63436 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2014–0503; FRL–9935–17– 

Region 5] 

Air Plan Approval; Minnesota; 

Infrastructure SIP Requirements for 

the 2008 Ozone, 2010 NO2, 2010 SO2, 

and 2012 PM2.5 NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve some elements and disapprove 

other elements of state implementation 

plan (SIP) submissions from Minnesota 

regarding the infrastructure 

requirements of section 110 of the Clean 

Air Act (CAA) for the 2008 ozone, 2010 

nitrogen dioxide (NO2), 2010 sulfur 

dioxide (SO2), and 2012 fine particulate 

matter (PM2.5) National Ambient Air 

Quality Standards (NAAQS). The 

infrastructure requirements are designed 

to ensure that the structural components 

of each state’s air quality management 

program are adequate to meet the state’s 

responsibilities under the CAA. EPA is 

disapproving certain elements of 

Minnesota’s submissions relating to 

Prevention of Significant Deterioration 

(PSD) requirements. Minnesota already 

administers Federally promulgated 

regulations that address the 

disapprovals described in this 

rulemaking. Therefore, the state is not 

obligated to submit any new or 

additional regulations as a result of this 

disapproval. The proposed rulemaking 

associated with this final action was 

published on June 26, 2015, and EPA 

received one comment letter during the 

comment period, which ended on July 

27, 2015. 

DATES: This final rule is effective on 

November 19, 2015. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2014–0503. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

Although listed in the index, 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 at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone Eric 

Svingen, Environmental Engineer, at 

(312) 353–4489 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: Eric 

Svingen, Environmental Engineer, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 353–4489, 

svingen.eric@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean 

EPA. This SUPPLEMENTARY INFORMATION

section is arranged as follows: 

I. What is the background of these SIP 

submissions? 

II. What is our response to comments 

received on the proposed rulemaking? 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. What is the background of these SIP 

submissions? 

A. What state submissions does this 

rulemaking address? 

This rulemaking addresses June 12, 

2014, submissions and a February 3, 

2015, clarification from the Minnesota 

Pollution Control Agency (MPCA) 

intended to address all applicable 

infrastructure requirements for the 2008 

ozone, 2010 NO2, 2010 SO2, and 2012 

PM2.5 NAAQS. 

B. Why did the state make these SIP 

submissions? 

Under section 110(a)(1) and (2) of the 

CAA, states are required to submit 

infrastructure SIPs to ensure that their 

SIPs provide for implementation, 

maintenance, and enforcement of the 

NAAQS, including the 2008 ozone, 

2010 NO2, 2010 SO2, and 2012 PM2.5

NAAQS. These submissions must 

contain any revisions needed for 

meeting the applicable SIP requirements 

of section 110(a)(2), or certifications that 

their existing SIPs for the NAAQS 

already meet those requirements. 

EPA has highlighted this statutory 

requirement in multiple guidance 

documents. The most recent, entitled 

‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements 

under CAA Sections 110(a)(1) and (2),’’ 

was published on September 13, 2013. 

C. What is the scope of this rulemaking? 

EPA is acting upon the SIP 

submissions from Minnesota that 

address the infrastructure requirements 

of CAA section 110(a)(1) and (2) for the 

2008 ozone, 2010 NO2, 2010 SO2, and 

2012 PM2.5 NAAQS. The requirement 

for states to make SIP submissions of 

this type arises out of CAA section 

110(a)(1), which states that states must 

make SIP submissions ‘‘within 3 years 

(or such shorter period as the 

Administrator may prescribe) after the 

promulgation of a national primary 

ambient air quality standard (or any 

revision thereof),’’ and these SIP 

submissions are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

Section 110(a)(2) includes a list of 

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

section 110(a)(1) and (2) as 

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as SIP submissions that address 

the nonattainment planning 

requirements of part D and the PSD 

requirements of part C of title I of the 

CAA, and ‘‘regional haze SIP’’ 

submissions required to address the 

visibility protection requirements of 

CAA section 169A. 

This rulemaking will not cover three 

substantive areas because they are not 

integral to acting on a state’s 

infrastructure SIP submissions: (i) 

Existing provisions related to excess 

emissions during periods of start-up, 

shutdown, or malfunction (‘‘SSM’’) at 

sources, that may be contrary to the 

CAA and EPA’s policies addressing 

such excess emissions; (ii) existing 

provisions related to ‘‘director’s 

variance’’ or ‘‘director’s discretion’’ that 

purport to permit revisions to SIP 

approved emissions limits with limited 

public notice or without requiring 

further approval by EPA, that may be 

contrary to the CAA; and, (iii) existing 

provisions for PSD programs that may 

be inconsistent with current 

requirements of EPA’s ‘‘Final NSR 

Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Instead, EPA has the 

authority to address each one of these 

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Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 63437 

substantive areas in separate 

rulemakings. A detailed history, 

interpretation, and rationale as they 

relate to infrastructure SIP requirements 

can be found in EPA’s May 13, 2014, 

proposed rule entitled, ‘‘Infrastructure 

SIP Requirements for the 2008 Lead 

NAAQS’’ in the section, ‘‘What is the 

scope of this rulemaking?’’ (see 79 FR 

27241 at 27242–27245). 

II. What is our response to comments 

received on the proposed rulemaking? 

The public comment period for EPA’s 

proposed actions with respect to 

Minnesota’s satisfaction of the 

infrastructure SIP requirements for the 

2008 ozone NAAQS closed on July 27, 

2015. EPA received one comment letter, 

which was from the Sierra Club. A 

synopsis of the comments contained in 

this letter and EPA’s responses are 

provided below. 

Comment 1: The Sierra Club states 

that, on its face, the CAA ‘‘requires ISIPs 

[infrastructure SIPs] to be adequate to 

prevent exceedances of the NAAQS.’’ In 

support, the commenter quotes the 

language in section 110(a)(1) that 

requires states to adopt a plan for 

implementation, maintenance, and 

enforcement of the NAAQS and the 

language in section 110(a)(2)(A) that 

requires SIPs to include enforceable 

emissions limitations as may be 

necessary to meet the requirements of 

the CAA and which the commenter 

claims include the maintenance plan 

requirement. Sierra Club notes the CAA 

definition of ‘‘emission limit’’ and reads 

these provisions together to require 

‘‘enforceable emission limits on sources 

that are sufficient to ensure 

maintenance of the NAAQS.’’ 

Response 1: EPA disagrees that 

section 110 must be interpreted in the 

manner suggested by Sierra Club. 

Section 110 is only one provision that 

is part of the complex structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be 

interpreted in the context of not only 

that structure, but also of the historical 

evolution of that structure. In light of 

the revisions to section 110 since 1970 

and the later-promulgated and more 

specific planning requirements of the 

CAA, EPA interprets the requirement in 

section 110(a)(2)(A) that the plan 

provide for ‘‘implementation, 

maintenance and enforcement’’ to mean 

that the infrastructure SIP must contain 

enforceable emission limits that will aid 

in attaining and/or maintaining the 

NAAQS and that the state demonstrate 

that it has the necessary tools to 

implement and enforce a NAAQS, such 

as adequate state personnel and an 

enforcement program. 

Our interpretation that infrastructure 

SIPs are more general planning SIPs is 

consistent with the statute as 

understood in light of its history and 

structure. When Congress enacted the 

CAA in 1970, it did not include 

provisions requiring states and the EPA 

to label areas as attainment or 

nonattainment. Rather, states were 

required to include all areas of the state 

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

and section 110 set forth the core 

substantive planning provisions for 

these AQCRs. At that time, Congress 

anticipated that states would be able to 

address air pollution quickly pursuant 

to the very general planning provisions 

in section 110 and could bring all areas 

into compliance with the NAAQS 

within five years. Moreover, at that 

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

that the section 110 plan provide for 

‘‘attainment’’ of the NAAQS and section 

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

include ‘‘emission limitations, 

schedules, and timetables for 

compliance with such limitations, and 

such other measures as may be 

necessary to insure attainment and 

maintenance [of the NAAQS].’’ 

In 1977, Congress recognized that the 

existing structure was not sufficient and 

many areas were still violating the 

NAAQS. At that time, Congress for the 

first time added provisions requiring 

states and EPA to identify whether areas 

of the state were violating the NAAQS 

(i.e., were nonattainment) or were 

meeting the NAAQS (i.e., were 

attainment) and established specific 

planning requirements in section 172 

for areas not meeting the NAAQS. 

In 1990, many areas still had air 

quality not meeting the NAAQS and 

Congress again amended the CAA and 

added yet another layer of more 

prescriptive planning requirements for 

each of the NAAQS, with the primary 

provisions for ozone in section 182. At 

that same time, Congress modified 

section 110 to remove references to the 

section 110 SIP providing for 

attainment, including removing preexisting 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 

[sic] 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 did provide the only 

detailed SIP planning provisions for 

states and specified that such plans 

must provide for attainment of the 

NAAQS, under the structure of the 

current CAA, section 110 is only the 

initial stepping-stone in the planning 

process for a specific NAAQS. And, 

more detailed, later-enacted provisions 

govern the substantive planning 

process, including planning for 

attainment of the NAAQS. 

With regard to the requirement for 

emission limitations, EPA has 

interpreted this to mean that, for 

purposes of section 110, the state may 

rely on measures already in place to 

address the pollutant at issue or any 

new control measures that the state may 

choose to submit. As EPA stated in 

‘‘Guidance on Infrastructure State 

Implementation Plan (SIP) Elements 

under CAA Sections 110(a)(1) and 

110(a)(2),’’ dated September 13, 2013 

(Infrastructure SIP Guidance), ‘‘[t]he 

conceptual purpose of an infrastructure 

SIP submission is to assure that the air 

agency’s SIP contains the necessary 

structural requirements for the new or 

revised NAAQS, whether by 

establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both. Overall, the 

infrastructure SIP submission process 

provides an opportunity . . . to review 

the basic structural requirements of the 

air agency’s air quality management 

program in light of each new or revised 

NAAQS.’’ Infrastructure SIP Guidance 

at p. 2. 

Comment 2: Sierra Club cites two 

excerpts from the legislative history of 

the CAA Amendments of 1970 asserting 

that they support an interpretation that 

SIP revisions under CAA section 110 

must include emissions limitations 

sufficient to show maintenance of the 

NAAQS in all areas of Minnesota. Sierra 

Club also contends that the legislative 

history of the CAA supports its 

interpretation that infrastructure SIPs 

under section 110(a)(2) must include 

enforceable emission limitations, citing 

the Senate Committee Report and the 

subsequent Senate Conference Report 

accompanying the 1970 CAA. 

Response 2: The CAA, as enacted in 

1970, including its legislative history, 

cannot be interpreted in isolation from 

the later amendments that refined that 

structure and deleted relevant language 

from section 110 concerning 

demonstrating attainment. In any event, 

the two excerpts of legislative history 

the commenter cites merely provide that 

states should include enforceable 

emission limits in their SIPs; they do 

not mention or otherwise address 

whether states are required to include 

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63438 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 

maintenance plans for all areas of the 

state as part of the infrastructure SIP. 

Comment 3: Sierra Club cites to 40 

CFR 51.112(a), which provides that each 

plan must ‘‘demonstrate that the 

measures, rules, and regulations 

contained in it are adequate to provide 

for the timely attainment and 

maintenance of the [NAAQS].’’ The 

commenter asserts that this regulation 

requires all SIPs to include emissions 

limits necessary to ensure attainment of 

the NAAQS. The commenter states that 

‘‘[a]lthough these regulations were 

developed before the Clean Air Act was 

amended to separate Infrastructure SIPs 

from nonattainment SIPs—a process 

that began with the 1977 amendments 

and was completed by the 1990 

amendments—the regulations 

nonetheless apply to ISIPs.’’ The 

commenter relies on a statement in the 

preamble to the 1986 action 

restructuring and consolidating 

provisions in part 51, in which EPA 

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

th[is] rulemaking to address the 

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

FR 40656 (November 7, 1986). 

