230 F.3d 181 (6th 

Cir. 2000) for the proposition that EPA 

may not approve a SIP revision that 

does not demonstrate how the rules 

would not interfere with attainment and 

maintenance of the NAAQS. 

Response 3: None of the cases the 

Commenter cites support its contention 

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

infrastructure SIPs must include 

detailed plans providing for attainment 

and maintenance of the NAAQS in all 

areas of the state, nor do they shed light 

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

reasonably be interpreted. With the 

exception of Train, none of the cases the 

Commenter cites concerned the 

interpretation of CAA section 

110(a)(2)(A) (or section 110(a)(2)(B) of 

the pre-1990 Act). Rather, the courts 

reference section 110(a)(2)(A) (or section 

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

background sections of decisions in the 

context of a challenge to an EPA action 

on revisions to a SIP that was required 

and approved or disapproved as 

meeting other provisions of the CAA or 

in the context of an enforcement action. 

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

addressing a state revision to an 

attainment plan submission made 

pursuant to section 110 of the CAA, the 

sole statutory provision at that time 

regulating such submissions. The issue 

in that case concerned whether changes 

to requirements that would occur before 

attainment was required were variances 

that should be addressed pursuant to 

the provision governing SIP revisions or 

were ‘‘postponements’’ that must be 

addressed under section 110(f) of the 

CAA of 1970, which contained 

prescriptive criteria. The Court 

concluded that EPA reasonably 

interpreted section 110(f) not to restrict 

a state’s choice of the mix of control 

measures needed to attain the NAAQS 

and that revisions to SIPs that would 

not impact attainment of the NAAQS by 

the attainment date were not subject to 

the limits of section 110(f). Thus the 

issue was not whether a section 110 SIP 

needs to provide for attainment or 

whether emissions limits providing 

such are needed as part of the SIP; 

rather the issue was which statutory 

provision governed when the state 

wanted to revise the emission limits in 

its SIP if such revision would not 

impact attainment or maintenance of the 

NAAQS. To the extent the holding in 

the case has any bearing on how section 

110(a)(2)(A) might be interpreted, it is 

important to realize that in 1975, when 

the opinion was issued, section 

110(a)(2)(B) (the predecessor to section 

110(a)(2)(A)) expressly referenced the 

requirement to attain the NAAQS, a 

reference that was removed in 1990. 

The decision in Pennsylvania Dept. of 

Envtl. Resources was also decided based 

on the pre-1990 provision of the CAA. 

At issue was whether EPA properly 

rejected a revision to an approved plan 

where the inventories relied on by the 

state for the updated submission had 

gaps. The Court quoted section 

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

support of EPA’s disapproval, but did 

not provide any interpretation of that 

provision. Yet, even if the Court had 

interpreted that provision, EPA notes 

that it was modified by Congress in 

1990; thus, this decision has little 

bearing on the issue here. 

At issue in Mision Industrial, 547 

F.2d 123, was the definition of 

‘‘emissions limitation,’’ not whether 

section 110 requires the state to 

demonstrate how all areas of the state 

will attain and maintain the NAAQS as 

part of their infrastructure SIPs. The 

language from the opinion the 

Commenter quotes does not interpret 

but rather merely describes section 

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

raise any concerns about whether the 

measures relied on by the 

Commonwealth in the infrastructure 

SIPs are ‘‘emissions limitations’’ and the 

decision in this case has no bearing 

here.7 In Mont. Sulphur & Chem. Co., 

666 F.3d 1174, the Court was not 

reviewing an infrastructure SIP, but 

rather EPA’s disapproval of a SIP and 

promulgation of a federal 

implementation plan (FIP) after a long 

history of the state failing to submit an 

adequate SIP in response to EPA’s 

finding under section 110(k)(5) that the 

previously approved SIP was 

substantially inadequate to attain or 

maintain the NAAQS. The Court cited 

generally to sections 107 and 

110(a)(2)(A) of the CAA for the 

proposition that SIPs should assure 

attainment and maintenance of NAAQS 

through emission limitations, but this 

language was not part of the Court’s 

holding in the case, which focused 

instead on whether EPA’s finding of SIP 

inadequacy, disapproval of the state’s 

required responsive attainment 

demonstration under section 110(k)(5), 

and adoption of a remedial FIP under 

section 110(c) were lawful. The 

Commenter suggests that Alaska Dept. 

of Envtl. Conservation, 540 U.S. 461, 

stands for the proposition that the 1990 

CAA Amendments do not alter how 

courts interpret section 110. This claim 

is inaccurate. Rather, the Court quoted 

section 110(a)(2)(A), which, as noted 

previously, differs from the pre-1990 

version of that provision and the Court 


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made no mention of the changed 

language. Furthermore, the Commenter 

also quotes the Court’s statement that 

‘‘SIPs must include certain measures 

Congress specified,’’ but that statement 

specifically referenced the requirement 

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

an enforcement program and a program 

for the regulation of the modification 

and construction of new sources. 

Notably, at issue in that case was the 

state’s ‘‘new source’’ permitting 

program, not its infrastructure SIP. 

Two of the other cases the Commenter 

cites, Mich. Dept. of Envtl. Quality, 230 

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

interpret CAA section 110(l), the 

provision governing ‘‘revisions’’ to 

plans, and not the initial plan 

submission requirement under section 

110(a)(2) for a new or revised NAAQS, 

such as the infrastructure SIP at issue in 

this instance. In those cases, the courts 

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

the purpose of providing a brief 

background of the CAA. 

EPA does not believe any of these 

court decisions addressed required 

measures for infrastructure SIPs and 

believes nothing in the opinions 

addressed whether infrastructure SIPs 

need to contain measures to ensure 

attainment and maintenance of the 

NAAQS. 

4. EPA Regulations, Such as 40 CFR 

51.112(a) 

Comment 4: The Commenter cites to 

40 CFR 51.112(a), providing that ‘‘[e]ach 

plan must demonstrate that the 

measures, rules and regulations 

contained in it are adequate to provide 

for the timely attainment and 

maintenance of the [NAAQS].’’ The 

Commenter asserts that this regulation 

requires infrastructure SIPs to include 

emissions limits necessary to ensure 

attainment and maintenance of the 

NAAQS. The Commenter states that the 

provisions of 40 CFR 51.112 are not 

limited to nonattainment SIPs and 

instead applies to infrastructure SIPs 

which are required to attain and 

maintain the NAAQS in areas not 

designated nonattainment. The 

Commenter relies on a statement in the 

preamble to the 1986 action 

restructuring and consolidating 

provisions in part 51, in which EPA 

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

th[is] rulemaking to address the 

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

FR 40656, 40656 (November 7, 1986). 

The Commenter asserts 40 CFR 

51.112(a) identifies the plans to which 

it applies as those that implement the 

NAAQS. 

Response 4: The Commenter’s 

reliance on 40 CFR 51.112 to support its 

argument that infrastructure SIPs must 

contain emission limits adequate to 

ensure attainment and maintenance of 

the NAAQS is not supported. As an 

initial matter, EPA notes this regulatory 

provision was initially promulgated and 

later restructured and consolidated prior 

to the CAA Amendments of 1990, in 

which Congress removed all references 

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

And, it is clear on its face that 40 CFR 

51.112 applies to plans specifically 

designed to attain the NAAQS. EPA 

interprets these provisions to apply 

when states are developing ‘‘control 

strategy’’ SIPs such as the detailed 

attainment and maintenance plans 

required under other provisions of the 

CAA, as amended in 1977 and again in 

1990, such as sections 175A, 181–182, 

and 191–192. The Commenter suggests 

that these provisions must apply to 

section 110 SIPs because in the 

preamble to EPA’s action ‘‘restructuring 

and consolidating’’ provisions in part 

51, EPA stated that the new attainment 

demonstration provisions in the 1977 

Amendments to the CAA were ‘‘beyond 

the scope’’ of the rulemaking. It is 

important to note, however, that EPA’s 

action in 1986 was not to establish new 

substantive planning requirements, but 

rather was meant merely to consolidate 

and restructure provisions that had 

previously been promulgated. EPA 

noted that it had already issued 

guidance addressing the new ‘‘Part D’’ 

attainment planning obligations. Also, 

as to maintenance regulations, EPA 

expressly stated that it was not making 

any revisions other than to re-number 

those provisions. 51 FR 40657. 

Although EPA was explicit that it was 

not establishing requirements 

interpreting the provisions of new ‘‘Part 

D’’ of the CAA, it is clear that the 

regulations being restructured and 

consolidated were intended to address 

control strategy plans. In the preamble, 

EPA clearly stated that 40 CFR 51.112 

was replacing 40 CFR 51.13 (‘‘Control 

strategy: SOx and PM (portion)’’), 51.14 

(‘‘Control strategy: CO, HC, Ox and NO2

(portion)’’), 51.80 (‘‘Demonstration of 

attainment: Pb (portion)’’), and 51.82 

(‘‘Air quality data (portion)’’). Id. at 

40660. Thus, the present-day 40 CFR 

51.112 contains consolidated provisions 

that are focused on control strategy SIPs, 

and the infrastructure SIP is not such a 

plan. 

5. EPA Interpretations in Other 

Rulemakings 

Comment 5: The Commenter also 

references a prior EPA rulemaking 

action where EPA disapproved a SIP 

and claims that action shows EPA relied 

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

51.112 to reject the SIP. The Commenter 

points to a 2006 partial approval and 

partial disapproval of revisions to 

Missouri’s existing control strategy 

plans addressing the SO2 NAAQS. The 

Commenter claims EPA cited section 

110(a)(2)(A) for disapproving a revision 

to the state plan on the basis that the 

State failed to demonstrate the SIP was 

sufficient to ensure maintenance of the 

SO2 NAAQS after revision of an 

emission limit and claims EPA cited to 

40 CFR 51.112 as requiring that a plan 

demonstrates the rules in a SIP are 

adequate to attain the NAAQS. The 

Commenter claims the revisions to 

Missouri’s control strategy SIP for SO2

were rejected by EPA because the 

revised control strategy limits were also 

in Missouri’s infrastructure SIP and thus 

the weakened limits would have 

impacted the infrastructure SIP’s ability 

to aid in attaining and maintaining the 

NAAQS. 

