62010 Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 

submission as it pertains to NOX as a 

precursor to ozone and the definition of 

major modification in a May 2, 2014 

proposed approval (79 FR 25063), and 

will take a final action on those 

revisions in a separate rulemaking. 

With the final approval of this SIP 

revisions, the FIP clocks started by 

EPA’s October 29, 2012, narrow 

disapproval and July 25, 2013, 

disapproval will stop. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

because application of those 

requirements would be inconsistent 

with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

This rule is not approved to apply on 

any Indian reservation land or in any 

other area where EPA or an Indian tribe 

has demonstrated that a tribe has 

jurisdiction. In those areas of Indian 

country, the rule does not have tribal 

implications as specified by Executive 

Order 13175 (65 FR 67249, November 9, 

2000), nor will it impose substantial 

direct costs on tribal governments or 

preempt tribal law. 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by November 17, 2014. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Particulate matter, 

Sulfur oxides. 

Dated: August 25, 2014. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR part 52 is amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.2570 is amended by 

adding paragraph (c)(132) to read as 

follows: 

§ 52.2570 Identification of plan. 

* * * * * 

(c) * * * 

(132) On March 12, 2014, April 15, 

2014 and August 11, 2014, the 

Wisconsin Department of Natural 

Resources submitted a request to revise 

Wisconsin’s air permitting program to 

incorporate PSD requirements for PM2.5. 

(i) Incorporation by reference. 

(A) Wisconsin Administrative Code, 

NR 400.02 Definitions. NR 400.0(123m) 

and NR 400.0(124) as published in the 

Wisconsin Administrative Register July 

2014, No. 703, effective August 1, 2014. 

(B) Wisconsin Administrative Code, 

NR 405.02 Definitions. NR 

405.02(25i)(ag), NR 405.02(25i)(ar)2 and 

3, as published in the Wisconsin 

Administrative Register July 2014, No. 

703, effective August 1, 2014. 

(C) Wisconsin Administrative Code, 

NR 405.02 Definitions. NR 

405.02(27)(a)5m as published in the 

Wisconsin Administrative Register 

November 2010, No. 659, effective 

December 1, 2010. 

[FR Doc. 2014–24174 Filed 10–15–14; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2014–0177; FRL–9917–67– 

Region–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Infrastructure Requirements 

for the 2008 Ozone National Ambient 

Air Quality Standards 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

Implementation Plan (SIP) revision 

submitted by the State of Maryland 

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 the basic program 

elements including, but not limited to 

regulatory structure, monitoring, 

modeling, legal authority, and adequate 

resources necessary to assure attainment 


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and maintenance of the standards. 

These elements are referred to as 

infrastructure requirements. The State of 

Maryland has made a submittal 

addressing the infrastructure 

requirements for the 2008 ozone 

NAAQS. 

DATES: This final rule is effective on 

November 17, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2014–0177. 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 Maryland Department of 

the Environment, 1800 Washington 

Boulevard, Suite 705, Baltimore, 

Maryland 21230. 

FOR FURTHER INFORMATION CONTACT: 

Ruth Knapp, (215) 814–219, or by email 

at knapp.ruth@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On May 2, 2014 (79 FR 25054), EPA 

published a notice of proposed 

rulemaking (NPR) for the State of 

Maryland. In the NPR, EPA proposed 

approval of several infrastructure 

elements to satisfy several requirements 

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

2008 ozone NAAQS. The formal SIP 

revision (12–12) was submitted by the 

State of Maryland on December 27, 

2012. 

II. Summary of SIP Revision 

In the NPR, EPA proposed approval of 

the following infrastructure elements: 

Sections 110(a)(2)(A), (B), (C), D(i)(II), 

D(ii), (E), (F), (G), (H), (J), (K), (L), and 

(M) of the CAA. The proposed 

rulemaking does not include action on 

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

pertains to the requirements of part D, 

Title I of the CAA as explained in the 

NPR. The proposed rulemaking action 

also did not include any action on 

Maryland’s December 27, 2012 SIP 

submission addressing section 

110(a)(2)(D)(i)(I). EPA provided in the 

proposal that it will later take separate 

action on Maryland’s December 27, 

2012 SIP submission for the 2008 ozone 

NAAQS for section 110(a)(2)(D)(i)(I). 

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 

online at www.regulations.gov, Docket 

ID Number EPA–R03–OAQ–2014–0177. 

III. Infrastructure SIPS and Greenhouse 

Gases 

With respect to elements (C) and (J) in 

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

interprets the CAA to require each state 

to make an infrastructure SIP 

submission for a new or revised NAAQS 

that demonstrates that the air agency 

has a complete Prevention of Significant 

Deterioration (PSD) permitting program 

meeting the current requirements for all 

regulated New Source Review (NSR) 

pollutants. The requirements of element 

(D)(i)(II) in Section 110(a)(2) which 

requires a demonstration that emissions 

from sources in the state do not interfere 

with the PSD program of another state, 

may also be satisfied by demonstrating 

the air agency has a complete PSD 

permitting program correctly addressing 

all regulated NSR pollutants. Maryland 

has shown that it currently has a PSD 

program in place that covers all 

regulated NSR pollutants, including 

greenhouse gases (GHGs). 

On June 23, 2014, the United States 

Supreme Court issued a decision 

addressing the application of PSD 

permitting requirements to GHG 

emissions. Utility Air Regulatory Group 

v. Environmental Protection Agency, 

134 S.Ct. 2427. The Supreme Court said 

that the EPA may not treat GHGs as an 

air pollutant for purposes of 

determining whether a source is a major 

source required to obtain a PSD permit. 

