44542 Federal Register / Vol. 81, No. 131 / Friday, July 8, 2016 / Rules and Regulations 

The bridge owner, Connecticut 

Department of Transportation, requested 

a temporary deviation from the normal 

operating schedule to perform timber 

ties replacement and steel repairs at the 

bridge. 

Under this temporary deviation, the 

Metro-North Devon Bridge will operate 

according to the schedule below: 

a. From 8 a.m. on September 6, 2016 

through 4 a.m. on September 9, 2016, 

the bridge will not open to marine 

traffic. 

b. From 4 a.m. on September 9, 2016 

through 8 a.m. on September 12, 2016, 

the bridge will open fully on signal 

upon 24 hr advance notice. 

c. From 8 a.m. on September 12, 2016 

through 4 a.m. on September 16, 2016, 

the bridge will not open to marine 

traffic. 

d. From 4 a.m. on September 16, 2016 

through 8 a.m. on September 19, 2016, 

the bridge will open fully on signal 

upon 24 hr advance notice. 

Vessels able to pass under the bridge 

in the closed position may do so at 

anytime. The bridge will not be able to 

open for emergencies and there is no 

immediate alternate route for vessels to 

pass. 

The Coast Guard will inform the users 

of the waterways through our Local 

Notice and Broadcast to Mariners of the 

change in operating schedule for the 

bridge so that vessel operations can 

arrange their transits to minimize any 

impact caused by the temporary 

deviation. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the effective period of this 

temporary deviation. This deviation 

from the operating regulations is 

authorized under 33 CFR 117.35. 

Dated: July 5, 2016. 

C.J. Bisignano, 

Supervisory Bridge Management Specialist, 

First Coast Guard District. 

[FR Doc. 2016–16187 Filed 7–7–16; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2012–0950; FRL–9948–58– 

Region 1] 

Air Plan Approval; New Hampshire; 

Infrastructure Requirements for the 

2010 Sulfur Dioxide National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving elements of 

State Implementation Plan (SIP) 

submissions from New Hampshire 

regarding the infrastructure 

requirements of the Clean Air Act (CAA 

or Act) for the 2010 sulfur dioxide 

National Ambient Air Quality Standards 

(NAAQS). EPA is also updating the 

classification for two of New 

Hampshire’s air quality control regions 

for sulfur dioxide based on recent air 

quality monitoring data collected by the 

state. Last, we are conditionally 

approving certain elements of New 

Hampshire’s submittal relating to 

prevention of significant deterioration 

requirements. 

The infrastructure requirements are 

designed to ensure that the structural 

components of each state’s air quality 

management program are adequate to 

meet the state’s responsibilities under 

the CAA. 

DATES: This final rule is effective on 

August 8, 2016. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R01–OAR–2012–0950. All 

documents in the docket are listed in 

the www.regulations.gov Web site. 

Although listed in the electronic docket, 

some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available at http://www.regulations.gov 

or at the U.S. Environmental Protection 

Agency, EPA New England Regional 

Office, Office of Ecosystem Protection, 

Air Quality Planning Unit, 5 Post Office 

Square, Suite 100, Boston, MA. EPA 

requests that if at all possible, you 

contact the contact listed in the FOR

FURTHER INFORMATION CONTACT section to 

schedule your inspection. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 p.m., excluding legal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Donald Dahl, (617) 918–1657, or by 

email at dahl.donald@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

EPA. 

Organization of this document. The 

following outline is provided to aid in 

locating information in this preamble. 

I. Summary of SIP Revision 

II. Public Comments 

A. Sierra Club General Comments on 

Emission Limitations 

1. The Plain Language of the CAA 

2. The Legislative History of the CAA 

3. Case Law 

4. EPA Regulations, Such as 40 CFR 

51.112(a) 

5. EPA Interpretations in Other 

Rulemakings 

B. Sierra Club Comments on New 

Hampshire SIP SO2 Emission Limits 

III. Final Action 

IV. Statutory and Executive Order Reviews 

I. Summary of SIP Revision 

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

promulgated a revised NAAQS for the 

1-hour primary SO2 at a level of 75 parts 

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

average of the annual 99th percentile of 

1-hour daily maximum concentrations. 

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

CAA, states are required to submit SIPs 

meeting the applicable requirements of 

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

promulgation of a new or revised 

NAAQS or within such shorter period 

as EPA may prescribe. 

On September 13, 2013, the New 

Hampshire Department of 

Environmental Services (NH DES) 

submitted a SIP revision addressing 

infrastructure elements specified in 

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

implement, maintain, and enforce the 

2010 sulfur dioxide NAAQS. On July 

17, 2015 (80 FR 42446), EPA published 

a notice of proposed rulemaking (NPR) 

for the State of New Hampshire 

proposing approval of New Hampshire’s 

submittal. In the NPR, EPA proposed 

approval of the following infrastructure 

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

(enforcement and minor new source 

review), (D)(i)(II) (Visibility Protection), 

(D)(ii) (International Pollution 

Abatement), (E)(i) and (ii), (F), (G), (H), 

(J) (consultation, public notification, 

and visibility protection), (K), (L), and 

(M), or portions thereof. EPA also 

proposed to approve the PSD program 

relating to infrastructure elements 

(C)(ii), D(i)(II), D(ii), and (J)(iii), except 

to conditionally approve the aspect of 

the PSD program relating to notification 

to neighboring states. Within the same 

NPR, EPA also proposed taking similar 

action on New Hampshire’s 

infrastructure SIP submittals for the 

2008 lead, 2008 ozone, and the 2010 

nitrogen dioxide standards. EPA has 

already finalized its action on the 

infrastructure SIPs for the 2008 lead, 

2008 ozone, and the 2010 nitrogen 

dioxide standards (80 FR 78139, 

December 16, 2015). 

In New Hampshire’s September 13, 

2013 infrastructure SIP for the SO2

NAAQS, the state did not submit 

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


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1See 80 FR 46494 (Aug. 5, 2015) (approving 

Pennsylvania SO2 and ozone infrastructure SIP); 80 

FR 11557 (Mar. 4, 2015) (approving Virginia SO2

infrastructure SIP); 79 FR 62022 (Oct. 16, 2014) 

(approving West Virginia SO2 infrastructure SIP); 79 

FR 19001 (Apr. 7, 2014) (approving West Virginia 

ozone infrastructure SIP); 79 FR 17043 (Mar. 27, 

2014) (approving Virginia ozone infrastructure SIP); 

and 80 FR 63436 (Oct. 20, 2015) (approving 

Minnesota ozone, NO2, SO2, and PM2.5

infrastructure SIP). 

2The Commenter misses the mark by citing the 

word ‘‘attain’’ in CAA section 110(a)(2)(H) as 

evidence that the emission limits submitted to 

satisfy the infrastructure requirements of 

110(a)(2)(A) must ensure attainment of the NAAQS. 

That portion of section 110(a)(2)(H) is referencing 

CAA section 110(k)(5)—the ‘‘SIP call’’ process— 

which allows the Administrator to make a finding 

of substantial inadequacy with respect to a SIP. As 

discussed at proposal, the existence of section 

110(k)(5) bolster’s the reasonableness of EPA’s 

approach to infrastructure SIP requirements, which 

is based on a reasonable reading of sections 

110(a)(1) and 110(a)(2). Section 110(k)(5) is one of 

the avenues and mechanisms Congress provided to 

address specific substantive deficiencies in existing 

SIPs. The SIP call process allows EPA to take 

appropriately tailored action, depending upon the 

nature and severity of the alleged SIP deficiency. 

Section 110(a)(2)(H)(ii) ensures that the relevant 

state agency has the authority to revise the SIP in 

response to a SIP call. 

nonattainment requirements of part D, 

Title I of the CAA, since this element is 

not required to be submitted by the 

3-year submission deadline of section 

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

separate process. This rulemaking 

action also does not include action on 

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

because New Hampshire’s September 

13, 2013 infrastructure SIP submittal 

did not include provisions for this 

element. EPA will take later, separate 

action on section 110(a)(2)(D)(i)(I) for 

the 2010 SO2 NAAQS for New 

Hampshire. 

The rationale supporting EPA’s 

proposed rulemaking action, including 

the scope of infrastructure SIPs in 

general, is explained in the published 

NPR. The NPR is available in the docket 

for this rulemaking at 

www.regulations.gov, Docket ID Number 

EPA–R01–OAR–2012–0950. 

II. Public Comments and EPA’s 

Responses 

EPA received comments from the 

Sierra Club on the August 17, 2015 

proposed rulemaking action on New 

Hampshire’s 2010 SO2 infrastructure 

SIP. A full set of these comments is 

provided in the docket for this final 

rulemaking action. 

A. Sierra Club General Comments on 

Emission Limitations 

1. The Plain Language of the CAA 

Comment 1: Sierra Club (hereafter 

referred to as Commenter) contends that 

the plain language of section 

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

history of the CAA, case law, EPA 

regulations such as 40 CFR 51.112(a), 

and EPA interpretations in prior 

rulemakings require that infrastructure 

SIPs include enforceable emission limits 

that ensure attainment and maintenance 

of the NAAQS. Accordingly, 

Commenter contends that any 

infrastructure SIP where emission limits 

are inadequate to prevent exceedances 

of the NAAQS must be disapproved. 