Response 3: The commenter’s reliance 

on 40 CFR 51.112 to support its 

argument that infrastructure SIPs must 

contain emission limits ‘‘adequate to 

prohibit NAAQS violations’’ and 

adequate or sufficient to ensure the 

maintenance of the NAAQS is not 

supported. As an initial matter, EPA 

notes and the commenter recognizes 

this regulatory provision was initially 

promulgated and ‘‘restructured and 

consolidated’’ prior to the CAA 

Amendments of 1990, in which 

Congress removed all references to 

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

addition, it is clear on its face that 40 

CFR 51.112 applies to plans specifically 

designed to attain the NAAQS. EPA 

interprets these provisions to apply 

when states are developing ‘‘control 

strategy’’ SIPs such as the detailed 

attainment and maintenance plans 

required under other provisions of the 

CAA, as amended in 1977 and again in 

1990, such as section 175A and 182. 

The commenter suggests that these 

provisions must apply to section 110 

SIPs because in the preamble to EPA’s 

action ‘‘restructuring and consolidating’’ 

provisions in part 51, EPA stated that 

the new attainment demonstration 

provisions in the 1977 Amendments to 

the CAA were ‘‘beyond the scope’’ of 

the rulemaking. It is important to note, 

however, that EPA’s action in 1986 was 

not to establish new substantive 

planning requirements, but rather to 

consolidate and restructure provisions 

that had previously been promulgated. 

EPA noted that it had already issued 

guidance addressing the new ‘‘Part D’’ 

attainment planning obligations. Also, 

as to maintenance regulations, EPA 

expressly stated that it was not making 

any revisions other than to re-number 

those provisions. Id. at 40657. 

Although EPA was explicit that it was 

not establishing requirements 

interpreting the provisions of new ‘‘part 

D’’ of the CAA, it is clear that the 

regulations being restructured and 

consolidated were intended to address 

control strategy plans. In the preamble, 

EPA clearly stated that 40 CFR 51.112 

was replacing 40 CFR 51.13 (‘‘Control 

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

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

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

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

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

40660. Thus, the present-day 40 CFR 

51.112 contains consolidated provisions 

that are focused on control strategy SIPs, 

and the infrastructure SIP is not such a 

plan. 

Comment 4: The Sierra Club 

references two prior EPA rulemaking 

actions where EPA disapproved or 

proposed to disapprove SIPs, and claims 

that they were actions in which EPA 

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

CFR 51.112 to reject infrastructure SIPs. 

It first points to a 2006 partial approval 

and partial disapproval of revisions to 

Missouri’s existing plan addressing the 

SO2 NAAQS (71 FR 12623, March 13, 

2006). In that action, EPA cited section 

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

disapproving a revision to the state plan 

on the basis that the State failed to 

demonstrate the SIP was sufficient to 

ensure maintenance of the SO2 NAAQS 

after revision of an emission limit and 

cited to 40 CFR 51.112 as requiring that 

a plan demonstrates the rules in a SIP 

are adequate to attain the NAAQS. 

Second, Sierra Club cites a 2013 

disapproval of a revision to the SO2 SIP 

for Indiana, where the revision removed 

an emission limit that applied to a 

specific emissions source at a facility in 

the State (78 FR 78721, December 27, 

2013). In its proposed disapproval, EPA 

relied on 40 CFR 51.112(a) in proposing 

to reject the revision, stating that the 

State had not demonstrated that the 

emission limit was ‘‘redundant, 

unnecessary, or that its removal would 

not result in or allow an increase in 

actual SO2 emissions.’’ EPA further 

stated in that proposed disapproval that 

the State had not demonstrated that 

removal of the limit would not ‘‘affect 

the validity of the emission rates used 

in the existing attainment 

demonstration.’’ 

The Sierra Club also asserts that EPA 

stated in its Infrastructure SIP Guidance 

that states could postpone specific 

requirements for startup, shutdown, and 

malfunction (SSM), but did not specify 

the postponement of any other 

requirements. The commenter 

concludes that emissions limits 

ensuring attainment of the standard 

cannot be delayed. 

Response 4: EPA does not agree that 

the two prior actions referenced by the 

Sierra Club establish how EPA reviews 

infrastructure SIPs. It is clear from both 

the final Missouri rulemaking and the 

proposed and final Indiana rulemakings 

that EPA was not reviewing initial 

infrastructure SIP submissions under 

section 110 of the CAA, but rather 

revisions that would make an already 

approved SIP designed to demonstrate 

attainment of the NAAQS less stringent. 

EPA’s partial approval and partial 

disapproval of revisions to restrictions 

on emissions of sulfur compounds for 

the Missouri SIP addressed a control 

strategy SIP and not an infrastructure 

SIP. Similarly, the Indiana action does 

not provide support for the Sierra Club’s 

position (78 FR 78720, December 27, 

2013). The review in that rule was of a 

completely different requirement than 

the section 110(a)(2)(A) SIP. In that case, 

the State had an approved SO2

attainment plan and was seeking to 

remove from the SIP provisions relied 

on as part of the modeled attainment 

demonstration. EPA proposed that the 

State had failed to demonstrate under 

section 110(l) of the CAA why the SIP 

revision would not result in increased 

SO2 emissions and thus interfere with 

attainment of the NAAQS. Nothing in 

that rulemaking addresses the necessary 

content of the initial infrastructure SIP 

for a new or revised NAAQS. Rather, it 

is simply applying the clear statutory 

requirement that a state must 

demonstrate why a revision to an 

approved attainment plan will not 

interfere with attainment of the NAAQS. 

EPA also does not agree that any 

requirements related to emission limits 

have been postponed. As stated in a 

previous response, EPA interprets the 

requirements under 110(a)(2)(A) to 

include enforceable emission limits that 

will aid in attaining and/or maintaining 

the NAAQS and that the state 

demonstrate that it has the necessary 

tools to implement and enforce a 

NAAQS, such as adequate state 

personnel and an enforcement program. 

With regard to the requirement for 

emission limitations, EPA has 

interpreted this to mean, for purposes of 

section 110, that the state may rely on 

measures already in place to address the 

pollutant at issue or any new control 

measures that the state may choose to 

submit. Emission limits providing for 

attainment of a new standard are 

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triggered by the designation process and 

have a different schedule in the CAA 

than the submittal of infrastructure SIPs. 

As discussed in detail in the proposed 

rules, EPA finds that the Minnesota SIPs 

meet the appropriate and relevant 

structural requirements of section 

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

attaining and/or maintaining the 

NAAQS, and that Minnesota has 

demonstrated that they have the 

necessary tools to implement and 

enforce a NAAQS. 

Comment 5: Sierra Club discusses 

several cases applying to the CAA 

which it claims support its contention 

that courts have been clear that section 

110(a)(2)(A) requires enforceable 

emissions limits in infrastructure SIPs 

to prevent violations of the NAAQS and 

demonstrate maintenance throughout 

the area. Sierra Club first cites to 

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

78 (1975), addressing the requirement 

for ‘‘emission limitations’’ and stating 

that emission limitations ‘‘are specific 

rules to which operators of pollution 

sources are subject, and which if 

enforced should result in ambient air 

which meet the national standards.’’ 

Sierra Club also cites to Pennsylvania 

Dept. of Envtl. Resources v. EPA, 932 

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

proposition that the CAA directs EPA to 

withhold approval of a SIP where it 

does not ensure maintenance of the 

NAAQS and Mision Industrial, Inc. v. 

EPA, 547 F.2d 123, 129 (1st Cir. 1976), 

which quoted section 110(a)(2)(B) of the 

CAA of 1970. The commenter contends 

that the 1990 Amendments do not alter 

how courts have interpreted the 

requirements of section 110, quoting 

Alaska Dept. of Envtl. Conservation v. 

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

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

CAA and also stated that ‘‘SIPs must 

include certain measures Congress 

specified’’ to ensure attainment of the 

NAAQS. The commenter also quotes 

several additional opinions in this vein. 

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

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

Clean Air Act directs states to develop 

implementation plans—SIPs—that 

‘assure’ attainment and maintenance of 

[NAAQS] through enforceable emissions 

limitations’’); Hall v. EPA 273 F.3d 

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

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

manner in which [NAAQS] will be 

achieved and maintained within each 

air quality control region in the state’’). 

The commenter also cites Mich. Dept. of 

Envtl. Quality v. Browner, 230 F.3d 181 

(6th Cir. 2000) for the proposition that 

EPA may not approve a SIP revision that 

does not demonstrate how the rules 

would not interfere with attainment and 

maintenance of the NAAQS. 

Response 5: None of the cases the 

commenter cites supports the 

commenter’s contention that section 

110(a)(2)(A) requires that infrastructure 

SIPs include detailed plans providing 

for attainment and maintenance of the 

NAAQS in all areas of the state, nor do 

they shed light on how section 

110(a)(2)(A) may reasonably be 

interpreted. With the exception of 

Train, 421 U.S. 60, none of the cases the 

commenter cites concerned the 

interpretation of CAA section 

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

the pre-1990 Act). Rather, in the context 

of a challenge to an EPA action, 

revisions to a SIP that were required and 

approved as meeting other provisions of 

the CAA or in the context of an 

enforcement action, the court references 

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

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

background section of its decision. 

In Train, a case that was decided 

almost 40 years ago, the court was 

addressing a state revision to an 

attainment plan submission made 

pursuant to section 110 of the CAA, the 

sole statutory provision at that time 

regulating such submissions. The issue 

in that case concerned whether changes 

to requirements that would occur before 

attainment was required were variances 

that should be addressed pursuant to 

the provision governing SIP revisions or 

were ‘‘postponements’’ that must be 

addressed under section 110(f) of the 

CAA of 1970, which contained 

prescriptive criteria. The court 

concluded that EPA reasonably 

interpreted section 110(f) not to restrict 

a state’s choice of the mix of control 

measures needed to attain the NAAQS 

and that revisions to SIPs that would 

not impact attainment of the NAAQS by 

the attainment date were not subject to 

the limits of section 110(f). Thus, the 

issue was not whether a section 110 SIP 

needs to provide for attainment or 

whether emissions limits are needed as 

part of the SIP; rather the issue was 

which statutory provision governed 

when the state wanted to revise the 

emission limits in its SIP if such 

revision would not impact attainment or 

maintenance of the NAAQS. To the 

extent the holding in the case has any 

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

might be interpreted, it is important to 

realize that in 1975, when the opinion 

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

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

expressly referenced the requirement to 

attain the NAAQS, a reference that was 

removed in 1990. 

The decision in Pennsylvania Dept. of 

Envtl. Resources was also decided based 

on the pre-1990 provision of the CAA. 

At issue was whether EPA properly 

rejected a revision to an approved plan 

where the inventories relied on by the 

state for the updated submission had 

gaps. The court quoted section 

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

support of EPA’s disapproval, but did 

not provide any interpretation of that 

provision. Yet, even if the court had 

interpreted that provision, EPA notes 

that it was modified by Congress in 

1990; thus, this decision has little 

bearing on the issue here. 

At issue in Mision Industrial, 547 

F.2d 123, was the definition of 

‘‘emissions limitation’’ not whether 

section 110 requires the state to 

demonstrate how all areas of the state 

will attain and maintain the NAAQS as 

part of their infrastructure SIPs. The 

language from the opinion the 

commenter quotes does not interpret but 

rather merely describes section 

110(a)(2)(A). The commenters do not 

raise any concerns about whether the 

measures relied on by the state in the 

infrastructure SIP are ‘‘emissions 

limitations’’ and the decision in this 

case has no bearing here. 

In Mont. Sulphur & Chem. Co., 666 

F.3d 1174, the court was reviewing a 

Federal implementation plan that EPA 

promulgated after a long history of the 

state failing to submit an adequate state 

implementation plan. The court cited 

generally to sections 107 and 

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

proposition that SIPs should assure 

attainment and maintenance of NAAQS 

through emission limitations but this 

language was not part of the court’s 

holding in the case. 