Response 5: EPA does not agree that 

the prior Missouri rulemaking action 

referenced by the Commenter 

establishes how EPA reviews 

infrastructure SIPs. It is clear from the 

final Missouri rule that EPA was not 

reviewing initial infrastructure SIP 

submissions under section 110 of the 

CAA, but rather reviewing revisions that 

would make an already approved SIP 

designed to demonstrate attainment of 

the NAAQS less stringent. EPA’s partial 

approval and partial disapproval of 

revisions to restrictions on emissions of 

sulfur compounds for the Missouri SIP 

in 71 FR 12623 addressed a control 

strategy SIP and not an infrastructure 

SIP. Nothing in that action addresses the 

necessary content of the initial 

infrastructure SIP for a new or revised 

NAAQS. 

C. Sierra Club Comments on 

Pennsylvania SIP SO2 Emission Limits 

The Commenter contends that the 

Pennsylvania 2008 ozone and 2010 SO2

infrastructure SIP revisions did not 

revise the existing ozone precursor 

emission limits and SO2 emission limits 

in response to the 2008 ozone and 2010 

SO2 NAAQS and fail to comport with 

assorted CAA requirements for SIPs to 

establish enforceable emission limits 

that are adequate to prohibit NAAQS 

exceedances in areas not designated 

nonattainment. EPA will address SO2

comments and ozone comments 

respectively. 

Comment 6: Citing section 

110(a)(2)(A) of the CAA, the Commenter 

contends that EPA may not approve 

Pennsylvania’s proposed 2010 SO2

infrastructure SIP because it does not 

include enforceable 1-hour SO2

emission limits for sources currently 


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8The Commenter provides a chart in its 

comments claiming 80 percent of SO2 emissions in 

Pennsylvania are from coal-electric generating units 

based on 2011 data. 

9The Commenter asserts its modeling followed 

protocols pursuant to 40 CFR part 51, Appendix W 

and EPA’s modeling guidance issued March 2011 

and December 2013. 

10The Commenter again references 40 CFR 

51.112 in support of its position that the 

infrastructure SIP must include emission limits for 

attainment and maintenance of the 2010 SO2

NAAQS. 

allowed to cause ‘‘NAAQS 

exceedances.’’ The Commenter asserts 

the proposed infrastructure SIP fails to 

include enforceable 1-hour SO2

emissions limits or other required 

measures to ensure attainment and 

maintenance of the SO2 NAAQS in areas 

not designated nonattainment as the 

Commenter claims is required by 

section 110(a)(2)(A). The Commenter 

asserts an infrastructure SIP must 

ensure, through state-wide regulations 

or source specific requirements, proper 

mass limitations and emissions rates 

with short term averaging on specific 

large sources of pollutants such as 

power plants. The Commenter asserts 

that emission limits are especially 

important for meeting the 1-hour SO2

NAAQS because SO2 impacts are 

strongly source-oriented. The 

Commenter states coal-fired electric 

generating units (EGUs) are large 

contributors to SO2 emissions but 

contends Pennsylvania did not 

demonstrate that emissions allowed by 

the proposed infrastructure SIP from 

such large sources of SO2 will ensure 

compliance with the 2010 1-hour SO2

NAAQS. The Commenter claims the 

proposed infrastructure SIP would 

allow major sources to continue 

operating with present emission limits.8

The Commenter then refers to air 

dispersion modeling it conducted for 

five coal-fired EGUs in Pennsylvania, 

including Brunner Island Steam Electric 

Station, Montour Steam Electric Station, 

Cheswick Power Station, New Castle 

Power Plant, and Shawville Coal Plant. 

The Commenter asserts the results of the 

air dispersion modeling it conducted 

employing EPA’s AERMOD program for 

modeling used the plants’ allowable 

emissions and showed the plants could 

cause exceedances of the 2010 SO2

NAAQS with allowable emissions.9

Based on the modeling, the Commenter 

asserts the Pennsylvania SO2

infrastructure SIP submittal authorizes 

the EGUs to cause exceedances of the 

NAAQS with allowable emission rates 

and therefore the infrastructure SIP fails 

to include adequate enforceable 

emission limitations or other required 

measures for sources of SO2 sufficient to 

ensure attainment and maintenance of 

the 2010 SO2 NAAQS.10 The 

Commenter therefore asserts EPA must 

disapprove Pennsylvania’s proposed 

2010 SO2 infrastructure SIP revision. In 

addition, the Commenter asserts ‘‘EPA 

may only approve an I–SIP that 

incorporates enforceable emission 

limitations on major sources of SO2

pollution in the state, including coalfired power plants, with one-hour 

averaging times that are no less stringent 

than the modeling based limits . . . 

necessary to protect the one-hour SO2

NAAQS and attain and maintain the 

standard in Pennsylvania. These 

emission limits must apply at all times 

. . . to ensure that Pennsylvania is able 

to attain and maintain the 2010 SO2

NAAQS.’’ The Commenter claimed 

additional modeling for two EGUs, 

Brunner Island and Montour, done with 

actual historical hourly SO2 emissions 

show these facilities have actually been 

causing ‘‘exceedances of the NAAQS’’ 

while operating pursuant to existing 

emission limits which the Commenter 

claims Pennsylvania included as part of 

the SO2 infrastructure SIP submission. 

The Commenter also asserts that any 

coal-fired units slated for retirement 

should be incorporated into the 

infrastructure SIP with an enforceable 

emission limit or control measure. 

Response 6: EPA disagrees with the 

Commenter that EPA must disapprove 

Pennsylvania’s SO2 infrastructure SIP 

for the reasons provided by the 

Commenter including the Commenter’s 

modeling results and insufficient SO2

emission limits. EPA is not in this 

action making a determination regarding 

the Commonwealth’s current air quality 

status or regarding whether its control 

strategy is sufficient to attain and 

maintain the NAAQS. Therefore, EPA is 

not making any judgment on whether 

the Commenter’s submitted modeling 

demonstrates the NAAQS exceedances 

that the Commenter claims. EPA 

believes that section 110(a)(2)(A) of the 

CAA is reasonably interpreted to require 

states to submit infrastructure SIPs that 

reflect the first step in their planning for 

attainment and maintenance of a new or 

revised NAAQS. These SIP revisions 

should contain a demonstration that the 

state has the available tools and 

authority to develop and implement 

plans to attain and maintain the NAAQS 

and show that the SIP has enforceable 

control measures. In light of the 

structure of the CAA, EPA’s longstanding position regarding 

infrastructure SIPs is that they are 

general planning SIPs to ensure that the 

state has adequate resources and 

authority to implement a NAAQS in 

general throughout the state and not 

detailed attainment and maintenance 

plans for each individual area of the 

state. As mentioned above, EPA has 

interpreted this to mean, with regard to 

the requirement for emission limitations 

that states may rely on measures already 

in place to address the pollutant at issue 

or any new control measures that the 

state may choose to submit. 

As stated in response to a previous 

more general comment, section 110 of 

the CAA is only one provision that is 

part of the complicated structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be 

interpreted in the context of not only 

that structure, but also of the historical 

evolution of that structure. In light of 

the revisions to section 110 since 1970 

and the later-promulgated and more 

specific planning requirements of the 

CAA, EPA reasonably interprets the 

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

the CAA that the plan provide for 

‘‘implementation, maintenance and 

enforcement’’ to mean that the SIP must 

contain enforceable emission limits that 

will aid in attaining and/or maintaining 

the NAAQS and that the 

Commonwealth demonstrate that it has 

the necessary tools to implement and 

enforce a NAAQS, such as adequate 

state personnel and an enforcement 

program. As discussed above, EPA has 

interpreted the requirement for emission 

limitations in section 110 to mean that 

the state may rely on measures already 

in place to address the pollutant at issue 

or any new control measures that the 

state may choose to submit. Finally, as 

EPA stated in the Infrastructure SIP 

Guidance which specifically provides 

guidance to states in addressing the 

2010 SO2 NAAQS and the 2008 Ozone 

NAAQS, ‘‘[t]he conceptual purpose of 

an infrastructure SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS, whether 

by establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ Infrastructure 

SIP Guidance at p. 2. 

On April 12, 2012, EPA explained its 

expectations regarding implementation 

of the 2010 SO2 NAAQS via letters to 

each of the states. EPA communicated 

in the April 2012 letters that all states 

were expected to submit SIPs meeting 

the ‘‘infrastructure’’ SIP requirements 

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

June 2013. At the time, EPA was 

undertaking a stakeholder outreach 

process to continue to develop possible 

approaches for determining attainment 

status under the SO2 NAAQS and 


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11 In EPA’s final SO2 NAAQS preamble (75 FR 

35520 (June 22, 2010)) and subsequent draft 

guidance in March and September 2011, EPA had 

expressed its expectation that many areas would be 

initially designated as unclassifiable due to 

limitations in the scope of the ambient monitoring 

network and the short time available before which 

states could conduct modeling to support their 

designations recommendations due in June 2011. In 

order to address concerns about potential violations 

in these unclassifiable areas, EPA initially 

recommended that states submit substantive 

attainment demonstration SIPs based on air quality 

modeling by June 2013 (under section 110(a)) that 

show how their unclassifiable areas would attain 

and maintain the NAAQS in the future. 

