Federal Register / Vol. 80, No. 197 / Tuesday, October 13, 2015 / Rules and Regulations 61311 

or petty officer who has been authorized 

by the Captain of the Port, Delaware 

Bay, to assist in enforcing the safety 

zone described in paragraph (a) of this 

section. 

(c) Regulations: The general safety 

zone regulations found in 33 CFR part 

165 subpart C apply to the safety zone 

created by this section. 

(1) During periods of full channel 

closures, the main navigational channel 

will be obstructed and vessels will be 

unable to pass. Secondary bridge spans 

will be clear to pass; vessels able to pass 

under secondary channel spans may do 

so. 

(2) Vessels wishing to transit the 

safety zone in the main navigational 

channel may do so if they can make 

satisfactory passing arrangements with 

the on-scene construction vessel in 

accordance with the Navigational Rules 

in 33 CFR Subchapter E. If vessels are 

unable to make satisfactory passing 

arrangements with the on-scene 

construction vessel, they may request 

permission from the COTP or his 

designated representative on VHF 

channel 16. 

(3) There will be number of working 

days that the navigation channel will 

not be obstructed; however, mariners 

wishing to transit during the 

enforcement period must still comply 

with the procedures in paragraph (c)(2) 

of this section. 

(4) The main channel will be clear 

from the hours of 6 p.m. to 7 a.m. daily, 

and every Sunday throughout the course 

of the project. Vessels may transit 

through the safety zone at these times 

without restriction. 

(5) This section applies to all vessels 

wishing to transit through the safety 

zone except vessels that are engaged in 

the following operations: Enforcing 

laws; servicing aids to navigation, and 

emergency response vessels. 

(d) Enforcement officials. The U.S. 

Coast Guard may be assisted by Federal, 

State, and local agencies in the patrol 

and enforcement of the zone. 

(e) Enforcement period. This rule will 

be enforced from 7 a.m. to 6 p.m. each 

day except Sundays, from October 5, 

2015, to December 5, 2015, unless 

cancelled earlier by the Captain of the 

Port. 

B.A. Cooper, 

Captain, U.S. Coast Guard, Captain of the 

Port Delaware Bay. 

[FR Doc. 2015–25872 Filed 10–9–15; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2014–0657; FRL–9935–18- 

Region 5] 

Air Plan Approval; MI; Infrastructure 

SIP Requirements for the 2008 Ozone, 

2010 NO2, 2010 SO2, and 2012 PM2.5

NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action to 

approve elements of state 

implementation plan (SIP) submissions 

by Michigan regarding the infrastructure 

requirements of section 110 of the Clean 

Air Act (CAA) for the 2008 ozone, 2010 

nitrogen dioxide (NO2), 2010 sulfur 

dioxide (SO2), and 2012 fine particulate 

(PM2.5) 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 requirements of 

the CAA. The proposed rulemaking 

associated with this final action was 

published on June 24, 2015, and EPA 

received one comment letter during the 

comment period, which ended on July 

24, 2015. The concerns raised in this 

letter, as well as EPA’s responses, are 

addressed in this final action. 

DATES: This final rule is effective on 

November 12, 2015. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2014–0657. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly-available only in hard 

copy. Publicly-available docket 

materials are available either 

electronically in www.regulations.gov or 

in hard copy at the U.S. Environmental 

Protection Agency, Region 5, Air and 

Radiation Division, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. This 

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

p.m., Monday through Friday, excluding 

Federal holidays. We recommend that 

you telephone Sarah Arra at (312) 886– 

9401 before visiting the Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Arra, Environmental Scientist, 

Attainment Planning and Maintenance 

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

U.S. Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

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

arra.sarah@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

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

EPA. This supplementary information 

section is arranged as follows: 

I. What is the background of these SIP 

submissions? 

II. What is our response to comments 

received on the proposed rulemaking? 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. What is the background of these SIP 

submissions? 

A. What does this rulemaking address? 

This rulemaking addresses 

infrastructure SIP submissions from the 

Michigan Department of Environmental 

Quality (MDEQ) submitted on July 10, 

2014, for the 2008 ozone, 2010 NO2, 

2010 SO2, and 2012 PM2.5 NAAQS. 

B. Why did the state make this SIP 

submission? 

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

CAA, states are required to submit 

infrastructure SIPs to ensure that their 

SIPs provide for implementation, 

maintenance, and enforcement of the 

NAAQS. These submissions must 

contain any revisions needed for 

meeting the applicable SIP requirements 

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

their existing SIPs already meet those 

requirements. 