The commenter suggests that Alaska 

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

461, stands for the proposition that the 

1990 CAA Amendments do not alter 

how courts interpret section 110. This 

claim is inaccurate. Rather, the court 

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

noted previously, differs from the pre1990 version of that provision and the 

court makes no mention of the changed 

language. Furthermore, the commenter 

also quotes the court’s statement that 

‘‘SIPs must include certain measures 

Congress specified’’ but that statement 

specifically referenced the requirement 

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

an enforcement program and a program 

for the regulation of the modification 

and construction of new sources. 

Notably, at issue in that case was the 

state’s ‘‘new source’’ permitting 

program, not its infrastructure SIP. 

Two of the cases the commenter cites, 

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

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

CAA section 110(l), the provision 

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1Sierra Club asserts its modeling followed 

protocols pursuant to 40 CFR part 50, appendix W, 

EPA’s March 2011 guidance for implementing the 

2010 SO2 NAAQS, and EPA’s December 2013 SO2

NAAQS Designation Technical Assistance 

Document. 

governing ‘‘revisions’’ to plans, and not 

the initial plan submission requirement 

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

revised NAAQS, such as the 

infrastructure SIP at issue in this 

instance. In those cases, the courts cited 

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

purpose of providing a brief background 

of the CAA. 

Comment 6: Sierra Club asserts that 

EPA cannot approve Minnesota’s 

infrastructure submittals for the 2008 

ozone, 2010 NO2, 2010 SO2, and 2012 

PM2.5 NAAQS because Minnesota has 

not incorporated the standards into their 

SIP. The commenter points out that the 

Minnesota Administrative Rules section 

7009.0800 does list previous standards 

but does not yet include the ones listed 

above and is therefore out of compliance 

with the CAA. 

Response 6: There is not a CAA 

requirement for states to incorporate the 

NAAQS updates into their SIPs. 

Therefore, EPA disagrees with the 

commenter that by not doing so, 

Minnesota is out of compliance with the 

CAA. The states are required to comply 

with the NAAQS regardless of whether 

or not they are in the SIP and Minnesota 

Statue 116.07 gives MPCA broad 

authority to implement rules and 

standards as needed for the purpose of 

controlling air pollution. 

Comment 7: Citing section 

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

contends that EPA may not approve the 

proposed infrastructure SIP because it 

does not include enforceable 1-hour SO2

emission limits for sources that show 

NAAQS exceedances through modeling. 

Sierra Club asserts the proposed 

infrastructure SIP fails to include 

enforceable 1-hour SO2 emissions limits 

or other required measures to ensure 

attainment and maintenance of the SO2

NAAQS in areas not designated 

nonattainment as required by section 

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

emission limits are especially important 

for meeting the 2010 SO2 NAAQS 

because SO2 impacts are strongly 

source-oriented. Sierra Club states that 

coal-fired electric generating units 

(EGUs) are large contributors to SO2

emissions but contends that Minnesota 

did not demonstrate that emissions 

allowed by the proposed infrastructure 

SIPs from such large sources of SO2 will 

ensure compliance with the 2010 SO2

NAAQS. Sierra Club claims that the 

proposed infrastructure SIP would 

allow major sources to continue 

operating with present emission limits. 

Sierra Club then refers to air dispersion 

modeling it conducted for four coalfired EGUs in Minnesota including the 

Minnesota Power Boswell Coal Plant 

(‘‘Boswell Plant’’), Otter Tail Hoot Lake 

Coal Plant (‘‘Hoot Lake Coal Plant’’), 

Xcel Energy Sherburne County Coal 

Plant (‘‘Sherco Coal Plant’’), and 

Taconite Harbor Energy Center 

(‘‘Taconite Harbor Plant’’). Sierra Club 

asserts that the results of the air 

dispersion modeling it conducted 

employing EPA’s AERMOD program for 

modeling used the plants’ allowable and 

actual emissions, and showed that the 

plants could cause exceedances of the 

2010 SO2 NAAQS with either allowable 

emissions at all four facilities or actual 

emissions at the Sherco Plant and 

Taconite Harbor Plant.1

Based on the modeling, Sierra Club 

asserts that the Minnesota SO2

infrastructure SIP submittals authorizes 

these EGUs to cause exceedances of the 

NAAQS with allowable and actual 

emission rates, and therefore that 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. As a result, Sierra Club 

claims EPA must disapprove 

Minnesota’s proposed SIP revisions. In 

addition, Sierra Club asserts that 

additional emission limits should be 

imposed on the plants that ensure 

attainment and maintenance of the 

NAAQS at all times. 

Response 7: EPA believes that section 

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

interpreted to require states to submit 

SIPs that reflect the first step in their 

planning for attainment and 

maintenance of a new or revised 

NAAQS. These SIP revisions, also 

known as infrastructure SIPs, should 

contain enforceable control measures 

and a demonstration that the state has 

the available tools and authority to 

develop and implement plans to attain 

and maintain the NAAQS. In light of the 

structure of the CAA, EPA’s longstanding position regarding 

infrastructure SIPs is that they are 

general planning SIPs to ensure that the 

state has adequate resources and 

authority to implement a NAAQS in 

general throughout the state and not 

detailed attainment and maintenance 

plans for each individual area of the 

state. As mentioned above, with regard 

to the requirement for emission 

limitations, EPA has interpreted this to 

mean that states may rely on measures 

already in place to address the pollutant 

at issue or any new control measures 

that the state may choose to submit. 

EPA’s interpretation that 

infrastructure SIPs are more general 

planning SIPs is consistent with the 

CAA as understood in light of its history 

and structure. When Congress enacted 

the CAA in 1970, it did not include 

provisions requiring states and the EPA 

to label areas as attainment or 

nonattainment. Rather, states were 

required to include all areas of the state 

in 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 that 

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 

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2 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 potentially unclassifiable areas, EPA 

initially recommended that states submit 

substantive attainment demonstration SIPs based on 

air quality modeling by June 2013 (under section 

110(a)) that show how their unclassifiable areas 

would attain and maintain the NAAQS in the 

future. Implementation of the 2010 Primary 1-Hour 

SO2 NAAQS, Draft White Paper for Discussion, May 

2012 (for discussion purposes with Stakeholders at 

meetings in May and June 2012), available at http:// 

www.epa.gov/airquality/sulfurdioxide/

implement.html. However, EPA clearly stated in 

this 2012 Draft White Paper its clarified 

implementation position that it was no longer 

recommending such attainment demonstrations for 

unclassifiable areas for June 2013 infrastructure 

SIPs. Id. EPA had stated in the preamble to the 

NAAQS and in the prior 2011 draft guidance that 

EPA intended to develop and seek public comment 

on guidance for modeling and development of SIPs 

for sections 110 and 191 of the CAA. Section 191 

of the CAA requires states to submit SIPs in 

accordance with section 172 for areas designated 

nonattainment with the SO2 NAAQS. After seeking 

such comment, EPA has now issued guidance for 

the nonattainment area SIPs due pursuant to 

sections 191 and 172. See Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions, Stephen D. 

Page, Director, EPA’s Office of Air Quality Planning 

and Standards, to Regional Air Division Directors 

Regions 1–10, April 23, 2014. In September 2013, 

EPA had previously issued specific guidance 

relevant to infrastructure SIP submissions due for 

the NAAQS, including the 2010 SO2 NAAQS. See 

Infrastructure SIP Guidance. 

110 is only the initial stepping-stone in 

the planning process for a specific 

NAAQS. In addition, more detailed, 

later-enacted provisions govern the 

substantive planning process, including 

planning for attainment of the NAAQS, 

depending upon how air quality status 

is judged under other provisions of the 

CAA, such as the designations process 

under section 107. 

As stated in response to a previous 

comment, EPA asserts that section 110 

of the CAA is only one provision that 

is part of the complicated structure 

governing implementation of the 

NAAQS program under the CAA, as 

amended in 1990, and it must be 

interpreted in the context of not only 

that structure, but also of the historical 

evolution of that structure. In light of 

the revisions to section 110 since 1970 

and the later-promulgated and more 

specific planning requirements of the 

CAA, EPA reasonably interprets the 

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

the CAA that the plan provide for 

‘‘implementation, maintenance and 

enforcement’’ to mean that the 

infrastructure SIP must contain 

enforceable emission limits that will aid 

in attaining and/or maintaining the 

NAAQS and that the state must 

demonstrate that it has the necessary 

tools to implement and enforce a 

NAAQS, such as an adequate 

monitoring network 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, ‘‘[t]he conceptual 

purpose of an infrastructure SIP 

submission is to assure that the air 

agency’s SIP contains the necessary 

structural requirements for the new or 

revised NAAQS, whether by 

establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both.’’ Infrastructure 

SIP Guidance at p. 2. On April 12, 2012, 

EPA explained its expectations 

regarding the 2010 SO2 NAAQS 

infrastructure SIPs via letters to each of 

the states. EPA communicated in the 

April 2012 letters that all states were 

expected to submit SIPs meeting the 

‘‘infrastructure’’ SIP requirements under 

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

2013. At the time, the EPA was 

undertaking a stakeholder outreach 

process to continue to develop possible 

approaches for determining attainment 

status with the SO2 NAAQS and 

implementing this NAAQS. EPA was 

abundantly clear in the April 2012 

letters to states that EPA did not expect 

states to submit substantive attainment 

demonstrations or modeling 

demonstrations showing attainment for 

potentially unclassifiable areas in 

infrastructure SIPs due in June 2013, as 

EPA had previously suggested in its 

2010 SO2 NAAQS preamble based upon 

information available at the time and in 

prior draft implementation guidance in 

2011 while EPA was gathering public 

comment. The April 2012 letters to 

states recommended states focus 

infrastructure SIPs due in June 2013, 

such as Minnesota’s SO2 infrastructure 

SIP, on ‘‘traditional infrastructure 

elements’’ in section 110(a)(1) and (2) 

rather than on modeling demonstrations 

for future attainment for potentially 

unclassifiable areas.2

Therefore, EPA continues to believe 

that the elements of section 110(a)(2) 

which address SIP revisions for 

nonattainment areas including measures 

and modeling demonstrating attainment 

are due by the dates statutorily 

prescribed under subparts 2 through 5 

under part D of title I. The CAA directs 

states to submit these 110(a)(2) elements 

for nonattainment areas on a separate 

schedule from the ‘‘structural 

requirements’’ of 110(a)(2) which are 

due within three years of adoption or 

revision of a NAAQS. The infrastructure 

SIP submission requirement does not 

move up the date for any required 

submission of a part D plan for areas 

designated nonattainment for the new 

NAAQS. Thus, elements relating to 

demonstrating attainment for areas not 

attaining the NAAQS are not necessary 

for states to include in the infrastructure 

SIP submission, and the CAA does not 

provide explicit requirements for 

demonstrating attainment for areas 

potentially designated as 

‘‘unclassifiable’’ (or that have not yet 

been designated) regarding attainment 

with a particular NAAQS. 

As stated previously, EPA believes 

that the proper inquiry at this juncture 

is whether Minnesota 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. States, like Minnesota, may 

reference pre-existing SIP emission 

limits or other rules contained in part D 

plans for previous NAAQS in an 

infrastructure SIP submission. For 

example, Minnesota submitted lists of 

existing emission reduction measures in 

the SIP that control emissions of SO2 as 

discussed above in response to a prior 

comment and discussed in detail in our 

proposed rulemakings. Minnesota’s SIP 

revisions reflect several provisions that 

have the ability to reduce SO2. Although 

the Minnesota SIP relies on measures 

and programs used to implement 

previous SO2 NAAQS, these provisions 

will provide benefits for the 2010 SO2

NAAQS. The identified Minnesota SIP 

measures help to reduce overall SO2 and 

are not limited to reducing SO2 levels to 

meet one specific NAAQS. 