The Commenter states the main 

objective of the infrastructure SIP 

process ‘‘is to ensure that all areas of the 

country meet the NAAQS’’ and states 

that nonattainment areas are addressed 

through ‘‘nonattainment SIPs.’’ The 

Commenter asserts the NAAQS ‘‘are the 

foundation upon which air emissions 

limitations and standards for the entire 

country are set,’’ including specific 

emission limitations for most large 

stationary sources, such as coal-fired 

power plants. The Commenter discusses 

the CAA’s framework whereby states 

have primary responsibility to assure air 

quality within the state, which the states 

carry out through SIPs such as 

infrastructure SIPs required by section 

110(a)(2). The Commenter also states 

that on its face the CAA requires 

infrastructure SIPs ‘‘to prevent 

exceedances of the NAAQS.’’ In 

support, the Commenter quotes the 

language in section 110(a)(1), which 

requires states to adopt a plan for 

implementation, maintenance, and 

enforcement of the NAAQS, and the 

language in section 110(a)(2)(A), which 

requires SIPs to include enforceable 

emissions limitations as may be 

necessary to meet the requirements of 

the CAA, which the Commenter claims 

includes attainment and maintenance of 

the NAAQS. The Commenter also notes 

the use of the word ‘‘attain’’ in section 

110(a)(2)(H)(ii) and suggests this is 

further evidence that the emission limits 

provided for in section 110(a)(2)(A) 

must ensure attainment of the NAAQS. 

Response 1: EPA disagrees that 

section 110 is clear on its face and must 

be interpreted in the manner suggested 

by the Commenter. As we have 

previously explained in response to the 

Commenter’s similar comments on 

EPA’s actions approving other states’ 

infrastructure SIPs, section 110 is only 

one provision that is part of the 

complicated structure governing 

implementation of the NAAQS program 

under the CAA, as amended in 1990, 

and it must be interpreted in the context 

of not only that structure, but also of the 

historical evolution of that structure.1

EPA interprets infrastructure SIPs as 

more general planning SIPs, consistent 

with the CAA as understood in light of 

its history and structure. When Congress 

enacted the CAA in 1970, it did not 

include provisions requiring states and 

the EPA to label areas as attainment or 

nonattainment. Rather, states were 

required to include all areas of the state 

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

and section 110 set forth the core 

substantive planning provisions for 

these AQCRs. At that time, Congress 

anticipated that states would be able to 

address air pollution quickly pursuant 

to the very general planning provisions 

in section 110 and could bring all areas 

into compliance with a new NAAQS 

within five years. Moreover, at that 

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

that the section 110 plan provide for 

‘‘attainment’’ of the NAAQS and section 

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

include ‘‘emission limitations, 

schedules, and timetables for 

compliance with such limitations, and 

such other measures as may be 

necessary to insure attainment and 

maintenance [of the NAAQS].’’ 

In 1977, Congress recognized that the 

existing structure was not sufficient and 

many areas were still violating the 

NAAQS. At that time, Congress for the 

first time added provisions requiring 

states and EPA to identify whether areas 

of a state were violating the NAAQS 

(i.e., were nonattainment) or were 

meeting the NAAQS (i.e., were 

attainment) and established specific 

planning requirements in section 172 

for areas not meeting the NAAQS. In 

1990, many areas still had air quality 

not meeting the NAAQS and Congress 

again amended the CAA and added yet 

another layer of more prescriptive 

planning requirements for each of the 

NAAQS. At that same time, Congress 

modified section 110 to remove 

references to the section 110 SIP 

providing for attainment, including 

removing pre-existing section 

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

renumbering subparagraph (B) as 

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

Congress replaced the clause ‘‘as may be 

necessary to insure attainment and 

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

may be necessary or appropriate to meet 

the applicable requirements of this 

chapter.’’ 2 Thus, the CAA has 

significantly evolved in the more than 

40 years since it was originally enacted. 

While at one time section 110 of the 

CAA did provide the only detailed SIP 

planning provisions for states and 

specified that such plans must provide 

for attainment of the NAAQS, under the 

structure of the current CAA, section 

110 is only the initial stepping-stone in 

the planning process for a specific 

NAAQS. More detailed, later-enacted 


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3Thus, EPA disagrees with the Commenter’s 

general assertion that the main objective of 

infrastructure SIPs is to ensure all areas of the 

country meet the NAAQS, as we believe the 

infrastructure SIP process is the opportunity to 

review the structural requirements of a state’s air 

program. While the NAAQS can be a foundation 

upon which emission limitations are set, as 

explained in responses to subsequent comments, 

these emission limitations are generally set in the 

attainment planning process envisioned by part D 

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

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

provisions govern the substantive 

planning process, including planning 

for attainment of the NAAQS. 

Thus, section 110 of the CAA is only 

one provision of the complicated overall 

structure governing implementation of 

the NAAQS program under the CAA, as 

amended in 1990, and must be 

interpreted in the context of that 

structure and the historical evolution of 

that structure. In light of the revisions 

to section 110 since 1970 and the later 

promulgated and more specific planning 

requirements of the CAA, EPA 

reasonably interprets the requirement in 

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

plan provide for ‘‘implementation, 

maintenance and enforcement’’ to mean 

that the SIP must contain enforceable 

emission limits that will aid in attaining 

and/or maintaining the NAAQS and that 

the state demonstrate that it has the 

necessary tools to implement and 

enforce a NAAQS, such as adequate 

state personnel and an enforcement 

program. EPA has interpreted the 

requirement for emission limitations in 

section 110 to mean that a 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 has stated in the 

2013 Guidance on Infrastructure State 

Implementation Plan (SIP) Elements 

under Clean Air Act Sections 110(a)(1) 

and 110(a)(2) (‘‘2013 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.’’ 2013 

Infrastructure SIP Guidance at p. 1–2.3

2. The Legislative History of the CAA 

Comment 2: The Commenter cites two 

excerpts from the legislative history of 

the 1970 CAA, claiming they support an 

interpretation that SIP revisions under 

CAA section 110 must include 

emissions limitations sufficient to show 

maintenance of the NAAQS in all areas 

of the state. The Commenter also 

contends that the legislative history of 

the CAA supports the interpretation that 

infrastructure SIPs under section 

110(a)(2) must include enforceable 

emission limitations, citing the Senate 

Committee Report and the subsequent 

Senate Conference Report 

accompanying the 1970 CAA. 

Response 2: As provided in the 

previous response, the CAA, as enacted 

in 1970, including its legislative history, 

cannot be interpreted in isolation from 

the later amendments that refined that 

structure and deleted relevant language 

from section 110 concerning 

demonstrating attainment. See also 79 

FR at 17046 (responding to comments 

on Virginia’s ozone infrastructure SIP). 

In any event, the two excerpts of 

legislative history the Commenter cites 

merely provide that states should 

include enforceable emission limits in 

their SIPs, and they do not mention or 

otherwise address whether states are 

required to include maintenance plans 

for all areas of the state as part of the 

infrastructure SIP. 

3. Case Law 

Comment 3: The Commenter also 

discusses several cases applying the 

CAA which the Commenter claims 

support its contention that courts have 

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

requires enforceable emissions limits in 

infrastructure SIPs to prevent 

exceedances of the NAAQS. The 

Commenter first cites to language in 

Train v. Natural Resources Defense 

Council, 421 U.S. 60, 78 (1975), 

addressing the requirement for 

‘‘emission limitations’’ and stating that 

emission limitations ‘‘are the specific 

rules to which operators of pollution 

sources are subject, and which if 

enforced should result in ambient air 

which meets the national standards.’’ 

The Commenter also cites Pennsylvania 

Department of Environmental Resources 

v. EPA, 932 F.2d 269, 272 (3d Cir. 1991), 

for the proposition that the CAA directs 

EPA to withhold approval of a SIP 

where it does not ensure maintenance of 

the NAAQS, and to Mision Industrial, 

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

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

of the CAA of 1970. The Commenter 

contends that the 1990 Amendments do 

not alter how courts have interpreted 

the requirements of section 110, quoting 

Alaska Department of Environmental 

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, 

including Montana Sulphur & Chemical 

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 national ambient air 

quality standards (‘NAAQS’) through 

enforceable emission limitations.’’) and 

Hall v. EPA, 273 F.3d 1146, 1161 (9th 

Cir. 2001) (EPA’s analysis is required to 

‘‘reflect consideration of the prospects 

of meeting current attainment 

requirements under a revised air quality 

plan.’’). Finally, the Commenter cites 

Michigan Department of Environmental 

Quality v. Browner, for the proposition 

that an infrastructure SIP must 

‘‘include[] emission limitations that 

result in compliance with the NAAQS.’’ 

230 F.3d 181, 185 (6th Cir. 2000) (citing 

Train, 421 U.S. at 79). 

Response 3: None of the cases the 

Commenter cites support its contention 

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

infrastructure SIPs must include 

detailed plans providing for attainment 

and maintenance of the NAAQS in all 

areas of the state, nor do they shed light 

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

reasonably be interpreted. With the 

exception of Train, none of the cases the 

Commenter cites concerned the 

interpretation of CAA section 

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

the pre-1990 Act). Rather, the courts 

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

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

background sections of decisions in the 

context of a challenge to an EPA action 

on revisions to a SIP that was required 

and approved or disapproved as 

meeting other provisions of the CAA or 

in the context of an enforcement action. 