The Court also said that the EPA could 

continue to require that PSD permits, 

otherwise required based on emissions 

of pollutants other than GHGs, contain 

limitations on GHG emissions based on 

the application of Best Available 

Control Technology (BACT). In order to 

act consistently with its understanding 

of the Court’s decision pending further 

judicial action to effectuate the decision, 

the EPA is not continuing to apply EPA 

regulations that would require that SIPs 

include permitting requirements that 

the Supreme Court found 

impermissible. Specifically, EPA is not 

applying the requirement that a state’s 

SIP-approved PSD program require that 

sources obtain PSD permits when GHGs 

are the only pollutant (i) that the source 

emits or has the potential to emit above 

the major source thresholds, or (ii) for 

which there is a significant emissions 

increase and a significant net emissions 

increase from a modification (e.g. 40 

CFR 51.166(b)(48)(v)). EPA anticipates a 

need to revise federal PSD rules in light 

of the Supreme Court opinion. In 

addition, EPA anticipates that many 

states will revise their existing SIPapproved PSD programs in light of the 

Supreme Court’s decision. The timing 

and content of subsequent EPA actions 

with respect to the EPA regulations and 

state PSD program approvals are 

expected to be informed by additional 

legal process before the United States 

Court of Appeals for the District of 

Columbia Circuit. At this juncture, EPA 

is not expecting states to have revised 

their PSD programs for purposes of 

infrastructure SIP submissions and is 

only evaluating such submissions to 

assure that the state’s program correctly 

addresses GHGs consistent with the 

Supreme Court’s decision. 

At present, EPA has determined the 

Maryland SIP is sufficient to satisfy 

elements C, D(i)(II), and J of section 

110(a)(2) with respect to GHGs because 

the PSD permitting program previouslyapproved by EPA into the SIP continues 

to require that PSD permits (otherwise 

required based on emissions of 

pollutants other than GHGs) contain 

limitations on GHG emissions based on 

the application of BACT. Although the 

approved Maryland PSD permitting 

program may currently contain 

provisions that are no longer necessary 

in light of the Supreme Court decision, 

this does not render the infrastructure 

SIP submission inadequate to satisfy 

elements (C), (D)(i)(II), and (J) in section 

110(a)(2) of the CAA. The SIP contains 

the necessary PSD requirements at this 

time, and the application of those 

requirements is not impeded by the 

presence of other previously-approved 

provisions regarding the permitting of 

sources of GHGs that EPA does not 

consider necessary at this time in light 

of the Supreme Court decision. 

Accordingly, the Supreme Court 

decision does not affect EPA’s earlier 

proposed approval of Maryland’s 2008 

ozone infrastructure SIP as to the 

requirements of elements (C), (D)(i)(II), 

and (J) for Section 110(a)(2). EPA is 

taking final action to approve these 

elements. 

IV. Public Comments and EPA’s 

Responses 

EPA received two sets of comments 

on the May 2, 2014 proposed 

rulemaking action on Maryland’s 2008 

ozone ‘‘infrastructure’’ SIP. The 


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1The Maryland comment also inquired whether 

EPA would withdraw prior approvals of ozone 

infrastructure SIPs for other states which did not 

include action on section 110(a)(2)(D)(i)(I). As 

Maryland’s comment about other state SIPs and 

EPA rulemaking on other states’ SIPs is not relevant 

to this rulemaking, EPA need not provide any 

further response to this comment. 

2The commenter frequently also uses the term 

‘‘exceedance’’ in relation to the NAAQS. EPA 

believes that in many contexts the commenter 

meant a ‘‘violation’’ of the NAAQS. In general, the 

term exceedance means that the level of the 

pollutant is above the level of the NAAQS. 

However, for the 2008 8-hour ozone NAAQS, the 

form of the NAAQS allows some ‘‘exceedances’’ 

(levels above the 0.075 parts per million (ppm) 8- 

hour average) in a three year period before an area 

would be ‘‘violating’’ or ‘‘not attaining’’ the 

NAAQS. 

3The design values for 2012 and 2013 were 

certified in April 2013 and April 2014 respectively. 

comments were submitted by the State 

of Maryland and the Sierra Club. The 

State of Maryland made a brief comment 

related to the subject matter of 

transported emissions while Sierra Club 

made more substantive comments on a 

variety of subjects including transport of 

emissions. A full set of these comments 

is provided in the docket for today’s 

final rulemaking action. 

A. Maryland’s Comment 

Comment: The State of Maryland 

inquired regarding EPA’s plans to take 

action on the transport portion of its 

2008 ozone infrastructure SIP submittal 

in light of the recent Supreme Court 

decision in EPA et al v. EME Homer City 

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

2014 U.S. LEXIS 3108 (2014).1

Response: In this rulemaking, EPA is 

not taking final action with respect to 

the SIP revision addressing the 

provisions in section 110(a)(2)(D)(i)(I) of 

the CAA—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. EPA did not propose to take any 

action in the NPR with respect to 

Maryland’s obligations pursuant to 

section 110(a)(2)(D)(i)(I). As indicated in 

EPA’s proposal, EPA anticipates taking 

later, separate action on the section 

110(a)(2)(D)(i)(I) portion of Maryland’s 

December 27, 2012 SIP submission for 

the 2008 ozone NAAQS. 

B. Sierra Club Comments: 

Comment 1: Sierra Club contends that 

EPA cannot approve the Maryland 2008 

ozone infrastructure SIP revision 

because 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 rulemakings, 

require the inclusion of enforceable 

emission limits in an infrastructure SIP 

to prevent NAAQS violations 2 in areas 

not designated nonattainment. 

Specifically, Sierra Club cites air 

monitoring reports for Kent County, 

Maryland indicating violations of the 

NAAQS based on 2010–2012 and 2011– 

2013 design values. The commenter 

alleges that these violations demonstrate 

that the ozone infrastructure SIP fails to 

impose necessary restrictions on ozone 

precursor sources sufficient to ensure 

attainment and maintenance of the 2008 

ozone NAAQS and compliance with 

section 110(a)(2)(A). The commenter 

claims Maryland must revise its 

infrastructure SIP to include enforceable 

emission limits and other measures to 

ensure attainment and maintenance of 

the 2008 ozone NAAQS. The 

commenter asserts the existing emission 

limits applicable to coal plants in 

Maryland’s SIP were not intended to 

ensure maintenance of an 8-hour 

standard. The commenter asserts that 

Maryland’s infrastructure SIP relies on 

the Maryland Healthy Air Act (HAA) for 

nitrogen oxide (NOX) limitations on 

Maryland’s coal-fired power plants yet 

the HAA imposes only annual and 

ozone season caps on NOX at coal-fired 

power plants while the 8-hour ozone 

NAAQS requires shorter emissions 

averaging times. The commenter also 

urges EPA to encourage Maryland to 

expeditiously finalize new regulations 

on coal-fired power plants which 

Maryland is currently drafting which 

the commenter claims would require 

installation and operation of state-ofthe-art controls on the largest 

contributors of NOX in Maryland. Until 

these new regulations are finalized, the 

commenter claims ‘‘Maryland has not 

tackled emissions’’ from the largest NOX

sources and has not demonstrated its 

SIP is sufficient to attain and maintain 

the 2008 ozone NAAQS. Therefore, the 

commenter states EPA cannot approve 

Maryland’s infrastructure SIP. Finally, 

the commenter states Maryland should 

use its infrastructure SIP process to 

address current ozone exceedances in 

Kent County and should prevent Kent 

County from being designated 

nonattainment for the 2008 ozone 

NAAQS by adding appropriate 

enforceable NOX emission limits on 

sources. The commenter states EPA 

cannot approve the infrastructure SIP 

and Maryland must amend its SIP to 

ensure the largest NOX sources cannot 

contribute to exceedances of the 8-hour 

ozone NAAQS. 

