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[Federal Register Volume 80, Number 157 (Friday, August 14, 2015)]
[Rules and Regulations]
[Pages 48733-48743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20020]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2012-0991; EPA-R05-OAR-2013-0435; FRL-9932-15-Region 5]

Air Plan Approval; Indiana and Ohio; Infrastructure SIP 
Requirements for the 2010 NO2 and SO2 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve elements of state implementation plan (SIP) 
submissions by Indiana regarding the infrastructure requirements of 
section 110 of the Clean Air Act (CAA) for the 2010 nitrogen dioxide 
(NO2) and sulfur dioxide (SO2) national ambient 
air quality standards (NAAQS), and by Ohio regarding the infrastructure 
requirements of section 110 of the CAA for the 2010 SO2 
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 requirements of the CAA. The proposed 
rulemaking for Ohio's 2010 SO2 infrastructure submittal 
associated with today's final action was published on July 25, 2014, 
and EPA received one comment letter during the comment period, which 
ended on August 25, 2015. In the July 25, 2014 rulemaking, EPA also 
proposed approval for Ohio's 2008 lead, 2008 ozone, and 2010 
NO2 infrastructure submittals. Those approvals have been 
finalized in separate rulemakings. The proposed rulemaking for 
Indiana's 2010 NO2 and SO2 infrastructure 
submittals associated with today's final action was published on 
February 27, 2015, and EPA received one comment letter during the 
comment period, which ended on March 30, 2015. The concerns raised in 
these letters, as well as EPA's responses, are addressed in this final 
action.

DATES: This final rule is effective on September 14, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2012-0991 (2010 NO2 infrastructure elements) 
or EPA-R05-OAR-2013-0435 (2010 SO2 infrastructure elements). 
All documents in the docket are listed in the www.regulations.gov 
index. Although listed in the index, some information is not publicly 
available, e.g., Confidential Business Information or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly-available only in hard copy. 
Publicly-available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the U.S. Environmental 
Protection Agency, Region 5, Air and Radiation Division, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. We recommend that you telephone Sarah Arra at (312) 886-9401 
before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-9401, arra.sarah@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION 
section is arranged as follows:

I. What is the background of 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 does this rulemaking address?

    This rulemaking addresses infrastructure SIP submissions from the 
Indiana Department of Environmental Management (IDEM) submitted on 
January 15, 2013, for the 2010 NO2 NAAQS and on May 22, 
2013, for the 2010 SO2 NAAQS. This rulemaking also addresses 
infrastructure SIP submissions from the Ohio Environmental Protection 
Agency (OEPA) submitted on June 7, 2013, for the 2010 SO2 
NAAQS.

B. Why did the state make this SIP submission?

    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit

[[Page 48734]]

infrastructure SIPs to ensure that their SIPs provide for 
implementation, maintenance, and enforcement of the 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 NO2 and SO2 already 
meet those requirements.
    EPA has highlighted this statutory requirement in multiple guidance 
documents, including the most recent guidance document entitled 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under CAA Sections 110(a)(1) and (2)'' issued on September 13, 2013.

C. What is the scope of this rulemaking?

    EPA is acting upon Indiana and Ohio's SIP submissions that address 
the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) 
for the 2010 SO2 NAAQS and also the 2010 NO2 
NAAQS for Indiana. The requirement for states to make SIP submissions 
of this type arises out of CAA section 110(a)(1). Pursuant to section 
110(a)(1), states must make SIP submissions ``within 3 years (or such 
shorter period as the Administrator may prescribe) after the 
promulgation of a national primary ambient air quality standard (or any 
revision thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon EPA's taking any action other than promulgating a new 
or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    This rulemaking will not cover three substantive areas that are not 
integral to acting on a state's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction (``SSM'') at sources, that may be 
contrary to the CAA and EPA's policies addressing such excess 
emissions; (ii) existing provisions related to ``director's variance'' 
or ``director's discretion'' that purport to permit revisions to SIP 
approved emissions limits with limited public process or without 
requiring further approval by EPA, that may be contrary to the CAA 
(collectively referred to as ``director's discretion''); and, (iii) 
existing provisions for Prevention of Significant Deterioration (PSD) 
programs that may be inconsistent with current requirements of EPA's 
``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as 
amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, EPA 
has the authority to address each one of these substantive areas in 
separate rulemaking. A detailed rationale, history, and interpretation 
related to infrastructure SIP requirements can be found in our May 13, 
2014, proposed rule entitled, ``Infrastructure SIP Requirements for the 
2008 Lead NAAQS'' in the section, ``What is the scope of this 
rulemaking?'' (see 79 FR 27241 at 27242-27245).
    In addition, EPA is not acting on section 110(a)(2)(D)(i)(I), 
interstate transport significant contribution and interference with 
maintenance for the Indiana and Ohio 2010 SO2 submittals, a 
portion of section 110(a)(2)(D)(i)(II) with respect to visibility, and 
110(a)(2)(J) with respect to visibility for the 2010 NO2 and 
SO2 submittals for Indiana and the 2010 SO2 
submittal for Ohio, and portions of 110(a)(2)(C), 110(a)(2)(D)(i)(II), 
and 110(a)(2)(J) with respect to PSD for Ohio's 2010 SO2 
submittal. EPA has already taken action on the portion related to PSD 
for Ohio's 2010 SO2 infrastructure submittal in the February 
27, 2015 rulemaking (see 80 FR 10591). EPA is also not acting on 
section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions Under 
Part D, in its entirety. The rationale for not acting on elements of 
these requirements was included in EPA's August 19, 2013, proposed 
rulemaking or is discussed below in today's response to comments.