EPA has highlighted this statutory 

requirement in multiple guidance 

documents, including the most recent 

guidance document entitled ‘‘Guidance 

on Infrastructure State Implementation 

Plan (SIP) Elements under CAA 

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

September 13, 2013. 

C. What is the scope of this rulemaking? 

EPA is acting upon Michigan’s SIP 

submissions that address the 

infrastructure requirements of CAA 

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

2008 ozone, 2010 NO2, 2010 SO2, and 

2012 PM2.5 NAAQS. The requirement 

for states to make SIP submissions of 

this type arises out of CAA section 

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

states must make SIP submissions 

‘‘within 3 years (or such shorter period 

as the Administrator may prescribe) 

after the promulgation of a national 

primary ambient air quality standard (or 

any revision thereof),’’ and these SIP 

submissions are to provide for the 

‘‘implementation, maintenance, and 

enforcement’’ of such NAAQS. The 


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61312 Federal Register / Vol. 80, No. 197 / Tuesday, October 13, 2015 / Rules and Regulations 

statute directly imposes on states the 

duty to make these SIP submissions, 

and the requirement to make the 

submissions is not conditioned upon 

EPA’s taking any action other than 

promulgating a new or revised NAAQS. 

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

specific elements that ‘‘[e]ach such 

plan’’ submission must address. 

EPA has historically referred to these 

SIP submissions made for the purpose 

of satisfying the requirements of CAA 

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

‘‘infrastructure SIP’’ submissions. 

Although the term ‘‘infrastructure SIP’’ 

does not appear in the CAA, EPA uses 

the term to distinguish this particular 

type of SIP submission from 

submissions that are intended to satisfy 

other SIP requirements under the CAA, 

such as ‘‘nonattainment SIP’’ or 

‘‘attainment plan SIP’’ submissions to 

address the nonattainment planning 

requirements of part D of title I of the 

CAA, ‘‘regional haze SIP’’ submissions 

required by EPA rule to address the 

visibility protection requirements of 

CAA section 169A, and nonattainment 

new source review (NNSR) permit 

program submissions to address the 

permit requirements of CAA, title I, part 

D. 

This rulemaking will not cover three 

substantive areas that are not integral to 

acting on the state’s infrastructure SIP 

submission: (i) Existing provisions 

related to excess emissions during 

periods of start-up, shutdown, or 

malfunction (‘‘SSM’’) at sources, that 

may be contrary to the CAA and EPA’s 

policies addressing such excess 

emissions; (ii) existing provisions 

related to ‘‘director’s variance’’ or 

‘‘director’s discretion’’ that purport to 

permit revisions to SIP approved 

emissions limits with limited public 

process or without requiring further 

approval by EPA, that may be contrary 

to the CAA (collectively referred to as 

‘‘director’s discretion’’); and, (iii) 

existing provisions for Prevention of 

Significant Deterioration (PSD) 

programs that may be inconsistent with 

current requirements of EPA’s ‘‘Final 

NSR Improvement Rule,’’ 67 FR 80186 

(December 31, 2002), as amended by 72 

FR 32526 (June 13, 2007) (‘‘NSR 

Reform’’). Instead, EPA has the 

authority to address each one of these 

substantive areas in separate 

rulemaking. A detailed rationale, 

history, and interpretation related to 

infrastructure SIP requirements can be 

found in our May 13, 2014, proposed 

rule entitled, ‘‘Infrastructure SIP 

Requirements for the 2008 Lead 

NAAQS’’ in the section, ‘‘What is the 

scope of this rulemaking?’’ (see 79 FR 

27241 at 27242–27245). 

In addition, EPA is not acting on 

submissions related to a portion of 

section 110(a)(2)(D)(i)(II) with respect to 

visibility, section 110(a)(2)(J) with 

respect to visibility for the 2008 ozone, 

2010 NO2, 2010 SO2, and 2012 PM2.5

NAAQS submittals, and section 

110(a)(2)(D)(i)(I), interstate transport 

significant contribution and interference 

with maintenance for 2008 ozone, 2010 

SO2, and 2012 PM2.5 NAAQS submittals. 

EPA is also not acting on submissions 

related to section 110(a)(2)(I)— 

Nonattainment Area Plan or Plan 

Revisions Under Part D, in its entirety. 

The rationale for not acting on 

submittals regarding elements of these 

requirements was included in EPA’s 

June 24, 2015, proposed rulemaking. 