Response 1: EPA disagrees with the 

commenter that the statute is clear on its 

face that infrastructure SIPs must 

include detailed attainment and 

maintenance plans for all areas of the 

state and must be disapproved if air 

quality data that became available late 

in the process or after the SIP was due 

and submitted changes the status of one 

or more areas within the state. The 

commenter’s specific arguments that the 

statutory language, legislative history, 

case law, EPA regulations, and prior 

rulemaking actions by EPA mandate the 

narrow interpretation they advocate are 

addressed below in subsections (1) 

through (5) of this response. EPA 

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

reasonably interpreted to require states 

to submit SIPs that reflect the first step 

in their planning for attaining and 

maintaining a new or revised NAAQS 

and that they contain enforceable 

control measures and a demonstration 

that the state has the available tools and 

authority to develop and implement 

plans to attain and maintain the 

NAAQS. 

As an initial matter, EPA disagrees 

that air quality monitoring data that 

became available, as here, four or more 

years following promulgation of the 

2008 ozone NAAQS and shortly after 

the SIP was submitted in December 

2012 provides a basis for disapproving 

the Maryland ozone infrastructure SIP. 

States must develop SIPs based on the 

information they have during the SIP 

development process, which preceded 

December 2012 (when Maryland 

submitted its SIP), and data that 

becomes available near the end of that 

process or after that process is 

completed cannot undermine the 

reasonable assumptions that were made 

by the state based on the information it 

had available as it developed the plan. 

Thus, the design values for 2012 and 

2013 cited by the commenter (based 

respectively on the three-years of data 

from 2010–2012 and 2011–2013) should 

not be considered in determining 

whether the SIP should be approved.3

The suggestion that Maryland’s ozone 

infrastructure SIP must include 

measures addressing violations of the 

standard that did not occur until shortly 

before or after the SIP was due and 

submitted, as is the case here, cannot be 

supported. The CAA provides states 

with three years to develop 

infrastructure SIPs and states cannot 

reasonably be expected to address the 

annual change in an area’s design value 

for each year over that period, nor to 

predict the air quality data in periods 

after development and submission of 

the SIPs. Moreover, the CAA recognizes 

and has provisions to address changes 

in air quality over time, such as an area 

slipping from attainment to 

nonattainment or changing from 

nonattainment to attainment. These 


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4EPA notes that preliminary monitoring data for 

2014 indicates that the 2012–2014 design value for 

Kent County, Maryland will meet the 2008 ozone 

NAAQS. The 2014 data is not complete, quality 

assured or certified at this time. 

5While it is true that there may be some monitors 

within a state with values so high as to make a 

nonattainment designation of the county with that 

monitor almost a certainty, the geographic 

boundaries of the nonattainment area associated 

with that monitor would not be known until EPA 

issues final designations. Moreover, the area of 

concern to the commenter does not fit that 

description in any event. 

6Thus, EPA disagrees with the commenter’s 

assertion that Maryland has not addressed the 

largest emitters of NOX in the State. Maryland’s 

HAA specifically imposed NOX emission limits on 

coal-fired power plants in Maryland. 

include provisions providing for 

redesignation in section 107(d) and 

provisions in section 110(k)(5) allowing 

EPA to call on the state to revise its SIP, 

as appropriate. 

The commenter suggests that EPA 

must disapprove the Maryland ozone 

infrastructure SIP because the fact that 

an area in Maryland now has air quality 

data slightly above the standard proves 

that the infrastructure SIP is inadequate 

to demonstrate attainment and 

maintenance for that area.4 EPA 

disagrees with the commenter because 

EPA does not believe that section 

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

SIPs demonstrating either attainment or 

maintenance for specific geographic 

areas of the state. The infrastructure SIP 

is triggered by promulgation of the 

NAAQS, not designation. Moreover, 

infrastructure SIPs are due three years 

following promulgation of the NAAQS 

and designations are not due until two 

years (or in some cases three years) 

following promulgation of the NAAQS. 

Thus, during a significant portion of the 

period that a state has available for 

developing the infrastructure SIP, it 

does not know what the designation 

will be for individual areas of the state.5

In light of the structure of the CAA, 

EPA’s long-standing position regarding 

infrastructure SIPs is that they are 

general planning SIPs to ensure that the 

state has adequate resources and 

authority to implement a NAAQS in 

general throughout the state and not 

detailed attainment and maintenance 

plans for each individual area of the 

state. 

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 did 

provide the only detailed SIP planning 

provisions for states and specified that 

such plans must provide for attainment 

of the NAAQS, under the structure of 

the current CAA, section 110 is only the 

initial stepping-stone in the planning 

process for a specific NAAQS. And, 

more detailed, later-enacted provisions 

govern the substantive planning 

process, including planning for 

attainment of the NAAQS. 