II. What is our response to comments received on the proposed 
rulemaking?

    EPA received one comment letter from the Sierra Club regarding its 
July 25, 2014, proposed rulemaking (79 FR 43338) on Ohio's 2010 
SO2 NAAQS Infrastructure SIP submittal. EPA did not receive 
any comments on its February 27, 2015, proposed rulemaking (80 FR 
10644) on Indiana's 2010 NO2 NAAQS Infrastructure SIP, but 
did receive one comment from the Sierra Club relevant to the 
SO2 submittal. The majority of the SO2-related 
comments from the Sierra Club for Indiana and Ohio are identical. The 
comments are summarized and responded to together; however, the few 
differences in the comments are explicitly pointed out.
    Comment 1: Sierra Club contends that the plain language of section 
110(a)(2)(A) of the CAA and the legislative history of the CAA require 
the inclusion of enforceable emission limits in an infrastructure SIP 
to prevent NAAQS exceedances in areas not designated nonattainment. 
Sierra Club also asserts that the Ohio and Indiana 2010 SO2 
infrastructure SIP revisions did not revise the existing SO2 
emission limits in response to the 2010 SO2 NAAQS and failed 
to comport with CAA requirements for SIPs to establish enforceable 
emission limits that are adequate to prohibit NAAQS exceedances in 
areas not designated nonattainment.
    The Sierra Club states that, on its face, the CAA ``requires I-SIPs 
to be adequate to prevent exceedances of the NAAQS.'' In support, the 
Sierra Club quotes the language in section 110(a)(1) which requires 
states to adopt a plan for implementation, maintenance, and enforcement 
of the NAAQS, and the language in section 110(a)(2)(A) which requires 
SIPs to include enforceable emissions limitations as may be necessary 
to meet the requirements of the CAA and which Sierra Club claims 
include the maintenance plan requirement. Sierra Club notes the CAA 
definition of emission limit and reads these provisions together to 
require ``enforceable emission limits on source emissions sufficient to 
ensure maintenance of the NAAQS.''
    Response 1: EPA disagrees that section 110 is clear ``on its face'' 
and must be interpreted in the manner suggested by Sierra Club. Section 
110 is only one provision that is part of the complicated structure 
governing implementation of the NAAQS program under the CAA, as amended 
in 1990, and it must be interpreted in the context of not only that 
structure, but also of the historical evolution of that structure. In 
light of the revisions to section 110 since 1970 and the later-
promulgated and more specific planning requirements of the CAA, EPA 
interprets the requirement in section 110(a)(2)(A) that the plan 
provide for

[[Page 48735]]