EPA’s June 24, 2015, proposed 

rulemaking also proposed approving a 

submission from Michigan addressing 

the state board requirements under 

section 128 of the CAA. EPA finalized 

this approval in a separate rulemaking 

on August 3, 2015 (see 80 FR 52399). 

II. What is our response to comments 

received on the proposed rulemaking? 

The public comment period for EPA’s 

proposed actions with respect to 

Michigan’s satisfaction of the 

infrastructure SIP requirements for the 

2008 ozone, 2010 NO2, 2010 SO2, and 

2012 PM2.5 NAAQS closed on July 24, 

2015. EPA received one comment letter, 

which pertained to the 2008 ozone 

NAAQS, submitted jointly by the Sierra 

Club and Earthjustice. A synopsis of the 

comments contained in this letter and 

EPA’s responses are provided below. 

Comment 1: The commenter states 

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

SIPs to be adequate to prevent violations 

of the NAAQS.’’ In support, the 

commenter quotes the language in 

section 110(a)(1) that 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 claimed include the 

maintenance plan requirement. The 

commenter notes the CAA definition of 

‘‘emission limit’’ and reads these 

provisions together to require 

‘‘enforceable emission limitations on 

source emissions sufficient to ensure 

maintenance of the NAAQS.’’ 

Response 1: EPA disagrees that 

section 110 must be interpreted in the 

manner suggested by the commenter. 

Section 110 is only one provision that 

is part of the complex 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 must 

demonstrate that it has the necessary 

tools to implement and enforce a 

NAAQS, such as adequate state 

personnel and an enforcement program. 

Our 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 a section 110 plan must 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 that did not meet the NAAQS, 

and Congress again amended the CAA, 

adding 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 


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section 110 to remove references to the 

section 110 SIP providing for 

attainment, including removing preexisting 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. 

With regard to the requirement for 

emission limitations, EPA has 

interpreted this to mean that, for 

purposes of section 110, 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 CAA 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. 

Comment 2: The commenter cites two 

excerpts from the legislative history of 

the CAA Amendments of 1970 asserting 

that 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 Michigan. The 

commenter also contends that the 

legislative history of the CAA supports 

the interpretation that infrastructure 

SIPs under section 110(a)(2) must 

include enforceable emission 

limitations, citing the Senate Committee 

Report and the subsequent Senate 

Conference Report accompanying the 

1970 CAA. 

Response 2: The CAA, as enacted in 

1970, including its legislative history, 

cannot be interpreted in isolation from 

the later amendments that refined that 

structure and deleted relevant language 

from section 110 concerning 

demonstrating attainment. In any event, 

the two excerpts of legislative history 

the commenter cites merely provide that 

states should include enforceable 

emission limits in their SIPs; 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. 

Comment 3: The commenter cites to 

40 CFR 51.112(a), providing that each 

plan must ‘‘demonstrate that the 

measures, rules, and regulations 

contained in it are adequate to provide 

for the timely attainment and 

maintenance of the [NAAQS].’’ The 

commenter asserts that this regulation 

requires 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 

ISIPs.’’ The commenter relies on a 

statement in the preamble to the 1986 

action restructuring and consolidating 

provisions in part 51, in which EPA 

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

th[is] rulemaking to address the 

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

FR 40656 (November 7, 1986). 

Response 3: The commenter’s reliance 

on 40 CFR 51.112 to support its 

argument that infrastructure SIPs must 

contain emission limits ‘‘adequate to 

prohibit NAAQS violations’’ 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). In 

addition, it is clear on its face that 40 

CFR 51.112 applies to plans specifically 

designed to attain the NAAQS. EPA 

interprets these provisions to apply 

when states are developing ‘‘control 

strategy’’ SIPs such as the detailed 

attainment and maintenance plans 

required under other provisions of the 

CAA, as amended in 1977 and again in 

1990, such as 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 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. 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 were intended to address 

control strategy plans. In the preamble, 

EPA clearly stated that 40 CFR 51.112 

was replacing 40 CFR 51.13 (‘‘Control 

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

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

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

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

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

40660. Thus, the present-day 40 CFR 

51.112 contains consolidated provisions 

that are focused on control strategy SIPs, 

and the infrastructure SIP is not such a 

plan. 

Comment 4: The commenter 

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, the commenter cites a 2013 

proposed disapproval of a revision to 

the SO2 SIP for Indiana, where the 

revision attempted to remove an 

emission limit that applied to a specific 

emissions source at a facility in the 


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state. 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.’’ 