EPA shares the commenter’s concern 

regarding the area that is monitoring 

violations of the 2008 8-hour ozone 

NAAQS based on its 2012 and 2013 

design values and is working with state 

and local agencies to address such 

violations. By approving Maryland’s 

infrastructure SIP revision, EPA is 

affirming that Maryland has sufficient 

authority to take the types of actions 

required by the CAA in order to bring 

such areas back into attainment. For all 

of these reasons, EPA disagrees with the 

commenter that EPA must disapprove 

an infrastructure SIP revision if there 

are monitored violations of the standard 

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

revision does not have detailed plans for 

demonstrating how the state will bring 

that area into attainment or for 

demonstrating maintenance. EPA 

believes the state has met the basic 

structural SIP requirements appropriate 

at the point in time EPA is acting upon 

the submittal. EPA disagrees with the 

commenter that Maryland should use 

the infrastructure SIP required by 

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

address any ‘‘exceedances’’ of the 2008 

ozone NAAQS or to avoid a designation 

of nonattainment for Kent County. Other 

provisions in part D of the CAA address 

the attainment planning process while 

section 107(d) of the CAA addresses 

designations of areas for attainment or 

nonattainment with a NAAQS. While 

Maryland may decide to regulate 

additional sources for pursuing 

emission reductions in the State to 

strengthen its SIP, such actions are not 

relevant to our approval of Maryland’s 

infrastructure SIP in accordance with 

section 110 of the CAA. As discussed 

previously, our inquiry at this juncture 

is whether Maryland’s SIP has the 

required structural elements. 

Moreover, as addressed in EPA’s 

proposed approval for this rule, 

Maryland identified existing emission 

reduction measures in the SIP that 

control emissions of volatile organic 

compounds (VOCs) and NOX. 

Maryland’s SIP revision reflects several 

provisions that have the ability to 

reduce ground level ozone and its 

precursors. The Maryland SIP relies on 

measures and programs used to address 

previous ozone NAAQS. Because there 

is no substantive difference between the 

previous ozone NAAQS and the more 

recent ozone NAAQS, other than the 

level of the standard, the provisions 

relied on by Maryland 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.6

Finally, EPA appreciates the 

commenter’s support of Maryland’s 

pursuit of additional NOX emission 


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7As stated previously, EPA will take later, 

separate action on Maryland’s ozone infrastructure 

SIP submittal regarding the portion of the SIP 

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

limitations at coal-fired power plants in 

Maryland. Additional NOX regulations 

on emissions will likely strengthen the 

Maryland SIP and lead to additional 

reductions in NOX emissions benefiting 

Maryland. However, EPA does not 

believe that approval of the 

infrastructure SIP is contingent on 

Maryland adopting this rule. Congress 

established the CAA such that each state 

has primary responsibility for assuring 

air quality within the state and 

determines an emission reduction 

program for its areas subject to EPA 

approval, with such approval dependent 

upon whether the SIP as a whole meets 

the applicable requirements of the CAA. 

See Commonwealth of Virginia, et al., v. 

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

1997) (citing Natural Resources Defense 

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

1123 (DCCir.1995)). EPA cannot 

condition approval of the Maryland 

infrastructure SIP upon inclusion of a 

particular emission reduction program 

as long as the SIP otherwise meets the 

requirements of the CAA. As explained 

in the NPR and the TSD, Maryland’s 

ozone infrastructure SIP meets the 

requirements in section 110(a)(2).7

1. The Plain Language of the CAA 

Comment 2: The commenter states 

that on its face the CAA ‘‘requires I–SIPs 

to be adequate 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 and which 

commenter claims include the 

maintenance plan requirement. Sierra 

Club notes the CAA definition of 

emission limit and reads these 

provisions together to require 

‘‘enforceable emission limits on source 

emissions sufficient to ensure 

maintenance of the NAAQS.’’ 

Response 2: EPA disagrees that 

section 110 is clear ‘‘on its face’’ and 

must be interpreted in the manner 

suggested by Sierra Club. As explained 

previously, section 110 is only one 

provision that is part of the complicated 

structure governing implementation of 

the NAAQS program under the CAA, as 

amended in 1990, and it must be 

interpreted in the context of not only 

that structure, but also of the historical 

evolution of that structure. In light of 

the revisions to section 110 since 1970 

and the later-promulgated and more 

specific planning requirements of the 

CAA, EPA interprets the requirement in 

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

provide for ‘‘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 makes general 

allegations that Maryland does not have 

sufficient protective measures 

addressing ozone pollution. EPA 

addressed the adequacy of Maryland’s 

infrastructure SIP for 110(a)(2)(A) for 

purposes of meeting applicable 

requirements of the CAA in the TSD 

accompanying the May 2, 2014 NPR and 

explained why the SIP includes 

enforceable emission limitations and 

other control measures. These include 

applicable portions of COMAR 26.11 

such as COMAR 26.11.02, and COMAR 

26.11.06.14. As discussed in the TSD 

accompanying the May 2, 2014 NPR, 

Maryland’s enforceable emission limits, 

control measures, and related SIP 

approved regulations can be found in 40 

CFR 52.1070. These include enforceable 

emissions limits, control measures, fees, 

and compliance schedules adopted for 

the 1-hour and 1997 8-hour ozone 

NAAQS but which will also provide 

ozone reductions benefits for the 2008 

ozone NAAQS. 

2. The Legislative History of the CAA 

Comment 3: Sierra Club cites two 

excerpts from the legislative history of 

the CAA Amendments of 1970 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 Maryland. Sierra Club 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 3: 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 the 

structure of the Act and deleted relevant 

language from section 110 concerning 

demonstrating attainment. In any event, 

the two excerpts of legislative history 

the commenter cites merely provide that 

states should include enforceable 

emission limits in their SIPs 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. As 

provided earlier in this rulemaking 

action, the TSD for the proposed rule 

explains why the SIP includes 

enforceable emissions limitations and 

meets the requirement in section 

110(a)(2)(A). 

3. Case Law 

Comment 4: Sierra Club also 

discusses several cases applying the 

CAA which Sierra Club claims support 

their contention that courts have been 

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

enforceable emissions limits in 

infrastructure SIPs to prevent violations 

of the NAAQS. Sierra Club first cites to 

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

78 (1975), addressing the requirement 

for ‘‘emission limitations’’ and stating 

that emission limitations ‘‘are specific 

rules to which operators of pollution 

sources are subject, and which if 

enforced should result in ambient air 

which meet the national standards.’’ 

Sierra Club also cites to Pennsylvania 

Dept. of Envtl. Resources v. EPA, 932 

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

proposition that the CAA directs EPA to 

withhold approval of a SIP where it 

does not ensure maintenance of the 

NAAQS and Mision Industrial, Inc. v. 