``implementation, maintenance and enforcement'' to mean that the 
infrastructure SIP must contain enforceable emission limits that will 
aid in attaining and/or maintaining the NAAQS and that the state 
demonstrate that it has the necessary tools to implement and enforce a 
NAAQS, such as adequate state personnel and an enforcement program. 
With regard to the requirement for emission limitations, EPA has 
interpreted this to mean, for purposes of section 110, that the state 
may rely on measures already in place to address the pollutant at issue 
or any new control measures that the state may choose to submit. As EPA 
stated in ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated 
September 13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual 
purpose of an infrastructure SIP submission is to assure that the air 
agency's SIP contains the necessary structural requirements for the new 
or revised NAAQS, whether by establishing that the SIP already contains 
the necessary provisions, by making a substantive SIP revision to 
update the SIP, or both. Overall, the infrastructure SIP submission 
process provides an opportunity . . . to review the basic structural 
requirements of the air agency's air quality management program in 
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p. 
2.
    The Sierra Club makes general allegations that Ohio and Indiana do 
not have sufficient protective measures to prevent SO2 NAAQS 
exceedances. EPA addressed the adequacy of Ohio and Indiana's 
infrastructure SIPs for 110(a)(2)(A) purposes to meet applicable 
requirements of the CAA in the proposed rulemakings and explained why 
the SIPs include enforceable emission limitations and other control 
measures necessary for maintenance of the 2010 SO2 NAAQS 
throughout the state. For Ohio, these limits are found in Chapter 3745-
18, Sulfur Dioxide Limitations, of Ohio's SIP. For Indiana, these 
limits are found in 326 Indiana Administrative Code (IAC) 7-1.1, 326 
IAC 7-4, and 326 IAC 7-4.1. As discussed in the proposed rulemakings, 
EPA finds that these provisions adequately address section 110(a)(2)(A) 
to aid in attaining and/or maintaining the applicable NAAQS, and finds 
that Ohio and Indiana have demonstrated that they have the necessary 
tools to implement and enforce these NAAQS.
    Comment 2: The Sierra Club cites 40 CFR 51.112(a), providing that 
each plan ``must demonstrate that the measures, rules and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the [NAAQS].'' It asserts that this regulation requires 
all SIPs to include emissions limits necessary to ensure attainment of 
the NAAQS. The Sierra Club states that ``[a]lthough these regulations 
were developed before the Clean Air Act separated infrastructure SIPs 
from nonattainment SIPs--a process that began with the 1977 amendments 
and was completed by the 1990 amendments--the regulations apply to I-
SIPs.'' It relies on a statement in the preamble to the 1986 action 
restructuring and consolidating provisions in part 51, in which EPA 
stated that ``[i]t is beyond the scope of th[is] rulemaking to address 
the provisions of Part D of the Act . . . .'' 51 FR 40656, 40656 
(November 7, 1986).
    Response 2: The Sierra Club's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
``adequate to prohibit NAAQS exceedances'' and adequate or sufficient 
to ensure the maintenance of the NAAQS is not supported. As an initial 
matter, EPA notes and the Sierra Club recognizes that 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 sections 175A, 182, and 192. The Sierra Club 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 merely 
to consolidate and restructure provisions that had previously been 
promulgated. EPA noted that it had already issued guidance addressing 
the new ``Part D'' attainment planning obligations. Also, as to 
maintenance regulations, EPA expressly stated that it was not making 
any revisions other than to re-number those provisions. 51 FR at 40657.
    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of the new ``Part D'' of title I 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 3: 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). 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). 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 2013 
infrastructure SIP guidance that states could postpone specific 
requirements for start-up 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 3: EPA does not agree that the two prior actions 
referenced by the

[[Page 48736]]

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. The Indiana action provides even less support 
for the Sierra Club's position. 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 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 
Ohio and Indiana 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 the States have demonstrated 
that they have the necessary tools to implement and enforce a NAAQS.
    Comment 4: Sierra Club also discusses several cases applying 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. 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 to Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 
1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The Sierra 
Club contends that the 1990 Amendments do not alter how courts have 
interpreted the requirements of section 110, quoting Alaska Dept. of 
Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004), which in turn 
quoted section 110(a)(2)(A) of the CAA and also stated that ``SIPs must 
include certain measures Congress specified'' to ensure attainment of 
the NAAQS. The Commenter also quotes several additional opinions in 
this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th 
Cir. 2012) (``The Clean Air Act directs states to develop 
implementation plans--SIPs--that `assure' attainment and maintenance of 
[NAAQS] through enforceable emissions limitations''); Hall v. EPA 273 
F.3d 1146, 1153 (9th Cir. 2001) (``Each State must submit a [SIP] that 
specif[ies] the manner in which [NAAQS] will be achieved and maintained 
within each air quality control region in the State''); Conn. Fund for 
Env't, Inc. v. EPA, 696 F.2d 169, 172 (D.C. Cir. 1982) (CAA requires 
SIPs to contain ``measures necessary to ensure attainment and 
maintenance of NAAQS''). Finally, the commenter cites Mich. Dept. of 
Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the 
proposition that EPA may not approve a SIP revision that does not 
demonstrate how the rules would not interfere with attainment and 
maintenance of the NAAQS.
    Response 4: None of the cases the Sierra Club cites support its 
contention that section 110(a)(2)(A) requires that infrastructure SIPs 
must include detailed plans providing for attainment and maintenance of 
the NAAQS in all areas of the state, nor do they shed light on how 
section 110(a)(2)(A) may reasonably be interpreted. With the exception 
of Train, none of the cases the Commenter cites concerned the 
interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of 
the pre-1990 CAA). Rather, the courts reference section 110(a)(2)(A) 
(or section 110(a)(2)(B) of the pre-1990 CAA) in the background 
sections of decisions in the context of challenges to EPA actions on 
revisions to SIPs that were required and approved as meeting other 
provisions of the CAA or in the context of an enforcement action.
    In Train, 421 U.S. 60, the Court was addressing a state revision to 
an attainment plan submission made pursuant to section 110 of the CAA, 
the sole statutory provision at that time regulating such submissions. 
The issue in that case concerned whether changes to requirements that 
would occur before attainment was required were variances that should 
be addressed pursuant to the provision governing SIP revisions or were 
``postponements'' that must be addressed under section 110(f) of the 
CAA of 1970, which contained prescriptive criteria. The Court concluded 
that EPA reasonably interpreted section 110(f) to not 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