Implementation of the 2010 Primary 1-Hour SO2

NAAQS, Draft White Paper for Discussion, May 

2012 (2012 Draft White Paper) (for discussion 

purposes with Stakeholders at meetings in May and 

June 2012), available at http://www.epa.gov/

airquality/sulfurdioxide/implement.html. However, 

EPA clearly stated in this 2012 Draft White Paper 

its clarified implementation position that it was no 

longer recommending such attainment 

demonstrations for unclassifiable areas for June 

2013 infrastructure SIPs. Id. EPA had stated in the 

preamble to the NAAQS and in the prior 2011 draft 

guidance that EPA intended to develop and seek 

public comment on guidance for modeling and 

development of SIPs for sections 110 and 191 of the 

CAA. Section 191 of the CAA requires states to 

submit SIPs in accordance with section 172 for 

areas designated nonattainment with the SO2

NAAQS. After seeking such comment, EPA has now 

issued guidance for the nonattainment area SIPs 

due pursuant to sections 191 and 172. See Guidance 

for 1-Hour SO2 Nonattainment Area SIP 

Submissions, Stephen D. Page, Director, EPA’s 

Office of Air Quality Planning and Standards, to 

Regional Air Division Directors Regions 1–10, April 

23, 2014. In September 2013, EPA had previously 

issued specific guidance relevant to infrastructure 

SIP submissions due for the NAAQS, including the 

2010 SO2 NAAQS. See Infrastructure SIP Guidance. 

12The Consent Decree, entered March 2, 2015 by 

the United States District Court for the Northern 

District of California in Sierra Club and NRDC v. 

EPA, Case 3:13-cv-03953–SI (N.D. Cal.) is available 

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

designations/pdfs/201503FinalCourtOrder.pdf. 

implementing this NAAQS. EPA was 

abundantly clear in the April 2012 

letters that EPA did not expect states to 

submit substantive attainment 

demonstrations or modeling 

demonstrations showing attainment for 

areas not designated nonattainment in 

infrastructure SIPs due in June 2013. 

Although EPA had previously suggested 

in its 2010 SO2 NAAQS preamble and 

in prior draft implementation guidance 

in 2011 that states should, in the unique 

SO2 context, use the section 110(a) SIP 

process as the vehicle for demonstrating 

attainment of the NAAQS, this approach 

was never adopted as a binding 

requirement and was subsequently 

discarded in the April 2012 letters to 

states. The April 2012 letters 

recommended states focus infrastructure 

SIPs due in June 2013, such as 

Pennsylvania’s SO2 infrastructure SIP, 

on traditional ‘‘infrastructure elements’’ 

in section 110(a)(1) and (2) rather than 

on modeling demonstrations for future 

attainment for areas not designated as 

nonattainment.11

Therefore, EPA asserts that 

evaluations of modeling demonstrations 

such as those submitted by the 

Commenter are more appropriately to be 

considered in actions that make 

determinations regarding states’ current 

air quality status or regarding future air 

quality status. EPA also asserts that SIP 

revisions for SO2 nonattainment areas 

including measures and modeling 

demonstrating attainment are due by the 

dates statutorily prescribed under 

subpart 5 under part D. Those 

submissions are due no later than 18 

months after an area is designed 

nonattainment for SO2, under CAA 

section 191(a). Thus, the CAA directs 

states to submit these SIP requirements 

that are specific for nonattainment areas 

on a separate schedule from the 

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

which are due within three years of 

adoption or revision of a NAAQS and 

which apply statewide. The 

infrastructure SIP submission 

requirement does not move up the date 

for any required submission of a part D 

plan for areas designated nonattainment 

for the new NAAQS. Thus, elements 

relating to demonstrating attainment for 

areas not attaining the NAAQS are not 

necessary for infrastructure SIP 

submissions, and the CAA does not 

provide explicit requirements for 

demonstrating attainment for areas that 

have not yet been designated regarding 

attainment with a particular NAAQS. 

As stated previously, EPA believes 

that the proper inquiry at this juncture 

is whether Pennsylvania has met the 

basic structural SIP requirements 

appropriate at the point in time EPA is 

acting upon the infrastructure submittal. 

Emissions limitations and other control 

measures needed to attain the NAAQS 

in areas designated nonattainment for 

that NAAQS are due on a different 

schedule from the section 110 

infrastructure elements. A state, like 

Pennsylvania, may reference preexisting SIP emission limits or other 

rules contained in part D plans for 

previous NAAQS in an infrastructure 

SIP submission. Pennsylvania’s existing 

rules and emission reduction measures 

in the SIP that control emissions of SO2

were discussed in the TSD. These 

provisions have the ability to reduce 

SO2 overall. Although the Pennsylvania 

SIP relies on measures and programs 

used to implement previous SO2

NAAQS, these provisions are not 

limited to reducing SO2 levels to meet 

one specific NAAQS and will continue 

to provide benefits for the 2010 SO2

NAAQS. 

Additionally, as discussed in EPA’s 

TSD supporting the NPR, Pennsylvania 

has the ability to revise its SIP when 

necessary (e.g. in the event the 

Administrator finds the plan to be 

substantially inadequate to attain the 

NAAQS or otherwise meet all 

applicable CAA requirements) as 

required under element H of section 

110(a)(2). See Section 4(1) of the APCA, 

35 P.S. § 4004(1), which empowers 

PADEP to implement the provisions of 

the CAA. Section 5 of the APCA, 35 P.S. 

§ 4005, authorizes the Environmental 

Quality Board (EQB) to adopt rules and 

regulations for the prevention, control, 

reduction and abatement of air pollution 

throughout the Commonwealth. 

EPA believes the requirements for 

emission reduction measures for an area 

designated nonattainment for the 2010 

primary SO2 NAAQS are in sections 172 

and 191–192 of the CAA, and therefore, 

the appropriate avenue for 

implementing requirements for 

necessary emission limitations for 

demonstrating attainment with the 2010 

SO2 NAAQS is through the attainment 

planning process contemplated by those 

sections of the CAA. On August 5, 2013, 

EPA designated as nonattainment most 

areas in locations where existing 

monitoring data from 2009–2011 

indicated violations of the 1-hour SO2

standard. 78 FR 47191. At that time, 

four areas in Pennsylvania had 

monitoring data from 2009–2011 

indicating violations of the 1-hour SO2

standard, and these areas were 

designated nonattainment in 

Pennsylvania. See 40 CFR 81.339. Also 

on March 2, 2015 the United States 

District Court for the Northern District 

of California entered a Consent Decree 

among the EPA, Sierra Club and Natural 

Resources Defense Council to resolve 

litigation concerning the deadline for 

completing designations for the 2010 

SO2 NAAQS. Pursuant to the terms of 

the Consent Decree, EPA will complete 

additional designations for all 

remaining areas of the country 

including remaining areas in 

Pennsylvania.12

For the four areas designated 

nonattainment in Pennsylvania in 

August 2013, attainment SIPs were due 

by April 4, 2015 and must contain 

demonstrations that the areas will attain 

the 2010 SO2 NAAQS as expeditiously 

as practicable, but no later than October 

4, 2018 pursuant to sections 172, 191 

and 192, including a plan for 

enforceable measures to reach 

attainment of the NAAQS. Similar 

attainment planning SIPs for any 

additional areas which EPA 

subsequently designates nonattainment 

with the 2010 SO2 NAAQS will be due 

for such areas within the timeframes 

specified in CAA section 191. EPA 


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13EPA has provided draft guidance for states 

regarding modeling analyses to support the 

designations process for the 2010 SO2 NAAQS. SO2

NAAQS Designations Modeling Technical 

Assistance Document (draft), EPA Office of Air and 

Radiation and Office of Air Quality Planning and 

Standards, December 2013, available at http://

www.epa.gov/airquality/sulfurdioxide/

implement.html. 

14Finally, EPA does not disagree with the 

Commenter’s claim that coal fired EGUs are a large 

source of SO2 emissions in Pennsylvania based on 

the 2011 NEI. However, EPA does not agree that 

this information is relevant to our approval of the 

infrastructure SIP which EPA has explained meets 

requirements in CAA section 110(a)(2). 

15The Commenter also cites to a 1983 EPA 

Memorandum on section 107 designations policy 

regarding use of modeling for designations and to 

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

upheld EPA’s finding that the previously approved 

SIP for an area in Montana was substantially 

inadequate to attain the NAAQS due to modeled 

violations of the NAAQS. 

believes it is not appropriate to interpret 

the overall section 110(a)(2) 

infrastructure SIP obligation to require 

bypassing the attainment planning 

process by imposing separate 

requirements outside the attainment 

planning process. Such actions would 

be disruptive and premature absent 

exceptional circumstances and would 

interfere with a state’s planning process. 

See In the Matter of EME Homer City 

Generation LP and First Energy 

Generation Corp., Order on Petitions 

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

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

Homer City/Mansfield Order) at 10–19 

(finding Pennsylvania SIP did not 

require imposition of 1-hour SO2

emission limits on sources independent 

of the part D attainment planning 

process contemplated by the CAA). EPA 

believes that the history of the CAA and 

intent of Congress for the CAA as 

described above demonstrate clearly 

that it is within the section 172 and 

general part D attainment planning 

process that Pennsylvania must include 

1-hour SO2 emission limits on sources, 

where needed, for the four areas 

designated nonattainment to reach 

attainment with the 2010 1-hour SO2

NAAQS and for any additional areas 

EPA may subsequently designate 

nonattainment. 

The Commenter’s reliance on 40 CFR 

51.112 to support its argument that 

infrastructure SIPs must contain 

emission limits adequate to provide for 

timely attainment and maintenance of 

the standard is also not supported. As 

explained previously in response to the 

background comments, EPA notes this 

regulatory provision applies to planning 

SIPs, such as those demonstrating how 

an area will attain a specific NAAQS 

and not to infrastructure SIPs which are 

intended to support that the states have 

in place structural requirements 

necessary to implement the NAAQS. 

