Federal Register / Vol. 79, No. 66 / Monday, April 7, 2014 / Rules and Regulations 19001 

EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Title Indiana date EPA Approval Explanation 

*******

Section 110(a)(2) Infrastructure 

Requirements for the 2006 

24-Hour PM2.5 NAAQS.

10/20/2009, 

6/25/2012, 

7/12/2012 

7/10/2013, 78 FR 41311 ........ This action addresses the following CAA elements: 

110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), 

(J), (K), (L), and (M). We are finalizing approval of the 

PSD source impact analysis requirements of section 

110(a)(2)(C), (D)(i)(II), and (J), but are not finalizing action 

on the visibility protection requirements of (D)(i)(II), and the 

state board requirements of (E)(ii). We will address these 

requirements in a separate action. 

5/22/2013 4/7/2014, [INSERT PAGE 

NUMBER WHERE THE 

DOCUMENT BEGINS].

This action addresses the following CAA elements: State 

board requirements of section 110(a)(2)(E)(ii). 

* * * * * * * 

■ 3. Section 52.1891 is amended by 

adding paragraph (d) to read as follows: 

§ 52.1891 Section 110(a)(2) infrastructure 

requirements. 

* * * * * 

(d) Approval—In a June 7, 2013, 

submission, Ohio certified that the state 

has satisfied the infrastructure SIP 

requirements of section 110(a)(2)(E)(ii) 

for the 2006 24-hour PM2.5 NAAQS. 

[FR Doc. 2014–07564 Filed 4–4–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0299; FRL–9909–09– 

Region–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; West 

Virginia; Section 110(a)(2) 

Infrastructure Requirements for the 

2008 Ozone National Ambient Air 

Quality Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

Implementation Plan (SIP) revision 

submitted by the State of West Virginia 

pursuant to the Clean Air Act (CAA). 

Whenever new or revised National 

Ambient Air Quality Standards 

(NAAQS) are promulgated, the CAA 

requires states to submit a plan for the 

implementation, maintenance, and 

enforcement of such NAAQS. The plan 

is required to address basic program 

elements, including, but not limited to 

regulatory structure, monitoring, 

modeling, legal authority, and adequate 

resources necessary to assure attainment 

and maintenance of the standards. 

These elements are referred to as 

infrastructure requirements. The State of 

West Virginia has made a submittal 

addressing the infrastructure 

requirements for the 2008 ozone 

NAAQS. 

DATES: This final rule is effective on 

May 7, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2013–0299. All 

documents in the docket are listed in 

the www.regulations.gov Web site. 

Although listed in the electronic docket, 

some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy for 

public inspection during normal 

business hours at the Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the West Virginia 

Department of Environmental 

Protection, Division of Air Quality, 601 

57th Street SE., Charleston, West 

Virginia 25304. 

FOR FURTHER INFORMATION CONTACT: 

Ellen Schmitt, (215) 814–5787, or by 

email at schmitt.ellen@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision 

On February 17, 2012, the West 

Virginia Department of Environmental 

Protection (WV DEP) submitted a SIP 

revision that addresses the 

infrastructure elements specified in 

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

to implement, maintain, and enforce the 

2008 ozone NAAQS. On July 2, 2013 (78 

FR 39650), EPA published a notice of 

proposed rulemaking (NPR) for the State 

of West Virginia proposing approval of 

West Virginia’s submittal. In the NPR, 

EPA proposed approval of the following 

infrastructure elements: Section 

110(a)(2)(A), (B), (C), (D), (E), (F), (G), 

(H), (J), (K), (L), and (M), or portions 

thereof. EPA has taken separate action 

on the portions of section 110(a)(2)(C), 

(D)(i)(II), and (J) as they relate to West 

Virginia’s prevention of significant 

deterioration (PSD) program and is 

taking separate action on section 

110(a)(2)(E)(ii) as it relates to section 

128 (State Boards). West Virginia did 

not submit section 110(a)(2)(I) which 

pertains to the 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. West Virginia also did 

not include a component to address 

section 110(a)(2)(D)(i)(I) as it is not 

required in accordance with the EME 

Homer City decision from the United 

States Court of Appeals for the District 

of Columbia Circuit, until EPA has 

defined a state’s contribution to 

nonattainment or interference with 

maintenance in another state. See EME 

Homer City Generation, LP v. EPA, 696 

F.3d 7 (D.C. Cir. 2012), cert. granted, 

133 U.S. 2857 (2013). Unless the EME 

Homer City decision is reversed or 

otherwise modified by the Supreme 

Court, states such as West Virginia are 

not required to submit section 

110(a)(2)(D)(i)(I) SIPs until the EPA has 

quantified their obligations under that 

section. Therefore, a 110(a)(2)(D)(i)(I) 

submission from West Virginia is not 

statutorily required at this time. As no 

such submission was made by the State, 

there is no 110(a)(2)(D)(i)(I) SIP pending 


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19002 Federal Register / Vol. 79, No. 66 / Monday, April 7, 2014 / Rules and Regulations 

before the EPA. Thus, in this 

rulemaking notice, EPA is not taking 

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

for the 2008 ozone NAAQS. 

The rationale supporting EPA’s 

proposed rulemaking action, including 

the scope of infrastructure SIPs in 

general, is explained in the NPR and the 

technical support document (TSD) 

accompanying the NPR and will not be 

restated here. The TSD is available in 

the docket for this rulemaking at 

www.regulations.gov, Docket ID 

Number EPA–R03–OAR–2013–0299. 

II. Public Comments and EPA’s 

Responses 

EPA received three sets of comments 

on the July 2, 2013 proposed approval 

of West Virginia’s 2008 ozone 

infrastructure SIP. The commenters 

include the State of Connecticut, the 

State of Maryland, and the Sierra Club. 

A full set of these comments is provided 

in the docket for today’s final 

rulemaking action. As both States and 

the Sierra Club submitted comments 

regarding the interstate transport of 

pollution and the States did not 

comment on other issues, a summary of 

the comments dealing with transport 

and EPA’s responses will be addressed 

first followed by summaries of and 

responses to the remainder of Sierra 

Club’s comments. 

A. ‘‘Interstate Transport’’ Comments 

Comment 1: The State of Connecticut, 

the State of Maryland, and the Sierra 

Club (the commenters) assert that the 

ability of downwind states to attain the 

2008 ozone NAAQS is substantially 

compromised by interstate transport of 

pollution from upwind states. The 

States comment that they have done 

their share to reduce in-state emissions, 

and EPA should ensure each state fully 

addresses its contribution to any other 

state’s ozone nonattainment. The 

commenters state that section 110(a)(1) 

of the CAA requires states like West 

Virginia to submit, within three years of 

promulgation of a new NAAQS, an 

infrastructure SIP which provides for 

implementation, maintenance, and 

enforcement of such NAAQS within the 

state. The commenters remark that West 

Virginia was required to submit a 

complete SIP that demonstrated 

compliance with the good neighbor 

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

the CAA. Maryland also states that EPA 

must disapprove the infrastructure 

submittal for element 110(a)(2)(D)(i)(I) 

as West Virginia made no submittal for 

that element. Maryland also argues that 

if EPA believes EME Homer City 

prohibits it from disapproving the 

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

Virginia SIP before the state’s significant 

contribution level is established, then 

EPA should immediately promulgate 

such a level. Sierra Club, in turn, states 

that EPA must disapprove West 

Virginia’s SIP submission for failure to 

comply with 110(a)(2)(D)(i)(I). Sierra 

Club and Maryland both argue that EPA 

cannot rely on the D.C. Circuit decision 

in EME Homer City Generation v. EPA, 

696 F.3d 7 (D.C. Cir. 2012) as an excuse 

to ignore obligations established by the 

Clean Air Act. Sierra Club suggests the 

relevant language in EME Homer City is 

dicta and that as this rulemaking action 

would be appealed to the Fourth 

Circuit, and EPA is under no obligation 

to follow that dicta. 