In Train, the Court was addressing a 

state revision to an attainment plan 

submission made pursuant to section 

110 of the CAA, the sole statutory 

provision at that time regulating such 

submissions. The issue in that case 

concerned whether changes to 

requirements that would occur before 

attainment was required were variances 

that should be addressed pursuant to 

the provision governing SIP revisions or 

were ‘‘postponements’’ that must be 

addressed under section 110(f) of the 

CAA of 1970, which contained 

prescriptive criteria. The Court 

concluded that EPA reasonably 

interpreted section 110(f) not to restrict 

a state’s choice of the mix of control 

measures needed to attain the NAAQS 

and that revisions to SIPs that would 

not impact attainment of the NAAQS by 

the attainment date were not subject to 

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

issue was not whether a section 110 SIP 


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4To the extent the comments could be read to 

include an assertion that New Hampshire’s SIP does 

not contain any ‘‘emissions limitations’’ relevant to 

SO2, it should be noted that state regulations at 

Env-A Chapter 400, Sulfur Content Limits in Fuels, 

which EPA previously approved into the state’s SIP, 

see 40 CFR 52.1520(c), are similar to the regulations 

that the Mision court found to be an ‘‘emission 

limitation’’ in 1976. See 547 F.2d at 129. 

needs to provide for attainment or 

whether emissions limits providing 

such are needed as part of the SIP; 

rather the issue was which statutory 

provision governed when the state 

wanted to revise the emission limits in 

its SIP if such revision would not 

impact attainment or maintenance of the 

NAAQS. To the extent the holding in 

the case has any bearing on how section 

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

important to realize that in 1975, when 

the opinion was issued, section 

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

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

requirement to attain the NAAQS, a 

reference that was removed in 1990. 

The decision in Pennsylvania 

Department of Environmental Resources 

was also decided based on the pre-1990 

provision of the CAA. At issue was 

whether EPA properly rejected a 

revision to an approved plan where the 

inventories relied on by the state for the 

updated submission had gaps. The 

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

pre-1990 CAA in support of EPA’s 

disapproval, but did not provide any 

interpretation of that provision. Yet, 

even if the Court had interpreted that 

provision, EPA notes that it was 

modified by Congress in 1990; thus, this 

decision has little bearing on the issue 

here. 

At issue in Mision was the definition 

of ‘‘emissions limitation,’’ not whether 

section 110 requires the state to 

demonstrate how all areas of the state 

will attain and maintain the NAAQS as 

part of their infrastructure SIPs. The 

language from the opinion the 

Commenter quotes does not interpret 

but rather merely describes section 

110(a)(2)(A); the decision in this case 

has no bearing here.4 In Montana 

Sulphur, the Court was not reviewing an 

infrastructure SIP, but rather EPA’s 

disapproval of a SIP and promulgation 

of a federal implementation plan (FIP) 

after a long history of the state failing to 

submit an adequate SIP in response to 

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

that the previously approved SIP was 

substantially inadequate to attain or 

maintain the NAAQS. The Court cited 

generally to sections 107 and 

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

proposition that SIPs should assure 

attainment and maintenance of NAAQS 

through emission limitations, but this 

language was not part of the Court’s 

holding in the case, which focused 

instead on whether EPA’s finding of SIP 

inadequacy, disapproval of the state’s 

required responsive attainment 

demonstration under section 110(k)(5), 

and adoption of a remedial FIP under 

section 110(c) were lawful. The 

Commenter suggests that Alaska 

Department of Environmental 

Conservation 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 made no mention of the 

changed language. Furthermore, the 

Commenter also quotes the Court’s 

statement that ‘‘SIPs must include 

certain measures Congress specified,’’ 

but that statement specifically 

referenced the requirement in section 

110(a)(2)(C), which requires an 

enforcement program and a program for 

the regulation of the modification and 

construction of new sources. Notably, at 

issue in that case was the state’s ‘‘new 

source’’ permitting program, not its 

infrastructure SIP. 

Two of the other cases the Commenter 

cites, Michigan Department of 

Environmental Quality and Hall, 

interpret CAA section 110(l), the 

provision governing ‘‘revisions’’ to 

plans, and not the initial plan 

submission requirement under section 

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

such as the infrastructure SIP at issue in 

this instance. In those cases, the courts 

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

the purpose of providing a brief 

background of the CAA. 

EPA does not believe any of these 

court decisions addressed required 

measures for infrastructure SIPs and 

believes nothing in the opinions 

addressed whether infrastructure SIPs 

need to contain measures to ensure 

attainment and maintenance of the 

NAAQS. 

4. EPA Regulations, Such as 40 CFR 

51.112(a) 

Comment 4: The Commenter cites to 

40 CFR 51.112(a), providing that each 

plan ‘‘must demonstrate that the 

measures, rules and regulations 

contained in it are adequate to provide 

for the timely attainment and 

maintenance of the [NAAQS].’’ The 

Commenter asserts that this regulation 

requires infrastructure SIPs to include 

emissions limits necessary to ensure 

attainment and maintenance of the 

NAAQS. The Commenter states the 

provisions of 40 CFR 51.112 are not 

limited to nonattainment SIPs and 

instead apply to infrastructure SIPs, 

which are required to attain and 

maintain the NAAQS in all areas of a 

state. The Commenter relies on a 

statement in the preamble to the 1986 

action restructuring and consolidating 

provisions in part 51, in which EPA 

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

th[is] rulemaking to address the 

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

FR 40656, 40656 (Nov. 7, 1986). The 

Commenter asserts 40 CFR 51.112(a) 

‘‘identifies the plans to which it applies 

as those that implement the NAAQS,’’ 

which it contends means that 

§ 51.112(a) is applicable to 

infrastructure SIPs. 

Response 4: The Commenter’s 

reliance on 40 CFR 51.112 to support its 

argument that infrastructure SIPs must 

contain emission limits adequate to 

ensure attainment and maintenance of 

the NAAQS is not supported. As an 

initial matter, EPA notes this regulatory 

provision was initially promulgated and 

later restructured and consolidated prior 

to the CAA Amendments of 1990, in 

which Congress removed all references 

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

And, it is clear on its face that 40 CFR 

51.112 applies to plans specifically 

designed to attain the NAAQS. EPA 

interprets these provisions to apply 

when states are developing ‘‘control 

strategy’’ SIPs such as the detailed 

attainment and maintenance plans 

required under other provisions of the 

CAA, as amended in 1977 and again in 

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

and 191–192. The Commenter suggests 

that these provisions must apply to 

section 110 SIPs because in the 

preamble to EPA’s action ‘‘restructuring 

and consolidating’’ provisions in part 

51, EPA stated the new attainment 

demonstration provisions in the 1977 

Amendments to the CAA were ‘‘beyond 

the scope’’ of the rulemaking. It is 

important to note, however, that EPA’s 

action in 1986 was not to establish new 

substantive planning requirements, but 

rather was meant merely to consolidate 

and restructure provisions that had 

previously been promulgated. EPA 

noted that it had already issued 

guidance addressing the new ‘‘Part D’’ 

attainment planning obligations. Also, 

as to maintenance regulations, EPA 

expressly stated that it was not making 

any revisions other than to re-number 

those provisions. 51 FR at 40657. 

Although EPA was explicit that it was 

not establishing requirements 

interpreting the provisions of new ‘‘Part 

D’’ of the CAA, it is clear 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 


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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 

40,660. Thus, the present-day 40 CFR 

51.112 contains consolidated provisions 

that are focused on control strategy SIPs, 

and the infrastructure SIP is not such a 

plan. 

5. EPA Interpretations in Other 

Rulemakings 

Comment 5: The Commenter 

references a prior EPA rulemaking 

action where EPA disapproved a SIP 

and claims that action shows EPA relied 

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

51.112 to reject the SIP. The Commenter 

points to a 2006 partial approval and 

partial disapproval of revisions to 

Missouri’s existing control strategy 

plans addressing the SO2 NAAQS. The 

Commenter claims EPA cited section 

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

to the state plan on the basis that the 

State failed to demonstrate the SIP was 

sufficient to ensure maintenance of the 

SO2 NAAQS after revision of an 

emission limit and claims EPA cited to 

40 CFR 51.112 as requiring that a plan 

demonstrates the rules in a SIP are 

adequate to attain the NAAQS. The 

Commenter claims the revisions to 

Missouri’s control strategy SIP for SO2

were rejected by EPA because the 

revised control strategy limits were also 

in Missouri’s infrastructure SIP and thus 

the weakened limits would have 

impacted the infrastructure SIP’s ability 

to aid in attaining and maintaining the 

NAAQS. 

Response 5: EPA does not agree the 

prior Missouri rulemaking action 

referenced by the Commenter 

establishes how EPA reviews 

infrastructure SIPs. It is clear from the 

final Missouri rule that EPA was not 

reviewing initial infrastructure SIP 

submissions under section 110 of the 

CAA, but rather reviewing revisions that 

would make an already approved SIP 

designed to demonstrate attainment of 

the NAAQS less stringent. EPA’s partial 

approval and partial disapproval of 

revisions to restrictions on emissions of 

sulfur compounds for the Missouri SIP 

in 71 FR 12623 addressed a control 

strategy SIP and not an infrastructure 

SIP. Nothing in that action addresses the 

necessary content of the initial 

infrastructure SIP for a new or revised 

NAAQS. 

B. Sierra Club Comments on New 

Hampshire SIP SO2 Emission Limits 

The Commenter contends that the 

New Hampshire 2010 SO2 infrastructure 

SIP revisions did not revise the existing 

SO2 emission limits in response to the 

2010 SO2 NAAQS and fail to comport 

with assorted CAA requirements for 

SIPs to establish enforceable emission 

limits that are adequate to prohibit 

NAAQS exceedances in areas not 

designated nonattainment. 