Response 4: 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 now final 

Indiana rule that EPA was not reviewing 

initial infrastructure SIP submissions 

under section 110 of the CAA, but rather 

reviewing revisions that would make an 

already approved SIP designed to 

demonstrate attainment of the NAAQS 

less stringent. 

EPA’s partial approval and partial 

disapproval of revisions to restrictions 

on emissions of sulfur compounds for 

the Missouri SIP addressed a control 

strategy SIP and not an infrastructure 

SIP (71 FR 12623). 

Similarly, the Indiana action also does 

not support for the commenter’s 

position (78 FR 78720). The review in 

that rule was of a completely different 

requirement than the 110(a)(2)(A) SIP. 

Rather, 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 determined that the state had failed 

to demonstrate under section 110(l) of 

the CAA that the SIP revision would not 

result in increased SO2 emissions and 

thus not interfere with attainment of the 

NAAQS. Nothing in that rulemaking 

addresses the necessary content of the 

initial infrastructure SIP for a new or 

revised NAAQS. Rather, it is simply 

applying the clear statutory requirement 

that a state must demonstrate why a 

revision to an approved attainment plan 

will not interfere with attainment of the 

NAAQS. 

Comment 5: The commenter discusses 

several cases applying to the CAA 

which it claims support its contention 

that courts have been clear that section 

110(a)(2)(A) requires enforceable 

emissions limits in infrastructure SIPs 

to prevent violations of the NAAQS and 

demonstrate maintenance throughout 

the area. The commenter 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.’’ 

The commenter 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 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 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’’). 

The commenter also 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 5: None of the cases the 

commenter cites supports the 

commenter’s contention that section 

110(a)(2)(A) requires that infrastructure 

SIPs 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, 421 U.S. 60, 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, in the context 

of a challenge to an EPA action, 

revisions to a SIP that were required and 

approved as meeting other provisions of 

the CAA or in the context of an 

enforcement action, the court references 

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

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

background section of its decision. 

In Train, a case that was decided 

almost 40 years ago, the court addressed 

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 its infrastructure SIPs. The 

language from the opinion which the 

commenter quotes does not interpret but 

rather merely describes section 

110(a)(2)(A). The commenters do not 

raise any concerns about whether the 

measures relied on by the state in the 

infrastructure SIP are ‘‘emissions 


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1While 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. 

limitations,’’ thus, the decision in this 

case has no bearing here. 

In Mont. Sulphur & Chem. Co., 666 

F.3d 1174, the court reviewed a Federal 

implementation plan that EPA 

promulgated after a long history of the 

state failing to submit an adequate SIP. 

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 pre1990 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 

the provision of CAA section 110(l) 

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. 

Comment 6: The commenter contends 

that EPA cannot approve the section 

110(a)(2)(A) portion of Michigan’s 2008 

ozone infrastructure SIP revision 

because an infrastructure SIP should 

include enforceable emission limits to 

prevent NAAQS violations in areas not 

designated nonattainment. Specifically, 

the commenter cited air monitoring 

reports for Allegan, Berrien, and 

Muskegon Counties indicating 

violations of the NAAQS based on 

2010–2012, 2011–2013, and 2012–2014 

design values. The commenter alleges 

that these violations demonstrate that 

the infrastructure SIP fails to ensure that 

air pollution levels meet or are below 

the level of the NAAQS and thus the 

infrastructure SIP must be disapproved. 

The commenter noted that the design 

values for the monitors in Allegan and 

Muskegon Counties have exceeded the 

2008 ozone standard for every three year 

period since 2001–2003, with the 

exception of 2008–2010. The 

commenter also notes that the EPA 

denied the Sierra Club’s petition to 

redesignate all areas violating the 2008 

ozone standard based on 2012 data. The 

commenter contends that, as a result of 

the denial of the petition, the areas 

mentioned above do not have any 

requirements associated with 

nonattainment areas. 

Furthermore, the commenter suggests 

that there are available controls for the 

state to adopt for reducing NOX, a 

precursor to ozone. The commenter also 

contends that EPA should have 

conducted an analysis to determine 

whether the SIP revision would 

interfere with any applicable 

requirement concerning attainment, as 

required by CAA section 110(l). 

Response 6: We disagree with the 

commenter 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 

areas within the state. We believe 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 

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. 