As noted in EPA’s preamble for the 

2010 SO2 NAAQS, determining 

compliance with the SO2 NAAQS will 

likely be a source-driven analysis and 

EPA has explored options to ensure that 

the SO2 designations process 

realistically accounts for anticipated 

SO2 reductions at sources that we 

expect will be achieved by current and 

pending national and regional rules. See 

75 FR 35520. As mentioned previously, 

EPA will act in accordance with the 

entered Consent Decree’s schedule for 

conducting additional designations for 

the 2010 SO2 NAAQS and any areas 

designated nonattainment must meet 

the applicable part D requirements for 

these areas. However, because the 

purpose of an infrastructure SIP 

submission is for more general planning 

purposes, EPA does not believe 

Pennsylvania was obligated during this 

infrastructure SIP planning process to 

account for controlled SO2 levels at 

individual sources. See Homer City/

Mansfield Order at 10–19. 

Regarding the air dispersion modeling 

conducted by the Commenter pursuant 

to AERMOD for the coal-fired plants 

including the Brunner Island, Montour, 

Cheswick, New Castle and Shawville 

facilities, EPA does not find the 

modeling information relevant at this 

time for review of an infrastructure SIP. 

While EPA has extensively discussed 

the use of modeling for attainment 

demonstration purposes and for 

designations, EPA has affirmatively 

stated such modeling was not needed to 

demonstrate attainment for the SO2

infrastructure SIPs under the 2010 SO2

NAAQS. See April 12, 2012 letters to 

states regarding SO2 implementation 

and Implementation of the 2010 Primary 

1-Hour SO2 NAAQS, Draft White Paper 

for Discussion, May 2012, available at 

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

sulfurdioxide/implement.html.13

EPA has proposed a Data 

Requirements Rule which, if 

promulgated, will be relevant to the SO2

designations process. See, e.g., 79 FR 

27446 (May 13, 2014) (proposing 

process by which state air agencies 

would characterize air quality around 

SO2 sources through ambient 

monitoring and/or air quality modeling 

techniques and submit such data to the 

EPA). The proposed rule includes a 

lengthy discussion of how EPA 

anticipates addressing modeling that 

informs determinations of states’ air 

quality status under the 2010 SO2

NAAQS. As stated above, EPA believes 

it is not appropriate to bypass the 

attainment planning process by 

imposing separate attainment planning 

process requirements outside part D and 

into the infrastructure SIP process. 

Finally, EPA also disagrees with the 

Commenter that the Pennsylvania 

infrastructure SIP must, to be approved, 

incorporate the planned retirement 

dates of coal-fired EGUs to ensure 

attainment and maintenance of the SO2

NAAQS. Because EPA does not believe 

Pennsylvania’s infrastructure SIP 

requires at this time 1-hour SO2

emission limits on these sources or 

other large stationary sources to ensure 

attainment or maintenance or ‘‘prevent 

exceedances’’ of the 2010 SO2 NAAQS, 

EPA likewise does not believe 

incorporating planned retirement dates 

for SO2 emitters is necessary for our 

approval of an infrastructure SIP which 

we have explained meets the structural 

requirements of section 110(a)(2). 

Pennsylvania can address any SO2

emission reductions that may be needed 

to attain the 2010 SO2 NAAQS, 

including reductions through source 

retirements, in the separate attainment 

planning process of part D of title I of 

the CAA for areas designated 

nonattainment. 

In conclusion, EPA disagrees with the 

Commenter’s statements that EPA must 

disapprove Pennsylvania’s 

infrastructure SIP submission because it 

does not establish specific enforceable 

SO2 emission limits, either on coal-fired 

EGUs or other large SO2 sources, in 

order to demonstrate attainment and 

maintenance with the NAAQS at this 

time.14

Comment 7: The Commenter asserts 

that modeling is the appropriate tool for 

evaluating adequacy of infrastructure 

SIPs and ensuring attainment and 

maintenance of the 2010 SO2 NAAQS. 

The Commenter refers to EPA’s historic 

use of air dispersion modeling for 

attainment designations as well as ‘‘SIP 

revisions.’’ The Commenter cites to 

prior EPA statements that the Agency 

has used modeling for designations and 

attainment demonstrations, including 

statements in the 2010 SO2 NAAQS 

preamble, EPA’s 2012 Draft White Paper 

for Discussion on Implementing the 

2010 SO2 NAAQS, and a 1994 SO2

Guideline Document, as modeling could 

better address the source-specific 

impacts of SO2 emissions and historic 

challenges from monitoring SO2

emissions.15

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 


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16 Montana Sulphur & Chemical Co. v. EPA, 666 

F.3d 1174 (9th Cir. 2012). 

17The Commenter also claims it raised similar 

arguments to Pennsylvania during the Pennsylvania 

proposal process for the infrastructure SIPs. 

18The 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. 

19The Consent Decree in Sierra Club and NRDC 

v. EPA, Case 3:13–cv–03953–SI (N.D. Cal.) is 

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

sulfurdioxide/designations/pdfs/

201503FinalCourtOrder.pdf. See 79 FR 27446 

(EPA’s proposed data requirements rule). See also 

Updated Guidance for Area Designations for the 

2010 Primary Sulfur Dioxide National Ambient Air 

Quality Standard, Stephen D. Page, Director, EPA’s 

Office of Air Quality Planning Standards, March 20, 

2015, available at http://www.epa.gov/airquality/

sulfurdioxide/pdfs/20150320SO2designations.pdf.> 

(D.C. Cir. 2009).16 The Commenter 

discusses statements made by EPA staff 

regarding the use of modeling and 

monitoring in setting emission 

limitations or determining ambient 

concentrations as a result of a source’s 

emissions, discussing performance of 

AERMOD as a model, if AERMOD is 

capable of predicting whether the 

NAAQS is attained, and whether 

individual sources contribute to SO2

NAAQS violations. The Commenter 

cites to EPA’s history of employing air 

dispersion modeling for increment 

compliance verifications in the 

permitting process for the Prevention of 

Significant Deterioration (PSD) program 

required in part C of Title I of the CAA. 

The Commenter claims several coalfired EGUs including Brunner Island, 

Montour, Cheswick, New Castle, and 

Shawville are examples of sources 

located in elevated terrain where the 

AERMOD model functions 

appropriately in evaluating ambient 

impacts. 

The Commenter asserts EPA’s use of 

air dispersion modeling was upheld in 

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

(3rd Cir. 2013) where an EGU 

challenged EPA’s use of CAA section 

126 to impose SO2 emission limits on a 

source due to cross-state impacts. The 

Commenter claims the Third Circuit in 

GenOn REMA upheld EPA’s actions 

after examining the record which 

included EPA’s air dispersion modeling 

of the one source as well as other data. 

The Commenter cites to Vehicle Mfrs. 

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

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

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

the general proposition that it would be 

arbitrary and capricious for an agency to 

ignore an aspect of an issue placed 

before it and that an agency must 

consider information presented during 

notice-and-comment rulemaking.17

Finally, the Commenter claims that 

Pennsylvania’s proposed SO2

infrastructure SIP lacks emission 

limitations informed by air dispersion 

modeling and therefore fails to ensure 

Pennsylvania will attain and maintain 

the 2010 SO2 NAAQS. The Commenter 

claims EPA must disapprove the SO2

infrastructure SIP as it does not 

‘‘prevent exceedances’’ or ensure 

attainment and maintenance of the SO2

NAAQS. 

Response 7: EPA agrees with the 

Commenter that air dispersion 

modeling, such as AERMOD, can be an 

important tool in the CAA section 107 

designations process for SO2 and in 

developing SIPs for nonattainment areas 

as required by sections 172 and 191– 

192, including supporting required 

attainment demonstrations. EPA agrees 

that prior EPA statements, EPA 

guidance, and case law support the use 

of air dispersion modeling in the SO2

designations process and attainment 

demonstration process, as well as in 

analyses of the interstate impact of 

transported emissions and whether 

existing approved SIPs remain adequate 

to show attainment and maintenance of 

the SO2 NAAQS. However, as provided 

in the previous responses, EPA 

disagrees with the Commenter that EPA 

must disapprove the Pennsylvania SO2

infrastructure SIP for its alleged failure 

to include source-specific SO2 emission 

limits that show no exceedances of the 

NAAQS when modeled or ensure 

attainment and maintenance of the 

NAAQS. 

In acting to approve or disapprove an 

infrastructure SIP, EPA is not required 

to make findings regarding current air 

quality status of areas within the state, 

regarding such area’s projected future 

air quality status, or regarding whether 

existing emissions limits in such area 

are sufficient to meet a NAAQS in the 

area. All of the actions the Commenter 

cites, instead, do make findings 

regarding at least one of those issues. 

The attainment planning process 

detailed in part D of the CAA, including 

sections 172 and 191–192 attainment 

SIPs, is the appropriate place for the 

state to evaluate measures needed to 

bring in-state nonattainment areas into 

attainment with a NAAQS and to 

impose additional emission limitations 

such as SO2 emission limits on specific 

sources. 