Additionally, as discussed in EPA’s 

proposed rule, Minnesota has the ability 

to revise its SIPs when necessary (e.g., 

in the event the Administrator finds its 

plans 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). 

EPA believes the requirements for 

emission reduction measures for an area 

designated nonattainment to come into 

attainment with the 2010 primary SO2

NAAQS are in sections 172 and 192 of 

the CAA, and, therefore, the appropriate 

time for implementing requirements for 

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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 2010 SO2

standard. EPA did not designate any 

portions of Minnesota as nonattainment 

areas for the 2010 SO2 NAAQS (78 FR 

47191, August 5, 2013). In separate 

future actions, EPA will address the 

designations for all other areas for 

which the Agency has yet to issue 

designations. See, e.g., 79 FR 27446 

(May 13, 2014) (proposing process and 

timetables by which state air agencies 

would characterize air quality around 

SO2 sources through ambient 

monitoring and/or air quality modeling 

techniques and submit such data to the 

EPA for future attainment status 

determinations under the 2010 SO2

NAAQS). For the areas designated 

nonattainment in August 2013, 

attainment SIPs were due by April 4, 

2015, and must contain demonstrations 

that the areas will attain 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. EPA believes 

it is not appropriate to bypass the 

attainment planning process by 

imposing separate requirements outside 

the attainment planning process. Such 

actions would be disruptive and 

premature absent exceptional 

circumstances and would interfere with 

a state’s planning process. See In the 

Matter of EME Homer City Generation 

LP and First Energy Generation Corp., 

Order on Petitions Numbers III–2012– 

06, III–2012–07, and III–2013–01 (July 

30, 2014) (hereafter, Homer City/

Mansfield Order) at 10–19 (finding 

Pennsylvania SIP did not require 

imposition of SO2 emission limits on 

sources independent of the part D 

attainment planning process 

contemplated by the CAA). EPA 

believes that the history of the CAA and 

intent of Congress for the CAA as 

described above demonstrate clearly 

that it is within the section 172 and 

general part D attainment planning 

process that Minnesota must include 

additional SO2 emission limits on 

sources in order to demonstrate future 

attainment, where needed. 

The Sierra Club’s reliance on 40 CFR 

51.112 to support its argument that 

infrastructure SIPs must contain 

emission limits adequate to provide for 

timely attainment and maintenance of 

the standard is also not supported. As 

explained previously in response to the 

background comments, EPA notes this 

regulatory provision clearly on its face 

applies to plans specifically designed to 

attain the NAAQS and not to 

infrastructure SIPs which show the 

states have in place structural 

requirements necessary to implement 

the NAAQS. Therefore, EPA finds 40 

CFR 51.112 inapplicable to its analysis 

of the Minnesota SO2 infrastructure SIP. 

As noted in EPA’s preamble for the 

2010 SO2 NAAQS, determining 

compliance with the SO2 NAAQS will 

likely be a source-driven analysis, and 

EPA has explored options to ensure that 

the SO2 designations process 

realistically accounts for anticipated 

SO2 reductions at sources that we 

expect will be achieved by current and 

pending national and regional rules. See 

75 FR 35520 (June 22, 2010). As 

mentioned previously above, EPA has 

proposed a process to address 

additional areas in states which may not 

be attaining the 2010 SO2 NAAQS. See 

79 FR 27446 (May 13, 2014) (proposing 

process to gather further information 

from additional monitoring or modeling 

that may be used to inform future 

attainment status determinations). In 

addition, in response to lawsuits in 

district courts seeking to compel EPA’s 

remaining designations of undesignated 

areas under the NAAQS, EPA has been 

placed under a court order to complete 

the designations process under section 

107. However, because the purpose of 

an infrastructure SIP submission is for 

more general planning purposes, EPA 

does not believe Minnesota 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. 

Minnesota currently has the ability to 

control emissions of SO2. MPCA 

identified enforceable permits and 

administrative orders with SO2 emission 

limits. In previous rulemakings, EPA 

has approved these permits and orders 

into Minnesota’s SIP (see 59 FR 17703, 

April 14, 1994; 59 FR 17703, 64 FR 

5936, February 8, 1999; 66 FR 14087, 

March 9, 2001; 67 FR 8727, February 26, 

2002; 72 FR 68508, December 5, 2007; 

74 FR 18138, April 21, 2009; 74 FR 

18634, April 24, 2009; 74 FR 18638, 

April 24, 2009; 74 FR 63066, December 

2, 2009; 75 FR 45480, August 3, 2010; 

75 FR 48864, August 12, 2010; 75 FR 

81471, December 28, 2010; and 78 FR 

28501, May 15, 2013). Also, an 

administrative order issued as part of 

Minnesota’s Regional Haze SIP includes 

SO2 limits. Additionally, state rules that 

have been incorporated into 

Minnesota’s SIP (at Minn. R. 7011.0500 

to 7011.0553, 7011.0600 to 7011.0625, 

7011.1400 to 7011.1430, 7011.1600 to 

7011.1605, and 7011.2300) contain SO2

emission limits. Also, Minn. R. 

7011.0900 to 7011.0909 include fuel 

sulfur content restrictions that can limit 

SO2 emissions. These regulations 

support compliance with and 

attainment of the 2010 SO2 NAAQS. 

Regarding the air dispersion modeling 

conducted by Sierra Club pursuant to 

AERMOD for the coal-fired EGUs, EPA 

is not at this stage prepared to opine on 

whether it demonstrates violations of 

the NAAQS, and does not find the 

modeling information relevant at this 

time for review of an infrastructure SIP. 

While EPA has extensively discussed 

the use of modeling for attainment 

demonstration purposes and for 

designations and other actions in which 

areas’ air quality status is determined, 

EPA has recommended that such 

modeling was not needed for the SO2

infrastructure SIPs needed for the 2010 

SO2 NAAQS. See April 12, 2012, letters 

to states regarding SO2 implementation 

and Implementation of the 2010 Primary 

1-Hour SO2 NAAQS, Draft White Paper 

for Discussion, May 2012, available at 

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

sulfurdioxide/implement.html. In 

contrast, EPA recently discussed 

modeling for designations in our May 

14, 2014, proposal at 79 FR 27446 and 

for nonattainment planning in the April 

23, 2014, Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions. 

In conclusion, EPA disagrees with 

Sierra Club’s statements that EPA must 

disapprove Minnesota’s infrastructure 

SIP submission because it does not 

establish at this time specific 

enforceable SO2 emission limits either 

on coal-fired EGUs or other large SO2

sources in order to demonstrate 

attainment with the NAAQS. 

Comment 8: Sierra Club asserts that 

modeling is the appropriate tool for 

evaluating adequacy of infrastructure 

SIPs and ensuring attainment and 

maintenance of the 2010 SO2 NAAQS. 

The commenter refers to EPA’s historic 

use of air dispersion modeling for 

attainment designations as well as ‘‘SIP 

revisions.’’ The commenter cites to prior 

EPA statements that the Agency has 

used modeling for designations and 

attainment demonstrations, including 

statements in the 2010 SO2 NAAQS 

preamble, EPA’s 2012 Draft White Paper 

for Discussion on Implementing the 

2010 SO2 NAAQS, and a 1994 SO2

Guideline Document, as modeling could 

better address the source-specific 

impacts of SO2 emissions and historic 

challenges from monitoring SO2

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3The commenter also cites to a 1983 EPA 

Memorandum on section 107 designations policy 

regarding use of modeling for designations and to 

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

EPA had designated an area in Montana as 

nonattainment due to modeled violations of the 

NAAQS. 

4The 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. 

emissions.3 The commenter also 

discusses MPCA’s previous use and 

support of SO2 modeling, specifically 

citing a Letter from the MPCA 

Commissioner to the EPA and their use 

of modeling for setting title V limits. 

The commenter discusses statements 

made by EPA staff discussing use of 

modeling and monitoring in setting 

emission limitations or determining 

ambient concentrations resulting from 

sources, discussing performance of 

AERMOD as a model, and discussing 

that modeling is capable of predicting 

whether the NAAQS is attained and 

whether individual sources contribute 

to SO2 NAAQS violations. The 

commenter cites to EPA’s history of 

employing air dispersion modeling for 

increment compliance verifications in 

the permitting process for the PSD 

program required in part C of the CAA. 

The commenter claims the Boswell 

Plant, Hoot Lake Coal Plant, Sherco Coal 

Plant, and Taconite Harbor Plant are 

examples of sources 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 for the statement that an 

agency must consider information 

presented during notice-and-comment 

rulemaking. 

Finally, the commenter claims that 

Minnesota’s proposed SO2

infrastructure SIP lacks emission 

limitations informed by air dispersion 

modeling and therefore fails to ensure 

Minnesota will achieve and maintain 

the 2010 SO2 NAAQS. Sierra Club 

claims EPA must require adequate, 1- 

hour SO2 emission limits in the 

infrastructure SIP that show no 

exceedances of NAAQS when modeled. 

Response 8: EPA agrees with the 

commenter that air dispersion 

modeling, such as AERMOD, can be an 

important tool in the CAA section 107 

designations process and in the 

attainment SIP process pursuant to 

sections 172 and 192, including 

supporting required attainment 

demonstrations. EPA agrees that prior 

EPA statements, EPA guidance, and case 

law support the use of air dispersion 

modeling in the designations process 

and attainment demonstration process, 

as well as in analyses of whether 

existing approved SIPs remain adequate 

to show attainment and maintenance of 

the SO2 NAAQS. However, EPA 

disagrees with the commenter that EPA 

must disapprove the Minnesota SO2

infrastructure SIP for its alleged failure 

to include source-specific SO2 emission 

limits that show no exceedances of the 

NAAQS when modeled. 

As discussed previously above and in 

the Infrastructure SIP Guidance, EPA 

believes the conceptual purpose of an 

infrastructure SIP submission is to 

ensure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS and that 

the infrastructure SIP submission 

process provides an opportunity to 

review the basic structural requirements 

of the air agency’s air quality 

management program in light of the new 

or revised NAAQS. See Infrastructure 

SIP Guidance at p. 2. EPA believes the 

attainment planning process detailed in 

part D of the CAA, including attainment 

SIPs required by sections 172 and 192 

for areas not attaining the NAAQS, is 

the appropriate place for the state to 

evaluate measures needed to bring 

nonattainment areas into attainment 

with a NAAQS and to impose additional 

emission limitations such as SO2

emission limits on specific sources. 

While EPA had initially suggested in the 

final 2010 SO2 NAAQS preamble (75 FR 

35520) and subsequent draft guidance in 

March and September 2011 that EPA 

recommended states submit substantive 

attainment demonstration SIPs based on 

air quality modeling in section 110(a) 

SIPs due in June 2013 to show how 

areas expected to be designated as 

unclassifiable would attain and 

maintain the NAAQS, these initial 

statements in the preamble and 2011 

draft guidance were based on EPA’s 

initial expectation that most areas 

would by June 2012 be initially 

designated as unclassifiable due to 

limitations in the scope of the ambient 

monitoring network and the short time 

available before which states could 

conduct modeling to support 

designations recommendations in 2011. 