Connecticut and Sierra Club state that 

EPA must make a finding under section 

110(k) of the CAA that West Virginia 

failed to submit the required SIP 

elements to address section 

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

Connecticut states that under section 

110(c)(1) of the CAA such a finding 

creates a two year deadline for EPA to 

promulgate a Federal Implementation 

Plan (FIP). In addition, Connecticut and 

Maryland state that the CAA does not 

give EPA discretion to approve a SIP 

without the good neighbor provision on 

the grounds that EPA would take 

separate action to address West 

Virginia’s 110(a)(2)(D)(i)(I) obligations. 

They assert that a FIP is the only 

separate action available to EPA under 

the CAA to address a state’s failure to 

satisfy the requirements of 

110(a)(2)(D)(i)(I). Sierra Club states that 

EPA must issue a FIP within two years 

of disapproval of West Virginia’s SIP 

under section 110(c)(1)(A) of the CAA. 

Response 1: In this rulemaking action, 

EPA is not taking any final action with 

respect to the provisions in section 

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

good neighbor provision which 

addresses emissions that significantly 

contribute to nonattainment or interfere 

with maintenance of the NAAQS in 

another state. West Virginia did not 

make a SIP submission to address the 

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

and thus there is no such submission 

upon which EPA could take action 

under section 110(k) of the CAA. EPA 

could not, as Maryland urges, act under 

section 110(k) to disapprove a SIP 

submission that has not been submitted 

to EPA. In addition, EPA could not, at 

this time, find that West Virginia has 

failed to submit a required SIP element 

for 110(a)(2)(D)(i)(I) as the D.C. Circuit 

in EME Homer City has held no such 

obligation to submit exists until EPA 

defines a state’s obligations under 

110(a)(2)(D)(i)(I). EPA also disagrees 

with the commenters that EPA cannot 

approve a SIP without the good 

neighbor provision and believes there is 

no basis for the contention that EPA 

must issue a FIP within two years, as 

EPA has neither disapproved, nor found 

that West Virginia failed to submit a 

required 110(a)(2)(D)(i)(I) SIP 

submission. 

EPA acknowledges the commenters’ 

concern that interstate transport of 

ozone and ozone precursors from 

upwind states to downwind states may 

have adverse consequences on the 

ability of downwind areas to attain the 

NAAQS in a timely fashion. EPA also 

agrees in general with the commenters 

that each state should address its 

contribution to another state’s 

nonattainment and that section 110(a)(1) 

of the CAA requires states like West 

Virginia to submit, within three years of 

promulgation of a new or revised 

NAAQS, a plan which provides for 

implementation, maintenance and 

enforcement of such NAAQS within the 

state. Similarly, EPA has interpreted the 

CAA as providing that any finding by 

EPA that a state has failed to make such 

a submission would trigger an 

obligation for EPA to promulgate a FIP 

within two years if the state did not 

submit and EPA approve a SIP to correct 

the deficiency before EPA promulgates 

a FIP. However, as discussed further in 

this response, while EPA continues to 

agree that the plain language of the 

statute establishes these obligations, 

unless the D.C. Circuit decision in EME 

Homer City is reversed or modified by 

the Supreme Court, EPA intends to act 

in accordance with that opinion. In that 

opinion, the D.C. Circuit held that a 

110(a)(2)(D)(i)(I) SIP to address 

emissions that significantly contribute 

to nonattainment or interfere with 

maintenance of the NAAQS in another 

state is not due until EPA has defined 

the state’s obligations under that section 

of the CAA. Thus, at this time, West 

Virginia has no obligation to make a 

110(a)(2)(D)(i)(I) SIP submittal and EPA 

has no obligation to issue a FIP. 

As mentioned previously, EPA has 

historically interpreted the CAA as 

requiring states to submit SIPs 

addressing the requirements of section 

110(a)(2)(D)(i)(I) of the CAA within 

three years of the promulgation or 

revision of a NAAQS. However, the U.S. 

Court of Appeals for the District of 

Columbia Circuit clearly articulated in 

its opinion in EME Homer City that SIPs 

under section 110(a)(2)(D)(i)(I) of the 

CAA are not due until EPA has defined 

a state’s significant contribution to 

nonattainment or interference with 

maintenance in another state. See EME 

Homer City, 696 F.3d 7. EPA has not yet 

done this for the 2008 ozone NAAQS. 


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1On January 15, 2013, EPA published findings of 

failure to submit with respect to the infrastructure 

SIP requirements for the 2008 ozone NAAQS. See 

78 FR 2882. In that rulemaking action, EPA 

explained why it was not issuing any findings of 

failure to submit with respect to section 

110(a)(2)(D)(i)(I). Id. at 2884–85. In that rulemaking 

action, EPA explained the opinion of the D.C. 

Circuit in EME Homer City concluded that a ‘‘SIP 

cannot be deemed to lack a required submission or 

deemed deficient for failure to meet the 

110(a)(2)(D)(i)(I) obligation until after EPA 

quantifies the obligation.’’ See 78 FR at 2884–85; 

see also EME Homer City, 696 F.3d at 32. Therefore, 

under EME Homer City, states like West Virginia 

have no obligation to make a SIP submission to 

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

NAAQS until EPA has first defined the state’s 

obligations. 

While the Supreme Court has agreed to 

review the EME Homer City decision, 

the D.C. Circuit’s decision currently 

remains in place. EPA intends to act in 

accordance with the EME Homer City 

opinion unless it is reversed or 

otherwise modified by the Supreme 

Court. Therefore, in this rulemaking 

action, EPA is not taking any final 

action with respect to the provisions in 

section 110(a)(2)(D)(i)(I).1

EPA disagrees with the commenters’ 

argument that EPA cannot approve a SIP 

without the good neighbor provision. 

Section 110(k)(3) of the CAA authorizes 

EPA to approve a plan in full, 

disapprove it in full, or approve it in 

part and disapprove it in part, 

depending on the extent to which such 

plan meets the requirements of the 

CAA. This authority to approve state 

SIP revisions in separable parts was 

included in the 1990 Amendments to 

the CAA to overrule a decision in the 

Court of Appeals for the Ninth Circuit 

holding that EPA could not approve 

individual measures in a plan 

submission without either approving or 

disapproving the plan as a whole. See 

S. Rep. No. 101–228, at 22, 1990 

U.S.C.C.A.N. 3385, 3408 (discussing the 

express overruling of Abramowitz v. 