EPA had initially recommended that 

states submit substantive attainment 

demonstration SIPs based on air quality 

modeling in the final 2010 SO2 NAAQS 

preamble (75 FR 35520) and in 

subsequent draft guidance issued in 

September 2011 for the section 110(a) 

SIPs due in June 2013 in order to show 

how areas then-expected to be 

designated as unclassifiable would 

attain and maintain the NAAQS. These 

initial statements in the preamble and 

2011 draft guidance, presented only in 

the context of the new 1-hour SO2

NAAQS and not suggested as a matter 

of general infrastructure SIP policy, 

were based on EPA’s expectation at the 

time, that by June 2012, most areas 

would initially be designated as 

unclassifiable due to limitations in the 

scope of the ambient monitoring 

network and the short time available 

before which states could conduct 

modeling to support designations 

recommendations in 2011. However, 

after conducting extensive stakeholder 

outreach and receiving comments from 

the states regarding these initial 

statements and the timeline for 

implementing the NAAQS, EPA 

subsequently stated in the April 12, 

2012 letters and in the 2012 Draft White 

Paper that EPA was clarifying its 2010 

SO2 NAAQS implementation position 

and was no longer recommending such 

attainment demonstrations supported by 

air dispersion modeling for 

unclassifiable areas (which had not yet 

been designated) for the June 2013 

infrastructure SIPs. Instead, EPA 

explained that it expected states to 

submit infrastructure SIPs that followed 

the general policy EPA had applied 

under other NAAQS. EPA then 

reaffirmed this position in the February 

6, 2013 memorandum, ‘‘Next Steps for 

Area Designations and Implementation 

of the Sulfur Dioxide National Ambient 

Air Quality Standard.’’ 18 As previously 

mentioned, EPA had stated in the 

preamble to the NAAQS and in the prior 

2011 draft guidance that EPA intended 

to develop and seek public comment on 

guidance for modeling and development 

of SIPs for sections 110, 172 and 191– 

192 of the CAA. After receiving such 

further comment, EPA has now issued 

guidance for the nonattainment area 

SIPs due pursuant to sections 172 and 

191–192. See April 23, 2014 Guidance 

for 1-Hour SO2 Nonattainment Area SIP 

Submissions. In addition, modeling may 

be an appropriate consideration for 

states and EPA in further designations 

for the SO2 NAAQS in accordance with 

the Sierra Club and NRDC Consent 

Decree and proposed data requirements 

rule mentioned previously.19 While the 

EPA guidance for attainment SIPs and 

for designations for CAA section 107 

and proposed process for characterizing 

SO2 emissions from larger sources 

discuss the use of air dispersion 

modeling, EPA’s 2013 Infrastructure SIP 

Guidance did not suggest that states use 


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20EPA notes that PADEP provided similar 

responses to the Commenter’s claims regarding 

evaluation of modeling data for an infrastructure 

SIP as specifically recounted by the Commenter in 

its March 9, 2015 comments to EPA on this 

rulemaking action. EPA agrees with PADEP’s 

responses that emissions limitations for attainment 

of the NAAQS are appropriate for consideration in 

the part D planning process and not for the 

infrastructure SIP process. Thus, EPA provides no 

further response on this issue as PADEP responded 

to the Commenter in Pennsylvania’s rulemaking 

and EPA’s responses are provided in this action. 

air dispersion modeling for purposes of 

the section 110(a)(2) infrastructure SIP. 

Therefore, as discussed previously, EPA 

believes the Pennsylvania SO2

infrastructure SIP submittal contains the 

structural requirements to address 

elements in section 110(a)(2) as 

discussed in detail in the TSD 

accompanying the proposed approval. 

EPA believes infrastructure SIPs are 

general planning SIPs to ensure that a 

state has adequate resources and 

authority to implement a NAAQS. 

Infrastructure SIP submissions are not 

intended to act or fulfill the obligations 

of a detailed attainment and/or 

maintenance plan for each individual 

area of the state that is not attaining the 

NAAQS. While infrastructure SIPs must 

address modeling authorities in general 

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

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

to provide the state’s authority for air 

quality modeling and for submission of 

modeling data to EPA, not specific air 

dispersion modeling for large stationary 

sources of pollutants. In the TSD for this 

rulemaking action, EPA provided a 

detailed explanation of Pennsylvania’s 

ability and authority to conduct air 

quality modeling when required and its 

authority to submit modeling data to the 

EPA. 

EPA finds the Commenter’s 

discussion of case law, guidance, and 

EPA staff statements regarding 

advantages of AERMOD as an air 

dispersion model for purposes of 

demonstrating attainment of the 

NAAQS to be irrelevant to the analysis 

of Pennsylvania’s infrastructure SIP, 

which as we have explained is separate 

from the SIP required to demonstrate 

attainment of the NAAQS pursuant to 

sections 172 or 192. In addition, the 

Commenter’s comments relating to 

EPA’s use of AERMOD or modeling in 

general in designations pursuant to 

section 107, including its citation to 

Catawba County, are likewise irrelevant 

as EPA’s present approval of 

Pennsylvania’s infrastructure SIP is 

unrelated to the section 107 

designations process. Nor is EPA’s 

action on this infrastructure SIP related 

to any new source review (NSR) or PSD 

permit program issue. As outlined in the 

August 23, 2010 clarification memo, 

‘‘Applicability of Appendix W Modeling 

Guidance for the 1-hour SO2 National 

Ambient Air Quality Standard’’ (U.S. 

EPA, 2010a), AERMOD is the preferred 

model for single source modeling to 

address the 1-hour SO2 NAAQS as part 

of the NSR/PSD permit programs. 

Therefore, as attainment SIPs, 

designations, and NSR/PSD actions are 

outside the scope of a required 

infrastructure SIP for the 2010 SO2

NAAQS for section 110(a), EPA 

provides no further response to the 

Commenter’s discussion of air 

dispersion modeling for these 

applications. If the Commenter 

resubmits its air dispersion modeling for 

the Pennsylvania EGUs, or updated 

modeling information in the appropriate 

context, EPA will address the 

resubmitted modeling or updated 

modeling at that time. 

The Commenter correctly noted that 

the Third Circuit upheld EPA’s section 

126 finding imposing SO2 emissions 

limitations on an EGU pursuant to CAA 

section 126. GenOn REMA, LLC v. EPA, 

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

any state or political subdivision may 

petition EPA for a finding that any 

major source or group of stationary 

sources emits, or would emit, any air 

pollutant in violation of the prohibition 

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

to significant contributions to 

nonattainment or interference with 

maintenance of a NAAQS in another 

state. The Third Circuit upheld EPA’s 

authority under section 126 and found 

EPA’s actions neither arbitrary nor 

capricious after reviewing EPA’s 

supporting docket which included air 

dispersion modeling as well as ambient 

air monitoring data showing 

exceedances of the NAAQS. The 

Commenter appears to have cited to this 

matter to demonstrate EPA’s use of 

modeling for certain aspects of the CAA. 

We do not disagree that such modeling 

is appropriate for other actions, such as 

those under section 126. But, for the 

reasons explained above, such modeling 

is not required for determining whether 

Pennsylvania’s infrastructure SIP has 

the required structural requirements 

pursuant to section 110(a)(2). As noted 

above, EPA is not acting on an interstate 

transport SIP in this action because 

Pennsylvania has not made such a 

submission. The decision in GenOn 

Rema does not otherwise speak to the 

role of air dispersion modeling as to any 

other planning requirements in the 

CAA. 

In its comments, the Commenter 

relies on Motor Vehicle Mfrs. Ass’n and 

NRDC v. EPA to support its comments 

that EPA must consider the 

Commenter’s modeling data on several 

Pennsylvania EGUs including Brunner 

Island, Montour, Cheswick, New Castle, 

and Shawville based on administrative 

law principles regarding consideration 

of comments provided during a 

rulemaking process. For the reasons 

previously explained, the purpose for 

which the Commenter submitted the 

modeling—namely, to assert that 

current air quality in the areas in which 

those sources are located does not meet 

the NAAQS—is not relevant to EPA’s 

action on this infrastructure SIP, and 

consequently EPA is not required to 

consider the modeling in evaluating the 

approvability of the infrastructure SIP.20

EPA does not believe infrastructure SIPs 

must contain emission limitations 

informed by air dispersion modeling in 

order to meet the requirements of 

section 110(a)(2)(A). Thus, EPA has 

evaluated the persuasiveness of the 

Commenter’s submitted modeling in 

finding that it is not relevant to the 

approvability of Pennsylvania’s 

proposed infrastructure SIP for the 2010 

SO2 NAAQS, but EPA has made no 

judgment regarding whether the 

Commenter’s submitted modeling is 

sufficient to show violations of the 

NAAQS. 

While EPA does not believe that 

infrastructure SIP submissions are 

required to contain emission limits 

assuring in-state attainment of the 

NAAQS, as suggested by the 

Commenter, EPA does recognize that in 

the past, states have, in their discretion, 

used infrastructure SIP submittals as a 

‘vehicle’ for incorporating regulatory 

revisions or source-specific emission 

limits into the state’s plan. See 78 FR 

73442 (December 6, 2013) (approving 

regulations Maryland submitted for 

incorporation into the SIP along with 

the 2008 ozone infrastructure SIP to 

address ethics requirements for State 

Boards in sections 128 and 

110(a)(2)(E)(ii)). While these SIP 

revisions are intended to help the state 

meet the requirements of section 

110(a)(2), these ‘‘ride-along’’ SIP 

revisions are not intended to signify that 

all infrastructure SIP submittals must, in 

order to be approved by EPA, have 

similar regulatory revisions or sourcespecific emission limits. Rather, the 

regulatory provisions and sourcespecific emission limits the state relies 

on when showing compliance with 

section 110(a)(2) have, in many cases, 

likely already been incorporated into 

the state’s SIP prior to each new 

infrastructure SIP submission; in some 

cases this was done for entirely separate 

CAA requirements, such as attainment 


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21Sierra 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). 

22As EPA has stated, some areas are designated 

nonattainment areas pursuant to CAA section 107 

for the 2010 SO2 NAAQS in the Commonwealth. 

Thus, while the Commonwealth, at this time, has 

an obligation to submit attainment plans for the 

2010 SO2 NAAQS for sections 172, 191 and 192, 

EPA believes the appropriate time for examining 

necessity of the averaging periods within any 

submitted SO2 emission limits on specific sources 

is within the attainment planning process. 

23For 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. 

24EPA also notes that in EPA’s final rule 

regarding the 2010 SO2 NAAQS, EPA noted that it 

anticipates several forthcoming national and 

plans required under section 172, or for 

previous NAAQS. 