However, after receiving comments from 

the states regarding these initial 

statements and the timeline for 

implementing the NAAQS, EPA 

subsequently stated in the April 12, 

2012 letters to the states and in the May 

2012 Implementation of the 2010 

Primary 1-Hour SO2 NAAQS, Draft 

White Paper for Discussion that EPA 

was clarifying its implementation 

position and that EPA was no longer 

recommending such attainment 

demonstrations supported by air 

dispersion modeling for unclassifiable 

areas (which had not yet been 

designated) for June 2013 infrastructure 

SIPs. EPA reaffirmed this position that 

EPA did not expect attainment 

demonstrations for areas not designated 

nonattainment for infrastructure SIPs in 

its February 6, 2013, memorandum, 

‘‘Next Steps for Area Designations and 

Implementation of the Sulfur Dioxide 

National Ambient Air Quality 

Standard.’’ 4 As previously mentioned, 

EPA had stated in the preamble to the 

2010 SO2 NAAQS and in the prior 2011 

draft guidance that EPA intended to 

develop and seek public comment on 

guidance for modeling and development 

of SIPs for sections 110, 172 and 191– 

192 of the CAA. After receiving such 

further comment, EPA has now issued 

guidance for the nonattainment area 

SIPs due pursuant to sections 191–192 

and 172 and proposed a process for 

further designations for the 2010 SO2

NAAQS, which could include use of air 

dispersion modeling. See April 23, 2014 

Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions 

and 79 FR 27446 (May 13, 2014) 

(proposing process and timetables for 

additional SO2 designations informed 

through ambient monitoring and/or air 

quality modeling). While the EPA 

guidance for attainment SIPs and the 

proposed process for additional 

designations discusses use of air 

dispersion modeling, EPA’s 2013 

Infrastructure SIP Guidance did not 

require use of air dispersion modeling to 

inform emission limitations for section 

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

the NAAQS when sources are modeled. 

Therefore, as discussed previously, EPA 

believes the Minnesota SO2

infrastructure SIP submittal contains the 

structural requirements to address 

elements in section 110(a)(2) as 

discussed in detail in our TSD 

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5Sierra 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). 

supporting our proposed approval and 

in our Response to a prior comment. 

EPA believes infrastructure SIPs are 

general planning SIPs to ensure that a 

state has adequate resources and 

authority to implement a NAAQS. 

Infrastructure SIP submissions are not 

intended to act or fulfill the obligations 

of a detailed attainment and/or 

maintenance plan for each individual 

area of the state that is not attaining the 

NAAQS. While infrastructure SIPs must 

address modeling authorities in general 

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

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

to provide the state’s authority for air 

quality modeling and for submission of 

modeling data to EPA, not specific air 

dispersion modeling for large stationary 

sources of pollutants such as SO2 in a 

SO2 infrastructure SIP. 

EPA finds Sierra Club’s discussion of 

case law, guidance, and EPA staff 

statements regarding advantages of 

AERMOD as an air dispersion model to 

be irrelevant to our analysis here of the 

Minnesota infrastructure SIP, as this SIP 

for section 110(a) is not an attainment 

SIP required to demonstrate attainment 

of the NAAQS pursuant to section 172. 

EPA also finds Sierra Club’s comments 

relating to MPCA’s current use of 

modeling to be likewise irrelevant. In 

addition, Sierra Club’s comments 

relating to EPA’s use of AERMOD or 

modeling in general in designations 

pursuant to section 107, are likewise 

irrelevant as EPA’s present approval of 

Minnesota’s infrastructure SIP is 

unrelated to the section 107 

designations process. Nor is our action 

on this infrastructure SIP related to any 

new source review (NSR) or PSD permit 

program issue. As outlined in the 

August 23, 2010 clarification memo, 

‘‘Applicability of Appendix W Modeling 

Guidance for the 1-hour SO2 National 

Ambient Air Quality Standard’’ (U.S. 

EPA, 2010a), AERMOD is the preferred 

model for single source modeling to 

address the 1-hour SO2 NAAQS as part 

of the NSR/PSD permit programs. 

Therefore, as attainment SIPs, 

designations, and NSR/PSD actions are 

outside the scope of a required 

infrastructure SIP for the 2010 SO2

NAAQS for section 110(a), EPA 

provides no further response to the 

commenter’s discussion of air 

dispersion modeling for these 

applications. If Sierra Club resubmits its 

air dispersion modeling for the 

Minnesota EGUs or updated modeling 

information in the appropriate context, 

EPA will address the resubmitted 

modeling or updated modeling in the 

appropriate future context when an 

analysis of whether Minnesota’s 

emissions limits are adequate to show 

attainment and maintenance of the 

NAAQS is warranted. The commenter 

correctly noted that the Third Circuit 

upheld EPA’s Section 126 Order 

imposing SO2 emissions limitations on 

an EGU pursuant to CAA section 126. 

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

513. Pursuant to section 126, any state 

or political subdivision may petition 

EPA for a finding that any major source 

or group of stationary sources emits or 

would emit any air pollutant in 

violation of the prohibition of section 

110(a)(2)(D)(i)(I) which relates to 

significant contributions to 

nonattainment or maintenance in 

another state. The Third Circuit upheld 

EPA’s authority under section 126 and 

found EPA’s actions neither arbitrary 

nor capricious after reviewing EPA’s 

supporting docket which included air 

dispersion modeling as well as ambient 

air monitoring data showing violations 

of the NAAQS. The commenter appears 

to have cited to this matter to 

demonstrate again EPA’s use of 

modeling for certain aspects of the CAA. 

EPA agrees with the commenter 

regarding the appropriate role air 

dispersion modeling has for 

designations, attainment SIPs, and 

demonstrating significant contributions 

to interstate transport. However, EPA’s 

approval of Minnesota’s infrastructure 

SIP is based on our determination that 

Minnesota has the required structural 

requirements pursuant to section 

110(a)(2) in accordance with our 

explanation of the intent for 

infrastructure SIPs as discussed in the 

2013 Infrastructure SIP Guidance. 

Therefore, while air dispersion 

modeling may be appropriate for 

consideration in certain circumstances, 

EPA does not find air dispersion 

modeling demonstrating no exceedances 

of the NAAQS to be a required element 

before approval of infrastructure SIPs 

for section 110(a) or specifically for 

110(a)(2)(A). Thus, EPA disagrees with 

the commenter that EPA must require 

additional emission limitations in the 

Minnesota SO2 infrastructure SIP 

informed by air dispersion modeling 

and demonstrating attainment and 

maintenance of the 2010 NAAQS. In its 

comments, Sierra Club relies on Motor 

Vehicle Mfrs. Ass’n and NRDC v. EPA to 

support its comments that EPA must 

consider the Sierra Club’s modeling data 

on the Boswell Plant, Hoot Lake Coal 

Plant, Sherco Coal Plant, and Taconite 

Harbor Plant based on administrative 

law principles regarding consideration 

of comments provided during a 

rulemaking process. EPA asserts that it 

has considered the modeling submitted 

by the commenter as well as all the 

submitted comments of Sierra Club. As 

discussed in detail in the Responses 

above, however, EPA does not believe 

the infrastructure SIPs required by 

section 110(a) are the appropriate place 

to require emission limits demonstrating 

future attainment with a NAAQS. Part D 

of the CAA contains numerous 

requirements for the NAAQS attainment 

planning process including 

requirements for attainment 

demonstrations in section 172 

supported by appropriate modeling. As 

also discussed previously, section 107 

supports EPA’s use of modeling in the 

designations process. In Catawba 

County v. EPA, 571 F.3d 20 (D.C. Cir. 

2009), the DC Circuit upheld EPA’s 

consideration of data or factors for 

designations other than ambient 

monitoring. EPA does not believe state 

infrastructure SIPs must contain 

emission limitations informed by air 

dispersion modeling in order to meet 

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

Thus, EPA has not evaluated the 

persuasiveness of the commenter’s 

submitted modeling in finding that it is 

not relevant to the approvability of 

Minnesota’s proposed infrastructure SIP 

for the 2010 SO2 NAAQS. 

Comment 9: Sierra Club asserts that 

EPA may not approve the Minnesota 

proposed SO2 infrastructure SIP because 

it fails to include enforceable emission 

limitations with a 1-hour averaging time 

that applies at all times. The commenter 

cites to CAA section 302(k) which 

requires emission limits to apply on a 

continuous basis. The commenter 

claims EPA has stated that 1-hour 

averaging times are necessary for the 

2010 SO2 NAAQS citing to a February 

3, 2011, EPA Region 7 letter to the 

Kansas Department of Health and 

Environment regarding need for 1-hour 

SO2 emission limits in a PSD permit, an 

EPA Environmental Hearing Board 

(EHB) decision rejecting use of 3-hour 

averaging time for a SO2 limit in a PSD 

permit, and EPA’s disapproval of a 

Missouri SIP which relied on annual 

averaging for SO2 emission rates.5 Sierra 

Club also contends EPA must include 

monitoring of SO2 emission limits on a 

continuous basis using a continuous 

emission monitor system or systems 

(CEMs) and cites to section 110(a)(2)(F) 

which requires a SIP to establish a 

system to monitor emissions from 

stationary sources and to require 

submission of periodic emission reports. 

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6For a discussion on emission averaging times for 

emissions limitations for SO2 attainment SIPs, see 

the April 23, 2014 Guidance for 1-Hour SO2

Nonattainment Area SIP Submissions. EPA 

explained that it is possible, in specific cases, for 

states to develop control strategies that account for 

variability in 1-hour emissions rates through 

emission limits with averaging times that are longer 

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

days, but still provide for attainment of the 2010 

SO2 NAAQS as long as the limits are of at least 

comparable stringency to a 1-hour limit at the 

critical emission value. EPA has not yet evaluated 

any specific submission of such a limit, and so is 

not at this time prepared to take final action to 

implement this concept. If and when a state submits 

an attainment demonstration that relies upon a 

limit with such a longer averaging time, EPA will 

evaluate it then. 

7EPA believes the appropriate time for 

application of monitoring requirements to 

demonstrate continuous compliance by specific 

sources is when such 1-hour emission limits are set 

for specific sources whether in permits issued by 

a state pursuant to the SIP or in attainment SIPs 

submitted in the part D planning process. 

Sierra Club contends infrastructure SIPs 

must require such SO2 CEMs to monitor 

SO2 sources regardless of whether 

sources have control technology 

installed to ensure limits are protective 

of the NAAQS. Thus, Sierra Club 

contends EPA must require enforceable 

emission limits, applicable at all times, 

with 1-hour averaging periods, 

monitored continuously by large 

sources of SO2 emissions and must 

disapprove Minnesota’s infrastructure 

SIP which fails to require emission 

limits with adequate averaging times. 

Response 9: EPA disagrees that EPA 

must disapprove the proposed 

Minnesota infrastructure SIP because 

the SIP does not contain enforceable 

SO2 emission limitations with 1-hour 

averaging periods that apply at all times 

and with required CEMs. These issues 

are not appropriate for resolution at this 

stage. As explained in detail in previous 

Responses, the purpose of the 

infrastructure SIP is to ensure that a 

state has the structural capability to 

attain and maintain the NAAQS and 

thus additional SO2 emission 

limitations to ensure attainment and 

maintenance of the NAAQS are not 

required for such infrastructure SIPs.6

Likewise, EPA need not address for the 

purpose of approving Minnesota’s 

infrastructure SIP whether CEMs or 

some other appropriate monitoring of 

SO2 emissions is necessary to 

demonstrate compliance with emission 

limits to show attainment of the 2010 

NAAQS as EPA believes such SO2

emission limits and an attainment 

demonstration when applicable are not 

a prerequisite to our approval of 

Minnesota’s infrastructure SIP.7

Therefore, because EPA finds 

Minnesota’s SO2 infrastructure SIP 

approvable without the additional SO2

emission limitations showing 

attainment of the NAAQS, EPA finds 

the issues of appropriate averaging 

periods and monitoring requirements 

for such future limitations not relevant 

at this time for our approval of the 

infrastructure SIP. Sierra Club has cited 

to prior EPA discussion on emission 

limitations required in PSD permits 

(from an EHB decision and EPA’s letter 

to Kansas’ permitting authority) 

pursuant to part C of the CAA which is 

not relevant nor applicable to section 

110 infrastructure SIPs. In addition, as 

discussed previously, the EPA 

disapproval of the 2006 Missouri SIP 

was a disapproval relating to a control 

strategy SIP required pursuant to part D 

attainment planning and is likewise not 

relevant to our analysis of infrastructure 

SIP requirements. 