Comment 6: Citing section 

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

contends that EPA may not approve 

New Hampshire’s proposed 2010 SO2

infrastructure SIP, because it does not 

include SO2 emissions limits or other 

required measures sufficient to ensure 

attainment and maintenance of the SO2

NAAQS in areas not designated 

nonattainment, which the Commenter 

claims is required by section 

110(a)(2)(A), and because it does not 

include SO2 emission limits ‘‘set in light 

of the 2010 SO2 NAAQS or even 

analyzed in light of the standard.’’ The 

Commenter also contended that section 

110(a)(2)(A) requires not only that the 

state air agency has the authority to 

adopt future emission limitations, but 

that the SIP include existing substantive 

emission limitations. The Commenter 

also provided results from a refined air 

dispersion modeling analysis that 

evaluated SO2 impacts from Schiller 

Station, which the commenter asserts 

demonstrate that SO2 emission limits 

relied on in the infrastructure SIP are 

insufficient to prevent exceedances of 

the NAAQS in both New Hampshire 

and Maine and claims that emissions 

from this source can in theory, and have 

in practice, resulted in exceedances of 

the 2010 SO2 NAAQS. Lastly, the 

commenter asserted the structure of the 

Act makes clear that Congress did not 

intend states to be relieved of their 

infrastructure SIP obligations under 

section 110(a)(2)(A) until designations 

occur. For all of these reasons, the 

Commenter maintained that EPA should 

disapprove New Hampshire’s SO2

infrastructure SIP and promulgate a FIP. 

Response 6: EPA disagrees with the 

Commenter that EPA must disapprove 

New Hampshire’s SO2 infrastructure SIP 

for the reasons provided by the 

Commenter, including the Commenter’s 

modeling results and the state’s 

allegedly insufficient SO2 emission 

limits. EPA is not in this action making 

a determination regarding the State’s 

current air quality status or regarding 

whether its control strategy is sufficient 

to attain and maintain the NAAQS. 

Therefore, EPA is not in this action 

making any judgment on whether the 

Commenter’s submitted modeling 

demonstrates the NAAQS exceedances 

that the Commenter claims. EPA 

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

CAA is reasonably interpreted to require 

states to submit infrastructure SIPs that 

reflect the first step in their planning for 

attainment and maintenance of a new or 

revised NAAQS. These SIP revisions 

should contain a demonstration the 

state has the available tools and 

authority to develop and implement 

plans to attain and maintain the NAAQS 

and show that the SIP has enforceable 

control measures. In light of the 

structure of the CAA, EPA’s 

longstanding position regarding 

infrastructure SIPs is that they are 

general planning SIPs to ensure that the 

state has adequate resources and 

authority to implement a NAAQS in 

general throughout the state and not 

detailed attainment and maintenance 

plans for each individual area of the 

state. As mentioned above, EPA has 

interpreted this to mean with regard to 

the requirement for emission limitations 

that states may rely on measures already 

in place to address the pollutant at issue 

or any new control measures that the 

state may choose to submit. As stated in 

response to a previous more general 

comment, section 110 of the CAA is 

only one provision that is part of the 

complicated structure governing 

implementation of the NAAQS program 

under the CAA, as amended in 1990, 

and it must be interpreted in the context 

of not only that structure, but also of the 

historical evolution of that structure. In 

light of the revisions to section 110 

since 1970 and the later-promulgated 

and more specific planning 

requirements of the CAA, EPA 

reasonably interprets the requirement in 

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

plan provide for ‘‘implementation, 

maintenance and enforcement’’ to mean 

that the SIP must contain enforceable 

emission limits that will aid in attaining 

and/or maintaining the NAAQS and that 

the State demonstrate that it has the 

necessary tools to implement and 

enforce a NAAQS, such as adequate 

state personnel and an enforcement 

program. As discussed above, EPA has 

interpreted the requirement for emission 

limitations in section 110 to mean 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 2013 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 


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5 In EPA’s final SO2 NAAQS preamble, 75 FR 

35520 (June 22, 2010), and subsequent draft 

guidance in March and September 2011, EPA had 

expressed its expectation that many areas would be 

initially designated as unclassifiable due to 

limitations in the scope of the ambient monitoring 

network and the short time available before which 

states could conduct modeling to support their 

designations recommendations due in June 2011. In 

order to address concerns about potential violations 

in these unclassifiable areas, EPA initially 

recommended that states submit substantive 

attainment demonstration SIPs based on air quality 

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

show how their unclassifiable areas would attain 

and maintain the NAAQS in the future. 

Implementation of the 2010 Primary 1-Hour SO2

NAAQS, Draft White Paper for Discussion, May 

2012 (‘‘2012 Draft White Paper’’) (for discussion 

purposes with Stakeholders at meetings in May and 

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

airquality/sulfurdioxide/implement.html. However, 

EPA clearly stated in this 2012 Draft White Paper 

its clarified implementation position that it was no 

longer recommending such attainment 

demonstrations for unclassifiable areas for June 

2013 infrastructure SIPs. Id. EPA had stated in the 

preamble to the NAAQS and in the prior 2011 draft 

guidance that EPA intended to develop and seek 

public comment on guidance for modeling and 

development of SIPs for sections 110 and 191 of the 

CAA. Section 191 of the CAA requires states to 

submit SIPs in accordance with section 172 for 

areas designated nonattainment with the SO2

NAAQS. After seeking such comment, EPA has now 

issued guidance for the nonattainment area SIPs 

due pursuant to sections 191 and 172. See Guidance 

for 1-Hour SO2 Nonattainment Area SIP 

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

Office of Air Quality Planning and Standards, to 

Regional Air Division Directors Regions 1–10, April 

23, 2014. In September 2013, EPA had previously 

issued specific guidance relevant to infrastructure 

SIP submissions due for the NAAQS, including the 

2010 SO2 NAAQS. See 2013 Infrastructure SIP 

Guidance. 6For this reason, EPA disagrees with the 

comment that the infrastructure SIP process is the 

appropriate mechanism in which to demonstrate 

that emission limitations for Merrimack Station are 

sufficient to ensure the Central New Hampshire 

nonattainment area attains the standard. 

7New Hampshire cites to several SIP approved 

emission limitations relevant to SO2 to demonstrate 

compliance with section 110(a)(2)(A), including 

Chapter Env-A 400 (Sulfur Content Limits in 

Fuels)(renumbered Env-A 1600). Thus, to the extent 

the Commenter meant to suggest that New 

Hampshire only has authority to set future emission 

limitations, but that the SIP contains none relevant 

to the 2010 SO2 NAAQS, we disagree. 

8The Consent Decree, entered March 2, 2015 by 

the United States District Court for the Northern 

Continued 

making a substantive SIP revision to 

update the SIP, or both.’’ 2013 

Infrastructure SIP Guidance at p. 2. On 

April 12, 2012, EPA explained its 

expectations regarding implementation 

of the 2010 SO2 NAAQS via letters to 

each of the states. EPA communicated 

in the April 2012 letters that all states 

were expected to submit SIPs meeting 

the ‘‘infrastructure’’ SIP requirements 

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

June 2013. At the time, EPA was 

undertaking a stakeholder outreach 

process to continue to develop possible 

approaches for determining attainment 

status under the SO2 NAAQS and 

implementing this NAAQS. EPA made 

abundantly clear in the April 2012 

letters that EPA did not expect states to 

submit substantive attainment 

demonstrations or modeling 

demonstrations showing attainment for 

areas not designated nonattainment in 

infrastructure SIPs due in June 2013. 

Although EPA had previously suggested 

in its 2010 SO2 NAAQS preamble and 

in prior draft implementation guidance 

in 2011 that states should, in the unique 

SO2 context, use the section 110(a) SIP 

process as the vehicle for demonstrating 

attainment of the NAAQS, this approach 

was never adopted as a binding 

requirement and was subsequently 

discarded in the April 2012 letters to 

states. The April 2012 letters 

recommended states focus infrastructure 

SIPs due in June 2013, such as New 

Hampshire’s SO2 infrastructure SIP, on 

traditional ‘‘infrastructure elements’’ in 

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

modeling demonstrations for future 

attainment for areas not designated as 

nonattainment.5 Therefore, EPA asserts 

that evaluations of modeling 

demonstrations such as the one 

submitted by the Commenter are more 

appropriately considered in actions that 

make determinations regarding states’ 

current air quality status or regarding 

future air quality status. EPA also 

asserts that SIP revisions for SO2

nonattainment areas, including 

measures and modeling demonstrating 

attainment, are due by the dates 

statutorily prescribed under subpart 5 

under part D. Those submissions are 

due no later than 18 months after an 

area is designated nonattainment for 

SO2, under CAA section 191(a). Thus, 

the CAA directs states to submit these 

SIP requirements that are specific for 

nonattainment areas on a separate 

schedule from the ‘‘structural 

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

due within three years of adoption or 

revision of a NAAQS and which apply 

statewide. The infrastructure SIP 

submission requirement does not move 

up the date for any required submission 

of a part D plan for areas designated 

nonattainment for the new NAAQS. 

Thus, elements relating to 

demonstrating attainment for areas not 

attaining the NAAQS are not necessary 

for infrastructure SIP submissions,6 and 

the CAA does not provide explicit 

requirements for demonstrating 

attainment for areas that have not yet 

been designated regarding attainment 

with a particular NAAQS. As stated 

previously, EPA believes that the proper 

inquiry at this juncture is whether New 

Hampshire has met the basic structural 

SIP requirements appropriate at the 

point in time EPA is acting upon the 

infrastructure submittal. Emissions 

limitations and other control measures 

needed to attain the NAAQS in areas 

designated nonattainment for that 

NAAQS are due on a different schedule 

from the section 110 infrastructure 

elements. A state, like New Hampshire, 

may reference preexisting SIP emission 

limits or other rules contained in part D 

plans for previous NAAQS in an 

infrastructure SIP submission. New 

Hampshire’s existing rules and emission 

reduction measures in the SIP that 

control emissions of SO2 were discussed 

in the state’s submittal.7 These 

provisions have the ability to reduce 

SO2 overall. Although the New 

Hampshire SIP relies on measures and 

programs used to implement previous 

SO2 NAAQS, these provisions are not 

limited to reducing SO2 levels to meet 

one specific NAAQS and will continue 

to provide benefits for the 2010 SO2

NAAQS. Additionally, as discussed in 

the NPR, New Hampshire has the ability 

to revise its SIP when necessary (e.g. in 

the event the Administrator finds the 

plan to be substantially inadequate to 

attain the NAAQS or otherwise meet all 

applicable CAA requirements) as 

required under element H of section 

110(a)(2). 