Comment 8: The Commenter asserts 

that EPA may not approve the 

Pennsylvania proposed SO2

infrastructure SIP because it fails to 

include enforceable emission 

limitations with a 1-hour averaging time 

that applies at all times. The Commenter 

cites to CAA section 302(k) which 

requires emission limits to apply on a 

continuous basis. The Commenter 

claims EPA has stated that 1-hour 

averaging times are necessary for the 

2010 SO2 NAAQS citing to EPA’s April 

23, 2014 Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions, a 

February 3, 2011, EPA Region 7 letter to 

the Kansas Department of Health and 

Environment regarding the need for 1- 

hour SO2 emission limits in a PSD 

permit, an EPA Environmental Hearing 

Board (EHB) decision rejecting use of a 

3-hour averaging time for a SO2 limit in 

a PSD permit, and EPA’s disapproval of 

a Missouri SIP which relied on annual 

averaging for SO2 emission rates.21

Thus, the Commenter contends EPA 

must disapprove Pennsylvania’s 

infrastructure SIP which the Commenter 

claims fails to require emission limits 

with adequate averaging times. 

Response 8: EPA disagrees that EPA 

must disapprove the proposed 

Pennsylvania infrastructure SIP because 

the SIP does not contain enforceable 

SO2 emission limitations with 1-hour 

averaging periods that apply at all times, 

as this issue is not appropriate for 

resolution at this stage. The comment 

does not assert that the SO2 emission 

limits in Pennsylvania’s SIP are not 

enforceable or that they do not apply at 

all times, instead the comment focuses 

on the lack of 1-hour averaging times. 

We do not believe, as suggested by the 

Commenter, that the emission limits are 

not ‘‘continuous’’ within the meaning of 

section 302(k). As EPA has noted 

previously, the purpose of the section 

110(a)(2) SIP is to ensure that the State 

has the necessary structural components 

to implement programs for attainment 

and maintenance of the NAAQS.22

While EPA does agree that the averaging 

time is a critical consideration for 

purposes of substantive SIP revisions, 

such as attainment demonstrations, the 

averaging time of existing rules in the 

SIP is not relevant for determining that 

the State has met the applicable 

requirements of section 110(a)(2) with 

respect to the infrastructure elements 

addressed in the present SIP action.23

Therefore, because EPA finds 

Pennsylvania’s SO2 infrastructure SIP 

approvable without the additional SO2

emission limitations showing in-state 

attainment of the NAAQS, EPA finds 

the issues of appropriate averaging 

periods for such future limitations not 

relevant at this time. The Commenter 

has cited to prior EPA discussion on 

emission limitations required in PSD 

permits (from an EAB decision and 

EPA’s letter to Kansas’ permitting 

authority) pursuant to part C of the 

CAA, which is neither relevant nor 

applicable to the present SIP action. In 

addition, as previously discussed, the 

EPA disapproval of the 2006 Missouri 

SIP was a disapproval relating to a 

control strategy SIP required pursuant to 

part D attainment planning and is 

likewise not relevant to the analysis of 

infrastructure SIP requirements. 

Comment 9: The Commenter states 

that enforceable emission limits in SIPs 

or permits are necessary to avoid 

nonattainment designations in areas 

where modeling or monitoring shows 

SO2 levels exceed the 1-hour SO2

NAAQS and cites to a February 6, 2013 

EPA document, Next Steps for Area 

Designations and Implementation of the 

Sulfur Dioxide National Ambient Air 

Quality Standard, which the 

Commenter contends discusses how 

states could avoid future nonattainment 

designations. The Commenter asserts 

EPA must ensure enforceable emission 

limits in the Pennsylvania infrastructure 

SIP will not allow ‘‘exceedances’’ of the 

SO2 NAAQS. The Commenter claims 

the modeling it conducted for Brunner 

Island, Montour, Cheswick, New Castle, 

and Shawville indicates at least 28 

additional counties in Pennsylvania 

must be designated nonattainment with 

the 2010 SO2 NAAQS without such 

enforceable SO2 limits. In summary, the 

Commenter asserts EPA must 

disapprove the Pennsylvania 

infrastructure SIP and ensure emission 

limits will not allow large sources of 

SO2 to cause exceedances of the 2010 

SO2 NAAQS. 

Response 9: EPA appreciates the 

Commenter’s concern with avoiding 

nonattainment designations in 

Pennsylvania for the 2010 SO2 NAAQS. 

However, Congress designed the CAA 

such that states have the primary 

responsibility for achieving and 

maintaining the NAAQS within their 

geographic area by submitting SIPs 

which will specify the details of how 

the state will meet the NAAQS. 

Pursuant to section 107(d), the states 

make initial recommendations of 

designations for areas within each state 

and EPA then promulgates the 

designations after considering the state’s 

submission and other information. EPA 

promulgated initial designations for the 

2010 SO2 NAAQS in August 2013 for 

areas in which monitoring at that time 

showed violations of the NAAQS, but 

has not yet issued designations for other 

areas and will complete the required 

designations pursuant to the schedule 

contained in the recently entered 

Consent Decree. EPA will designate 

additional areas for the 2010 SO2

NAAQS in accordance with the CAA 

section 107 and existing EPA policy and 

guidance. Pennsylvania may, on its own 

accord, decide to impose additional SO2

emission limitations to avoid future 

designations to nonattainment. If 

additional Pennsylvania areas are 

designated nonattainment, Pennsylvania 

will then have the initial opportunity to 

develop additional emissions 

limitations needed to attain the NAAQS, 

and EPA would be charged with 

reviewing whether the SIP is adequate 

to demonstrate attainment. See 

Commonwealth of Virginia, et al., v. 

EPA, 108 F.3d 1397, 1410 (D.C. Cir. 

1997) (citing Natural Resources Defense 

Council, Inc. v. Browner, 57 F.3d 1122, 

1123 (DCCir.1995)) (discussing that 

states have primary responsibility for 

determining an emission reductions 

program for its areas subject to EPA 

approval dependent upon whether the 

SIP as a whole meets applicable 

requirements of the CAA). However, 

such considerations are not required of 

Pennsylvania at the infrastructure SIP 

stage of NAAQS implementation, as the 

Commenter’s statements concern the 

separate designations process under 

section 107.24 EPA disagrees that the 


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regional rules, such as the Industrial Boilers 

standard under CAA section 112, are likely to 

require significant reductions in SO2 emissions over 

the next several years. See 75 FR 35520. EPA 

continues to believe similar national and regional 

rules will lead to SO2 reductions that will help 

achieve compliance with the 2010 SO2 NAAQS. If 

it appears that states with areas designated 

nonattainment in 2013 will nevertheless fail to 

attain the NAAQS as expeditiously as practicable 

(but no later than October 2018) during EPA’s 

review of attainment SIPs required by section 172, 

the CAA provides authorities and tools for EPA to 

solve such failure, including, as appropriate, 

disapproving submitted SIPs and promulgating 

federal implementation plans. Likewise, for any 

areas designated nonattainment after 2013, EPA has 

the same authorities and tools available to address 

any areas which do not timely attain the NAAQS. 

25EPA notes however that the data presented by 

the Commenter in table 5 of its March 9, 2015 

comments indicates a general improving trend in 

ozone air quality for the specific counties the 

Commenter included. The data could equally be 

used to indicate improving ozone air quality based 

on existing measures in the Pennsylvania SIP. 

26While it is true that there may be some 

monitors within a state with values so high as to 

make a nonattainment designation of the county 

with that monitor almost a certainty, the geographic 

boundaries of the nonattainment area associated 

with that monitor would not be known until EPA 

issues final designations. Moreover, the five areas 

of concern to the Commenter do not fit that 

description in any event. 

infrastructure SIP must be disapproved 

for not including enforceable emissions 

limitations to prevent future 1-hour SO2

nonattainment designations. 

D. Sierra Club Comments on 

Pennsylvania 2008 Ozone Infrastructure 

SIP 

Comment 10: The Commenter claims 

EPA must disapprove the proposed 

infrastructure SIP for the 2008 ozone 

NAAQS for its failure to include 

enforceable measures on sources of 

volatile organic compounds (VOCs) and 

nitrogen oxides (NOX) to ensure 

attainment and maintenance of the 

NAAQS in areas not designated 

nonattainment and to ensure 

compliance with section 110(a)(2)(A) for 

the 2008 ozone NAAQS. The 

Commenter specifically mentions EGUs 

as well as the oil and gas production 

industry as sources needing additional 

controls as they are major sources of 

ozone precursors. The Commenter 

claims stringent emission limits must 

apply at all times to ensure all areas in 

Pennsylvania attain and maintain the 

ozone NAAQS. The Commenter claims 

the provisions listed by Pennsylvania 

for section 110(a)(2)(A) in its 2008 

ozone NAAQS infrastructure SIP are 

insufficient for attaining and 

maintaining the 2008 ozone NAAQS as 

evidenced by the Commenter’s review 

of air quality monitoring data in areas 

which are not presently designated 

nonattainment for the 2008 ozone 

NAAQS. Specifically, the Commenter 

cites air monitoring in a number of 

Pennsylvania counties including 

Mercer, Indiana, Lebanon, Dauphin, 

Erie and York counties indicating 

‘‘exceedances’’ of the NAAQS and what 

the Commenter asserts are design values 

above the NAAQS in 2010–2012, 2011– 

2013, and 2012–2014. The Commenter 

alleges that these ‘‘exceedances’’ 

demonstrate that the Pennsylvania 2008 

ozone infrastructure SIP with existing 

regulations, statutes, source-specific 

limits and programs fails to demonstrate 

the infrastructure SIP will ensure 

attainment and maintenance of the 2008 

ozone NAAQS. Thus, the Commenter 

asserts EPA must disapprove the 2008 

ozone infrastructure SIP. 