EPA, 832 F.2d 1071 (9th Cir. 1987)). 

EPA further disagrees with 

commenters’ suggestions that the 

Agency need not follow the D.C. Circuit 

opinion in EME Homer City. EPA 

intends to act in accordance with the 

D.C. Circuit opinion in EME Homer City 

unless it is reversed or otherwise 

modified by the Supreme Court. In 

addition, because the EPA rule known 

as the Cross State Air Pollution Rule 

(CSAPR) reviewed by the court in EME 

Homer City was designated by EPA as 

a ‘‘nationally applicable’’ rule within 

the meaning of CAA section 307(b)(1) 

with petitions for review of CSAPR 

required to be filed in the D.C. Circuit, 

EPA accordingly believes the D.C. 

Circuit’s decision in EME Homer City is 

also nationally applicable. As such, EPA 

does not intend to take any actions, 

even if they are only reviewable in 

another federal Circuit Court of 

Appeals, which are inconsistent with 

the decision of the D.C. Circuit. EPA 

also finds no basis for one commenter’s 

suggestion that the relevant portion of 

the D.C. Circuit opinion in EME Homer 

City opinion is dicta. 

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 West Virginia’s 

infrastructure submission for the 2008 

eight-hour ozone NAAQS, separate and 

apart from any action with respect to the 

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

of the CAA with respect to that NAAQS. 

EPA views discrete infrastructure SIP 

requirements, such as the requirements 

of 110(a)(2)(D)(i)(I), as severable from 

the other infrastructure elements and 

interprets section 110(k)(3) as allowing 

it to act on individual severable 

measures in a plan submission. In short, 

EPA believes that even if West Virginia 

had made a SIP submission for section 

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

has not, EPA would still have discretion 

under section 110(k) of the CAA to act 

upon the various individual elements of 

the state’s infrastructure SIP 

submission, separately or together, as 

appropriate. The commenters raise no 

compelling legal or environmental 

rationale for an alternate interpretation. 

EPA disagrees with the comment from 

Connecticut and Maryland regarding 

EPA’s statement indicating an intent to 

take separate action on West Virginia’s 

110(a)(2)(D)(i)(I) obligations and that a 

FIP must be issued within two years. In 

the rulemaking action which proposed 

approval of portions of West Virginia’s 

infrastructure SIP for the 2008 ozone 

NAAQS, EPA stated that its proposed 

action did not include any proposed 

action on section 110(a)(2)(D)(i)(I) of the 

CAA for West Virginia’s February 17, 

2012 infrastructure SIP submission 

because this element was not required 

until EPA quantified the state’s 

obligations pursuant to the EME Homer 

City opinion. See (78 FR 39650, July 2, 

2013). As EPA has neither disapproved, 

nor found that West Virginia failed to 

submit a required 110(a)(2)(D)(i)(I) SIP 

submission, there is consequently no 

basis for any contention that EPA must 

issue a FIP within two years. Moreover, 

the D.C. Circuit clearly held in EME 

Homer City that even where EPA had 

issued findings of failure to submit 

110(a)(2)(D)(i)(I) SIPs and/or 

disapproved such SIPs, EPA lacked 

authority to promulgate FIPs under 

110(c)(1) of the CAA where it had not 

previously quantified states’ good 

neighbor obligations. EME Homer City, 

696 F.3d at 31–37. And, as explained 

earlier in this rulemaking action, EPA 

intends to comply with that decision 

unless it is reversed or otherwise 

modified by the Supreme Court. See 

also (78 FR 14681, 16843, March 7, 

2013) (concluding that, under the D.C. 

Circuit opinion in EME Homer City, 

disapproval of a 110(a)(2)(D)(i)(I) SIP 

submitted by Kentucky did not start a 

FIP clock). 

In sum, the concerns raised by the 

commenters do not establish that it is 

inappropriate or unreasonable for EPA 

to approve the portions of West 

Virginia’s February 17, 2012 

infrastructure SIP submission for the 

2008 ozone NAAQS. As discussed 

above, EPA has no obligation to find 

West Virginia failed to satisfy its good 

neighbor obligations and no action is 

required at this time. Moreover, EPA 

notes that it is actively working with 

state partners to assess next steps to 

address air pollution that crosses state 

boundaries and has begun work on a 

rulemaking to address transported air 

pollution affecting the ability of states in 

the eastern half of the United States to 

attain and maintain the 2008 ozone 

NAAQS, including defining certain 

states’ obligations under 

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

action is separate from this SIP approval 

action. It is also technically complex 

and must comply with the rulemaking 

requirements of section 307(d) of the 

CAA. 

B. Sierra Club Comments 

Sierra Club makes several additional 

comments which are provided in the 

docket for today’s final rulemaking 

action and summarized below with 

EPA’s response to each. 

Comment 2: Sierra Club contends that 

EPA must disapprove West Virginia’s 

2008 eight-hour ozone infrastructure SIP 

revision with regard to the visibility 

components of section 110(a)(2)(D)(i)(II) 

and (J) of the CAA since West Virginia’s 

Regional Haze SIP relies on visibility 

improvements from implementing the 

Clean Air Interstate Rule (CAIR). The 

commenter asserts that CAIR is not 

permanent and enforceable and they 

reference litigation in the D.C. Circuit 

related to CAIR. See North Carolina v. 

EPA, 531 F.3d 896, on rehearing, 550 

F.3d 1176 (D.C. Cir. 2008). The 

commenter also cites to EPA statements 

in rulemaking actions on SIPs, such as 

attainment SIPs and maintenance SIPs, 

where EPA stated CAIR reductions were 

not permanent reductions. The 

commenter states that EPA could not 

rely on CAIR, even if permanent and 

enforceable, to support its proposed 


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2Under sections 301(a) and 110(k)(6) of the CAA 

and EPA’s long-standing guidance, a limited 

approval results in approval of the entire SIP 

submittal, even of those parts that are deficient and 

prevent EPA from granting a full approval of the SIP 

revision. Processing of State Implementation Plan 

(SIP) Revisions, EPA Memorandum from John 

Calcagni, Director, Air Quality Management 

Division, OAQPS, to Air Division Directors, EPA 

Regional Offices I–X, September 7, 1992, (1992 

Calcagni Memorandum) located at http://

www.epa.gov/ttn/caaa/t1/memoranda/siproc.pdf. 

Therefore, EPA believes it is appropriate to approve 

West Virginia’s 2008 ozone NAAQS infrastructure 

SIP for section 110(a)(2)(D)(i)(II) as it meets the 

requirements of that section despite the limited 

approval status of West Virginia’s regional haze SIP. 

approval of the visibility components in 

section 110(a)(2)(D)(i)(II) and (J) of the 

CAA for West Virginia’s 2008 eight-hour 

ozone infrastructure SIP revision. The 

commenter asserts that the substitution 

of CAIR for best available retrofit 

technology (BART) for electric 

generating units (EGUs) violates the 

CAA including section 169A. The 

commenter includes comments 

challenging EPA’s prior rulemakings 

that CAIR was ‘‘better than BART’’ 

because such exemption from BART 

does not meet the requirements of CAA 

section 169A(c) or 169A(b)(2)(A). The 

commenter states that CAIR as a 

substitute for BART for EGUs would 

result in the EGU sources having less 

stringent controls on emissions than 

would result from application of sourceby-source BART. 