[[Page 48737]]

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 Sierra Club quotes does not interpret but rather merely 
describes section 110(a)(2)(A). Sierra Club does not raise any concerns 
about whether the measures relied on by the state in the infrastructure 
SIP are ``emissions limitations,'' and the decision in this case has no 
bearing here.\1\
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    \1\ While the Sierra Club does contend that the State shouldn't 
be allowed to rely on emission reductions that were developed for 
the prior SO2 standards (which we address herein), it 
does not claim that any of the measures are not ``emissions 
limitations'' within the definition of the CAA.
---------------------------------------------------------------------------

    In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was 
reviewing a Federal implementation plan (FIP) that EPA promulgated 
after a long history of the state failing to submit an adequate SIP in 
response to EPA's finding under section 110(k)(5) that the previously 
approved SIP was substantially inadequate to attain or maintain the 
NAAQS, which triggered the state's duty to submit a new SIP to show how 
it would remedy that deficiency and attain the NAAQS. The Court cited 
generally sections 107 and 110(a)(2)(A) of the CAA for the proposition 
that SIPs should assure attainment and maintenance of NAAQS through 
emission limitations, but this language was not part of the Court's 
holding in the case, which focused instead on whether EPA's finding of 
SIP inadequacy, disapproval of portions of the state's responsive SIP 
and attainment demonstration, and adoption of a remedial FIP were 
lawful.
    The Sierra Club suggests that Alaska Dept. of Envtl. Conservation, 
540 U.S. 461, stands for the proposition that the 1990 CAA Amendments 
do not alter how courts interpret section 110. This claim is 
inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as 
noted previously, differs from the pre-1990 version of that provision, 
and the Court makes no mention of the changed language. Furthermore, 
the Sierra Club 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 Sierra Club cites, Mich. Dept. of Envtl. 
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 
110(l), the provision governing ``revisions'' to plans, and not the 
initial plan submission requirement under section 110(a)(2) for a new 
or revised NAAQS, such as the infrastructure SIP at issue in this 
instance. In those cases, the courts cited section 110(a)(2)(A) solely 
for the purpose of providing a brief background of the CAA.
    Finally, in Conn. Fund for Env't, Inc. v. EPA, 696 F.2d 169 (D.C. 
Cir. 1982), the D.C. Circuit was reviewing EPA action on a control 
measure SIP provision which adjusted the percent of sulfur permissible 
in fuel oil. The D.C. Circuit focused on whether EPA needed to evaluate 
effects of the SIP revision on one pollutant or effects of change on 
all possible pollutants; therefore, the D.C. Circuit did not address 
required measures for infrastructure SIPs, and nothing in the opinion 
addressed whether infrastructure SIPs needed to contain measures to 
ensure attainment and maintenance of the NAAQS.
    Comment 5: Citing section 110(a)(2)(A) of the CAA, Sierra Club 
contends that EPA may not approve the proposed infrastructure SIPs 
because they do not include enforceable one hour SO2 
emission limits for sources that show NAAQS exceedances through 
modeling. Sierra Club asserts the proposed infrastructure SIPs fail to 
include enforceable one 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 Ohio and Indiana 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.
    For Ohio, the 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 three coal-fired EGUs in Ohio including the Cardinal 
Power Plant (Brilliant), the Sammis Station (Stratton), and the Zimmer 
Plant (Moscow). 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 three facilities or actual 
emissions at the Zimmer Plant.\2\
---------------------------------------------------------------------------