In addition, the Commenter asserts 

that the infrastructure SIP required by 

section 110(a) must provide assurances 

that the NAAQS will be attained and 

maintained for areas not designated 

nonattainment and asserts that the 

Pennsylvania infrastructure SIP must 

contain state-wide regulations and 

emission limits that ‘‘ensure that the 

proper mass limitations and short term 

averaging periods are imposed on 

certain specific large sources of NOX

such as power plants. These emission 

limits must apply at all times . . . to 

ensure that all areas of Pennsylvania 

attain and maintain the 2008 eight-hour 

Ozone NAAQS.’’ The Commenter 

suggests limits should be set on a 

pounds per hour (lbs/hr) basis for EGUs 

to address variation in mass emissions 

and ensure protection of the ambient air 

quality. The Commenter cites to NOX

limits from PSD permits issued to EGUs 

with low NOX emission rates, claiming 

such rates and related control 

efficiencies are achievable for EGUs. 

The Commenter suggests short-term 

averaging limits would ensure EGUs 

cannot emit NOX at higher rates on days 

when ozone levels are worst while 

meeting a longer-term average. The 

Commenter also contends that adding 

control devices and emission limits on 

EGUs are a ‘‘cost effective option to 

reduce NOX pollution and attain and 

maintain the 2008 ozone NAAQS.’’ 

Finally, the Commenter contends the 

proposed ozone infrastructure SIP 

cannot ensure Pennsylvania will attain 

and maintain the 2008 ozone NAAQS 

and contends EPA must disapprove the 

SIP for lack of emission limits to attain 

and maintain the ozone NAAQS 

statewide. 

Response 10: EPA disagrees with the 

commenter that the infrastructure SIPs 

must include detailed attainment and 

maintenance plans for all areas of the 

state and must be disapproved if ozone 

air quality data that became available 

late in the process or after the SIP was 

due and submitted changes the status of 

areas within the state.25 EPA has 

addressed in detail in prior responses 

above the Commenter’s general 

arguments that the statutory language, 

legislative history, case law, EPA 

regulations, and prior rulemaking 

actions by EPA mandate the 

interpretation it advocates—i.e., that 

infrastructure SIPs must ensure 

attainment and maintenance of the 

NAAQS. EPA believes that section 

110(a)(2)(A) is reasonably interpreted to 

require states to submit SIPs that reflect 

the first step in their planning for 

attaining and maintaining a new or 

revised NAAQS and that they contain 

enforceable control measures and a 

demonstration that the state has the 

available tools and authority to develop 

and implement plans to attain and 

maintain the NAAQS, including the 

2008 ozone NAAQS. 

Moreover, the CAA recognizes and 

has provisions to address changes in air 

quality over time, such as an area 

slipping from attainment to 

nonattainment or changing from 

nonattainment to attainment. These 

include provisions providing for 

redesignation in section 107(d) and 

provisions in section 110(k)(5) allowing 

EPA to call on the state to revise its SIP, 

as appropriate. 

The Commenter suggests that EPA 

must disapprove the Pennsylvania 

ozone infrastructure SIP because the fact 

that a few areas in Pennsylvania 

recently had air quality data slightly 

above the standard therefore proves that 

the infrastructure SIP is inadequate to 

demonstrate maintenance of the ozone 

NAAQS for those areas. EPA disagrees 

with the Commenter because EPA does 

not believe that section 110(a)(2)(A) 

requires detailed planning SIPs 

demonstrating either attainment or 

maintenance for specific geographic 

areas of the state. The infrastructure SIP 

is triggered by promulgation of the 

NAAQS, not designation. Moreover, 

infrastructure SIPs are due three years 

following promulgation of the NAAQS 

and designations are not due until two 

years (or in some cases three years) 

following promulgation of the NAAQS. 

Thus, during a significant portion of the 

period that a state has available for 

developing the infrastructure SIP, it 

does not know what the designation 

will be for individual areas of the 

state.26 In light of the structure of the 

CAA, EPA’s long-standing position 

regarding infrastructure SIPs is that they 

are general planning SIPs to ensure that 

the state has adequate resources and 


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46506 Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations 

authority to implement a NAAQS in 

general throughout the state and not 

detailed attainment and maintenance 

plans for each individual area of the 

state. 

EPA’s interpretation that 

infrastructure SIPs are more general 

planning SIPs is consistent with the 

statute as understood in light of its 

history and structure as explained 

previously in response to prior 

comments. While at one time section 

110 did provide the only detailed SIP 

planning provisions for states and 

specified that such plans must provide 

for attainment of the NAAQS, part D of 

title I of the CAA (not CAA section 110) 

governs the substantive planning 

process, including planning for 

attainment and maintenance of the 

NAAQS. 

For the reasons explained by EPA in 

this action, EPA disagrees with the 

Commenter that EPA must disapprove 

an infrastructure SIP revision if there 

are monitored violations of the standard 

in the state and the section 110(a)(2)(A) 

revision does not have detailed plans for 

demonstrating how the state will bring 

that area into attainment or ensure 

maintenance of the NAAQS. Rather, 

EPA believes that the proper inquiry at 

this juncture is whether the state has 

met the basic structural SIP 

requirements appropriate at the point in 

time EPA is acting upon the submittal. 

EPA’s NPR and TSD for this rulemaking 

address why the Pennsylvania SIP 

meets the basic structural SIP 

requirements as to the elements 

addressed in section 110(a)(2) in the 

NPR for the 2008 ozone NAAQS. 

As addressed in EPA’s proposed 

approval for this rule, Pennsylvania 

submitted a list of existing emission 

reduction measures in the SIP that 

control emissions of NOX and VOCs. 

Pennsylvania’s SIP revision reflects 

numerous provisions that have the 

ability to reduce ground level ozone and 

its precursors. The Pennsylvania SIP 

relies on measures and programs used to 

implement previous ozone NAAQS. 

Because there is no substantive 

difference between the previous ozone 

NAAQS and the more recent ozone 

NAAQS, other than the level of the 

standard, the provisions relied on by 

Pennsylvania will provide benefits for 

the new NAAQS; in other words, the 

measures reduce overall ground-level 

ozone and its precursors and are not 

limited to reducing ozone levels to meet 

one specific NAAQS. Although 

additional control measures for ozone 

precursors such as those mentioned by 

the Commenter may be considered by 

PADEP and could be submitted with an 

infrastructure SIP, these additional 

measures are not a requirement in order 

for Pennsylvania to meet CAA section 

110(a)(2)(A). In approving 

Pennsylvania’s infrastructure SIP 

revision, EPA is affirming that 

Pennsylvania has sufficient authority to 

take the types of actions required by the 

CAA in order to bring such areas back 

into attainment. 

Finally, EPA appreciates the 

Commenter’s information regarding 

EGU NOX control measures and 

reduction efficiencies as well as 

emissions limitations applicable to new 

or modified EGUs which were set 

during the PSD or NSR permit process. 

Additional NOX regulations on 

emissions from EGUs would likely 

reduce ozone levels further in one or 

more areas in Pennsylvania. Congress 

established the CAA such that each state 

has primary responsibility for assuring 

air quality within the state and each 

state is first given the opportunity to 

determine an emission reduction 

program for its areas subject to EPA 

approval, with such approval dependent 

upon whether the SIP as a whole meets 

the applicable requirements of the CAA. 

See Virginia v. EPA, 108 F.3d at 1410. 

The Commonwealth could choose to 

consider additional control measures for 

NOX at EGUs to ensure attainment and 

maintenance of the ozone NAAQS as 

Pennsylvania moves forward to meet the 

more prescriptive planning 

requirements of the CAA in the future. 

However, as we have explained, the 

Commonwealth is not required to 

regulate such sources for purposes of 

meeting the infrastructure SIP 

requirements of CAA section 110(a)(2). 

In addition, emission limits with the 

shorter-term averaging rates suggested 

by the Commenter could be considered 

within the part D planning process to 

ensure attainment and maintenance of 

the 2008 ozone NAAQS. As EPA finds 

Pennsylvania’s NOX and VOC 

provisions presently in the SIP 

sufficient for infrastructure SIP 

purposes and specifically for CAA 

section 110(a)(2)(A), further 

consideration of averaging times is not 

appropriate or relevant at this time. 

Thus, EPA disagrees with the 

Commenter that Pennsylvania’s ozone 

infrastructure SIP must be disapproved 

for failure to contain sufficient measures 

to ensure attainment and maintenance 

of the NAAQS. 

Comment 11: The Commenter states 

enforceable emission limits are 

necessary to avoid future nonattainment 

designations in areas where 

Pennsylvania’s monitoring network has 

shown ‘‘exceedances’’ with the 2008 

ozone NAAQS in recent years. The 

Commenter stated EPA must address 

inadequacies in enforceable emission 

limitations relied upon by Pennsylvania 

for its ozone infrastructure SIP to 

comply with CAA section 110(a)(2)(A) 

and stated EPA must disapprove the 

ozone infrastructure SIP to ensure large 

sources of NOX and VOCs cannot 

contribute to exceedances of the ozone 

NAAQS and prohibit attainment and 

maintenance of the ozone NAAQS in all 

of Pennsylvania. 

Response 11: For the reasons 

previously discussed, EPA disagrees 

with the Commenter that we must 

disapprove the Pennsylvania ozone 

infrastructure SIP because it does not 

demonstrate how areas that may be 

newly violating the ozone NAAQS since 

the time of designation can be brought 

back into attainment. Enforceable 

emission limitations to avoid future 

nonattainment designations are not 

required for EPA to approve an 

infrastructure SIP under CAA section 

110, and any emission limitations 

needed to assure attainment and 

maintenance with the ozone NAAQS 

will be determined by Pennsylvania and 

reviewed by EPA as part of the part D 

attainment SIP planning process. Thus, 

EPA disagrees with the Commenter that 

EPA must disapprove the ozone 

infrastructure SIP to ensure large 

sources of NOX and VOC do not 

contribute to exceedances of the 

NAAQS or prohibit implementation, 

attainment or maintenance of the ozone 

NAAQS. As explained in the NPR and 

TSD, Pennsylvania has sufficient 

emission limitations and measures to 

address NOX and VOC emissions for 

CAA section 110(a)(2)(A). 