The suggestion that the infrastructure 

SIP must include measures addressing 

violations of the standard that did not 

occur until shortly before or even after 

the SIP was due and submitted 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. 

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 

include provisions providing for 

redesignation in section 107(d) and 

provisions in section 110(k)(5) allowing 

EPA to call on a state to revise its SIP, 

as appropriate. 

We do 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 the state has available for 

developing the infrastructure SIP, it 

does not know what the designation 

will be for individual areas of the state.1

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. 

For all of the above reasons, we 

disagree 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. Rather, EPA 

believes that the proper inquiry when 

EPA is acting on a submittal is whether 

the state has met the basic structural SIP 

requirements. 

Moreover, Michigan’s SIP contains 

existing emission reduction measures 

that control emissions of VOCs and NOX

found in Michigan Administrative Code 

sections R 336.1601 through R 336.1661 

and R 336.1701 through R 336.1710 for 

VOCs and sections R 336.1801 through 

R 336.1834 for NOX. Michigan’s SIP 

revision reflects several provisions that 

can lead to reductions in ground level 

ozone and its precursors. The Michigan 

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 

NAAQS, other than the level of the 

standard, the provisions relied on by 

Michigan 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. 

The commenters assertion that CAA 

section 110(l) requirements should 


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2As stated previously, EPA will take later, 

separate action on portions of Michigan’s 2008 

ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5

infrastructure SIP submittals including the portions 

of the SIP submittals addressing the visibility 

portions of section 110(a)(2)(D)(i)(II) and section 

110(a)(2)(D)(i)(I) for the 2008 ozone, 2010 SO2, and 

2012 PM2.5 NAAQS submittals. 

apply are incorrect, because the 

infrastructure SIP does not approve any 

new rules or rule modifications and 

therefore by itself does not have any 

effect on emissions of the relevant 

pollutants. Rather, approving 

Michigan’s infrastructure SIP revision is 

simply affirming that Michigan has 

sufficient authority to take the types of 

actions required by the CAA in order to 

bring such areas back into attainment 

and implement the current NAAQS. The 

commenter has not provided any 

information to demonstrate that 

emissions will be affected by the 

infrastructure SIP submission. 

The denial of the redesignation 

petition also is not relevant to 

Michigan’s infrastructure SIP because as 

mentioned above, the designation 

process and infrastructure submittals 

are separable actions on completely 

different timelines and infrastructure 

requirements are the same regardless of 

the designation status of the area. 

III. What action is EPA taking? 

For the reasons discussed in our June 

24, 2015, proposed rulemaking and the 

responses to comments, above, EPA is 

taking final action to approve 

Michigan’s infrastructure SIP for the 

2008 ozone, 2010 NO2, 2010 SO2, and 

2012 PM2.5 NAAQS as proposed.2 In the 

June 24, 2015, rulemaking, EPA also 

proposed approval for Michigan’s CAA 

section 128 submittal. EPA finalized 

this approval in separate rulemaking on 

August 3, 2015 (see 80 FR 52399). Our 

final actions, by element of section 

110(a)(2) and NAAQS, are contained in 

the table below. 

Element 2008 Ozone 2010 NO2 2010 SO2 2012 PM2.5

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

(B)—Ambient air quality monitoring/data system ............................................................ A A A A 

(C)1—Program for enforcement of control measures ..................................................... A A A A 

(C)2—PSD ....................................................................................................................... A A A A 

(D)1—I Prong 1: Interstate transport—significant contribution ....................................... NA A NA NA 

(D)2—I Prong 2: Interstate transport—interfere with maintenance ................................. NA A NA NA 

(D)3—II Prong 3: Interstate transport—prevention of significant deterioration ............... A A A A 

(D)4—II Prong 4: Interstate transport—protect visibility .................................................. NA NA NA NA 

(D)5—Interstate and international pollution abatement ................................................... A A A A 

(E)1—Adequate resources .............................................................................................. A A A A 

(E)2—State board requirements ...................................................................................... A A A A 

(F)—Stationary source monitoring system ...................................................................... A A A A 

(G)—Emergency power ................................................................................................... A A A A 

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

(I)—Nonattainment planning requirements of part D ...................................................... + + + + 

(J)1—Consultation with government officials .................................................................. A A A A 

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

(J)3—PSD ........................................................................................................................ A A A A 

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

(K)—Air quality modeling/data ......................................................................................... A A A A 

(L)—Permitting fees ......................................................................................................... A A A A 

(M)—Consultation and participation by affected local entities ........................................ A A A A 

In the above table, the key is as 

follows: 

A ............ Approve. 