Response 2: EPA disagrees with the 

commenter that West Virginia’s 

infrastructure SIP does not meet the 

requirements for visibility protection in 

section 110(a)(2)(D)(i)(II) and (J) of the 

CAA. As explained in detail in EPA’s 

proposed rulemaking related to today’s 

rulemaking action, EPA believes that in 

light of the D.C. Circuit’s decision to 

vacate CSAPR, also known as the 

Transport Rule (see EME Homer City, 

696 F.3d 7), and the court’s order for 

EPA to ‘‘continue administering CAIR 

pending the promulgation of a valid 

replacement,’’ it is appropriate for EPA 

to rely at this time on CAIR to support 

approval of West Virginia’s 2008 eighthour ozone infrastructure revision, 

including as it relates to visibility. 

Based on the current direction from the 

court to continue administering CAIR, 

EPA believes that it is appropriate to 

rely on CAIR emission reductions for 

purposes of assessing the adequacy of 

West Virginia’s infrastructure SIP 

revision with respect to prong 4 of 

section 110(a)(2)(D)(i)(II) while a valid 

replacement rule is developed and until 

submissions complying with any such 

new rule are submitted by the states and 

acted upon by EPA or until the EME 

Homer City case is resolved in a way 

that provides different direction 

regarding CAIR and CSAPR. 

Furthermore, as neither the State of 

West Virginia nor EPA has taken any 

action to remove CAIR from the West 

Virginia SIP, CAIR remains part of the 

federally-approved SIP and can be 

considered in determining whether the 

SIP as a whole meets the requirement of 

prong 4 of 110(a)(2)(D)(i)(II). EPA is 

taking final rulemaking action to 

approve the infrastructure SIP 

submission with respect to prong 4 

because West Virginia’s Regional Haze 

SIP, which EPA has approved (see (77 

FR 16937, March 23, 2012)), in 

combination with its SIP provisions to 

implement CAIR adequately prevents 

sources in West Virginia from 

interfering with measures adopted by 

other states to protect visibility during 

the first planning period as also 

described in detail in the TSD which 

accompanied the NPR.2

EPA disagrees with the commenter 

that the CAA does not allow states to 

rely on an alternative program such as 

CAIR in lieu of source-specific BART. 

EPA’s regulations allowing states to 

adopt alternatives to BART that provide 

for greater reasonable progress, and 

EPA’s determination that states may rely 

on CAIR to meet the BART 

requirements, have been upheld by the 

D.C. Circuit as meeting the requirements 

of the CAA. In the first case challenging 

the provisions in the regional haze rule 

(40 CFR 51.308) allowing for states to 

adopt alternative programs in lieu of 

BART, the court affirmed our 

interpretation of section 169A(b)(2) of 

the CAA as allowing for alternatives to 

BART where those alternatives will 

result in greater reasonable progress 

than BART. Center for Energy and 

Economic Development v. EPA, 398 

F.3d 653, 660 (D.C. Cir. 2005) (finding 

reasonable the EPA’s interpretation of 

section 169A(b)(2) of the CAA as 

requiring BART only as necessary to 

make reasonable progress). In the 

second case, Utility Air Regulatory 

Group v. EPA, 471 F.3d 1333 (D.C. Cir. 

2006), the court specifically upheld our 

determination that states could rely on 

CAIR as an alternative program to BART 

for EGUs in the CAIR-affected states. 

The court concluded that the EPA’s twopronged test for determining whether an 

alternative program achieves greater 

reasonable progress was a reasonable 

one and also agreed with EPA that 

nothing in the CAA required the EPA to 

‘‘impose a separate technology mandate 

for sources whose emissions affect Class 

I areas, rather than piggy-backing on 

solutions devised under other statutory 

categories, where such solutions meet 

the statutory requirements.’’ Id. at 1340. 

EPA also notes that CAIR has not been 

‘‘vacated’’ as stated in Sierra Club’s 

comment. As mentioned in EPA’s TSD, 

CAIR was ultimately remanded by the 

D.C. Circuit to EPA without vacatur, and 

EPA continues to implement CAIR. EPA 

further notes that all of the rulemaking 

actions and proposed rulemaking 

actions cited by the commenter which 

discussed limited approvability of SIPs 

or redesignations due to the status of 

CAIR were issued by EPA prior to the 

vacatur of CSAPR when EPA was 

implementing CSAPR. Since the vacatur 

of CSAPR in August 2012 and with 

continued implementation of CAIR per 

the direction of the DC Circuit in EME 

Homer City, EPA has approved 

redesignations of areas to attainment of 

the 1997 fine particulate matter (PM2.5) 

NAAQS in which states have relied on 

CAIR as an enforceable measure. See 77 

FR 76415, December 28, 2012 

(redesignation of Huntingdon-Ashland, 

West Virginia for 1997 PM2.5 NAAQS 

which was proposed in 77 FR 68076, 

November 15, 2012); 78 FR 59841, 

September 30, 2013 (redesignation of 

Wheeling, West Virginia for 1997 PM2.5

NAAQS which was proposed in 77 FR 

73575, December 11, 2012); and 78 FR 

56168, September 12, 2013 

(redesignation of Parkersburg, West 

Virginia for 1997 PM2.5 NAAQS which 

was proposed in 77 FR 73560, December 

11, 2012). 

More fundamentally, we disagree 

with the commenter that the adequacy 

of the BART measures in the West 

Virginia Regional Haze SIP is relevant to 

the question of whether the State’s SIP 

meets the requirements of section 

110(a)(2)(D)(i) of the CAA with respect 

to visibility. EPA interprets the visibility 

provisions in this section of the CAA as 

requiring states to include in their SIPs 

measures to prohibit emissions that 

would interfere with the reasonable 

progress goals set to protect Class I areas 

in other states. The regional haze rule 

includes a similar requirement at 40 

CFR 51.308(d)(3). We note that on 

March 23, 2012, EPA determined that 

West Virginia’s Regional Haze SIP 

adequately prevents sources in West 

Virginia from interfering with the 

reasonable progress goals adopted by 

other states to protect visibility during 

the first planning period. See 77 FR 

16937. See also 76 FR 41158, 41175– 

41176 (proposing approval of West 

Virginia Regional Haze SIP). As EPA’s 

review of the West Virginia Regional 

Haze SIP explains, the State relied on 

CAIR to achieve significant reductions 

in emissions to both meet the BART 

requirements and to address impacts of 

West Virginia on Class I areas in other 


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Federal Register / Vol. 79, No. 66 / Monday, April 7, 2014 / Rules and Regulations 19005 

3The TSD is available in the docket for this 

rulemaking at www.regulations.gov, Docket ID 

Number EPA–R03–OAR–2013–0299. 

states. The question of whether or not 

CAIR satisfies the BART requirements 

has no bearing on whether these 

measures meet the requirements of 

section 110(a)(2)(D)(i)(II) of the CAA 

with respect to visibility. We also note 

that while the adequacy of the BART 

provisions in the West Virginia Regional 

Haze SIP is irrelevant to the question of 

whether the plan meets the 

requirements of section 

110(a)(2)(D)(i)(II) of the CAA, CAIR was 

upheld as an alternative to BART in 

accordance with the requirements of 

Section 169A of the CAA by the DC 

Circuit in Utility Air Regulatory Group 

v. EPA. 