III. Final Action 

EPA is approving the following 

elements of Pennsylvania’s June 15, 

2014 SIP revisions for the 2008 ozone 

NAAQS and the 2010 SO2 NAAQS: 

Section 110(a)(2)(A), (B), (C), (D)(i)(II) 

(PSD requirements), (D)(ii), (E), (F), (G), 

(H), (J), (K), (L), and (M). Pennsylvania’s 

SIP revisions provide the basic program 

elements specified in Section 110(a)(2) 

necessary to implement, maintain, and 

enforce the 2008 ozone NAAQS and the 

2010 SO2 NAAQS. This final 

rulemaking action does not include 

action on section 110(a)(2)(I) which 

pertains to the nonattainment planning 

requirements of part D, Title I of the 

CAA, because this element is not 

required to be submitted by the 3-year 

submission deadline of section 110(a)(1) 

of the CAA, and will be addressed in a 

separate process. This final rulemaking 

action also does not include action on 

section 110(a)(2)(D)(i)(I) for interstate 

transport for the 2008 ozone or the 2010 

SO2 NAAQS as Pennsylvania’s July 15, 


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Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations 46507 

2014 SIP submissions did not address 

this element for either NAAQS nor does 

this rulemaking include any action on 

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

protection for either NAAQS. While 

Pennsylvania’s July 15, 2014 SIP 

submissions for the 2008 ozone and 

2010 SO2 NAAQS included provisions 

addressing visibility protection, EPA 

will take later, separate action on this 

element for both of these NAAQS. 

IV. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by October 5, 2015. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. 

This action pertaining to 

Pennsylvania’s section 110(a)(2) 

infrastructure elements for the 2008 

ozone NAAQS and 2010 SO2 NAAQS 

may not be challenged later in 

proceedings to enforce its requirements. 

(See section 307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Reporting and 

recordkeeping requirements, Sulfur 

oxides, Volatile organic compounds. 

Dated: July 24, 2015. 

William C. Early, 

Acting Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart NN—Pennsylvania 

■ 2. In § 52.2020, the table in paragraph 

(e)(1) is amended by adding two entries 

for ‘‘Section 110(a)(2) Infrastructure 

Requirements for the 2008 ozone 

NAAQS’’ and ‘‘Section 110(a)(2) 

Infrastructure Requirements for the 2010 

SO2 NAAQS’’ at the end of the table to 

read as follows: 

§ 52.2020 Identification of plan. 

* * * * * 

(e) * * * 

(1) * * * 

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 2008 

ozone NAAQS.

Statewide ...................... 7/15/14 8/5/15 [Insert Federal 

Register citation].

This rulemaking action addresses the following 

CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II) 

(prevention of significant deterioration), (D)(ii), 

(E), (F), (G), (H), (J), (K), (L), and (M). 

Section 110(a)(2) Infrastructure Requirements for the 2010 

SO2 NAAQS.

Statewide ...................... 7/15/14 8/5/15 [Insert Federal 

Register citation].

This rulemaking action addresses the following 

CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II) 

(prevention of significant deterioration), (D)(ii), 

(E), (F), (G), (H), (J), (K), (L), and (M). 


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46508 Federal Register / Vol. 80, No. 150 / Wednesday, August 5, 2015 / Rules and Regulations 

1Recognizing the need for level-entry boarding 

for passengers with mobility impairments on larger 

aircraft, the Department extended the applicability 

of its 1996 rule to aircraft with a seating capacity 

of 31 or more passengers in 2001. See 66 FR 22107. 

2High-contrast captioning is defined in 14 CFR 

382.3 as ‘‘captioning that is at least as easy to read 

as white letters on a consistent black background.’’ 

As explained in the preamble to Part 382, defining 

‘‘high-contrast captioning’’ in such a way not only 

ensures that captioning will be effective but also 

allows carriers to use existing or future technologies 

to achieve captioning that are as effective as white 

on black or more so. 

[FR Doc. 2015–19090 Filed 8–4–15; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

49 CFR Part 27 

RIN 2105–AD91 

[Docket No. DOT–OST–2011–0182] 

Nondiscrimination on the Basis of 

Disability in Programs or Activities 

Receiving Federal Financial 

Assistance (U.S. Airports) 

AGENCY: Office of the Secretary, 

Department of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: The Department is issuing a 

final rule to amend its rules 

implementing section 504 of the 

Rehabilitation Act of 1973, which 

requires accessibility in airport terminal 

facilities that receive Federal financial 

assistance. The final rule includes new 

provisions related to service animal 

relief areas and captioning of televisions 

and audio-visual displays that are 

similar to existing requirements 

applicable to U.S. and foreign air 

carriers under the Department’s Air 

Carrier Access (ACAA) regulations. The 

final rule also reorganizes a provision 

concerning mechanical lifts for 

enplaning and deplaning passengers 

with mobility impairments, and amends 

this provision to require airports to 

work not only with U.S. carriers but also 

foreign air carriers to ensure that lifts 

are available where level entry loading 

bridges are not available. This final rule 

applies to airport facilities located in the 

United States with 10,000 or more 

annual enplanements that receive 

Federal financial assistance. 

DATES: This rule is effective October 5, 

2015. 

FOR FURTHER INFORMATION CONTACT: 

Maegan L. Johnson, Senior Trial 

Attorney, Office of the Assistant General 

Counsel for Aviation Enforcement and 

Proceedings, Department of 

Transportation, 1200 New Jersey 

Avenue SE., Room W96–409, 

Washington, DC 20590, (202) 366–9342. 

You may also contact Blane A. Workie, 

Assistant General Counsel for Aviation 

Enforcement and Proceedings, 

Department of Transportation, 1200 

New Jersey Avenue SE., Room W96– 

464, Washington, DC 20590, (202) 366– 

9342. Arrangements to receive this 

notice in an alternative format may be 

made by contacting the above named 

individuals. 

SUPPLEMENTARY INFORMATION: 

Background 

On November 1, 1996, the U.S. 

Department of Transportation amended 

its regulation implementing section 504 

of the Rehabilitation Act of 1973 to 

create a new section, 49 CFR 27.72, 

concerning regulatory requirements for 

U.S. airports to ensure the availability of 

lifts to provide level-entry boarding for 

passengers with disabilities flying on 

small aircraft.1 See 61 FR 56409. This 

requirement paralleled the lift 

provisions applicable to U.S. carriers in 

the ACAA rule, 14 CFR part 382. On 

May 13, 2008, the Department of 

Transportation published a final rule 

that amended part 382 by making it 

applicable to foreign air carriers. See 73 

FR 27614. This amendment also 

included provisions that require U.S. 

and foreign air carriers, in cooperation 

with airport operators, to provide 

service animal relief areas for service 

animals that accompany passengers 

departing, connecting, or arriving at 

U.S. airports. See 14 CFR 382.51(a)(5). 

Part 382 also now requires U.S. and 

foreign air carriers to enable captioning 

on all televisions and other audio-visual 

displays that are capable of displaying 

captioning and that are located in any 

portion of the airport terminal to which 

any passengers have access. See 14 CFR 

382.51(a)(6). As a result of the 2008 

amendments to Part 382, the 

requirements in Part 27 no longer 

mirrored the requirements applicable to 

airlines set forth in part 382 as had been 

intended. 

On September 21, 2011, the 

Department issued a notice of proposed 

rulemaking (NPRM) in Docket OST 

2011–0182 titled, ‘‘Nondiscrimination 

on the Basis of Disability in Programs or 

Activities Receiving Federal Financial 

Assistance (U.S. Airports).’’ See 76 FR 

60426 et seq. (September 29, 2011). The 

Department proposed to amend part 27 

by inserting provisions that would 

require airport operators to work with 

carriers to establish relief areas for 

service animals that accompany 

passengers with disabilities departing, 

connecting, or arriving at U.S. airports; 

to enable high-contrast captioning 2 on 

certain televisions and audio-visual 

displays in U.S. airports; and to 

negotiate in good faith with foreign air 

carriers to provide, operate, and 

maintain lifts for boarding and 

deplaning where level-entry loading 

bridges are not available. The 

Department also proposed updates in 

the NPRM to outdated references that 

existed in 49 CFR part 27 by deleting 

obsolete references to the Uniform 

Federal Accessibility Standards in 49 

CFR 27.3(b), and changing the language 

‘‘appendix A to part 37 of this title’’ to 

‘‘appendices B and D of 36 CFR part 

1191, as modified by appendix A to part 

37 of this title.’’ 

The Department asked a series of 

questions regarding the proposed 

amendments to part 27. We received 

481 comments in response to the NPRM, 

the majority of which were received 

from individual commenters. The 

Department also received a number of 

comments from disability organizations, 

airports, and airport associations. We 

have carefully reviewed and considered 

these comments. The significant, 

relevant issues raised by the public 

comments to the NPRM are set forth 

below, as is the Department’s response. 

Service Animal Relief Areas 

In the NPRM, the Department sought 

comment on whether it should adopt 

requirements regarding the design of 

service animal relief areas and what, if 

any, provisions the rule should include 

concerning the dimensions, materials 

used, and maintenance for service 

animal relief areas. The Department 

explained that commenters should 

consider the size and surface material of 

the area, maintenance, and distance to 

service animal relief areas, which could 

vary based on the size and configuration 

of the airport. The Department also 

sought comment on the compliance date 

for these requirements. 

Comments 

Commenters that indicated that they 

are service animal users, and other 

individual commenters, favor the 

construction of service animal relief 

areas on non-cement surfaces. These 

commenters also expressed a desire to 

see overhangs covering service animal 

relief areas to protect service animal 

users from the elements. Airport and 

airport organization commenters, 

however, do not support specific 

mandates regarding the design, number, 

or location of service animal relief areas, 

and encourage the Department to adopt 

the general language that appears in part 


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