The requirements for emission 

reduction measures for an area 

designated nonattainment for the 2010 

primary SO2 NAAQS are in sections 172 

and 191–192 of the CAA, and therefore, 

the appropriate avenue for 

implementing requirements for 

necessary emission limitations for 

demonstrating attainment with the 2010 

SO2 NAAQS is through the attainment 

planning process contemplated by those 

sections of the CAA. On August 5, 2013, 

EPA designated as nonattainment most 

areas in locations where existing 

monitoring data from 2009–2011 

indicated violations of the 1-hour SO2

standard. 78 FR 47191. At that time, one 

area in New Hampshire had monitoring 

data from 2009–2011 indicating 

violations of the 1-hour SO2 standard, 

and this area was designated 

nonattainment in New Hampshire. See 

40 CFR 81.330. On March 2, 2015 the 

United States District Court for the 

Northern District of California entered a 

Consent Decree among the EPA, Sierra 

Club and Natural Resources Defense 

Council to resolve litigation concerning 

the deadline for completing 

designations for the 2010 SO2 NAAQS. 

Pursuant to the terms of the Consent 

Decree, EPA will complete additional 

designations for all remaining areas of 

the country including remaining areas 

in New Hampshire.8


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District of California in Sierra Club and NRDC v. 

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

at http://www3.epa.gov/so2designations/pdfs/ 

201503FinalCourtOrder.pdf. 

9EPA has provided draft guidance for states 

regarding modeling analyses to support the 

designations process for the 2010 SO2 NAAQS. SO2

NAAQS Designations Modeling Technical 

Assistance Document (draft), EPA Office of Air and 

Radiation and Office of Air Quality Planning and 

Standards, December 2013, available at http:// 

www.epa.gov/airquality/sulfurdioxide/ 

implement.html. 

10Finally, EPA does not disagree with the 

Commenter’s claim that coal-fired EGUs are a large 

source of SO2 emissions in New Hampshire based 

on the 2011 NEI. However, EPA does not agree that 

this information is relevant to our approval of the 

infrastructure SIP, which EPA has explained meets 

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

For the area designated nonattainment 

in New Hampshire in August 2013, the 

attainment SIP was due by April 4, 2015 

and must contain a demonstration that 

the area will attain the 2010 SO2

NAAQS as expeditiously as practicable, 

but no later than October 4, 2018 

pursuant to sections 172, 191 and 192 

of the CAA, including a plan for 

enforceable measures to reach 

attainment of the NAAQS. Similar 

attainment planning SIPs for any 

additional areas which EPA 

subsequently designates nonattainment 

with the 2010 SO2 NAAQS will be due 

for such areas within the timeframes 

specified in CAA section 191. EPA 

believes it is not appropriate to interpret 

the overall section 110(a)(2) 

infrastructure SIP obligation to require 

bypassing the attainment planning 

process by imposing separate 

requirements outside the attainment 

planning process. Such actions would 

be disruptive and premature absent 

exceptional circumstances and would 

interfere with a state’s planning process. 

See In the Matter of EME Homer City 

Generation LP and First Energy 

Generation Corp., Order on Petitions 

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

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

Homer City/Mansfield Order) at 10–19 

(finding Pennsylvania SIP did not 

require imposition of 1-hour SO2

emission limits on sources independent 

of the part D attainment planning 

process contemplated by the CAA). 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 New 

Hampshire must include SO2 emission 

limits on sources, where needed, for the 

area designated nonattainment to reach 

attainment with the 2010 1-hour SO2

NAAQS and for any additional areas 

EPA may subsequently designate 

nonattainment. EPA agrees that the 

structure of the Act makes clear that 

Congress did not intend to postpone a 

state’s obligation to submit and 

infrastructure SIP under section 

110(a)(2)(A) until designations occur. 

EPA disagrees, however, with the 

Commenter’s interpretation that section 

110(a)(2)(A) requires a state to submit 

SO2 emission limitations for individual 

sources during this infrastructure SIP 

planning process that ensure attainment 

and maintenance of the 2010 SO2

NAAQS. As stated above, 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) that the plan 

provide for ‘‘implementation, 

maintenance and enforcement’’ to mean 

that the SIP must contain enforceable 

emission limits that will aid in attaining 

and/or maintaining the NAAQS and that 

the State demonstrate that it has the 

necessary tools to implement and 

enforce a NAAQS. 

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, EPA will act in 

accordance with the entered Consent 

Decree’s schedule for conducting 

additional designations for the 2010 SO2

NAAQS and any areas designated 

nonattainment must meet the applicable 

part D requirements for these areas. 

However, because the purpose of an 

infrastructure SIP submission is for 

more general planning purposes, EPA 

does not believe New Hampshire was 

obligated during this infrastructure SIP 

planning process to account for 

controlled SO2 levels at individual 

sources to satisfy section 110(a)(2)(A). 

See Homer City/Mansfield Order at 10– 

19. Regarding the air dispersion 

modeling conducted by the Commenter 

pursuant to AERMOD for Schiller 

Station, EPA does not find the modeling 

information relevant at this time for 

review of an infrastructure SIP. While 

EPA has extensively discussed the use 

of modeling for attainment 

demonstration purposes and for 

designations, EPA has affirmatively 

stated such modeling was not needed to 

demonstrate attainment for the SO2

infrastructure SIPs under the 2010 SO2

NAAQS. See April 12, 2012 letters to 

states regarding SO2 implementation 

and Implementation of the 2010 Primary 

1-Hour SO2 NAAQS, Draft White Paper 

for Discussion, May 2012, available at 

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

sulfurdioxide/implement.html.9 EPA’s 

Data Requirements Rule contains a 

process by which state air agencies 

characterize air quality around SO2

sources through ambient monitoring 

and/or air quality modeling techniques 

and submit such data to the EPA. See, 

e.g., 80 FR 51502 (Aug. 21, 2015). The 

rule includes a discussion of how EPA 

anticipates addressing modeling that 

informs determinations of states’ air 

quality status under the 2010 SO2

NAAQS. As stated above, EPA believes 

it is not appropriate to bypass the 

attainment planning process by 

imposing separate attainment planning 

process requirements outside part D and 

into the infrastructure SIP process. 

In conclusion, EPA disagrees with the 

Commenter’s statements that EPA must 

disapprove New Hampshire’s 

infrastructure SIP submission because it 

does not establish specific enforceable 

SO2 emission limits, either on coal-fired 

EGUs or other large SO2 sources, in 

order to demonstrate attainment and 

maintenance with the NAAQS at this 

time.10 Because we are approving New 

Hampshire’s infrastructure SIP 

submission with respect to section 

110(a)(2)(A), we need not promulgate a 

federal implementation plan. See CAA 

section 110(c)(1). 

Comment 7: The Commenter claims 

that New Hampshire’s proposed SO2

infrastructure SIP lacks emission 

limitations for Schiller Station informed 

by air dispersion modeling as well as 

other large SO2 sources outside of the 

nonattainment area and therefore fails to 

ensure New Hampshire will attain and 

maintain the 2010 SO2 NAAQS. The 

Commenter claims EPA must 

disapprove the SO2 infrastructure SIP as 

it does not ‘‘prevent exceedances’’ or 

ensure attainment and maintenance of 

the SO2 NAAQS. 

Response 7: EPA agrees with the 

Commenter that air dispersion 

modeling, such as AERMOD, can be an 

important tool in the CAA section 107 

designations process for SO2 and in 

developing SIPs for nonattainment areas 

as required by sections 172 and 191– 

192, including supporting required 

attainment demonstrations. EPA agrees 

that prior EPA statements, EPA 

guidance, and case law support the use 

of air dispersion modeling in the SO2

designations process and attainment 

demonstration process, as well as in 

analyses of the interstate impact of 

transported emissions and whether 

existing approved SIPs remain adequate 


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11The 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. 

12The Consent Decree in Sierra Club and NRDC 

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

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

sulfurdioxide/designations/pdfs/ 

201503FinalCourtOrder.pdf. See 80 FR 51052, 

August 21, 2015 (EPA’s data requirements rule). See 

also Updated Guidance for Area Designations for 

the 2010 Primary Sulfur Dioxide National Ambient 

Air Quality Standard, Stephen D. Page, Director, 

EPA’s Office of Air Quality Planning Standards, 

March 20, 2015, available at http://www.epa.gov/ 

airquality/sulfurdioxide/pdfs/ 

20150320SO2designations.pdf. 

13The Commenter cites to Motor Vehicle 

Manufacturers Association v. State Farm Mutual 

Auto Insurance Co., 463 U.S. 29, 43 (1983) and 

NRDC v. EPA, 571 F.3d 1245, 1254 (D.C. Cir. 2009). 

to show attainment and maintenance of 

the SO2 NAAQS. However, as provided 

in the previous responses, EPA 

disagrees with the Commenter that EPA 

must disapprove the New Hampshire 

SO2 infrastructure SIP for its alleged 

failure to include source-specific SO2

emission limits that show no 

exceedances of the NAAQS when 

modeled or ensure attainment and 

maintenance of the NAAQS. 