In addition, with regard to the 

visibility protection aspect of section 

110(a)(2)(J), as discussed in the TSD 

accompanying the NPR for this 

rulemaking action, EPA stated that it 

recognizes that states are subject to 

visibility and regional haze program 

requirements under part C of the CAA. 

In the establishment of a new NAAQS 

such as the 2008 ozone NAAQS, 

however, the visibility and regional 

haze program requirements under part C 

of Title I of the CAA do not change and 

there are no applicable visibility 

obligations under part C ‘‘triggered’’ 

under section 110(a)(2)(J) when a new 

NAAQS becomes effective. Therefore, 

EPA appropriately proposed approval of 

West Virginia’s 2008 ozone 

infrastructure SIP revision for section 

110(a)(2)(J). As discussed for section 

110(a)(2)(D)(i)(II) earlier in this 

rulemaking action and in the TSD for 

this rulemaking action, West Virginia 

has submitted SIP revisions to satisfy 

the requirements of part C of Title I of 

the CAA.3

In summary, EPA believes that it 

appropriately proposed approval of 

West Virginia’s infrastructure SIP 

revision for the 2008 ozone NAAQS for 

the structural visibility protection 

requirements in 110(a)(2)(D)(i)(II). 

Comment 3: Sierra Club states that 

EPA must disapprove West Virginia’s 

2008 eight-hour ozone infrastructure SIP 

revision for elements 110(a)(2)(D)(i)(II) 

and (J) of the CAA because the 

commenter asserts that West Virginia 

had failed to submit a five-year progress 

report on its implementation of West 

Virginia’s Regional Haze SIP and also 

because EPA had not yet approved West 

Virginia’s five-year progress report for 

regional haze. Sierra Club referenced a 

July 18, 2008 SIP submittal from West 

Virginia for regional haze as the basis 

for determining when the five-year 

progress report for West Virginia was 

due. 

Response 3: EPA disagrees with the 

commenter that West Virginia’s fiveyear progress report was not submitted 

at the time EPA proposed to approve 

West Virginia’s infrastructure SIP for the 

2008 ozone NAAQS on July 2, 2013. 

West Virginia submitted on April 30, 

2013, as a SIP revision, its five-year 

progress report of its approved regional 

haze, to meet the progress report 

requirements in 40 CFR 51.308(g). The 

provisions under 40 CFR 51.308(g) 

impose a regulatory requirement for an 

evaluation of West Virginia’s progress 

towards meeting its reasonable progress 

goals for Class I Federal areas located 

within West Virginia and in Class I 

Federal areas outside West Virginia 

which may be affected by emissions 

from inside West Virginia. EPA found 

West Virginia’s April 30, 2013 progress 

report SIP submittal complete on June 

13, 2013. EPA has taken action 

proposing approval on the SIP revision. 

See 79 FR 14460, March 14, 2014. EPA 

disagrees with the commenter that 

EPA’s approval of West Virginia’s fiveyear progress report is a required 

structural element necessary before EPA 

may approve West Virginia’s 

infrastructure SIP for element 

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

Nevertheless, from EPA’s review of 

data provided by West Virginia in its 

five-year progress report, including 

EPA’s review of emissions data from 

2008 through 2011 on West Virginia 

EGUs from EPA’s Clean Air Markets 

Division (CAMD) as provided by the 

State, emissions of sulfur dioxide (SO2), 

the primary contributor to visibility 

impairment in the Visibility 

Improvement State and Tribal 

Association of the Southeast (VISTAS) 

region, have declined significantly in 

the State since the West Virginia 

Regional Haze SIP was submitted to 

EPA on June 18, 2008. Specifically, 

West Virginia’s five-year progress report 

notes that in the EGU sector, EPA’s 

CAMD data for 2010 and 2011 shows 

EGU SO2 emissions in West Virginia are 

significantly below even what was 

predicted for 2018. EPA’s review of 

visibility data from West Virginia in its 

five-year progress report also shows 

Class I areas impacted by sources within 

West Virginia are all meeting or below 

their reasonable progress goals. In 

addition, based on EPA’s review of the 

West Virginia five-year progress report, 

EPA has no reason to question the 

accuracy of West Virginia’s negative 

declaration to EPA pursuant to 40 CFR 

51.308(h) that no revision to West 

Virginia’s Regional Haze SIP is needed 

at this time to achieve established goals 

for visibility improvement and 

emissions reductions. Therefore, based 

upon EPA’s review of the relevant 

visibility data, emissions data, and 

modeling results provided by West 

Virginia in the five-year progress report 

and upon the analysis provided in the 

TSD which accompanied the NPR for 

this rulemaking action, EPA continues 

to believe that the State’s existing SIP 

(including the Regional Haze SIP and 

CAIR) contains adequate provisions 

prohibiting sources from emitting 

visibility impairing pollutants in 

amounts which would interfere with 

neighboring states’ SIP measures to 

protect visibility. 

Also, as stated previously, the 

visibility and regional haze program 

requirements under part C of Title I of 

the CAA do not change with the 

establishment of a new NAAQS such as 

the 2008 ozone NAAQS, and there are 

no applicable visibility obligations 

under part C ‘‘triggered’’ by section 

110(a)(2)(J) when a new NAAQS 

becomes effective. Given this, West 

Virginia was under no obligation to 

address section 110(a)(2)(J) in its 2008 

ozone infrastructure SIP. 

Comment 4: Sierra Club contends that 

EPA must disapprove West Virginia’s 

infrastructure SIP revision because the 

submittal relies on CAIR, considered by 

Sierra Club as a stopgap measure, for 

section 110(a)(2)(A) of the CAA, and 

therefore fails to impose restrictions on 

ozone sources and to ensure attainment 

and maintenance of the 2008 NAAQS. 

Sierra Club contends West Virginia 

cannot rely upon CAIR as an 

enforceable emissions limit for 

110(a)(2)(A). In addition, Sierra Club 

suggests that EPA’s statements are 

dismissive of the 2008 ozone NAAQS 

requiring any more than the less 

stringent 1997 ozone NAAQS and states 

that if states do not take any new actions 

to satisfy the 2008 ozone NAAQS, the 

2008 ozone NAAQS will not be met in 

many areas and states will not attain 

and maintain the NAAQS. Sierra Club 

contends EPA must disapprove the West 

Virginia infrastructure SIP for the 2008 

ozone NAAQS because West Virginia 

failed to adequately ensure attainment 

and maintenance of the NAAQS. 