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

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


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8While the commenter does contend that the 

State shouldn’t be allowed to rely on emission 

reductions that were developed for the prior ozone 

standards (which we address above), it does not 

claim that any of the measures are not ‘‘emissions 

limitations’’ within the definition of the CAA. 

CAA of 1970. The commenter contends 

that the 1990 Amendments do not alter 

how courts have interpreted the 

requirements of section 110, quoting 

Alaska Dept. of Envtl. Conservation v. 

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

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

CAA and also stated that ‘‘SIPs must 

include certain measures Congress 

specified’’ to ensure attainment of the 

NAAQS. The commenter also quotes 

several additional opinions in this vein. 

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

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

Clean Air Act directs states to develop 

implementation plans—SIPs—that 

‘assure’ attainment and maintenance of 

[NAAQS] through enforceable emissions 

limitations’’); Hall v. EPA 273 F.3d 

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

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

manner in which [NAAQS] will be 

achieved and maintained within each 

air quality control region in the State’’). 

Finally, the commenter cites Mich. 

Dept. of Envtl. Quality v. Browner, 230 

F.3d 181 (6th Cir. 2000) for the 

proposition that EPA may not approve 

a SIP revision that does not demonstrate 

how the rules would not interfere with 

attainment and maintenance of the 

NAAQS. 

Response 4: None of the cases the 

commenter cites support the 

commenter’s 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 section of decisions in the 

context of a challenge to an EPA action 

on revisions to a SIP that was required 

and approved as meeting other 

provisions of the CAA or in the context 

of an enforcement action. 

In Train, 421 U.S. 60, a case that was 

decided almost 40 years ago, the Court 

was addressing a state revision to an 

attainment plan submission made 

pursuant to section 110 of the CAA, the 

sole statutory provision at that time 

regulating such submissions. The issue 

in that case concerned whether changes 

to requirements that would occur before 

attainment was required were variances 

that should be addressed pursuant to 

the provision governing SIP revisions or 

were ‘‘postponements’’ that must be 

addressed under section 110(f) of the 

CAA of 1970, which contained 

prescriptive criteria. The Court 

concluded that EPA reasonably 

interpreted section 110(f) not to restrict 

a state’s choice of the mix of control 

measures needed to attain the NAAQS 

and that revisions to SIPs that would 

not impact attainment of the NAAQS by 

the attainment date were not subject to 

the limits of section 110(f). Thus the 

issue was not whether a section 110 SIP 

needs to provide for attainment or 

whether emissions limits are needed as 

part of the SIP; rather the issue was 

which statutory provision governed 

when the state wanted to revise the 

emission limits in its SIP if such 

revision would not impact attainment or 

maintenance of the NAAQS. To the 

extent the holding in the case has any 

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

might be interpreted, it is important to 

realize that in 1975, when the opinion 

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

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

expressly referenced the requirement to 

attain the NAAQS, a reference that was 

removed in 1990. 

The decision in Pennsylvania Dept. of 

Envtl. Resources was also decided based 

on the pre-1990 provision of the CAA. 

At issue was whether EPA properly 

rejected a revision to an approved plan 

where the inventories relied on by the 

state for the updated submission had 

gaps. The Court quoted section 

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

support of EPA’s disapproval, but did 

not provide any interpretation of that 

provision. Yet, even if the Court had 

interpreted that provision, EPA notes 

that it was modified by Congress in 

1990; thus, this decision has little 

bearing on the issue here. 

At issue in Mision Industrial, 547 

F.2d 123, was the definition of 

‘‘emissions limitation’’ not whether 

section 110 requires the state to 

demonstrate how all areas of the state 

will attain and maintain the NAAQS as 

part of their infrastructure SIPs. The 

language from the opinion the 

commenter quotes does not interpret but 

rather merely describes section 

110(a)(2)(A). The commenter does not 

raise any concerns about whether the 

measures relied on by the state in the 

infrastructure SIP are ‘‘emissions 

limitations’’ and the decision in this 

case has no bearing here.8 In Mont. 

Sulphur & Chem. Co., 666 F.3d 1174, 

the Court was reviewing a federal 

implementation plan that EPA 

promulgated after a long history of the 

state failing to submit an adequate state 

implementation plan. The Court cited 

generally to sections 107 and 

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

proposition that SIPs should assure 

attainment and maintenance of NAAQS 

through emission limitations but this 

language was not part of the Court’s 

holding in the case. The commenter 

suggests that Alaska Dept. of Envtl. 

Conservation, 540 U.S. 461, stands for 

the proposition that the 1990 CAA 

Amendments do not alter how courts 

interpret section 110. This claim is 

inaccurate. Rather, the Court quoted 

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

previously, differs from the pre-1990 

version of that provision and the Court 

makes no mention of the changed 

language. Furthermore, the commenter 

also quotes the Court’s statement that 

‘‘SIPs must include certain measures 

Congress specified’’ but that statement 

specifically referenced the requirement 

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

an enforcement program and a program 

for the regulation of the modification 

and construction of new sources. 

Notably, at issue in that case was the 

state’s ‘‘new source’’ permitting 

program, not its infrastructure SIP. 

Two of the cases the commenter cites, 

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

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

CAA section 110(l), the provision 

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. 

4. EPA Regulations, Such as 40 CFR 

51.112(a) 

Comment 5: The commenter cites to 

40 CFR 51.112(a), providing that ‘‘[e]ach 

plan must demonstrate that the 

measures, rules and regulations 

contained in it are adequate to provide 

for the timely attainment and 

maintenance of the [NAAQS].’’ The 

commenter asserts that this regulation 

requires all SIPs to include emissions 

limits necessary to ensure attainment of 

the NAAQS. The commenter states that 

‘‘[a]lthough these regulations were 

developed before the Clean Air Act 

separated infrastructure SIPs from 

nonattainment SIPs—a process that 

began with the 1977 amendments and 

was completed by the 1990 

amendments—the regulations apply to 

I–SIPs.’’ The commenter relies on a 

statement in the preamble to the 1986 

action restructuring and consolidating 


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provisions in part 51, in which EPA 

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

th[is] rulemaking to address the 

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

51 FR 40656, 40656 (November 7, 1986). 

Response 5: The commenter’s reliance 

on 40 CFR 51.112 to support its 

argument that infrastructure SIPs must 

contain emission limits ‘‘adequate to 

prohibit NAAQS exceedances’’ and 

adequate or sufficient to ensure the 

maintenance of the NAAQS is not 

supported. As an initial matter, EPA 

notes and the commenter recognizes 

this regulatory provision was initially 

promulgated and ‘‘restructured and 

consolidated’’ prior to the CAA 

Amendments of 1990, in which 

Congress removed all references to 

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

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. 

