Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 62019 

Name of non-regulatory 

SIP revision 

Applicable geographic 

area 

State submittal 

date EPA approval date Additional explanation 

*******

* * 

Infrastructure Requirements for the 2008 

Ozone NAAQS.

Statewide ..................... 12/27/12 10/16/14 [Insert Federal Register citation].This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II), D(ii), 

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

[FR Doc. 2014–24256 Filed 10–15–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2011–0969; FRL–9917–62– 

Region 5] 

Approval and Promulgation of Air 

Quality Implementation Plans; Ohio; 

Infrastructure SIP Requirements for 

the 2008 Ozone NAAQS 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve elements of a state 

implementation plan (SIP) submission 

from Ohio regarding the infrastructure 

requirements of section 110 of the Clean 

Air Act (CAA) for the 2008 ozone 

National Ambient Air Quality Standards 

(NAAQS). The infrastructure 

requirements are designed to ensure that 

the structural components of each 

state’s air quality management program 

are adequate to meet the state’s 

responsibilities under the CAA. The 

proposed rulemaking associated with 

today’s final action was published on 

July 25, 2014, and EPA received one 

comment pertaining to infrastructure for 

the 2008 ozone NAAQS during the 

comment period, which ended on 

August 25, 2014. The 2008 lead (Pb), 

and 2010 Nitrogen Dioxide (NO2), and 

2010 Sulfur Dioxide (SO2) infrastructure 

SIPs were also addressed in the 

proposed rulemaking but will be 

addressed in a separate final 

rulemaking. 

DATES: This final rule is effective on 

November 17, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2011–0969. 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? 

A. What does this rulemaking address? 

B. Why did the state make this SIP 

submissions? 

C. What is the scope of this rulemaking? 

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 

submissions from the Ohio 

Environmental Protection Agency. The 

state submitted the infrastructure SIP for 

the 2008 ozone NAAQS on December 

27, 2012, supplemented on June 7, 2013. 

B. Why did the state make this SIP 

submissions? 

Under sections 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 

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, including the most recent 

guidance document entitled ‘‘Guidance 

on Infrastructure State Implementation 

Plan (SIP) Elements under Clean Air Act 

Sections 110(a)(1) and (2)’’ issued on 

September 13, 2013. 

C. What is the scope of this rulemaking? 

EPA is acting upon the SIP 

submission from Ohio that addresses 

the infrastructure requirements of CAA 

sections 110(a)(1) and 110(a)(2) for the 

2008 ozone NAAQS. The requirement 

for states to make a SIP submission 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 


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62020 Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 

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. 

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). 

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 ‘‘SSM’’; (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 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. 

In addition, EPA is not acting on 

section 110(a)(2)(D)(i)—Interstate 

transport, section 110(a)(2)(J)—visibility 

protection, and portions of Ohio’s 

submission addressing the prevention of 

significant deterioration, sections 

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

prevention of significant deterioration 

(PSD) portion of (J) for 2008 ozone 

NAAQS. 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 

July 25, 2014 proposed rulemaking. 

II. What is our response to comments 

received on the proposed rulemaking? 

The public comment period for EPA’s 

proposed actions with respect to Ohio’s 

satisfaction of the infrastructure SIP 

requirements for the 2008 ozone 

NAAQS closed on August 25, 2014. EPA 

received one comment letter related to 

the 2008 ozone NAAQS, and a synopsis 

of the adverse comments contained in 

this letter, as well as EPA’s response, are 

provided below. 

Comment: The State of Connecticut 

asserts that Connecticut’s ability to 

attain the 2008 ozone NAAQS is 

substantially compromised by interstate 

transport of pollution from upwind 

states. Specifically, Cross-State Air 

Pollution Rule (CSAPR) modeling 

shows emissions from Ohio contributing 

to the nonattainment problem in 

Connecticut. The State of Connecticut 

asserts it has done its share to reduce instate emissions, and EPA should ensure 

that each upwind state addresses 

contribution to another downwind 

state’s nonattainment. Connecticut 

states that CAA section 110(a)(1) 

requires states like Ohio to submit, 

within three years of promulgation of a 

new NAAQS, a plan which provides for 

implementation, maintenance, and 

enforcement of such NAAQS within the 

state. Connecticut characterizes Ohio’s 

2008 ozone submission for the good 

neighbor element of Ohio’s SIP as 

relying on state regulations which 

implement the Clean Air Interstate Rule 

and CSAPR, and that such programs 

were intended by EPA to address the 

1997 ozone NAAQS and not the more 

stringent 2008 standard. Connecticut 

asserts EPA should therefore disapprove 

the Ohio submission. Connecticut also 

argues that, under section 110(a)(2), 

Ohio was required to submit a complete 

SIP that demonstrated compliance with 

the good neighbor provision of section 

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

argues that the CAA does not give EPA 

discretion to take no action on the 

submitted good neighbor provisions on 

the grounds of taking a separate action. 