Sierra Club also states in its 

background comments that EPA may 

approve an infrastructure SIP only if 

EPA finds the SIP meets the 

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

CAA and states such SIPs must include 

emission limitations that result in 

compliance with the NAAQS. Sierra 

Club further states in background that 

for a plan to be adequate, it must 

demonstrate the measures, rules, and 

regulations in the SIP are adequate to 


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4The TSD is available at www.regulations.gov, 

Docket ID Number EPA–R03–OAR–2013–0299. 

While EPA’s TSD did not expressly reference CAIR 

in the discussion of West Virginia’s measures 

addressing 110(a)(2)(A), the omission by EPA was 

inadvertent as the West Virginia ozone 

infrastructure SIP submittal included CAIR amongst 

other measures for section 110(a)(2)(A) and EPA’s 

review included consideration of all the measures 

West Virginia included in its submission, including 

CAIR. 

provide for timely attainment and 

maintenance of the standard and cited 

to 40 CFR 51.112 for support. 

Response 4: EPA disagrees with the 

commenter that West Virginia cannot 

rely on CAIR for section 110(a)(2)(A) of 

the CAA. As discussed previously and 

as explained in detail in EPA’s proposed 

rulemaking action related to today’s 

rulemaking action, EPA believes that in 

light of the DC Circuit’s decision to 

vacate CSAPR (see EME Homer City, 696 

F.3d 7), and the court’s order for EPA 

to ‘‘continue administering CAIR 

pending the promulgation of a valid 

replacement,’’ it is appropriate for EPA 

to rely at this time on CAIR to support 

approval of West Virginia’s 2008 eighthour ozone infrastructure revision. EPA 

has been ordered by the DC Circuit to 

develop a new rule, and to continue 

implementing CAIR in the meantime. 

Unless the Supreme Court reverses or 

otherwise modifies the DC Circuit’s 

decision on CSAPR in EME Homer City, 

EPA does not intend to act in a manner 

inconsistent with the decision of the DC 

Circuit. Based on the current direction 

from the court to continue 

administering CAIR, EPA believes that it 

is appropriate for West Virginia to rely 

on CAIR’s requirements and provisions 

and is appropriate for EPA to consider 

CAIR for purposes of assessing the 

adequacy of West Virginia’s 

infrastructure SIP revision with respect 

to ensuring attainment and maintenance 

of the 2008 NAAQS while a valid 

replacement rule is developed and until 

submissions complying with any such 

new rule are submitted by the states and 

acted upon by EPA or until the EME 

Homer City case is resolved in a way 

that provides different direction 

regarding CAIR and CSAPR. 

Furthermore, as neither the State of 

West Virginia nor EPA has taken any 

action to remove CAIR from the West 

Virginia SIP, CAIR remains part of the 

federally-approved SIP and can be 

considered in determining whether the 

SIP as a whole meets the requirement 

for section 110(a)(2)(A) of the CAA. In 

addition, EPA described in its TSD 

accompanying the July 2, 2013 NPR 

proposing approval of portions of the 

West Virginia 2008 infrastructure SIP 

for the 2008 ozone NAAQS how West 

Virginia had adequate provisions in its 

SIP, including, but not limited to, 

regulations concerning control measures 

for nitrogen oxides (NOx) and volatile 

organic compounds (VOC), such as 

45CSR13, 45CSR14, 45CSR19, 45CSR21, 

and 45CSR29, as enforceable emission 

limitations and other control measures, 

means, or techniques as necessary to 

meet applicable requirements of the 

CAA.4 Therefore, EPA disagrees with 

the commenter that EPA must 

disapprove the West Virginia 

infrastructure SIP submittal for element 

110(a)(2)(A) as CAIR and the other 

measures identified in the TSD for 

110(a)(2)(A) are enforceable limitations 

for meeting applicable requirements in 

the CAA as EPA explained in detail in 

the TSD. 

EPA believes that section 110(a)(2)(A) 

of the CAA is reasonably interpreted to 

require states to submit SIPs that reflect 

the first step in their planning for 

attaining and maintaining a new or 

revised NAAQS and that they contain 

enforceable control measures and a 

demonstration that the state has the 

available tools and authority to develop 

and implement plans to attain and 

maintain the NAAQS. 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. 

EPA’s interpretation that 

infrastructure SIPs are more general 

planning SIPs is consistent with the 

statute as understood in light of its 

history and structure. When Congress 

enacted the CAA in 1970, it did not 

include provisions requiring states and 

the EPA to label areas as attainment or 

nonattainment. Rather, states were 

required to include all areas of the state 

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

and section 110 set forth the core 

substantive planning provisions for 

these AQCRs. At that time, Congress 

anticipated that states would be able to 

address air pollution quickly pursuant 

to the very general planning provisions 

in section 110 and could bring all areas 

into compliance with the NAAQS 

within five years. Moreover, at that 

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

that the section 110 plan provide for 

‘‘attainment’’ of the NAAQS and section 

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

include ‘‘emission limitations, 

schedules, and timetables for 

compliance with such limitations, and 

such other measures as may be 

necessary to insure attainment and 

maintenance [of the NAAQS].’’ In 1977, 

Congress recognized that the existing 

structure was not sufficient and many 

areas were still violating the NAAQS. At 

that time, Congress for the first time 

added provisions requiring states and 

EPA to identify whether areas of the 

state were violating the NAAQS (i.e., 

were nonattainment) or were meeting 

the NAAQS (i.e., were attainment) and 

established specific planning 

requirements in section 172 for areas 

not meeting the NAAQS. In 1990, many 

areas still had air quality not meeting 

the NAAQS and Congress again 

amended the CAA and added yet 

another layer of more prescriptive 

planning requirements for each of the 

NAAQS, with the primary provisions 

for ozone in section 182. At that same 

time, Congress modified section 110 to 

remove references to the section 110 SIP 

providing for attainment, including 

removing pre-existing section 

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

renumbering subparagraph (B) as 

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

Congress replaced the clause ‘‘as may be 

necessary to insure attainment and 

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

may be necessary or appropriate to meet 

the applicable requirements of this 

chapter.’’ Thus, the CAA has 

significantly evolved in the more than 

40 years since it was originally enacted. 

While at one time section 110 of the 

CAA did provide the only detailed SIP 

planning provisions for states and 

specified that such plans must provide 

for attainment of the NAAQS, under the 

structure of the current CAA, section 

110 is only the initial stepping-stone in 

the planning process for a specific 

NAAQS. And, more detailed, laterenacted provisions govern the 

substantive planning process, including 

planning for attainment of the NAAQS. 

EPA believes that the proper inquiry 

at this juncture is whether the State has 

met the basic structural SIP 

requirements appropriate at the point in 

time EPA is acting upon the submittal. 

Moreover, as addressed in EPA’s 

proposed approval for this rulemaking 

action and mentioned earlier, West 

Virginia submitted a list of existing 

emission reduction measures in the SIP 

that control emissions of VOCs and 

NOx. West Virginia’s SIP revision 

reflects several provisions that have the 

ability to reduce ground level ozone and 

its precursors. The West Virginia SIP 

relies on measures and programs used to 

implement previous ozone NAAQS. 