    \2\ Sierra 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 for 
the for both Indiana and Ohio.
---------------------------------------------------------------------------

    For Indiana, the Sierra Club also 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 three coal-fired EGUs in Indiana, including 
the A.B. Brown Plant (Mount Vernon), the Clifty Creek Plant (Madison), 
and the Gibson Plant (Owensville). 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 the plants could cause exceedances of the 2010 
SO2 NAAQS with either allowable or actual emissions at all 
three facilities.
    Based on the modeling, Sierra Club asserts that the Ohio and 
Indiana SO2 infrastructure SIP submittals authorize 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 Ohio and Indiana'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 5: 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 long-

[[Page 48738]]

standing position regarding infrastructure SIPs is that they are 
general planning SIPs to ensure that the state has adequate resources 
and authority to implement a NAAQS in general throughout the state and 
not detailed attainment and maintenance plans for each individual area 
of the state. As mentioned above, with regard to the requirement for 
emission limitations, EPA has interpreted this to mean that states may 
rely on measures already in place to address the pollutant at issue or 
any new control measures that the state may choose to submit.
    EPA's interpretation that infrastructure SIPs are more general 
planning SIPs is consistent with the CAA as understood in light of its 
history and structure. When Congress enacted the CAA in 1970, it did 
not include provisions requiring states and the EPA to label areas as 
attainment or nonattainment. Rather, states were required to include 
all areas of the state in ``air quality control regions'' (AQCRs) and 
section 110 set forth the core substantive planning provisions for 
these AQCRs. At that time, Congress anticipated that states would be 
able to address air pollution quickly pursuant to the very general 
planning provisions in section 110 and could bring all areas into 
compliance with a new NAAQS within five years. Moreover, at that time, 
section 110(a)(2)(A)(i) specified that the section 110 plan provide for 
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the 
plan must include ``emission limitations, schedules, and timetables for 
compliance with such limitations, and such other measures as may be 
necessary to insure attainment and maintenance [of the NAAQS].'' In 
1977, Congress recognized that the existing structure was not 
sufficient and 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 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 Ohio and Indiana'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.\3\
---------------------------------------------------------------------------

    \3\ 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.

---------------------------------------------------------------------------

[[Page 48739]]

    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 Ohio and Indiana have 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 Ohio and Indiana, 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, Ohio and Indiana 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. Ohio and Indiana's SIP revisions 
reflect several provisions that have the ability to reduce 
SO2. Although the Ohio and Indiana SIPs rely on measures and 
programs used to implement previous SO2 NAAQS, these 
provisions will provide benefits for the 2010 SO2 NAAQS. The 
identified Ohio and Indiana 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 rules, Ohio and 
Indiana have the ability to revise their SIPs when necessary (e.g, in 
the event the Administrator finds their 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 
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 designated Lake County and portions of 
Clermont, Morgan, Washington, and Jefferson Counties in Ohio and 
portions of Marion, Morgan, Daviess, Pike, and Vigo Counties in Indiana 
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 within 
Ohio and Indiana, 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 Ohio and Indiana 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 Ohio and Indiana 
SO2 infrastructure SIPs.
    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 for 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 Ohio and Indiana were 
obligated during this infrastructure SIP

[[Page 48740]]