In acting to approve or disapprove an 

infrastructure SIP, EPA is not required 

to make findings regarding current air 

quality status of areas within the state, 

such area’s projected future air quality 

status, or whether existing emissions 

limits in such area are sufficient to meet 

a NAAQS in the area. The attainment 

planning process detailed in part D of 

the CAA, including sections 172 and 

191–192 attainment SIPs, is the 

appropriate place for the state to 

evaluate measures needed to bring instate nonattainment areas into 

attainment with a NAAQS and to 

impose additional emission limitations 

such as SO2 emission limits on specific 

sources. 

EPA had initially recommended that 

states submit substantive attainment 

demonstration SIPs based on air quality 

modeling in the final 2010 SO2 NAAQS 

preamble, 75 FR 35520 (June 22, 2010), 

and in subsequent draft guidance issued 

in September 2011 for the section 110(a) 

SIPs due in June 2013 in order to show 

how areas then-expected to be 

designated as unclassifiable would 

attain and maintain the NAAQS. These 

initial statements in the preamble and 

2011 draft guidance, presented only in 

the context of the new 1-hour SO2

NAAQS and not suggested as a matter 

of general infrastructure SIP policy, 

were based on EPA’s expectation at the 

time that, by June 2012, most areas 

would initially be designated as 

unclassifiable due to limitations in the 

scope of the ambient monitoring 

network and the short time available 

before which states could conduct 

modeling to support designations 

recommendations in 2011. However, 

after conducting extensive stakeholder 

outreach and receiving comments from 

the states regarding these initial 

statements and the timeline for 

implementing the NAAQS, EPA 

subsequently stated in the April 12, 

2012 letters and in the 2012 Draft White 

Paper that EPA was clarifying its 2010 

SO2 NAAQS implementation position 

and was no longer recommending such 

attainment demonstrations supported by 

air dispersion modeling for 

unclassifiable areas (which had not yet 

been designated) for the June 2013 

infrastructure SIPs. Instead, EPA 

explained that it expected states to 

submit infrastructure SIPs that followed 

the general policy EPA had applied 

under other NAAQS. EPA then 

reaffirmed this position in the February 

6, 2013 memorandum, ‘‘Next Steps for 

Area Designations and Implementation 

of the Sulfur Dioxide National Ambient 

Air Quality Standard.’’ 11 As previously 

mentioned, EPA had stated in the 

preamble to the NAAQS and in the prior 

2011 draft guidance that EPA intended 

to develop and seek public comment on 

guidance for modeling and development 

of SIPs for sections 110, 172 and 191– 

192 of the CAA. After receiving such 

further comment, EPA has now issued 

guidance for the nonattainment area 

SIPs due pursuant to sections 172 and 

191–192. See April 23, 2014 Guidance 

for 1-Hour SO2 Nonattainment Area SIP 

Submissions. In addition, modeling may 

be an appropriate consideration for 

states and EPA in further designations 

for the SO2 NAAQS in accordance with 

the Sierra Club and NRDC Consent 

Decree and the data requirements rule 

mentioned previously.12 While the EPA 

guidance for attainment SIPs and for 

designations for CAA section 107 and 

the process for characterizing SO2

emissions from larger sources discuss 

the use of air dispersion modeling, 

EPA’s 2013 Infrastructure SIP Guidance 

did not suggest that states use air 

dispersion modeling for purposes of the 

section 110(a)(2) infrastructure SIP. 

Therefore, as discussed previously, EPA 

believes the New Hampshire SO2

infrastructure SIP submittal contains the 

structural requirements to address 

elements in section 110(a)(2) as 

discussed in the proposed approval. 

EPA believes infrastructure SIPs are 

general planning SIPs to ensure that a 

state has adequate resources and 

authority to implement a NAAQS. 

Infrastructure SIP submissions are not 

intended to act or fulfill the obligations 

of a detailed attainment and/or 

maintenance plan for each individual 

area of the state that is not attaining the 

NAAQS. While infrastructure SIPs must 

address modeling authorities in general 

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

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

to provide the state’s authority for air 

quality modeling and for submission of 

modeling data to EPA, not specific air 

dispersion modeling for large stationary 

sources of pollutants. In the proposal for 

this rulemaking action, EPA provided 

an explanation of New Hampshire’s 

ability and authority to conduct air 

quality modeling when required and its 

authority to submit modeling data to the 

EPA. The 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 New Hampshire’s 

infrastructure SIP is unrelated to the 

section 107 designations process. As 

outlined in the August 23, 2010 

clarification memo, ‘‘Applicability of 

Appendix W Modeling Guidance for the 

1-hour SO2 National Ambient Air 

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

AERMOD is the preferred model for 

single source modeling to address the 1- 

hour SO2 NAAQS as part of the NSR/ 

PSD permit programs. Therefore, as 

attainment SIPs, designations, and NSR/ 

PSD actions are outside the scope of a 

required infrastructure SIP for the 2010 

SO2 NAAQS for section 110(a), EPA 

provides no further response to the 

Commenter’s discussion of air 

dispersion modeling for these 

applications. If the Commenter 

resubmits its air dispersion modeling for 

the New Hampshire EGU, or updated 

modeling information in the appropriate 

context, EPA will address the 

resubmitted modeling or updated 

modeling at that time. 

The Commenter, citing administrative 

law principles regarding consideration 

of comments provided during a 

rulemaking process,13 contends that 

EPA must consider the modeling data 

the Commenter has submitted ‘‘over the 

years which demonstrate the 

inadequacy of New Hampshire’s rules.’’ 

For the reasons previously explained, 

however, the purpose for which the 

Commenter submitted the modeling— 

namely, to assert that current air quality 

in the area in which Schiller Station is 

located does not meet the NAAQS—is 

not relevant to EPA’s action on this 

infrastructure SIP, and consequently 

EPA is not required to consider the 

modeling in evaluating the 

approvability of the infrastructure SIP. 


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14 In re Mississippi Lime Co., 15 E.A.D. 349, 379– 

82 (EAB Aug. 9, 2011). 

15 71 FR 12623, 12,624 (Mar. 13, 2006) 

(disapproving a control strategy SO2 SIP). 

16As EPA has stated, some areas are designated 

nonattainment areas pursuant to CAA section 107 

for the 2010 SO2 NAAQS in the State. Thus, while 

the State, at this time, has an obligation to submit 

attainment plans for the 2010 SO2 NAAQS for 

sections 172, 191 and 192, EPA believes the 

appropriate time for examining necessity of the 

averaging periods within any submitted SO2

emission limits on specific sources is within the 

attainment planning process. 

17For a discussion on emission averaging times 

for emissions limitations for SO2 attainment SIPs, 

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

Nonattainment Area SIP Submissions. EPA 

explained that it is possible, in specific cases, for 

states to develop control strategies that account for 

variability in 1-hour emissions rates through 

emission limits with averaging times that are longer 

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

days, but still provide for attainment of the 2010 

SO2 NAAQS as long as the limits are of at least 

comparable stringency to a 1-hour limit at the 

critical emission value. EPA has not yet evaluated 

any specific submission of such a limit, and so is 

not at this time prepared to take final action to 

implement. 

EPA does not believe infrastructure SIPs 

must contain emission limitations 

informed by air dispersion modeling in 

order to meet the requirements of 

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

evaluated the persuasiveness of the 

Commenter’s submitted modeling in 

finding that it is not relevant to the 

approvability of New Hampshire’s 

proposed infrastructure SIP for the 2010 

SO2 NAAQS, but EPA has made no 

judgment regarding whether the 

Commenter’s submitted modeling is 

sufficient to show violations of the 

NAAQS. 

While EPA does not believe that 

infrastructure SIP submissions are 

required to contain emission limits 

assuring in-state attainment of the 

NAAQS, as suggested by the 

Commenter, EPA does recognize that in 

the past, states have, in their discretion, 

used infrastructure SIP submittals as a 

‘vehicle’ for incorporating regulatory 

revisions or source-specific emission 

limits into the state’s plan. See 78 FR 

73442 (December 6, 2013) (approving 

regulations Maryland submitted for 

incorporation into the SIP along with 

the 2008 ozone infrastructure SIP to 

address ethics requirements for State 

Boards in sections 128 and 

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

revisions are intended to help the state 

meet the requirements of section 

110(a)(2), these ‘‘ride-along’’ SIP 

revisions are not intended to signify that 

all infrastructure SIP submittals must, in 

order to be approved by EPA, have 

similar regulatory revisions or sourcespecific emission limits. Rather, the 

regulatory provisions and sourcespecific emission limits the state relies 

on when showing compliance with 

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

likely already been incorporated into 

the state’s SIP prior to each new 

infrastructure SIP submission; in some 

cases this was done for entirely separate 

CAA requirements, such as attainment 

plans required under section 172, or for 

previous NAAQS. 

Comment 8: The Commenter asserts 

that EPA may not approve the proposed 

New Hampshire SO2 infrastructure SIP 

because it fails to include enforceable 

emission limitations with a 1-hour 

averaging time (or, if longer averaging 

periods are used, more stringent 

numerical emission limits) that apply at 

all times. For support, the Commenter 

cites to the definition of ‘‘emission 

limitation’’ at CAA section 302(k). The 

Commenter also claims EPA has stated 

that 1-hour averaging times are 

necessary for the 2010 SO2 NAAQS 

citing to EPA’s April 23, 2014 Guidance 

for 1-Hour SO2 Nonattainment Area SIP 

Submissions, a February 3, 2011, EPA 

Region 7 letter to the Kansas 

Department of Health and Environment 

regarding the need for 1-hour SO2

emission limits in a PSD permit, an EPA 

Environmental Appeals Board (EAB) 

decision rejecting use of a 3-hour 

averaging time for a SO2 limit in a PSD 

permit,14 and EPA’s disapproval of a 

Missouri SIP that relied on annual 

averaging for SO2 emission rates.15

Thus, the Commenter contends EPA 

must disapprove New Hampshire’s 

infrastructure SIP, which the 

Commenter claims fails to require 

emission limits with adequate averaging 

times. 