Because there is no substantive 

difference between the previous ozone 

NAAQS and the more recent ozone 


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5As discussed above, since the vacatur of CSAPR 

in August 2012 and with continued implementation 

of CAIR per the direction of the D.C. Circuit in EME 

Homer City, EPA has approved redesignations of 

areas to attainment of the 1997 PM2.5 NAAQS in 

which states have relied on CAIR as an enforceable 

measure. See 77 FR 76415, December 28, 2012 

(redesignation of Huntingdon-Ashland, West 

Virginia for 1997 PM2.5 NAAQS which was 

proposed in 77 FR 68076, November 15, 2012); 78 

FR 59841, September 30, 2013 (redesignation of 

Wheeling, West Virginia for 1997 PM2.5 NAAQS 

which was proposed in 77 FR 73575, December 11, 

2012); and 78 FR 56168, September 12, 2013 

(redesignation of Parkersburg, West Virginia for 

1997 PM2.5 NAAQS which was proposed in 77 FR 

73560, December 11, 2012). 

NAAQS, other than the level of the 

standard, the provisions relied on by 

West Virginia will provide benefits for 

the new NAAQS; in other words, the 

measures reduce overall ground-level 

ozone and its precursors and are not 

limited to reducing ozone levels to meet 

one specific NAAQS. 

EPA asserts that section 110 of the 

CAA is only one provision that is part 

of the complicated structure governing 

implementation of the NAAQS program 

under the CAA, as amended in 1990, 

and it must be interpreted in the context 

of not only that structure, but also of the 

historical evolution of that structure. In 

light of the revisions to section 110 

since 1970 and the later-promulgated 

and more specific planning 

requirements of the CAA, EPA 

reasonably interprets the requirement in 

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

plan provide for ‘‘implementation, 

maintenance and enforcement’’ to mean 

that the infrastructure SIP must contain 

enforceable emission limits that will aid 

in attaining and/or maintaining the 

NAAQS and that the state demonstrate 

that it has the necessary tools to 

implement and enforce a NAAQS, such 

as adequate state personnel and an 

enforcement program. With regard to 

the requirement for emission 

limitations, EPA has interpreted this to 

mean for purposes of section 110, that 

the state may rely on measures already 

in place to address the pollutant at issue 

or any new control measures that the 

state may choose to submit. As EPA 

stated in ‘‘Guidance on Infrastructure 

State Implementation Plan (SIP) 

Elements under Clean Air Act Sections 

110(a)(1) and 110(a)(2),’’ dated 

September 13, 2013 (Infrastructure SIP 

Guidance), ‘‘[t]he conceptual purpose of 

an infrastructure SIP submission is to 

assure that the air agency’s SIP contains 

the necessary structural requirements 

for the new or revised NAAQS, whether 

by establishing that the SIP already 

contains the necessary provisions, by 

making a substantive SIP revision to 

update the SIP, or both. Overall, the 

infrastructure SIP submission process 

provides an opportunity . . . to review 

the basic structural requirements of the 

air agency’s air quality management 

program in light of each new or revised 

NAAQS.’’ Infrastructure SIP Guidance 

at p. 2. 

The commenter’s reliance on 40 CFR 

51.112 to support its argument that 

infrastructure SIPs must contain 

emission limits adequate to provide for 

timely attainment and maintenance of 

the standard is also not supported. As 

an initial matter, EPA notes this 

regulatory provision was initially 

promulgated and ‘‘restructured and 

consolidated’’ prior to the CAA 

Amendments of 1990, in which 

Congress removed all references to 

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

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 section 175A and 182, and 

not to infrastructure SIPs. In the 

preamble to EPA’s 1986 action 

‘‘restructuring and consolidating’’ 

provisions in part 51, EPA stated that 

the new attainment demonstration 

provisions in the 1977 Amendments to 

the CAA were ‘‘beyond the scope’’ of 

the rulemaking. See 51 FR 40656, 

November 7, 1986. 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. Id. 

Also, as to maintenance regulations, 

EPA expressly stated that it was not 

making any revisions other than to renumber those provisions. Id. at 40657. 

Although EPA was explicit that it was 

not establishing requirements 

interpreting the provisions of new ‘‘part 

D’’ of the CAA, it is clear that the 

regulations being restructured and 

consolidated in the 1986 action on part 

51 were intended to address control 

strategy plans. In the preamble, EPA 

clearly stated that 40 CFR 51.112 was 

replacing 40 CFR 51.13 (‘‘Control 

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

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

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

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

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

40660. Thus, the present-day 40 CFR 

51.112 contains consolidated provisions 

that are focused on control strategy SIPs, 

and an infrastructure SIP is not such a 

plan. 

Therefore, EPA finds 40 CFR 51.112 

inapplicable to its analysis of the West 

Virginia ozone infrastructure SIP. EPA 

finds that CAIR and the other measures 

identified in the TSD for this 

rulemaking for section 110(a)(2)(A) of 

the CAA are enforceable limitations and 

measures for limiting emissions of NOX

and VOC for the 2008 ozone NAAQS. 

Comment 5: Sierra Club contends that 

EPA must disapprove West Virginia’s 

infrastructure SIP revision because it 

relies on the ‘‘vacated’’ rules, CAIR and 

CSAPR, to meet section 110(a)(2)(F) 

requirements that ensure source owners 

and operators install, maintain, and 

replace monitoring equipment and 

provide periodic reporting. 

Response 5: First, as EPA noted 

earlier, CAIR has not been ‘‘vacated’’ as 

stated in Sierra Club’s comment but was 

ultimately remanded by the D.C. Circuit 

to EPA without vacatur, and EPA 

continues to implement CAIR.5 Further, 

EPA notes that (as explained in detail 

above) as EPA continues to administer 

CAIR as directed by the D.C. Circuit, 

EPA believes it is appropriate for West 

Virginia’s infrastructure SIP to rely on 

CAIR at this time until a new rule is 

developed. Therefore, as CAIR is 

enforceable and being implemented, 

West Virginia can cite to a provision 

related to CAIR for its submission for 

addressing section 110(a)(2)(F) 

requirements. 

In addition, as discussed in EPA’s 

TSD, West Virginia’s infrastructure SIP 

submission for the 2008 ozone NAAQS 

listed numerous SIP provisions 

(including the provisions related to 

CAIR as well as regulations 45CSR13, 

45CSR14, and 45CSR19) to support that 

the existing West Virginia SIP ensures 

source owners and operators install, 

maintain and replace monitoring 

equipment, provide periodic reporting 

and correlate reports with emission 

standards under the CAA for section 

110(a)(2)(F). EPA’s TSD addressed how 

West Virginia’s statutory and regulatory 

provisions provided for these 

requirements and most of these 

requirements are not related to CAIR. 