planning process to account for controlled SO2 levels at 
individual sources. See Homer City/Mansfield Order at 10-19.
    Regarding the air dispersion modeling conducted by Sierra Club 
pursuant to AERMOD for the coal-fired EGUs, 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 Ohio and Indiana's infrastructure SIP submissions 
because they do 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 6: 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. It refers 
to EPA's historic use of air dispersion modeling for attainment 
designations as well as ``SIP revisions.''
    The Sierra Club 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.
    The Sierra Club cites prior EPA statements that the Agency has used 
modeling for designations and attainment demonstrations, including 
statements in the 2010 SO2 NAAQS preamble, EPA's 2012 Draft 
White Paper for Discussion on Implementing the 2010 SO2 
NAAQS, and a 1994 SO2 Guideline Document, as modeling could 
better address the source-specific impacts of SO2 emissions 
and historic challenges from monitoring SO2 emissions. The 
Sierra Club discusses EPA's history of employing air dispersion 
modeling for increment compliance verifications in the permitting 
process for the PSD program and discusses different scenarios where the 
AERMOD model functions appropriately.
    The Sierra Club asserts that 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 Sierra Club claims that 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.
    Finally, the Sierra Club agrees that Ohio and Indiana have the 
authority to use modeling for attainment demonstrations, but claims 
that Ohio and Indiana's proposed SO2 infrastructure SIPs 
lack emission limitations informed by air dispersion modeling and 
therefore fail to ensure Ohio and Indiana will achieve and maintain the 
2010 SO2 NAAQS. Sierra Club claims Ohio and Indiana must 
require adequate one hour SO2 emission limits in the 
infrastructure SIP that show no exceedances of NAAQS when modeled.
    For Indiana, the Sierra Club specifically points out the need for 
modeling demonstrated by Duke Energy's Gibson Plant. It alleges that 
the air monitor is not showing the true picture of the occurring 
violations. The Sierra Club states that its model predicts no impact at 
the monitor, but violations nearby.
    Response 6: EPA agrees with the Sierra Club that air dispersion 
modeling, such as AERMOD, can be an important tool in the CAA section 
107 designations process, in the attainment SIP process pursuant to 
sections 172 and 192, including supporting required attainment 
demonstrations, and in other actions in which areas' air quality status 
is determined. EPA agrees that prior EPA statements, EPA guidance, and 
case law support the use of air dispersion modeling in these processes, 
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 Sierra Club that EPA must 
disapprove Ohio's and Indiana's SO2 infrastructure SIPs for 
their alleged failure to include source-specific SO2 
emission limits that show no exceedances of the NAAQS when modeled, 
since this is not an action in which air quality status is being 
determined or for which there is a duty for the States to demonstrate 
future attainment of the NAAQS in areas that may be violating it.
    As discussed previously and in the Infrastructure SIP Guidance, EPA 
believes the conceptual purpose of an infrastructure SIP submission is 
to assure that the air agency's SIP contains the necessary structural 
requirements for the new or revised NAAQS and that the infrastructure 
SIP submission process provides an opportunity to review the basic 
structural requirements of the air agency's air quality management 
program in light of the new or revised NAAQS. See Infrastructure SIP 
Guidance at p. 2. EPA believes the attainment planning process detailed 
in part D of the CAA, including attainment SIPs required by sections 
172 and 192 for areas not attaining the NAAQS, is the appropriate place 
for the state to evaluate measures needed to bring nonattainment areas 
into attainment with a NAAQS and to impose additional emission 
limitations such as SO2 emission limits on specific sources 
as needed to achieve such future attainment. 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

[[Page 48741]]

areas (which had not yet been designated) for June 2013 infrastructure 
SIPs. EPA reaffirmed this position that EPA did not expect attainment 
demonstrations for areas not designated nonattainment for 
infrastructure SIPs in the February 6, 2013, memorandum, ``Next Steps 
for Area Designations and Implementation of the Sulfur Dioxide National 
Ambient Air Quality Standard.'' \4\ As previously mentioned, EPA had 
stated in the preamble to the NAAQS and in the prior 2011 draft 
guidance that EPA intended to develop and seek public comment on 
guidance for modeling and development of SIPs for sections 110, 172 and 
191-192 of the CAA. After receiving such further comment, EPA has now 
issued guidance for the nonattainment area SIPs due pursuant to 
sections 191-192 and 172 and proposed a process for further 
designations for the 2010 SO2 NAAQS, which could include use 
of air dispersion modeling. See April 23, 2014, Guidance for 1-Hour SO2 
Nonattainment Area SIP Submissions and 79 FR 27446 (proposing process 
and timetables for additional gathering of information to support 
future attainment status determinations informed through ambient 
monitoring and/or air quality modeling). While the EPA guidance for 
attainment SIPs and the proposed process for additional information 
gathering 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 Ohio and Indiana 
SO2 infrastructure SIP submittals contains the structural 
requirements to address elements in section 110(a)(2) as discussed in 
detail in our proposed approval and in our response to a prior comment. 
EPA believes infrastructure SIPs are general planning SIPs to ensure 
that a state has adequate resources and authority to implement a NAAQS. 
Infrastructure SIP submissions are not intended to act or fulfill the 
obligations of a detailed attainment and/or maintenance plan for each 
individual area of the state that is not attaining the NAAQS. While 
infrastructure SIPs must address modeling authorities in general for 
section 110(a)(2)(K), EPA believes 110(a)(2)(K) requires infrastructure 
SIPs to provide the state's authority for air quality modeling and for 
submission of modeling data to EPA, not specific air dispersion 
modeling for large stationary sources of pollutants such as 
SO2 in a SO2 infrastructure SIP. In the proposed 
rules for this action, EPA provided a detailed explanation of Ohio's 
and Indiana's abilities and authorities to conduct air quality modeling 
when required and their authority to submit modeling data to the EPA.
---------------------------------------------------------------------------