Instead, it asserts that the only action 

available to EPA is to determine the 

approvability of the good neighbor 

provision of Ohio’s 2008 ozone NAAQS 

infrastructure SIP submission, or 

promulgate a FIP under section 

110(c)(1) within two years. 

Response: As explained in the notice 

of proposed rulemaking (NPR), this 

action does not address, for the 2008 

ozone NAAQS, the good neighbor 

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

which prohibits emissions that 

significantly contribute to 

nonattainment or interfere with 

maintenance of the NAAQS in another 

state. Thus, to the extent the comment 

relates to the substance or approvability 

of the good neighbor provision in Ohio’s 

2008 ozone infrastructure SIP 

submission, the comment is not relevant 

to the present rulemaking. As stated 

herein and in the NPR, EPA will take 

later, separate action to address section 

110(a)(2)(D)(i)(I) for the 2008 ozone 

NAAQS. 

EPA disagrees with the commenters’ 

argument that EPA cannot approve a SIP 

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 the 

states’ 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)). 

The Agency interprets its authority 

under section 110(k)(3) as affording EPA 

the discretion to approve or 

conditionally approve individual 

elements of Ohio’s infrastructure 

submission for the 2008 ozone NAAQS, 

separate and apart from any action with 

respect to the requirements of section 

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

NAAQS. EPA views discrete 

infrastructure SIP requirements, such as 

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

severable from the other infrastructure 

elements, and interprets section 

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

individual severable measures in a plan 

submission. In short, EPA has discretion 

under section 110(k) to act upon the 

various individual elements of the 

state’s infrastructure SIP submission, 

separately or together, as appropriate. 

The commenters raise no compelling 

legal or environmental rationale for an 

alternate interpretation. 

EPA notes, however, that it is working 

with state partners to assess next steps 

to address air pollution that crosses 

state boundaries and will later take a 

separate action to address section 

110(a)(2)(D)(i)(I) for the 2008 ozone 

NAAQS. EPA’s approval of the Ohio 

infrastructure SIP submission for the 

2008 ozone NAAQS for the portions 

described in the NPR was therefore 

appropriate. 

III. What action is EPA taking? 

The proposed rulemaking associated 

with today’s final action was published 

on July 25, 2014 (79 FR 43338). The 

2008 Pb, 2010 NO2, and 2010 SO2

infrastructure SIPs were also addressed 

in the proposed rulemaking but will be 

addressed in a separate final 

rulemaking. 

For the reasons discussed in our 

proposed rulemaking and in the above 


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Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 62021 

response to public comment, EPA is 

taking final action to approve, as 

proposed, Ohio’s infrastructure SIP for 

the 2008 ozone NAAQS. Our final 

actions by element of section 110(a)(2) 

and NAAQS, are contained in the table 

below. 

Element 2008 

Ozone 

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

(B): Ambient air quality monitoring 

and data system.

A 

(C)1: Enforcement of SIP measures A 

(C)2: PSD program for Pb ............... NA 

(C)3: NOX as a precursor to ozone 

for PSD.

NA 

(C)4: PM2.5 Precursors/PM2.5 and 

PM10 condensables for PSD.

NA 

(C)5: PM2.5 Increments .................... NA 

(C)5: GHG permitting thresholds in 

PSD regulations.

NA 

(D)1: Contribute to nonattainment/

interfere with maintenance of 

NAAQS.

NA 

(D)2: PSD ......................................... NA 

(D)3: Visibility Protection .................. NA 

(D)4: Interstate Pollution Abatement A 

(D)5: International Pollution Abatement.A 

(E): Adequate resources .................. A 

(E): State boards .............................. A 

(F): Stationary source monitoring 

system.

A 

(G): Emergency power ..................... A 

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

(I): Nonattainment area plan or plan 

revisions under part D.

NA 

(J)1: Consultation with government 

officials.

A 

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

(J)3: PSD ......................................... NA 

(J)4: Visibility protection ................... + 

(K): Air quality modeling and data ... A 

(L): Permitting fees .......................... A 

(M): Consultation and participation 

by affected local entities.

A 

In the above table, the key is as follows: 

A—Approve. 

NA—No Action/Separate Rulemaking. 

+—Not germane to infrastructure SIPs. 

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 Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

This rule 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 as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

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 15, 2014. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action 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, 

ozone, Reporting and recordkeeping 

requirements. 

Dated: September 30, 2014. 

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. Section 52.1891 is amended by 

adding paragraph (g) to read as follows: 

§ 52.1891 Section 110(a)(2) infrastructure 

requirements. 

* * * * * 

(g) Approval— In a December 27, 

2012, submittal, supplemented on June 

7, 2013, 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 

2008 Ozone NAAQS. We are not 

finalizing action on section 

110(a)(2)(D)(i)—Interstate transport, the 

visibility portions of section 110(a)(2)(J), 

and submissions addressing the 

prevention of significant deterioration 

requirements (PSD) in sections 

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

PSD portion of (J). 

[FR Doc. 2014–24350 Filed 10–15–14; 8:45 am] 

BILLING CODE 6560–50–P 


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