The commenter suggests that these 

provisions must apply to section 110 

SIPs because in the preamble to EPA’s 

action ‘‘restructuring and consolidating’’ 

provisions in part 51, EPA stated that 

the new attainment demonstration 

provisions in the 1977 Amendments to 

the CAA were ‘‘beyond the scope’’ of 

the rulemaking. It is important to note, 

however, that EPA’s action in 1986 was 

not to establish new substantive 

planning requirements, but rather 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 that the 

regulations being restructured and 

consolidated were intended to address 

control strategy plans. In the preamble, 

EPA clearly stated that 40 CFR 51.112 

was replacing 40 CFR 51.13 (‘‘Control 

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

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

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

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

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

40660. Thus, the present-day 40 CFR 

51.112 contains consolidated provisions 

that are focused on control strategy SIPs, 

and the infrastructure SIP is not such a 

plan. 

5. EPA Interpretations in Other 

Rulemakings 

Comment 6: The commenter also 

references two prior EPA rulemaking 

actions where EPA disapproved or 

proposed to disapprove SIPs and 

claimed they were actions in which EPA 

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

CFR 51.112 to reject infrastructure SIPs. 

The commenter first points to a 2006 

partial approval and partial disapproval 

of revisions to Missouri’s existing plan 

addressing the sulfur dioxide (SO2) 

NAAQS. In that action, EPA cited 

section 110(a)(2)(A) as a basis for 

disapproving a revision to the State plan 

on the basis that the State failed to 

demonstrate the SIP was sufficient to 

ensure maintenance of the SO2 NAAQS 

after revision of an emission limit and 

cited to 40 CFR 51.112 as requiring that 

a plan demonstrates the rules in a SIP 

are adequate to attain the NAAQS. 

Second, Sierra Club cites a 2013 

disapproval of a revision to the SO2 SIP 

for Indiana, where the revision removed 

an emission limit that applied to a 

specific emissions source at a facility in 

the State. In its proposed disapproval, 

EPA relied on 40 CFR 51.112(a) in 

proposing to reject the revision, stating 

that the State had not demonstrated that 

the emission limit was ‘‘redundant, 

unnecessary, or that its removal would 

not result in or allow an increase in 

actual SO2 emissions.’’ EPA further 

stated in that proposed disapproval that 

the State had not demonstrated that 

removal of the limit would not ‘‘affect 

the validity of the emission rates used 

in the existing attainment 

demonstration.’’ Additionally, the 

commenter states EPA in its September 

2013 Infrastructure SIP Guidance 

purported to postpone certain start-up, 

shutdown, and malfunction (SSM) 

requirements but did not postpone other 

infrastructure SIP requirements, which 

the commenter asserts indicates the 

CAA requires infrastructure SIPs to 

include enforceable limits adequate to 

ensure attainment of NAAQS and to 

impose limits without delay. 

Response 6: EPA does not agree that 

the two prior actions referenced by the 

commenter establish how EPA reviews 

infrastructure SIPs. It is clear from both 

the final Missouri rule and the proposed 

and final Indiana rule that EPA was not 

reviewing initial infrastructure SIP 

submissions under section 110 of the 

CAA, but rather reviewing revisions that 

would relax the stringency of an already 

approved SIP. 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. The 

Indiana action provides even less 

support for the commenter’s position. In 

that case, the State had an approved SO2

attainment plan and was seeking to 

remove from the SIP provisions relied 

on as part of the modeled attainment 

demonstration. EPA proposed that the 

State had failed to demonstrate under 

section 110(l) of the CAA why the SIP 

revision would not result in increased 

SO2 emissions and thus interfere with 

attainment of the NAAQS. Nothing in 

that rulemaking addresses the necessary 

content of the initial infrastructure SIP 

for a new or revised NAAQS. Rather, it 

is simply applying the clear statutory 

requirement that a state must 

demonstrate why a revision to an 

approved SIP will not interfere with 

attainment of the NAAQS. 

Finally, EPA disagrees with the 

comment regarding the Infrastructure 

SIP Guidance. The commenter correctly 

asserts that EPA in its September 2013 

Infrastructure SIP Guidance clearly 

stated that EPA does not interpret 

section 110(a)(2) to require state air 

agencies and the EPA to address 

potentially deficient pre-existing SSM 

SIP provisions when acting on an 

infrastructure SIP particularly because 

EPA has alternative tools in the CAA to 

address such deficiencies. Infrastructure 

SIP Guidance at pgs. 19–20. However, 

this affirmative statement regarding 

potential SSM deficiencies in a state’s 

SIP cannot be construed to mean or 

imply EPA cannot approve an 

infrastructure SIP without a 

demonstration that the SIP contains 

adequate enforceable limits to ensure 

attainment with a NAAQS. For all of the 

reasons discussed previously, we do not 

interpret section 110(a)(2)(A) to require 

that the state demonstrate attainment of 

the NAAQS. As explained above, and 

similar to our position on SSM 

deficiencies, the CAA establishes 

separate provisions that govern 

attainment SIPs for areas. As discussed 

previously, EPA reviews infrastructure 

SIPs to ensure a SIP has the appropriate 

structural requirements. 

Comment 7: The commenter states 

that EPA must evaluate Maryland’s 

provisions submitted in the 2008 ozone 

NAAQS infrastructure SIP to address 

section 110(a)(2)(D)(i)(I) and determine 

whether they are sufficient enough to 

meet requirements of section 

110(a)(2)(D)(i)(I). In light of the Supreme 

Court’s decision in EME Homer City in 

April 2014, the commenter argues that 

the EPA should act quickly to address 

pollution that may be contributing to 

another state’s nonattainment or 


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interfering with another state’s 

maintenance of the 2008 ozone NAAQS. 