While 45CSR39 and 45CSR40, which 

are in the approved West Virginia SIP, 

address interstate transport of PM2.5,

NOX, and ozone and are related to CAIR, 

these SIP provisions (45CSR39 and 

45CSR40) also contain reporting and 

monitoring requirements (as are 

required for 110(a)(2)(F)) including 

references to federal provisions within 

40 CFR part 75. Because EPA continues 

to implement CAIR and because the 

West Virginia SIP contains several 

provisions itemized in the TSD for this 


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rulemaking action addressing 

monitoring and reporting requirements 

for sources in West Virginia, EPA finds 

the West Virginia infrastructure SIP for 

the 2008 ozone NAAQS adequately 

addressed section 110(a)(2)(F), and EPA 

is taking final rulemaking action to 

approve the infrastructure SIP 

submission with respect to the 

requirements of section 110(a)(2)(F) of 

the CAA. 

III. Final Action 

EPA is approving the following 

infrastructure elements or portions 

thereof of West Virginia’s SIP revision: 

Section 110(a)(2)(A), (B), (C), (D), (E), 

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

has taken separate rulemaking action on 

the portions of section 110(a)(2)(C), 

(D)(i)(II), and (J) as they relate to West 

Virginia’s PSD program and is taking 

separate action on section 

110(a)(2)(E)(ii) as it relates to section 

128 (State Boards). This rulemaking 

action does not include section 

110(a)(2)(I) of the CAA which pertains 

to the 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), because this 

element, or portions thereof, is not 

required to be submitted by a state until 

the EPA has quantified a state’s 

obligations. See EME Homer City, 696 

F.3d 7. 

IV. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

B. Submission to Congress and the 

Comptroller General 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

C. Petitions for Judicial Review 

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by June 6, 2014. Filing a petition 

for reconsideration by the Administrator 

of this final rule does not affect the 

finality of this action for the purposes of 

judicial review nor does it extend the 

time within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. This action, which satisfies 

certain infrastructure requirements of 

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

2008 ozone NAAQS for the State of 

West Virginia, 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, Reporting and recordkeeping 

requirements, Ozone. 

Dated: March 21, 2014. 

W.C. Early, 

Acting Regional Administrator, Region III. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart XX—West Virginia 

■ 2. In § 52.2520, the table in paragraph 

(e) is amended by revising the entry for 

Section 110(a)(2) Infrastructure 

Requirements for the 2008 8-Hour 

Ozone NAAQS. The amendment reads 

as follows: 

§ 52.2520 Identification of plan. 

* * * * * 

(e) * * * 


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Federal Register / Vol. 79, No. 66 / Monday, April 7, 2014 / Rules and Regulations 19009 

Name of non-regulatory 

SIP revision 

Applicable 

geographic area 

State submittal 

date EPA approval date Additional explanation 

*******

Section 110(a)(2) Infrastructure Requirements for the 2008 8- 

Hour Ozone NAAQS.

Statewide .......... 8/31/11, 2/17/12 10/17/12, 77 FR 63736 Approval of the following PSD-related elements or 

portions thereof: 110(a)(2)(C), (D)(i)(II), and (J), 

except taking no action on the definition of 

‘‘regulated NSR pollutant’’ found at 45CSR14 

section 2.66 only as it relates to the requirement to include condensable emissions of particulate matter in that definition. See 

§ 52.2522(i). 

2/17/12 4/7/2014 [Insert Federal 

Register page number 

where the document 

begins and date].

This action addresses the following CAA elements, or portions thereof: 110(a)(2)(A), (B), 

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

* * * * * * * 

[FR Doc. 2014–07589 Filed 4–4–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0413; FRL–9909–10– 

Region 3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Pennsylvania; Infrastructure 

Requirements for the 2008 Lead 

National Ambient Air Quality 

Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

Implementation Plan (SIP) revision 

submitted by the Commonwealth of 

Pennsylvania pursuant to the Clean Air 

Act (CAA). Whenever new or revised 

national ambient air quality standards 

(NAAQS) are promulgated, the CAA 

requires states to submit a plan for the 

implementation, maintenance, and 

enforcement of the NAAQS. The plan is 

required to address basic program 

elements, including, but not limited to 

regulatory structure, monitoring, 

modeling, legal authority, and adequate 

resources necessary to assure attainment 

and maintenance of the standards. 

These elements are referred to as 

infrastructure requirements. The 

Commonwealth of Pennsylvania has 

made a submittal addressing the 

infrastructure requirements for the 2008 

lead (Pb) NAAQS. 

DATES: This final rule is effective on 

May 7, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2013–0413. All 

documents in the docket are listed in 

the www.regulations.gov Web site. 

Although listed in the electronic docket, 

some information is not publicly 

available, i.e., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy for 

public inspection during normal 

business hours at the Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103. 

Copies of the State submittal are 

available at the Pennsylvania 

Department of Environmental 

Protection, Bureau of Air Quality 

Control, P.O. Box 8468, 400 Market 

Street, Harrisburg, Pennsylvania 17105. 

FOR FURTHER INFORMATION CONTACT: 

Ruth Knapp, (215) 814–2191, or by 

email at knapp.ruth@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision 

On July 16, 2013 (78 FR 42482), EPA 

published a notice of proposed 

rulemaking (NPR) for the 

Commonwealth of Pennsylvania 

proposing approval of Pennsylvania’s 

September 24, 2012 SIP submittal to 

satisfy several requirements of section 

110(a)(2) of the CAA for the 2008 Pb 

NAAQS. In the NPR, EPA proposed 

approval of the following infrastructure 

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

(D)(i)(I), (D)(i)(II), D(ii), (E)(i), (E)(iii), 

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

NPR does not include section 

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

nonattainment planning 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. EPA is taking 

separate action on the portion of 

110(a)(2)(E)(ii) as it relates to CAA 

section 128 (State Boards). 

The rationale supporting EPA’s 

proposed action, including the scope of 

infrastructure SIPs in general, is 

explained in the NPR and the technical 

support document (TSD) accompanying 

the NPR and will not be restated here. 

The TSD is available online at 

www.regulations.gov, Docket ID Number 

EPA–R03–OAR–2013–0413. On August 

20, 2013, EPA received public 

comments on its July 16, 2013 NPR from 

the Berks County Commissioners 

(referred to herein as the commenter). A 

summary of the comments submitted 

and EPA’s responses are provided in 

section II of this action. 

II. Summary of Public Comments and 

EPA Responses 

Comment: The commenter has raised 

several concerns related to lead 

monitoring and permitting in Berks 

County, Pennsylvania near the Exide 

Technologies secondary lead smelter 

facility (Exide). The commenter does 

not believe that EPA should approve the 

lead infrastructure SIP submitted by the 

Commonwealth for the 2008 lead 

NAAQS for several reasons, most of 

which are related to the commenter’s 

concerns about the adequacy of the lead 

monitoring network and relate to the 

commenter’s interpretation of the 

requirements of section 110(a)(2)(B) of 

the CAA. 

First, the commenter contends that 

the existing network being used by the 

Commonwealth is not adequate and 

does not meet applicable EPA guidance 

(EPA–454/R–92–009) and 40 CFR part 

58 Appendix D. Specifically, the 

commenter contends that the two 


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