Comment 10: Sierra Club states that 

enforceable emission limits in SIPs or 

permits are necessary to avoid 

nonattainment designations in areas 

where modeling or monitoring shows 

SO2 levels exceed the 1-hour SO2

NAAQS and cites to a February 6, 2013 

EPA document, ‘‘Next Steps for Area 

Designations and Implementation of the 

Sulfur Dioxide Nation Ambient Air 

Quality Standard,’’ which Sierra Club 

contends discussed how states could 

avoid future nonattainment 

designations. The commenter asserts 

EPA must disapprove the Minnesota 

infrastructure SIP to ensure large 

sources of SO2 do not cause 

exceedances of the 2010 SO2 NAAQS 

which would avoid nonattainment 

designations. 

Response 10: EPA appreciates the 

commenter’s concern with assisting 

Minnesota in avoiding nonattainment 

designations with the 2010 SO2 NAAQS 

and with assisting coal-fired EGUs in 

achieving regulatory certainty as EGUs 

make informed decisions on how to 

comply with CAA requirements. 

However, Congress designed the CAA 

such that states have the primary 

responsibility for assuring air quality 

within their geographic area by 

submitting SIPs which will specify how 

the state will achieve and maintain the 

NAAQS within the state. Pursuant to 

section 107(d), the states make initial 

recommendations of designations for 

areas within each state and EPA then 

promulgates the designations after 

considering the state’s submission and 

other information. EPA promulgated 

initial designations for the 2010 SO2

NAAQS in August 2013. EPA proposed 

on May 14, 2014 an additional process 

for further designations of additional 

areas in each state for the 2010 SO2

NAAQS. 79 FR 27446. EPA has also 

entered a settlement to resolve deadline 

suits regarding the remaining 

designations that will impose deadlines 

for three more rounds of designations. 

Under these schemes, Minnesota would 

have the initial opportunity to propose 

additional areas for designations for the 

2010 SO2 NAAQS. While EPA 

appreciates Sierra Club’s comments, 

further designations will occur pursuant 

to the section 107(d) process, and in 

accordance with any applicable future 

court orders addressing the designations 

deadline suits and, if promulgated, 

future EPA rules addressing additional 

monitoring or modeling to be conducted 

by states. Minnesota may on its own 

accord decide to impose additional SO2

emission limitations to avoid future 

designations to nonattainment. 

However, such considerations are not 

required of Minnesota to consider at the 

infrastructure SIP stage of NAAQS 

implementation, as this action relates to 

our approval of Minnesota’s SO2

infrastructure SIP submittal pursuant to 

section 110(a) of the CAA, and Sierra 

Club’s comments regarding designations 

under section 107 are neither relevant 

nor germane to EPA’s approval of 

Minnesota’s SO2 infrastructure SIP. See 

Commonwealth of Virginia, et al. v. 

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

1997) (citing Natural Resources Defense 

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

1123 (D.C. Cir. 1995)) (discussing that 

states have primary responsibility for 

determining an emission reductions 

program for its areas subject to EPA 

approval dependent upon whether the 

SIP as a whole meets applicable 

requirements of the CAA). Thus, EPA 

does not believe it is appropriate or 

necessary to condition approval of 

Minnesota’s infrastructure SIP upon 

inclusion of a particular emission 

reduction program as long as the SIP 

otherwise meets the requirements of the 

CAA. EPA disagrees that we must 

disapprove the infrastructure SIP for not 

including enforceable emissions 

limitations to prevent future 

nonattainment designations. 

Comment 11: Sierra Club contends 

that EPA cannot approve the section 

110(a)(2)(A) portion of Minnesota’s 2008 

ozone infrastructure SIP revision 

because an infrastructure SIP should 

include enforceable emission limits to 

prevent NAAQS violations in areas not 

designated nonattainment. The 

commenter alleges that Minnesota is 

threatened by high concentrations of 

ozone, and on the edge of exceeding the 

ozone NAAQS. 

Response 11: We disagree with the 

commenter that infrastructure SIPs must 

include detailed attainment and 

maintenance plans for all areas of the 

state and must be disapproved if air 

quality data that became available late 

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8While 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. 

in the process or after the SIP was due 

and submitted changes the status of 

areas within the state. We believe that 

section 110(a)(2)(A) is reasonably 

interpreted to require states to submit 

SIPs that reflect the first step in their 

planning for attaining and maintaining 

a new or revised NAAQS and that they 

contain enforceable control measures 

and a demonstration that the state has 

the available tools and authority to 

develop and implement plans to attain 

and maintain the NAAQS. 

The suggestion that the infrastructure 

SIP must include measures addressing 

violations of the standard that did not 

occur until shortly before or even after 

the SIP was due and submitted cannot 

be supported. The CAA provides states 

with three years to develop 

infrastructure SIPs and states cannot 

reasonably be expected to address the 

annual change in an area’s design value 

for each year over that period. 

Moreover, the CAA recognizes and has 

provisions to address changes in air 

quality over time, such as an area 

slipping from attainment to 

nonattainment or changing from 

nonattainment to attainment. These 

include provisions providing for 

redesignation in section 107(d) and 

provisions in section 110(k)(5) allowing 

EPA to call on the state to revise its SIP, 

as appropriate. 

We do not believe that section 

110(a)(2)(A) requires detailed planning 

SIPs demonstrating either attainment or 

maintenance for specific geographic 

areas of the state. The infrastructure SIP 

is triggered by promulgation of the 

NAAQS, not designation. Moreover, 

infrastructure SIPs are due three years 

following promulgation of the NAAQS 

and designations are not due until two 

years (or in some cases three years) 

following promulgation of the NAAQS. 

Thus, during a significant portion of the 

period that the state has available for 

developing the infrastructure SIP, it 

does not know what the designation 

will be for individual areas of the state.8

In light of the structure of the CAA, 

EPA’s long-standing position regarding 

infrastructure SIPs is that they are 

general planning SIPs to ensure that the 

state has adequate resources and 

authority to implement a NAAQS in 

general throughout the state and not 

detailed attainment and maintenance 

plans for each individual area of the 

state. 

For all of the above reasons, we 

disagree with the commenter that EPA 

must disapprove an infrastructure SIP 

revision if there are or may be future 

monitored violations of the standard in 

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

revision does not have detailed plans for 

demonstrating how the state will bring 

that area into attainment. Rather, EPA 

believes that the proper inquiry at this 

juncture is whether the state has met the 

basic structural SIP requirements 

appropriate when EPA is acting upon 

the submittal. 

Comment 12: Sierra Club suggests that 

the state adopt specific controls that 

they contend are cost-effective for 

reducing nitrogen oxides (NOX), a 

precursor to ozone. 

Response 12: Minnesota currently has 

the ability to control emissions of NOX.

NOX emissions are limited by Minn. R. 

7011.0500 to 7011.0553 and 7011.1700 

to 7011.1705, as well as an 

administrative order issued as part of 

Minnesota’s Regional Haze SIP. 

Minnesota 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 Minnesota will provide 

benefits for the new NAAQS; in other 

words, the measures reduce overall 

ground-level ozone and its precursors 

and are not limited to reducing ozone 

levels to meet one specific NAAQS. 

Further, in approving Minnesota’s 

infrastructure SIP revision, EPA is 

affirming that Minnesota has sufficient 

authority to take the types of actions 

required by the CAA in order to bring 

any potential nonattainment areas back 

into attainment. The commenter has not 

provided any information to 

demonstrate that emissions will be 

affected by the infrastructure SIP 

submission. 

Comment 13: The commenter alleges 

that EPA cannot approve the 

infrastructure SIP for the 2010 NO2

NAAQS unless Minnesota includes 

adequately stringent emission limits 

that address the 1-hour NO2 NAAQS. 

The commenter points to a news article 

summarizing research by Clark, Millet, 

and Marshall showing patterns in 

environmental justice for NO2

concentrations in Minnesota and 

elsewhere. 

Response 13: As stated in a previous 

response, EPA interprets the 

requirements under 110(a)(2)(A) to 

include enforceable emission limits that 

will aid in attaining and/or maintaining 

the NAAQS and that the state 

demonstrate that it has the necessary 

tools to implement and enforce a 

NAAQS, such as adequate state 

personnel and an enforcement program. 

With regard to the requirement for 

emission limitations, EPA has 

interpreted this to mean, for purposes of 

section 110, that the state may rely on 

measures already in place to address the 

pollutant at issue or any new control 

measures that the state may choose to 

submit. Emission limits providing for 

attainment of a new standard are 

triggered by the designation process and 

have a different schedule in the CAA 

than the submittal of infrastructure SIPs. 

Minnesota currently has the ability to 

control emissions of NO2. NOX

emissions are limited by Minn. R. 

7011.0500 to 7011.0553 and 7011.1700 

to 7011.1705, as well as an 

administrative order issued as part of 

Minnesota’s Regional Haze SIP. Because 

NO2 is a subcategory of NOX, controls 

relating to NOX can be expected to limit 

emissions of NO2. These regulations 

support compliance with and 

attainment of the 2010 NO2 NAAQS. 

While EPA employs multiple 

mechanisms for strengthening 

environmental justice communities, 

EPA believes it is inappropriate to 

address this issue through section 

110(a)(2) of the CAA or the 

infrastructure SIP submittal process. 

The commenter does not attempt to 

demonstrate how environmental justice 

might be lawfully considered as part of 

Minnesota’s infrastructure SIP under 

CAA section 110(a)(2). 

Comment 14: The commenter points 

to a 2013 MPCA report showing PM2.5

monitoring data, and also points out 

sources of PM2.5 emissions including the 

Sherco Plant, Taconite Harbor Plant, 

and Silica mining industry, and alleges 

that Minnesota is close to exceeding the 

NAAQS. The commenter concludes that 

EPA cannot approve the infrastructure 

SIP for the 2012 PM2.5 NAAQS unless 

Minnesota includes enforceable 

emission limitations. 

Response 14: As stated in a previous 

response, EPA interprets the 

requirements under 110(a)(2)(A) to 

include enforceable emission limits that 

will aid in attaining and/or maintaining 

the NAAQS and that the state 

demonstrate that it has the necessary 

tools to implement and enforce a 

NAAQS, such as adequate state 

personnel and an enforcement program. 

With regard to the requirement for 

emission limitations, EPA has 

interpreted this to mean, for purposes of 

section 110, that the state may rely on 

measures already in place to address the 

pollutant at issue or any new control 

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measures that the state may choose to 

submit. Emission limits providing for 

attainment of a new standard are 

triggered by the designation process and 

have a different schedule in the CAA 

than the submittal of infrastructure SIPs. 

Minnesota currently has the ability to 

control emissions of PM2.5. MPCA 

identified enforceable permits and 

administrative orders with SO2 emission 

limits. In previous rulemakings, EPA 

has approved these permits and orders 

into Minnesota’s SIP (see 59 FR 7218, 

February 15, 1994; 60 FR 31088, June 

13, 1995; 62 FR 39120, July 22, 1997; 65 

FR 42861, July 12, 2000; 69 FR 51371, 

August 19, 2004; 72 FR 51713, 

September 11, 2007; 74 FR 23632, May 

20, 2009; 74 FR 63066, December 2, 

2009; 75 FR 11461, March 11, 2010; and 

75 FR 78602, December 16, 2010). 

Additionally, state rules that have been 

incorporated into Minnesota’s SIP (at 

Minn. R. 7011.0150, 7011.0500 to 

7011.0553, 7011.0600 to 7011.0625, 

7011.0710 to 7011.0735, 7011.0850 to 

7011.0859, 7011.0900 to 7011.0922, 

7011.1000 to 7011.1015, 7011.1100 to 

7011.1125, 7011.1300 to 7011.1325, and 

7011.1400 to 7011.1430) contain PM 

emission limits. These regulations 

support compliance with and 

attainment of the 2012 PM2.5 NAAQS. 

Comment 15: Throughout its letter, 

Sierra Club alleges that Minnesota’s 

infrastructure SIP must include 

provisions for monitoring of emissions 

of the various NAAQS. 