NA .......... No Action/Separate Rulemaking. 

+ ............. Not Germaine to Infrastructure. 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

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

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Orders 12866 (58 FR 51735, 

October 4, 1993) and 13563 (76 FR 3821, 

January 21, 2011); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

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

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

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

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

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

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

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

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the rule does not have 

tribal implications and will not impose 


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Federal Register / Vol. 80, No. 197 / Tuesday, October 13, 2015 / Rules and Regulations 61317 

substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

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

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

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by December 14, 2015. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action may not 

be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, Volatile 

organic compounds. 

Dated: September 23, 2015. 

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. In § 52.1170, the table in paragraph 

(e) is amended by adding entries at the 

end of the table for ‘‘Section 110(a)(2) 

Infrastructure Requirements for the 2008 

ozone NAAQS,’’ ‘‘Section 110(a)(2) 

Infrastructure Requirements for the 2010 

nitrogen dioxide (NO2) NAAQS,’’ 

‘‘Section 110(a)(2) Infrastructure 

Requirements for the 2008 sulfur 

dioxide (SO2) NAAQS,’’ and ‘‘Section 

110(a)(2) Infrastructure Requirements 

for the 2012 particulate matter (PM2.5) 

NAAQS’’ to read as follows: 

§ 52.1170 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED MICHIGAN NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Name of nonregulatory SIP 

provision 

Applicable 

geographic or 

nonattainment 

area 

State 

submittal 

date 

EPA approval date Comments 

*******

Section 110(a)(2) Infrastructure Requirements 

for the 2008 ozone 

NAAQS.

Statewide ....... 7/10/2014 10/13/2015, [insert Federal Register citation].This action addresses the following CAA elements: 

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

(L), and (M). We are not taking action on (D)(i)(I) 

and the visibility portion of (D)(i)(II). 

Section 110(a)(2) Infrastructure Requirements 

for the 2010 nitrogen dioxide (NO2) NAAQS.

Statewide ....... 7/10/2014 10/13/2015, [insert Federal Register citation].This action addresses the following CAA elements: 

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

(L), and (M). We are not taking action on the visibility portion of (D)(i)(II). 

Section 110(a)(2) Infrastructure Requirements 

for the 2008 sulfur dioxide (SO2) NAAQS.

Statewide ....... 7/10/2014 10/13/2015, [insert Federal Register citation].This action addresses the following CAA elements: 

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

(L), and (M). We are not taking action on (D)(i)(I) 

and the visibility portion of (D)(i)(II). 

Section 110(a)(2) Infrastructure Requirements 

for the 2012 particulate 

matter (PM2.5) NAAQS.

Statewide ....... 7/10/2014 10/13/2015, [insert Federal Register citation].This action addresses the following CAA elements: 

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

(L), and (M). We are not taking action on (D)(i)(I) 

and the visibility portion of (D)(i)(II). 

[FR Doc. 2015–25839 Filed 10–9–15; 8:45 am] 

BILLING CODE 6560–50–P 

NATIONAL TRANSPORTATION 

SAFETY BOARD 

49 CFR Part 830 

[Docket No. NTSB–AS–2015–0001] 

Interpretation of Notification 

Requirements To Exclude Model 

Aircraft; Correction 

AGENCY: National Transportation Safety 

Board (NTSB). 

ACTION: Notice of interpretation; 

correction. 

SUMMARY: The NTSB published a notice 

of legal interpretation in the Federal 

Register on September 11, 2015 (80 FR 

54736), titled: ‘‘Interpretation of 

Notification Requirements to Exclude 

Model Aircraft.’’ The document 

contained an inadvertent typographical 

error. This document corrects the error. 

DATES: This correction is effective 

October 13, 2015. 

FOR FURTHER INFORMATION CONTACT: 

David Tochen, NTSB General Counsel, 

at (202) 314–6080. 

SUPPLEMENTARY INFORMATION: 

Correction 

The Notice of Legal Interpretation that 

was the subject of FR Doc. 2015–22933, 

published on September 11, 2015 (80 FR 

54736), is corrected as follows: On page 

54736, in the second column, first 

paragraph, line 17, is amended by 

changing the word ‘‘incidence’’ to 

‘‘incidents.’’ 

David K. Tochen, 

General Counsel. 

[FR Doc. 2015–26015 Filed 10–9–15; 8:45 am] 

BILLING CODE 7533–01–P 


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