The commenter argues EPA must 

evaluate whether Maryland addresses 

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

requirements regarding emissions that 

would contribute to exceedances of or 

interfere with the maintenance of the 

2008 ozone NAAQS and cannot delay 

its review of Maryland’s provisions to 

address such requirements. The 

commenter states EPA must disapprove 

the Maryland infrastructure SIP 

transport provision and adequately 

address the impact of ozone emissions 

from Maryland on other states. Because 

Maryland’s transport SIP submittal 

relies on CSAPR and the HAA, the 

commenter asserts EPA should 

determine Maryland has not adequately 

addressed its cross-state impacts. The 

commenter claims CSAPR only 

addresses the less stringent 1997 ozone 

NAAQS and claims that even Maryland 

said additional reductions are needed 

for 2008 ozone NAAQS beyond CSAPR. 

The commenter also claims Maryland’s 

HAA was developed under the 

‘‘outdated’’ 1997 ozone NAAQS and 

claims Maryland’s reductions from the 

HAA do not demonstrate Maryland is 

not contributing to nonattainment or 

interfering with maintenance of the 

NAAQS. The commenter also claims 

Maryland cannot rely on voluntary 

control measures to address transport of 

emissions. Therefore, the commenter 

asserts EPA cannot approve the 

Maryland infrastructure SIP and 

Maryland must revise its SIP to address 

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

ozone NAAQS. 

Response 7: As EPA has stated 

previously both in the NPR and this 

final rulemaking, EPA is not taking any 

final action with respect to the good 

neighbor provisions in section 

110(a)(2)(D)(i)(I). In the NPR, EPA did 

not propose to take any action with 

respect to Maryland’s obligations 

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

is not, in this rulemaking action, taking 

any such action. Thus, the comments 

relating to the substance and 

approvability of Maryland’s good 

neighbor provision in its 2008 ozone 

NAAQS infrastructure SIP submission 

are not relevant to this present 

rulemaking action. As stated herein and 

in the NPR, EPA will take later, separate 

action on Maryland’s 2008 ozone 

NAAQS infrastructure SIP submission 

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

EPA believes the statutory language in 

the CAA supports our ability to approve 

Maryland’s December 27, 2012 2008 

ozone NAAQS infrastructure SIP while 

taking later, separate action on the 

portion of the SIP submittal which 

addresses Maryland’s obligation to 

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

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

EPA to approve a plan in full, 

disapprove it in full, or approve it in 

part and disapprove it in part, 

depending on the extent to which such 

plan meets the requirements of the 

CAA. This authority to approve the 

states’ SIP revisions in separable parts 

was included in the 1990 Amendments 

to the CAA to overrule a decision in the 

Court of Appeals for the Ninth Circuit 

holding that EPA could not approve 

individual measures in a plan 

submission without either approving or 

disapproving the plan as a whole. See 

S. Rep. No. 101–228, at 22, 1990 

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

express overruling of Abramowitz v. 

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

As such, EPA interprets its authority 

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

EPA the discretion to approve or 

conditionally approve individual 

elements of Maryland’s infrastructure 

submission for the 2008 8-hour ozone 

NAAQS, separate and apart from any 

action with respect to the requirements 

of section 110(a)(2)(D)(i)(I) with respect 

to that NAAQS. EPA views discrete 

infrastructure SIP requirements, such as 

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

severable from the other infrastructure 

elements and interprets section 

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

individual severable measures in a plan 

submission. The commenter raises no 

compelling legal or environmental 

rationale for an alternate interpretation. 

Nothing in the Supreme Court’s April 

2014 decision in EME Homer City alters 

our interpretation that we may act on 

individual severable measures including 

the requirements of section 

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

See EPA v. EME Homer City Generation, 

L.P., 134 S. Ct. 1584 (2014) (affirming a 

state’s obligation to submit a SIP 

revision addressing section 

110(a)(2)(D)(i)(I) independent of EPA’s 

action finding significant contribution 

or interference with maintenance). 

EPA’s proposed approval of the 

Maryland December 27, 2012 

infrastructure SIP submission for the 

2008 ozone NAAQS for the portions 

described in the NPR was therefore 

appropriate. 

Comment 8: The commenter indicates 

that Maryland is not meeting the 

requirements of CAA section 110(a)(2)(J) 

and does not meet the requirements of 

section 127 relating to public 

notification. The commenter asserts 

section 127 mandates a SIP contain 

provisions to effectively notify the 

public of NAAQS exceedances and 

provides that the state must advise of 

health hazards of pollution. The 

commenter contends Maryland’s 

Environmental Article, section 

2–103.2(b) ensures air monitoring data 

is available online but does not provide 

public notification of NAAQS 

exceedances. Additionally the 

commenter questions whether the ozone 

forecasts provided by Maryland online 

provide information about ozone 

NAAQS exceedances and says Maryland 

must revise its infrastructure SIP to 

ensure compliance with section 

110(a)(2)(J). 

Response 8: EPA disagrees with the 

commenter that the Maryland SIP does 

not meet the requirement of section 

110(a)(2)(J) for public notification. In the 

TSD accompanying the NPR, EPA 

discussed Environment Article, section 

2–103.2(b) of the Annotated Code of 

Maryland, which requires public access 

to all air monitoring data online via the 

internet. By providing information to 

the public on the internet for 8-hour 

ozone levels, the State of Maryland 

provides adequate public notification of 

ozone levels and provides to the public 

both in and outside the State of 

Maryland information that can be used 

to examine ozone levels and determine 

when and where exceedances occurred 

or might occur. The commenter does not 

explain why this information is not 

adequate ‘‘public notice’’ of 

exceedances of the NAAQS. In addition 

to providing access to the ozone monitor 

data on the internet, the Maryland SIP 

contains approved procedures for 

permitting, attainment planning, and 

emergency episodes which provide 

information about the ozone air quality 

conditions and about the emission 

controls that may be implemented to 

reduce ozone levels. Section 2–303(b) of 

the Environment Article of the 

Annotated Code of Maryland requires 

that public hearings be held before 

Maryland finalizes air quality 

regulations. In the TSD, EPA also 

identified other regulatory and statutory 

provisions in Maryland which address 

public notification and hearings 

including COMAR 26.11.02 and 

26.11.03 for permits and COMAR 

26.11.04.02 which adopts 40 CFR 58.50 

for reporting air quality to the public 

several times per day. In addition, 

COMAR 26.11.05.02 and 26.11.05.03 

provide for public notification when 

ozone levels may reach or exceed levels 

considered injurious to human health. 