Response 8: EPA disagrees that EPA 

must disapprove the proposed New 

Hampshire infrastructure SIP because 

the SIP does not contain enforceable 

SO2 emission limitations with 1-hour 

averaging periods that apply at all times, 

as this issue is not appropriate for 

resolution at this stage. The comment 

does not assert that the SO2 emission 

limits in New Hampshire’s SIP are not 

enforceable or that they do not apply at 

all times, instead the comment focuses 

on the lack of 1-hour averaging times. 

As EPA has noted previously, the 

purpose of the section 110(a)(2) SIP is 

to ensure that the State has the 

necessary structural components to 

implement programs for attainment and 

maintenance of the NAAQS.16

While EPA does agree that the 

averaging time is a critical consideration 

for purposes of substantive SIP 

revisions, such as attainment 

demonstrations, the averaging time of 

existing rules in the SIP is not relevant 

for determining that the State has met 

the applicable requirements of section 

110(a)(2) with respect to the 

infrastructure elements addressed in the 

present SIP action.17 Therefore, because 

EPA finds New Hampshire’s SO2

infrastructure SIP approvable without 

the additional SO2 emission limitations 

showing in-state attainment of the 

NAAQS, EPA finds the issues of 

appropriate averaging periods for such 

future limitations not relevant at this 

time. The Commenter has cited to prior 

EPA discussion on emission limitations 

required in PSD permits (from an EAB 

decision and EPA’s letter to Kansas’ 

permitting authority) pursuant to part C 

of the CAA, which is neither relevant 

nor applicable to the present SIP action. 

In addition, as previously discussed, the 

EPA disapproval of the 2006 Missouri 

SIP was a disapproval relating to a 

control strategy SIP required pursuant to 

part D attainment planning and is 

likewise not relevant to the analysis of 

infrastructure SIP requirements. 

Comment 9: The Commenter states 

that enforceable emission limits in SIPs 

are necessary to avoid additional 

nonattainment designations in areas 

where modeling or monitoring shows 

SO2 levels exceed the 1-hour SO2

NAAQS and cites to a February 6, 2013 

EPA document, Next Steps for Area 

Designations and Implementation of the 

Sulfur Dioxide National Ambient Air 

Quality Standard, which the 

Commenter contends discusses how 

states could avoid future nonattainment 

designations. The Commenter claims 

the modeling it conducted for Schiller 

Station indicates exceedances over a 

wide area in both New Hampshire and 

Maine. The Commenter states that 

additional areas in New Hampshire will 

have to be designated nonattainment ‘‘if 

source-specific enforceable emissions 

limits are not placed on PSNH Schiller 

Station through this I–SIP.’’ In 

summary, the Commenter asserts that, 

‘‘in order to implement the NAAQS, 

comply with section 110(a)(2)(A), and 

avoid additional nonattainment 

designations for areas impacted by’’ 

Schiller Station, EPA must disapprove 

the New Hampshire infrastructure SIP 

and ensure that emission limits ‘‘relied 

upon in the Infrastructure SIP’’ will not 

allow large sources of SO2 to cause 

exceedances of the 2010 SO2 NAAQS. 

Response 9: EPA appreciates the 

Commenter’s concern with avoiding 

nonattainment designations in New 

Hampshire for the 2010 SO2 NAAQS. 

However, Congress designed the CAA 

such that states have the primary 

responsibility for achieving and 

maintaining the NAAQS within their 

geographic areas by submitting SIPs 


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18EPA also notes that in EPA’s final rule 

regarding the 2010 SO2 NAAQS, EPA noted that it 

anticipates several forthcoming national and 

regional rules, such as the Industrial Boilers 

standard under CAA section 112, are likely to 

require significant reductions in SO2 emissions over 

the next several years. See 75 FR 35520. EPA 

continues to believe similar national and regional 

rules will lead to SO2 reductions that will help 

achieve compliance with the 2010 SO2 NAAQS. If 

it appears that states with areas designated 

nonattainment in 2013 will nevertheless fail to 

attain the NAAQS as expeditiously as practicable 

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

review of attainment SIPs required by section 172, 

the CAA provides authorities and tools for EPA to 

solve such failure, including, as appropriate, 

disapproving submitted SIPs and promulgating 

federal implementation plans. Likewise, for any 

areas designated nonattainment after 2013, EPA has 

the same authorities and tools available to address 

any areas which do not timely attain the NAAQS. 

19See 80 FR 42446, 42452 (July 17, 2015) (‘‘In 

today’s rulemaking, EPA is not proposing to 

Continued 

which will specify the details of how 

the states will meet the NAAQS. 

Pursuant to section 107(d), the states 

make initial recommendations of 

designations for areas within each state 

and EPA then promulgates the 

designations after considering the state’s 

submission and other information. EPA 

promulgated initial designations for the 

2010 SO2 NAAQS in August 2013 for 

areas in which monitoring at that time 

showed violations of the NAAQS, but 

has not yet issued designations for other 

areas and will complete the required 

designations pursuant to the schedule 

contained in the recently entered 

Consent Decree. EPA will designate 

additional areas for the 2010 SO2

NAAQS in accordance with CAA 

section 107 and existing EPA policy and 

guidance. New Hampshire may, on its 

own accord, decide to impose 

additional SO2 emission limitations to 

avoid future designations to 

nonattainment. If additional New 

Hampshire areas are designated 

nonattainment, New Hampshire will 

then have the initial opportunity to 

develop additional emissions 

limitations needed to attain the NAAQS, 

and EPA would be charged with 

reviewing whether the SIP is adequate 

to demonstrate attainment. See 

Commonwealth of Virginia v. EPA, 108 

F.3d 1397, 1410 (D.C. Cir. 1997) (citing 

Nat. Res. Def. Council, Inc. v. Browner, 

57 F.3d 1122, 1123 (D.C. Cir. 1995)) 

(discussing that states have primary 

responsibility for determining an 

emission reductions program for its 

areas subject to EPA approval 

dependent upon whether the SIP as a 

whole meets applicable requirements of 

the CAA). However, such considerations 

are not required of New Hampshire at 

the infrastructure SIP stage of NAAQS 

implementation, as the Commenter’s 

statements concern the separate 

designations process under section 

107.18 EPA disagrees that the 

infrastructure SIP must be disapproved 

for not including enforceable emissions 

limitations to prevent future 1-hour SO2

nonattainment designations. 

Comment 10: The commenter notes 

that New Hampshire did not include a 

submittal to satisfy CAA section 

110(a)(2)(D)(i)(I) (the so-called ‘‘Good 

Neighbor’’ provision) and asserts that, as 

a result, ‘‘EPA must take immediate 

action here to disapprove the SO2 I–SIP 

Certification . . . and initiate the FIP 

[Federal Implementation Plan] process 

with regard to the I–SIP’s ‘Good 

Neighbor’ provisions.’’ 

Response 10: EPA is not taking any 

action at this time with respect to 

Element D(i)(I), which addresses 

emissions that significantly contribute 

to nonattainment or interfere with 

maintenance of the NAAQS in another 

state, also known as ‘‘good neighbor’’ 

SIPs or ‘‘interstate transport’’ SIPs. As 

the commenter notes, New Hampshire 

did not include any provisions to 

address the requirements of section 

110(a)(2)(D)(i)(I) in its September 13, 

2013infrastructure SIP submittal for the 

2010 SO2 NAAQS. In the NPR, EPA did 

not propose to take any action with 

respect to New Hampshire’s obligations 

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

the September 13, 2013 infrastructure 

SIP submittal. 

Because New Hampshire did not 

make a submission in its September 13, 

2013 SIP submittal to address the 

requirements of section 

110(a)(2)(D)(i)(I), EPA is not required to 

have proposed or to take final SIP 

approval or disapproval action on this 

element under section 110(k) of the 

CAA. In this case, there has been no 

substantive submission for EPA to 

evaluate under section 110(k). Nor does 

the lack of a submission addressing 

section 110(a)(2)(D)(i)(I) require EPA to 

disapprove New Hampshire’s 

September 13, 2013 SIP submittal as to 

the other elements of section 110(a)(2). 

EPA interprets its authority under 

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

affording EPA the discretion to approve, 

or conditionally approve, individual 

elements of New Hampshire’s 

infrastructure SIP submissions, separate 

and apart from any action with respect 

to the requirements of section 

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

discrete infrastructure SIP requirements 

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

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

severable from the other infrastructure 

elements and interprets section 

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

individual severable measures in a plan 

submission. 

On August 21, 2012, the D.C. Circuit 

issued a decision in EME Homer City 

Generation, L.P. v. EPA, 696 F.3d 7, 31 

(D.C. Cir. 2012), holding, among other 

things, that states had no obligation to 

submit good neighbor SIPs until the 

EPA had first quantified each state’s 

good neighbor obligation. Accordingly, 

under that decision the submission 

deadline for good neighbor SIPs under 

the CAA would not necessarily be tied 

to the promulgation of a new or revised 

NAAQS. While the EPA sought review 

first with the D.C. Circuit en banc and 

then with the United States Supreme 

Court, the EPA complied with the D.C. 

Circuit’s ruling during the pendency of 

its appeal. The D.C. Circuit declined to 

consider EPA’s appeal en banc, but, on 

April 29, 2014, the Supreme Court 

reversed the D.C. Circuit’s EME Homer 

City opinion and held, among other 

things, that under the plain language of 

the CAA, states must submit SIPs 

addressing the good neighbor 

requirement in CAA section 

110(a)(2)(D)(i)(I) within three years of 

promulgation of a new or revised 

NAAQS, regardless of whether the EPA 

first provides guidance, technical data 

or rulemaking to quantify the state’s 

obligation. 