    \4\ The February 6, 2013 ``Next Steps for Area Designations and 
Implementation of the Sulfur Dioxide National Ambient Air Quality 
Standard,'' one of the April 12, 2012 state letters, and the May 
2012 Draft White Paper are available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
---------------------------------------------------------------------------

    EPA finds Sierra Club's discussion of case law and guidance to be 
irrelevant to our analysis here of the Ohio and Indiana infrastructure 
SIPs, as this SIP for section 110(a) is not an attainment SIP required 
to demonstrate attainment of the NAAQS pursuant to section 172. In 
addition, Sierra Club's comments relating to EPA's use of AERMOD or 
modeling in general in designations pursuant to section 107 are 
likewise irrelevant as EPA's present approval of Ohio's and Indiana's 
infrastructure SIPs are 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 2010 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 Ohio and Indiana EGUs, or 
updated modeling information in the appropriate context where an 
evaluation of areas' air quality status is being conducted, including 
the Gibson Plant referenced in this comment, EPA will address the 
resubmitted modeling or updated modeling in the appropriate future 
context when an analysis of whether Ohio and Indiana's emissions limits 
are adequate to show attainment and maintenance of the NAAQS is 
warranted.
    The Sierra Club 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 Sierra 
Club appears to have cited this matter to demonstrate again EPA's use 
of modeling for certain aspects of the CAA. EPA agrees with the Sierra 
Club regarding the appropriate role air dispersion modeling has for 
designations, attainment SIPs, and demonstrating significant 
contributions to interstate transport. However, EPA's approval of Ohio 
and Indiana's infrastructure SIPs is based on our determination that 
Ohio and Indiana have 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 
Sierra Club that EPA must require additional emission limitations in 
the Ohio and Indiana SO2 infrastructure SIPs 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 now consider the 
Sierra Club's modeling data based on administrative law principles 
regarding consideration of comments provided during a rulemaking 
process. EPA notes that it has considered the modeling submitted by the 
Sierra Club, as well as all of its submitted comments, to the extent 
that they are germane to the action being undertaken here. This action 
is not, in addition to being the traditional action on infrastructure 
SIPs described above, a response to a separate administrative petition 
to determine the air quality status of Ohio and Indiana generally. 
Therefore, the information Sierra Club has submitted regarding such a 
potential determination is not germane to this action. As discussed in 
detail in the

[[Page 48742]]

Responses above, EPA does not believe the infrastructure SIPs required 
by section 110(a) must contain emission limits demonstrating future 
attainment with a NAAQS. Part D of the CAA contains numerous 
requirements for the NAAQS attainment planning process including 
requirements for attainment demonstrations in section 172 supported by 
appropriate modeling. As also discussed previously, section 107 
supports EPA's use of modeling in the designations process. In Catawba, 
the D.C. Circuit upheld EPA's consideration of data or factors for 
designations other than ambient monitoring. EPA does not believe state 
infrastructure SIPs must contain emission limitations informed by air 
dispersion modeling demonstrating current future NAAQS attainment 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 
for that purpose, and finds that it is not relevant to the 
approvability of Ohio's and Indiana's proposed infrastructure SIPs for 
the 2010 SO2 NAAQS.

III. What action is EPA taking?

    For the reasons discussed in our February 27, 2015, proposed 
rulemaking and in the above responses to public comments, EPA is taking 
final action to approve Indiana's infrastructure SIP for the 2010 
NO2 and SO2 NAAQS as proposed.
    For the reasons discussed in our July 25, 2014, proposed 
rulemaking, EPA is taking final action to approve Ohio's infrastructure 
SIP for the 2010 SO2 NAAQS as proposed. In the July 25, 
2014, rulemaking, EPA also proposed approval for Ohio's 2008 lead, 2008 
ozone, and 2010 NO2 infrastructure submittals. Those 
approvals have been finalized in separate rulemakings (see 79 FR 60075, 
October 6, 2014, and 79 FR 62019, October 16, 2014). In today's 
rulemaking, we are taking final action on only the infrastructure SIP 
requirements for the 2010 SO2 NAAQS for Ohio. Our final 
actions by element of section 110(a)(2) and NAAQS, are contained in the 
table below.\5\
---------------------------------------------------------------------------

    \5\ As stated previously, EPA will take later, separate action 
on portions of Ohio and Indiana's SO2 infrastructure SIP 
submittal including the portions of the SIP submittal addressing 
section 110(a)(2)(D)(i)(I) and the visibility portion of 
110(a)(2)(D)(i)(II).