The remaining provisions in COMAR 

26.11.05 provide for responsive actions 

to address such injurious accumulations 

of air pollution. Maryland provides 

historical information on exceedances 

statewide for each calendar year at 


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62018 Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations 

http://www.mde.state.md.us/programs/

Air/AirQualityMonitoring/Pages/

HistoricalData.aspx which contains 

links to a statewide listing of recorded 

exceedances at specific locations 

including the Millington monitor in 

Kent County. Maryland also provides air 

quality forecasts at http://

www.mde.state.md.us/programs/Air/

AirQualityMonitoring/Pages/

AQForecast.aspx which also includes 

information on actions the public can 

take to reduce pollution and protect 

their health. 

As explained in the TSD 

accompanying the NPR and herein, 

Maryland’s ozone infrastructure SIP 

submission clearly demonstrates that 

Maryland regularly notifies the public of 

instances or areas in which the 2008 

ozone NAAQS was exceeded, advises 

the public of the health hazards 

associated with such exceedances, and 

enhances public awareness of measures 

that can prevent such exceedances and 

of ways in which the public can 

participate in regulatory and other 

efforts to improve air quality. Thus, EPA 

believes the Maryland statutory and 

regulatory provisions discussed 

previously and in the TSD provide 

effective methods to provide 

information and notification to the 

public when the ozone standard may be 

or has been exceeded. 

V. Final Action 

EPA is approving the following 

infrastructure elements of Maryland’s 

December 27, 2012 SIP revision for the 

2008 ozone NAAQS: Section 

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

(F), (G), (H), (J), (K), (L), and (M) as a 

revision to the Maryland SIP. 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. This rulemaking action also does 

not include any action on Section 

110(a)(2)(D)(i)(I). EPA will take later 

separate action on Maryland’s December 

27, 2012 SIP submission addressing 

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

ozone NAAQS. 

VI. 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 December 15, 2014. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action, which 

satisfies certain infrastructure 

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

CAA for the 2008 ozone NAAQS for the 

State of Maryland, 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, Ozone, Reporting and 

recordkeeping requirements. 

Dated: September 22, 2014. 

William 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 V—Maryland 

■ 2. In § 52.1070, the table in paragraph 

(e) is amended by adding the entry for 

Infrastructure Requirements for the 2008 

Ozone NAAQS at the end of the table to 

read as follows: 

§ 52.1070 Identification of plan. 

* * * * * 

(e)* * * 


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

Name of non-regulatory 

SIP revision 

Applicable geographic 

area 

State submittal 

date EPA approval date Additional explanation 

*******

* * 

Infrastructure Requirements for the 2008 

Ozone NAAQS.

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

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

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

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2011–0969; FRL–9917–62– 

Region 5] 

Approval and Promulgation of Air 

Quality Implementation Plans; Ohio; 

Infrastructure SIP Requirements for 

the 2008 Ozone NAAQS 

AGENCY: Environmental Protection 

Agency. 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve elements of a state 

implementation plan (SIP) submission 

from Ohio regarding the infrastructure 

requirements of section 110 of the Clean 

Air Act (CAA) for the 2008 ozone 

National Ambient Air Quality Standards 

(NAAQS). The infrastructure 

requirements are designed to ensure that 

the structural components of each 

state’s air quality management program 

are adequate to meet the state’s 

responsibilities under the CAA. The 

proposed rulemaking associated with 

today’s final action was published on 

July 25, 2014, and EPA received one 

comment pertaining to infrastructure for 

the 2008 ozone NAAQS during the 

comment period, which ended on 

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

and 2010 Nitrogen Dioxide (NO2), and 

2010 Sulfur Dioxide (SO2) infrastructure 

SIPs were also addressed in the 

proposed rulemaking but will be 

addressed in a separate final 

rulemaking. 

DATES: This final rule is effective on 

November 17, 2014. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2011–0969. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly-available only in hard 

copy. Publicly-available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the U.S. Environmental 

Protection Agency, Region 5, Air and 

Radiation Division, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. This 

facility is open from 8:30 a.m. to 4:30 

p.m., Monday through Friday, excluding 

Federal holidays. We recommend that 

you telephone Sarah Arra at (312) 886– 

9401 before visiting the Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Arra, Environmental Scientist, 

Attainment Planning and Maintenance 

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

U.S. Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–9401, 

arra.sarah@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

EPA. This supplementary information 

section is arranged as follows: 

I. What is the background of these SIP 

submissions? 

A. What does this rulemaking address? 

B. Why did the state make this SIP 

submissions? 

C. What is the scope of this rulemaking? 

II. What is our response to comments 

received on the proposed rulemaking? 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. What is the background of these SIP 

submissions? 

A. What does this rulemaking address? 

This rulemaking addresses 

submissions from the Ohio 

Environmental Protection Agency. The 

state submitted the infrastructure SIP for 

the 2008 ozone NAAQS on December 

27, 2012, supplemented on June 7, 2013. 

B. Why did the state make this SIP 

submissions? 

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

CAA, states are required to submit 

infrastructure SIPs to ensure that their 

SIPs provide for implementation, 

maintenance, and enforcement of the 

NAAQS, including the 2008 ozone 

NAAQS. These submissions must 

contain any revisions needed for 

meeting the applicable SIP requirements 

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

their existing SIPs for the NAAQS 

already meet those requirements. 

EPA has highlighted this statutory 

requirement in multiple guidance 

documents, including the most recent 

guidance document entitled ‘‘Guidance 

on Infrastructure State Implementation 

Plan (SIP) Elements under Clean Air Act 

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

September 13, 2013. 

C. What is the scope of this rulemaking? 

EPA is acting upon the SIP 

submission from Ohio that addresses 

the infrastructure requirements of CAA 

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

2008 ozone NAAQS. The requirement 

for states to make a SIP submission of 

this type arises out of CAA section 

110(a)(1). Pursuant to section 110(a)(1), 

states must make SIP submissions 

‘‘within 3 years (or such shorter period 

as the Administrator may prescribe) 

after the promulgation of a national 

primary ambient air quality standard (or 

any revision thereof),’’ and these SIP 

submissions are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

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

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 


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