Pursuant to CAA section 110(c)(1), 

EPA is authorized and obligated to 

promulgate a FIP, if EPA takes any of 

the following actions: (1) Finds that a 

state has failed to make a required SIP 

submission; (2) finds that a required 

submission was incomplete; or (3) 

disapproves a required SIP submission 

in whole or in part. With respect to the 

2010 SO2 NAAQS, EPA has not issued 

a finding of failure to submit, issued a 

finding of incompleteness, or 

disapproved the submission in whole or 

in part. Consequently, the two-year FIP 

clock has not yet begun to run. EPA 

agrees in general that sections 110(a)(1) 

and (a)(2) of the CAA require states to 

submit, within three years of 

promulgation of a new or revised 

NAAQS, a plan that addresses crossstate air pollution under section 

110(a)(2)(D)(i)(I). In this rulemaking, 

however, EPA is only approving 

portions of New Hampshire’s 

infrastructure SIP submissions for the 

2010 SO2 NAAQS, which did not 

include provisions for interstate 

transport under section 

110(a)(2)(D)(i)(I). A finding of failure to 

submit a SIP submission for the 2010 

SO2 NAAQS addressing section 

110(a)(2)(D)(i)(I) could occur in a 

separate rulemaking. As that issue was 

not addressed in the July 17, 2015 

NPR,19 and is thus not pertinent to this 


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approve or disapprove New Hampshire’s 

compliance with section 110(a)(2)(D)(i)(I) with 

respect to the 2008 ozone, 2010 NO2 and 2010 SO2

NAAQS, since New Hampshire’s infrastructure SIPs 

for these NAAQS do not include a submittal with 

respect to transport for sub-element 1, prongs 1 and 

2.’’). 

rulemaking, EPA provides no further 

response. In sum, New Hampshire’s and 

EPA’s obligations regarding interstate 

transport of pollution for the 2010 SO2

NAAQS will be addressed in later 

rulemakings. 

III. Final Action 

EPA is approving a SIP submission 

from New Hampshire certifying the 

state’s current SIP is sufficient to meet 

the required infrastructure elements 

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

2010 SO2 NAAQS, with the exception of 

certain aspects relating to the state’s 

PSD program which we are 

conditionally approving. On September 

25, 2015, we conditionally approved the 

portion of New Hampshire’s PSD 

program that pertains to providing 

notification to neighboring states of 

certain permitting actions in New 

Hampshire. See 80 FR 57722. Therefore, 

we are conditionally approving herein 

the related portions of New Hampshire’s 

infrastructure SIP submittals affected by 

our September 25, 2015 conditional 

approval. A summary of EPA’s actions 

regarding these infrastructure SIP 

requirements are contained in Table 1 

below. 

TABLE 1—ACTION TAKEN ON NH INFRASTRUCTURE SIP SUBMITTALS FOR LISTED NAAQS 

Element 2010 SO2

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

(B): Ambient air quality monitoring and data system .......................................................................................................................... A 

(C)(i): Enforcement of SIP measures .................................................................................................................................................. A 

(C)(ii): PSD program for major sources and major modifications ....................................................................................................... A * 

(C)(iii): Permitting program for minor sources and minor modifications ............................................................................................. A 

(D)(i)(I): Contribute to nonattainment/interfere with maintenance of NAAQS (prongs 1 and 2) ......................................................... NS 

(D)(i)(II): PSD (prong 3) ....................................................................................................................................................................... A * 

(D)(i)(II): Visibility Protection (prong 4) ................................................................................................................................................ A 

(D)(ii): Interstate Pollution Abatement ................................................................................................................................................. A * 

(D)(ii): International Pollution Abatement ............................................................................................................................................ A 

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

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

(E)(iii): Necessary assurances with respect to local agencies ............................................................................................................ NA 

(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 .............................................................................................................. + 

(J)(i): Consultation with government officials ...................................................................................................................................... A 

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

(J)(iii): PSD .......................................................................................................................................................................................... A * 

(J)(iv): 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 

A*—Approve, but conditionally 

approve aspect of PSD program 

relating to notification to neighboring 

states 

+—Not germane to infrastructure SIPs 

NS—No Submittal 

NA—Not applicable 

Additionally, we are updating the 

classification of two air quality control 

regions in New Hampshire at 40 CFR 

52.1521. The classification of the 

Androscoggin Valley Interstate control 

region is being revised from Priority 1A 

to Priority III and the Merrimack 

Valley—Southern New Hampshire 

Interstate control region is being revised 

from Priority I to Priority III based on 

recent air quality monitoring data 

collected by the state. 

EPA is conditionally approving an 

aspect of New Hampshire’s SIP revision 

submittals pertaining to the state’s PSD 

program. The outstanding issue with the 

PSD program concerns the lack of a 

requirement that neighboring states be 

notified of the issuance of a PSD permit 

by the New Hampshire Department of 

Environmental Services. On September 

25, 2015, we conditionally approved 

New Hampshire’s PSD program for this 

reason. See 80 FR 57722. Accordingly, 

we are also conditionally approving this 

aspect of New Hampshire’s 

infrastructure SIP revisions for the 2010 

SO2 NAAQS. New Hampshire must 

submit to EPA a SIP submittal 

addressing the above mentioned 

deficiency in the state’s PSD program 

within the timeframe provided within 

our September 25, 2015 action. If the 

State fails to do so, the elements we are 

conditionally approving in this 

rulemaking will be disapproved on that 

date. EPA will notify the State by letter 

that this action has occurred. At that 

time, this commitment will no longer be 

a part of the approved New Hampshire 

SIP. EPA subsequently will publish a 

document in the Federal Register 

notifying the public that the conditional 

approval automatically converted to a 

disapproval. If the State meets its 

commitment within the applicable time 

frame, the conditionally approved 

submission will remain a part of the SIP 

until EPA takes final action approving 

or disapproving the new submittal. If 

EPA disapproves the new submittal, the 

conditionally approved aspect of New 

Hampshire’s PSD program will also be 

disapproved at that time. If EPA 

approves the revised PSD program 

submittal, then the portions of New 

Hampshire’s infrastructure SIP 

submittals that were conditionally 

approved will be fully approved in their 

entirety and replace the conditional 

approval in the SIP. In addition, final 

disapproval of an infrastructure SIP 

submittal triggers the Federal 

implementation plan (FIP) requirement 

under section 110(c). 


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IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act 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 Clean Air Act. 

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 

application of those requirements would 

be inconsistent with the Clean Air Act; 

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 Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by September 6, 

2016. 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, 

Reporting and recordkeeping 

requirements, Sulfur dioxides. 

Dated: June 15, 2016. 

H. Curtis Spalding, 

Regional Administrator, EPA New England. 

Part 52 of chapter I, title 40 of the 

Code of Federal Regulations is amended 

as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart EE—New Hampshire 

■ 2. Section 52.1519 is amended by 

adding paragraph (a)(11) to read as 

follows: 

§ 52.1519 Identification of plan— 

conditional approval. 

(a) * * * 

(11) 2010 Sulfur Dioxide NAAQS: The 

110(a)(2) infrastructure SIP submitted 

on September 13, 2013, is conditionally 

approved for Clean Air Act (CAA) 

elements 110(a)(2)(C)(ii), (D)(i)(II), D(ii), 

and (J)(iii) only as it relates to the aspect 

of the PSD program pertaining to 

providing notification to neighboring 

states of certain permitting activity 

being considered by New Hampshire. 

This conditional approval is contingent 

upon New Hampshire taking actions to 

address these requirements as detailed 

within a final conditional approval 

dated September 25, 2015. 

* * * * * 

■ 3. In § 52.1520, the table in paragraph 

(e) is amended by revising the entry for 

‘‘Infrastructure SIP for the 2010 SO2

NAAQS’’ to read as follows: 

§ 52.1520 Identification of plan. 

* * * * * 

(e) * * * 

NEW HAMPSHIRE NONREGULATORY

Name of nonregulatory 

SIP provision 

Applicable 

geographic or 

nonattainment 

area 

State submittal 

date/effective 

date 

EPA approved date 3 Explanations 

*******

Infrastructure SIP for the 

2010 SO2 NAAQS.

Statewide .......... 9/13/2013 7/8/2016 [Insert Federal 

Register citation] 

Approved submittal, except for certain aspects relating to PSD which were conditionally approved. 

See 52.1519. 


jstallworth on DSK7TPTVN1PROD with RULES
44554 Federal Register / Vol. 81, No. 131 / Friday, July 8, 2016 / Rules and Regulations 

NEW HAMPSHIRE NONREGULATORY—Continued 

Name of nonregulatory 

SIP provision 

Applicable 

geographic or 

nonattainment 

area 

State submittal 

date/effective 

date 

EPA approved date 3 Explanations 

*******

3 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision. 

■ 4. In § 52.1521, the table is amended 

by revising the entries for 

‘‘Androscoggin Valley Interstate’’ and 

‘‘Merrimack Valley—Southern New 

Hampshire Interstate’’ to read as 

follows: 

§ 52.1521 Classification of regions. 

* * * * * 

Air quality control region 

Pollutant 

Particulate 

matter Sulfur oxides Nitrogen dioxide 

Carbon 

monoxide Ozone 

Androscoggin Valley Interstate ............................................. IA III III III III 

*******

Merrimack Valley—Southern New Hampshire Interstate ..... I III III III I 

[FR Doc. 2016–15623 Filed 7–7–16; 8:45 am] 

BILLING CODE 6560–50–P 


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