----------------------------------------------------------------------------------------------------------------
                                                                2010 NO2 NAAQS   2010 SO2 NAAQS   2010 SO2 NAAQS
                           Element                               for Indiana      for Indiana        for Ohio
----------------------------------------------------------------------------------------------------------------
(A): Emission limits and other control measures..............               A                A                A
(B): Ambient air quality monitoring and data system..........               A                A                A
(C)1: Enforcement of SIP measures............................               A                A                A
(C)2: PSD....................................................               A                A                A
(D)1: Contribute to nonattainment/interfere with maintenance                A               NA               NA
 of NAAQS....................................................
(D)2: PSD....................................................               A                A                A
(D)3: Visibility Protection..................................              NA               NA               NA
(D)4: Interstate Pollution Abatement.........................               A                A                A
(D)5: International Pollution Abatement......................               A                A                A
(E)1: Adequate resources.....................................               A                A                A
(E)2: State boards...........................................               A                A                A
(F): Stationary source monitoring system.....................               A                A                A
(G): Emergency power.........................................               A                A                A
(H): Future SIP revisions....................................               A                A                A
(I): Nonattainment area plan or plan revisions under part D..              NA               NA               NA
(J)1: Consultation with government officials.................               A                A                A
(J)2: Public notification....................................               A                A                A
(J)3: PSD....................................................               A                A                A
(J)4: Visibility protection (Regional Haze)..................              NA               NA               NA
(K): Air quality modeling and data...........................               A                A                A
(L): Permitting fees.........................................               A                A                A
(M): Consultation and participation by affected local                       A                A                A
 entities....................................................
----------------------------------------------------------------------------------------------------------------

    In the table above, the key is as follows:

 
 
 
A.........................................  Approve.
a.........................................  Approved in a previous
                                             Rulemaking.
NA........................................  No Action/Separate
                                             Rulemaking.
 

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because

[[Page 48743]]

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 October 13, 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, sulfur dioxide, nitrogen 
dioxide, Reporting and recordkeeping requirements.

    Dated: August 3, 2015.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52-- APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

0
2. In Sec.  52.770 the table in paragraph (e) is amended by adding 
entries in alphabetical order for ``Section 110(a)(2) Infrastructure 
Requirements for the 2010 NO2 NAAQS'' and ``Section 
110(a)(2) Infrastructure Requirements for the 2010 SO2 
NAAQS'' to read as follows:

Sec.  52.770  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                 Title                   Indiana date          EPA Approval                 Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure             1/15/2013  8/14/2015, [insert         This action addresses the
 Requirements for the 2010 NO2 NAAQS.                    Federal Register           following CAA elements:
                                                         citation].                 110(a)(2)(A), (B), (C),
                                                                                    (D)(i)(I), (D)(i)(II) except
                                                                                    visibility, (D)(ii), (E),
                                                                                    (F), (G), (H), (J) except
                                                                                    visibility, (K), (L), and
                                                                                    (M).
Section 110(a)(2) Infrastructure             5/22/2013  8/14/2015, [insert         This action addresses the
 Requirements for the 2010 SO2 NAAQS.                    Federal Register           following CAA elements:
                                                         citation].                 110(a)(2)(A), (B), (C),
                                                                                    (D)(i)(II) except
                                                                                    visibility, (D)(ii), (E),
                                                                                    (F), (G), (H), (J) except
                                                                                    visibility, (K), (L), and
                                                                                    (M).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Section 52.1891 is amended by revising paragraph (h) to read as 
follows:

Sec.  52.1891  Section 110(a)(2) Infrastructure Requirements.

* * * * *
    (h) Approval--In a June 7, 2013, submittal, Ohio certified that the 
State has satisfied the infrastructure SIP requirements of section 
110(a)(2)(A) through (H), and (J) through (M) for the 2010 
SO2 NAAQS. We are not finalizing action on section 
110(a)(2)(D)(i)(I)--Interstate transport prongs 1 and 2 or visibility 
portions of section 110(a)(2)(D)(i)(II) and 110(a)(2)(J).

[FR Doc. 2015-20020 Filed 8-13-15; 8:45 am]
BILLING CODE 6560-50-P
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