Response 15: As discussed 

previously, EPA need not address for 

the purpose of approving Minnesota’s 

infrastructure SIPs whether monitoring 

of emissions is necessary to demonstrate 

compliance with emission limits to 

show attainment of any NAAQS as EPA 

believes such emission limits and an 

attainment demonstration when 

applicable are not a prerequisite to our 

approval of Minnesota’s infrastructure 

SIP. Therefore, because EPA finds 

Minnesota’s infrastructure SIPs 

approvable without the additional 

emission limitations showing 

attainment of the NAAQS, EPA finds 

the issues of monitoring requirements 

not relevant at this time for our approval 

of the infrastructure SIP. 

Comment 16: Sierra Club alleges that 

Minnesota’s infrastructure SIPs contain 

no emission limits for the 2008 ozone, 

2010 NO2, 2010 SO2, and 2012 PM2.5

NAAQS. The commenter states that it 

provided modeling and other evidence 

showing that any limits currently in 

place are insufficient, and that 

Minnesota is taking little to no action to 

address any NAAQS exceedances. 

Sierra Club alleges that standards 

contained within the infrastructure SIPs 

were created for earlier NAAQS, and 

must be revised to reflect the new 

standards. 

Sierra Club asserts that Minnesota’s 

infrastructure SIP must not allow for 

ambient air incremental increases, 

variances, exceptions, or exclusions 

with regard to limits placed on sources 

of pollutants. The commenter asserts 

that Minnesota’s rules allow exceptions 

from enforcement, and points to Minn. 

Stat. 116.07, Minn. R. 7000.7000, and 

Minn. R. 7007.1850 as examples of 

methods by which MPCA may grant 

variances or undermine emission limits. 

Additionally, the commentator alleges 

that Minnesota excludes major sources 

of emissions from its major permitting 

program, allowing these sources to emit 

pollution under fewer restrictions. 

Response 16: As stated in a previous 

response, EPA interprets the 

requirements under 110(a)(2)(A) to 

include enforceable emission limits that 

will aid in attaining and/or maintaining 

the NAAQS and that the state 

demonstrate that it has the necessary 

tools to implement and enforce a 

NAAQS, such as adequate state 

personnel and an enforcement program. 

With regard to the requirement for 

emission limitations, EPA has 

interpreted this to mean, for purposes of 

section 110, that the state may rely on 

measures already in place to address the 

pollutant at issue or any new control 

measures that the state may choose to 

submit. Emission limits providing for 

attainment of a new standard are 

triggered by the designation process and 

have a different schedule in the CAA 

than the submittal of infrastructure SIPs. 

EPA disagrees with the commenter’s 

claim that Minnesota’s infrastructure 

SIP fails to meet any requirements 

regarding variances. As an initial matter, 

Minn. Stat. 116.07 and Minn. R. 

7000.7000 are not regulations that have 

been approved into the SIP. Minn. R. 

7007.1850 grants the source the right to 

prove a circumstance beyond its control, 

but does not limit Minnesota’s 

enforcement authority. Thus, any 

variance granted by the state pursuant to 

this provision would not modify the 

requirements of the SIP. Furthermore, 

for a variance from the state to be 

approved into the SIP, a demonstration 

must be made under CAA section 110(l) 

showing that the revision does not 

interfere with any requirements of the 

CAA including attainment or 

maintenance of a NAAQS. We disagree 

that the existence of this provision as 

solely a matter of state law means that 

the state does not have adequate 

authority to carry out the 

implementation plan. 

Finally, we find that there is nothing 

in the record to support the 

commenter’s assertion that Minnesota 

excludes major sources of emissions 

from the major permitting requirements 

required under title I of the CAA, which 

is the focus of this action. This action 

is governed by section 110(a)(2), which 

falls under title I of the CAA and 

governs the implementation, 

maintenance, and enforcement of the 

NAAQS. As noted above, Minnesota 

implements the Federal major source 

PSD program through delegated 

authority from EPA. Since Minnesota 

already administers Federally 

promulgated PSD regulations through 

delegation, it applies the Federal 

promulgated regulations in 40 CFR 

52.21—not the regulations cited in the 

comment, or any exclusions they may 

contain—in determining the major 

sources subject to title I permitting 

requirements. We also note that the 

regulations cited in the comment apply 

to part 70 operating permits issued 

under title V of the CAA and certain 

state permits (see MAR section 

7007.0200 and section 7007.0250, 

respectively). Thus, any evaluation of 

these regulations must be done pursuant 

to CAA section 502 and 40 CFR part 70 

and state law, respectively, and are not 

subject to our review under section 

110(a)(2). 

Comment 17: The commenter alleges 

that the proposed infrastructure SIP 

does not address sources significantly 

contributing to nonattainment or 

interfering with maintenance of the 

NAAQS in other states as required by 

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

states EPA must therefore disapprove 

the infrastructure SIP. Sierra Club states 

that the CAA requires infrastructure 

SIPs to address cross-state air pollution 

within three years of the NAAQS 

promulgation. The commenter 

references the recent Supreme Court 

decision, EPA v. EME Homer City 

Generation, L.P. et al., 134 S. Ct. 1584 

(2014), which supports the states’ 

mandatory duty to address cross-state 

pollution under section 

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

Sierra Club additionally alleges that 

Minnesota cannot rely on the absence of 

nonattainment areas within the state, 

when determining whether Minnesota is 

contributing to nonattainment or 

interference with maintenance of the 

NAAQS in downwind states. The 

commenter also alleges that Minnesota 

cannot rely on a Federal 

implementation plan (FIP) for PSD and 

an approved NSR permitting program 

when determining that Minnesota is not 

contributing to nonattainment or 

interference with maintenance of the 

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NAAQS in downwind states. Sierra 

Club additionally alleges that PSD and 

NSR programs address only new 

sources, and also apply only in 

nonattainment areas. The commenter 

notes that Minnesota has no 

nonattainment areas for the 2008 ozone, 

2010 SO2, 2010 NO2, and 2012 PM2.5

NAAQS. 

Response 17: EPA disagrees with 

Sierra Club’s statement that EPA must 

disapprove the submitted infrastructure 

SIPs due to Minnesota’s failure to 

address section 110(a)(2)(D)(i)(I). In 

EPA’s NPR proposing to approve 

Minnesota’s infrastructure SIP for the 

2008 ozone, 2010 SO2, 2010 NO2, and 

2012 PM2.5 NAAQS, EPA clearly stated 

that it was not taking any final action 

with respect to the good neighbor 

provision in section 110(a)(2)(D)(i)(I) 

which addresses emissions that 

significantly contribute to 

nonattainment or interfere with 

maintenance of the NAAQS in another 

state for the 2008 ozone, 2010 SO2, and 

2012 PM2.5 NAAQS. Minnesota did not 

make a SIP submission to address the 

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

for the 2008 ozone, 2010 SO2, and 2012 

PM2.5 NAAQS, and thus there is no such 

submission upon which EPA could take 

action under section 110(k) of the CAA. 

EPA cannot act under section 110(k) to 

disapprove a SIP submission that has 

not been submitted to EPA. EPA also 

disagrees with the commenter that EPA 

cannot approve an infrastructure SIP 

submission without the good neighbor 

provision. EPA additionally believes 

there is no basis for the contention that 

EPA has triggered its obligation to issue 

a FIP addressing the good neighbor 

obligation under section 110(c), as EPA 

has neither found that Minnesota failed 

to timely submit a required 

110(a)(2)(D)(i)(I) SIP submission as to 

the 2008 ozone, 2010 SO2, and 2012 

PM2.5 NAAQS or made such a 

submission that was incomplete, nor 

has EPA disapproved a SIP submission 

addressing 110(a)(2)(D)(i)(I) with respect 

to the 2008 ozone, 2010 SO2, and 2012 

PM2.5 NAAQS. 

EPA acknowledges the commenter’s 

concern for the interstate transport of air 

pollutants and agrees in general with 

the commenter that sections 110(a)(1) 

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

states to submit, within three years of 

promulgation of a new or revised 

NAAQS, a plan which addresses crossstate air pollution under section 

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

disagrees with the commenter’s 

argument that EPA cannot approve an 

infrastructure SIP submission without 

the good neighbor provision. Section 

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

approve a plan in full, disapprove it in 

full, or approve it in part and 

disapprove it in part, depending on the 

extent to which such plan meets the 

requirements of the CAA. This authority 

to approve state SIP revisions in 

separable parts was included in the 

1990 Amendments to the CAA to 

overrule a decision in the Court of 

Appeals for the Ninth Circuit holding 

that EPA could not approve individual 

measures in a plan submission without 

either approving or disapproving the 

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

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

3408 (discussing the express overruling 

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

(9th Cir. 1987)). EPA interprets its 

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

CAA, as affording EPA the discretion to 

approve or conditionally approve 

individual elements of Minnesota’s 

infrastructure SIP submission for the 

various NAAQS, separate and apart 

from any action with respect to the 

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

of the CAA with respect to each 

NAAQS. EPA views discrete 

infrastructure SIP requirements, such as 

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

severable from the other infrastructure 

elements and interprets section 

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

individual severable measures in a plan 

submission. In short, EPA believes that 

even if Minnesota had made a SIP 

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

of the CAA for the 2008 ozone, 2010 

SO2, and 2012 PM2.5 NAAQS, which to 

date it has not, EPA would still have 

discretion under section 110(k) of the 

CAA to act upon the various individual 

elements of the state’s infrastructure SIP 

submission, separately or together, as 

appropriate. 

The commenter raises no compelling 

legal or environmental rationale for an 

alternate interpretation. Nothing in the 

Supreme Court’s April 2014 decision in 

EME Homer City alters our 

interpretation that we may act on 

individual severable measures, 

including the requirements of section 

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

See EPA v. EME Homer City Generation, 

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

obligation to submit a SIP revision 

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

independent of EPA’s action finding 

significant contribution or interference 

with maintenance). In sum, the 

concerns raised by the commenter do 

not establish that it is inappropriate or 

unreasonable for EPA to approve the 

portions of Minnesota’s June 12, 2014, 

infrastructure SIP submission for the 

2010 SO2 NAAQS. 

Furthermore, as discussed above, EPA 

has no obligation to issue a FIP pursuant 

to 110(c)(1) to address Minnesota’s 

obligations under section 

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

finds Minnesota failed to make the 

required submission addressing the 

element or the State has made such a 

submission but it is incomplete, or EPA 

disapproves a SIP submittal addressing 

that element. Until either occurs, EPA 

does not have the authority to issue a 

FIP pursuant to section 110(c) with 

respect to the good neighbor provision. 

Therefore, EPA disagrees with the 

commenter’s contention that it must 

issue a FIP for Minnesota to address 

110(a)(2)(D)(i)(I) at this time. 

Sierra Club claims that Minnesota 

may not rely on the absence of 

nonattainment areas within the state, a 

FIP for PSD, or an approved 

nonattainment NSR permitting program 

when determining that Minnesota is not 

contributing to nonattainment or 

interference with maintenance of the 

NAAQS in downwind states. In fact, 

EPA is not taking action on 

110(a)(2)(D)(i)(I) at this time for the 2008 

ozone, 2010 SO2, and 2012 PM2.5

NAAQS, and therefore these comments 

are not relevant to this rulemaking. EPA 

is indeed addressing the transport 

provisions of Minnesota’s infrastructure 

SIP for the 2010 NO2 NAAQS, but here 

EPA is making this determination in 

part because no state has a 

nonattainment area for the 2010 NO2

NAAQS, and it is impossible for any 

state to contribute to nonattainment 

when no nonattainment areas actually 

exist. Sierra Club’s comments are not 

relevant for a NAAQS with no 

nonattainment areas in any state. 

Comment 18: The commenter 

contends that Minnesota does not have 

the adequate personnel, funding, and 

authority, required by section 

110(a)(2)(E) of the CAA, to properly 

implement the SIP, shown by overdue 

permits and improper reissuing of 

expired permits. The commenter 

contends that permits for the Taconite 

Harbor Plant and Boswell Plant have 

expired, and this may allow these plants 

to ‘‘exceed the 2010 SO2 NAAQS.’’ 

Response 18: EPA disagrees that the 

issue raised by the commenter implies 

that MPCA does not meet the criteria of 

section 110(a)(2)(E). Although title V 

programs are not a component of the 

SIP, EPA fully approved Minnesota’s 

title V program on December 4, 2001 (66 

FR 62967). Minnesota has funding for 

its program through title V fees, and has 

the authority to implement the programs 

though a number of state rules to 

implement 40 CFR part 70, and 

dedicated staff for implementation of 

their title V program. 

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Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 63449 

Comment 19: Sierra Club alleges that 

section 110(a)(2)(J) of the CAA requires 

states to provide for public notification 

of exceedances of the NAAQS. Sierra 

Club further asserts that section 

110(a)(2)(J) requires states to satisfy 

section 127 of the CAA, which 

mandates that each SIP must contain 

provisions for notifying the public of 

instances or areas of primary NAAQS 

exceedances, and additionally advise 

the public of associated health hazards. 

Sierra Club further alleges that 

Minnesota’s SIP cites provisions that in 

fact do not require public notification 

procedures. Sierra Club notes that 

Minnesota’s infrastructure SIP states 

that a portion of the MPCA Web site is 

dedicated to enhancing public 

awareness of measures that can be taken 

to prevent exceedances for the NAAQS. 

Response 19: Sierra Club correctly 

notes that 110(a)(2)(J) of the CAA 

requires states to satisfy the 

requirements of section 127 of the CAA. 

Section 127 requires a state’s 

infrastructure SIP to contain measures 

allowing the state to notify the public 

upon the exceedance of a NAAQS, to 

advise the public of the health hazards, 

and to enhance public awareness. The 

CAA, which was last amended in 1990, 

further states that ‘‘[s]uch measures may 

include the posting of warning signs on 

interstate highway access points to 

metropolitan areas or television, radio, 

or press notices or information.’’ Here in 

the year 2015, Minnesota has a Web site. 

This Web site contains much more 

information than, for example, a 

warning sign on a highway. MPCA’s 

Web site allows Minnesotans to learn 

about air quality issues, view a current 

air quality index, review reports to the 

legislature, and access air quality alerts 

for ozone. As Sierra Club noted, MPCA 

submitted a link to this Web site as part 

of its infrastructure SIP. The Web site 

does contain sections dedicated to 

enhancing public awareness of 

measures that can be taken to prevent 

exceedances for the NAAQS. EPA 

believes Minnesota has fully satisfied its 

public notification requirements under 

section 110(a)(2)(J) of the CAA. 

Comment 20: Sierra Club asserts that 

EPA must disapprove Minnesota’s 

infrastructure SIP because it does not 

address the visibility protection 

provisions of section 110(a)(2)(J). 

Response 20: The visibility 

requirements in part C of the CAA that 

are referenced in section 110(a)(2)(J) are 

not affected by the establishment or 

revision of a NAAQS. As a result, there 

are no ‘‘applicable’’ visibility protection 

obligations associated with the 

promulgation of a new or revised 

NAAQS. Because there are no 

applicable requirements, states are not 

required to address section 110(a)(2)(J) 

in their infrastructure SIP. 

III. What action is EPA taking? 

EPA is taking final action to approve 

most elements of submissions from 

Minnesota certifying that its current SIP 

is sufficient to meet the required 

infrastructure elements under section 

110(a)(1) and (2) for the 2008 ozone, 

2010 NO2, 2010 SO2, and 2012 PM2.5

NAAQS. We are also disapproving some 

elements of the state’s submission as 

they relate to its PSD program. As 

described above, Minnesota already 

administers Federally promulgated PSD 

regulations through delegation, and 

therefore no practical effect is associated 

with this disapproval of those elements. 

The proposed rulemaking associated 

with this final action was published on 

June 26, 2015 (75 FR 36743), and EPA 

received one comment during the 

comment period, which ended on July 

27, 2015. For the reasons discussed in 

the proposed rulemaking and in the 

above response to the public comment, 

EPA is therefore taking final action to 

approve most elements and disapprove 

certain elements, as proposed, of 

Minnesota’s submissions. EPA’s actions 

for the state’s satisfaction of 

infrastructure SIP requirements, by 

element of section 110(a)(2) and 

NAAQS, are contained in the table 

below. 

Element 2008 Ozone 2010 NO2 2010 SO2 2012 PM2.5

(A)—Emission limits and other control measures ................................................... A A A A 

(B)—Ambient air quality monitoring/data system .................................................... A A A A 

(C)1—Program for enforcement of control measures ............................................. A A A A 

(C)2—PSD ............................................................................................................... D D D D 

(D)1—I Prong 1: Interstate transport—significant contribution ................................ NA A NA NA 

(D)2—I Prong 2: Interstate transport—interfere with maintenance ......................... NA A NA NA 

(D)3—II Prong 3: Interstate transport—prevention of significant deterioration. ...... D D D D 

(D)4—II Prong 4: Interstate transport—protect visibility .......................................... NA NA NA NA 

(D)5—Interstate and international pollution abatement ........................................... D D D D 

(E)1—Adequate resources ...................................................................................... A A A A 

(E)2—State board requirements .............................................................................. NA NA NA NA 

(F)—Stationary source monitoring system .............................................................. A A A A 

(G)—Emergency power ........................................................................................... A A A A 

(H)—Future SIP revisions. ....................................................................................... A A A A 

(I)—Nonattainment planning requirements of part D .............................................. * * * * 

(J)1—Consultation with government officials .......................................................... A A A A 

(J)2—Public notification ........................................................................................... A A A A 

(J)3—PSD ................................................................................................................ D D D D

(J)4—Visibility protection ......................................................................................... * * * * 

(K)—Air quality modeling/data ................................................................................. A A A A 

(L)—Permitting fees ................................................................................................. A A A A 

(M)—Consultation and participation by affected local entities ................................ A A A A 

In the above table, the key is as 

follows: 

A ............ Approve. 

D ............ Disapprove. 

NA .......... No Action/Separate Rulemaking. 

* ............. Not germane to infrastructure 

SIPs. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a significant regulatory action 

subject to review by the Office of 

Management and Budget under 

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63450 Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by December 21, 2015. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: September 23, 2015. 

Susan Hedman, 

Regional Administrator, Region 5. 

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. 

■ 2. In § 52.1220, the table in paragraph 

(e) is amended by adding entries at the 

end of the table for ‘‘Section 110(a)(2) 

Infrastructure Requirements for the 2008 

ozone NAAQS,’’ ‘‘Section 110(a)(2) 

Infrastructure Requirements for the 2010 

nitrogen dioxide (NO2) NAAQS,’’ 

‘‘Section 110(a)(2) Infrastructure 

Requirements for the 2010 sulfur 

dioxide (SO2) NAAQS,’’ and ‘‘Section 

110(a)(2) Infrastructure Requirements 

for the 2012 fine particulate matter 

(PM2.5) NAAQS’’ to read as follows: 

§ 52.1220 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED MINNESOTA NONREGULATORY PROVISIONS

Name of nonregulatory 

SIP provision 

Applicable 

geographic or 

nonattainment 

area 

State 

submittal 

date/effective 

date 

EPA approved 

date Comments 

*******

Section 110(a)(2) Infrastructure Requirements for the 2008 

ozone NAAQS.

Statewide .......... 6/12/2014 (submittal 

date).

10/20/2015, [insert Federal Register citation].This action addresses the following CAA 

elements: 110(a)(2)(A), (B), (C), (D), (E), 

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

not taking action on (D)(i)(I), the visibility 

portion of (D)(i)(II), or the state board requirements of (E)(ii). We will address 

these requirements in a separate action. 

EPA is disapproving the elements related 

to the prevention of significant deterioration, specifically as they pertain to section 

110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); 

however, Minnesota continues to implement the Federally promulgated rules for 

this purpose. 

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Federal Register / Vol. 80, No. 202 / Tuesday, October 20, 2015 / Rules and Regulations 63451 

EPA-APPROVED MINNESOTA NONREGULATORY PROVISIONS—Continued 

Name of nonregulatory 

SIP provision 

Applicable 

geographic or 

nonattainment 

area 

State 

submittal 

date/effective 

date 

EPA approved 

date Comments 

Section 110(a)(2) Infrastructure Requirements for the 2010 nitrogen dioxide (NO2) 

NAAQS.

Statewide .......... 6/12/2014 (submittal 

date).

10/20/2015, [insert Federal Register citation].This action addresses the following CAA 

elements: 110(a)(2)(A), (B), (C), (D), (E), 

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

not taking action on the visibility portion of 

(D)(i)(II) or the state board requirements 

of (E)(ii). We will address these requirements in a separate action. EPA is disapproving the elements related to the prevention of significant deterioration, specifically as they pertain to section 

110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); 

however, Minnesota continues to implement the Federally promulgated rules for 

this purpose. 

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

sulfur dioxide (SO2) 

NAAQS.

Statewide .......... 6/12/2014 (submittal 

date).

10/20/2015, [insert Federal Register citation].This action addresses the following CAA 

elements: 110(a)(2)(A), (B), (C), (D), (E), 

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

not taking action on (D)(i)(I), the visibility 

portion of (D)(i)(II), or the state board requirements of (E)(ii). We will address 

these requirements in a separate action. 

EPA is disapproving the elements related 

to the prevention of significant deterioration, specifically as they pertain to section 

110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); 

however, Minnesota continues to implement the Federally promulgated rules for 

this purpose. 

Section 110(a)(2) Infrastructure Requirements for the 2012 

fine particulate matter 

(PM2.5) NAAQS.

Statewide .......... 6/12/2014 (submittal 

date).

10/20/2015, [insert Federal Register citation].This action addresses the following CAA 

elements: 110(a)(2)(A), (B), (C), (D), (E), 

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

not taking action on (D)(i)(I), the visibility 

portion of (D)(i)(II), or the state board requirements of (E)(ii). We will address 

these requirements in a separate action. 

EPA is disapproving the elements related 

to the prevention of significant deterioration, specifically as they pertain to section 

110(a)(2)(C), (D)(i)(II), (D)(ii), and (J); 

however, Minnesota continues to implement the Federally promulgated rules for 

this purpose. 

[FR Doc. 2015–25969 Filed 10–19–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–RO5–OAR–2014–0657; FRL–9935–63– 

Region 5] 

Air Plan Approval; Michigan; 2006 

PM2.5 and 2008 Lead NAAQS State 

Board Infrastructure SIP Requirements 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving elements of 

state implementation plan (SIP) 

submissions from Michigan regarding 

state board requirements of section 110 

of the Clean Air Act (CAA) for the 2006 

fine particulate matter (PM2.5) and 2008 

lead National Ambient Air Quality 

Standards (NAAQS). The infrastructure 

requirements are designed to ensure that 

the structural components of each 

state’s air quality management program 

are adequate to meet the state’s 

responsibilities under the CAA. 

DATES: This direct final rule will be 

effective December 21, 2015, unless EPA 

receives adverse comments by 

November 19, 2015. If adverse 

comments are received, EPA will 

publish a timely withdrawal of the 

direct final rule in the Federal Register 

informing the public that the rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2014–0657 by one of the following 

methods: 

1. www.regulations.gov: Follow the 

online instructions for submitting 

comments. 

2. Email: aburano.douglas@epa.gov. 

3. Fax: (312) 408–2279. 

4. Mail: Douglas Aburano, Chief, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

U.S. Environmental Protection Agency, 

77 West Jackson Boulevard, Chicago, 

Illinois 60604. 

5. Hand Delivery: Douglas Aburano, 

Chief, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

Such deliveries are only accepted 

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