
[Federal Register Volume 80, Number 150 (Wednesday, August 5, 2015)]
[Rules and Regulations]
[Pages 46494-46508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19090]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0910; FRL-9931-80-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Infrastructure Requirements for the 2008 Ozone and 2010 
Sulfur Dioxide National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving 
portions of two State Implementation Plan (SIP) revisions submitted by 
the Commonwealth of Pennsylvania through the Pennsylvania Department of 
Environmental Protection (PADEP) pursuant to the Clean Air Act (CAA). 
Whenever new or revised National Ambient Air Quality Standards (NAAQS) 
are promulgated, the CAA requires states to submit a plan for the 
implementation, maintenance, and enforcement of such NAAQS. The plan is 
required to address basic program elements, including but not limited 
to regulatory structure, monitoring, modeling, legal authority, and 
adequate resources necessary to assure implementation, maintenance, and 
enforcement of the NAAQS. These elements are referred to as 
infrastructure requirements. PADEP made submittals addressing the 
infrastructure requirements for the 2008 ozone NAAQS and the 2010 
sulfur dioxide (SO2) primary NAAQS.

DATES: This final rule is effective on September 4, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0910. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the Pennsylvania Department of Environmental 
Protection, Bureau of Air Quality Control, P. O. Box 8468, 400 Market 
Street, Harrisburg, Pennsylvania 17105.

FOR FURTHER INFORMATION CONTACT: Ruth Knapp, (215) 814-2191, or by 
email at knapp.ruth@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision

    On March 27, 2008 (73 FR 16436), EPA promulgated a revised ozone 
NAAQS based on 8-hour average concentrations. EPA revised the level of 
the 8-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm. 
On June 22, 2010 (75 FR 35520), EPA promulgated a 1-hour primary 
SO2 NAAQS at a level of 75 parts per billion (ppb), based on 
a 3-year average of the annual 99th percentile of 1-hour daily maximum 
concentrations. Pursuant to section 110(a)(1) of the CAA, states are 
required to submit SIPs meeting the applicable requirements of section 
110(a)(2) within three years after promulgation of a new or revised 
NAAQS or within such shorter period as EPA may prescribe.
    On July 15, 2014, the Commonwealth of Pennsylvania, through the 
PADEP, submitted SIP revisions that address the infrastructure elements 
specified in section 110(a)(2) of the CAA necessary to implement, 
maintain, and enforce the 2008 ozone NAAQS and the 2010 SO2 
NAAQS. On February 6, 2015 (80 FR 6672), EPA published a notice of 
proposed rulemaking (NPR) for Pennsylvania proposing approval of 
portions of both SIP revisions as well as portions of SIP submittals 
for other NAAQS.\1\ In the NPR, EPA proposed approval of Pennsylvania's 
submissions addressing the following infrastructure elements: Section 
110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant 
deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M).
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    \1\ On July 15, 2014, PADEP also submitted SIP revisions 
addressing the infrastructure requirements for the 2010 nitrogen 
dioxide (NO2) NAAQS and the 2012 fine particulate matter 
(PM2.5) NAAQS. In the February 6, 2015 NPR, EPA also 
proposed approval of portions of these infrastructure SIPs. Because 
EPA did not receive adverse comments applicable to Pennsylvania's 
infrastructure SIPs for the 2010 NO2 NAAQS or the 2012 
PM2.5 NAAQS or applicable to EPA's proposed approval of 
those specific SIPs, EPA took final action to approve portions of 
the infrastructure SIPs for the 2010 NO2 NAAQS and 2012 
PM2.5 NAAQS on May 8, 2015. 80 FR 26461. Thus, this final 
action only addresses the July 15, 2014 infrastructure SIPs PADEP 
submitted addressing the 2008 ozone NAAQS and the 2010 
SO2 NAAQS.
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    Pennsylvania's July 15, 2014 infrastructure SIP submittals for the 
2008 ozone NAAQS and the 2010 SO2 NAAQS did not contain any 
provisions addressing section 110(a)(2)(I) which pertains to the 
nonattainment requirements of part D, Title I of the CAA, because this 
element is not required to be submitted by the 3-year submission 
deadline of section 110(a)(1) and will be addressed in a separate 
process. In addition, Pennsylvania's July 15, 2014 infrastructure SIP 
submittals for the 2008 ozone NAAQS and the 2010 SO2 NAAQS 
did not contain any provisions addressing CAA section 
110(a)(2)(D)(i)(I), and therefore EPA's February 6, 2015 NPR did not 
propose any action on the SIP submittals for section 110(a)(2)(D)(i)(I) 
for either SIP submittal. Thus, this rulemaking action likewise does 
not include action on CAA section 110(a)(2)(D)(i)(I) for either the 
2008 ozone NAAQS or the 2010 SO2 NAAQS because PADEP's July 
15, 2014 infrastructure SIP submittals did not include provisions for 
this element. Finally, at this time, EPA is not taking action on 
section 110(a)(2)(D)(i)(II) (which addresses visibility protection) for 
the 2008 ozone or 2010 SO2 NAAQS as explained in the NPR. 
Although Pennsylvania's July 15, 2014 infrastructure SIP submittals for 
the 2008 ozone NAAQS and the 2010 SO2 NAAQS referred to 
Pennsylvania's regional haze SIP to address section 110(a)(2)(D)(i)(II) 
for visibility protection, EPA intends to take later, separate action 
on Pennsylvania's SIP submittals for these elements as explained in the 
NPR and the Technical Support Document (TSD) which accompanied the NPR.
    The rationale supporting EPA's proposed rulemaking action approving 
portions of the July 15, 2014 infrastructure SIP submittals for the 
2008 ozone and 2010 SO2 NAAQS, including the scope of 
infrastructure SIPs in general, is explained in the NPR and the TSD 
accompanying the NPR and will not be restated here. The NPR and TSD are 
available in the docket for this rulemaking at www.regulations.gov, 
Docket ID Number EPA-R03-OAR-

[[Page 46495]]

2014-0910.\2\ EPA received public comments on the NPR. Summaries of the 
comments as well as EPA's responses are in section II of this 
rulemaking notice. EPA's responses provide further explanation and 
rationale where appropriate to support the final action approving 
portions of the July 15, 2014 infrastructure SIPs.
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    \2\ EPA's final rulemaking action on Pennsylvania's 
infrastructure SIP revisions for the 2010 NO2 NAAQS and 
the 2012 PM2.5 NAAQS can also be found in this docket 
with Docket ID Number EPA-R03-OAR-2014-0910.
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II. Public Comments and EPA's Responses

    EPA received substantive comments from two commenters, the State of 
New Jersey Department of Environmental Protection (NJDEP) and the 
Sierra Club, on the February 6, 2015 proposed rulemaking action on 
Pennsylvania's 2008 ozone and 2010 SO2 infrastructure SIP 
revisions. The Sierra Club's comments on the NPR include general 
comments on infrastructure SIP requirements for emission limitations 
and specific comments on emission limitations to address the 2010 
SO2 NAAQS and the 2008 ozone NAAQS. A full set of all 
comments is provided in the docket for today's final rulemaking action.

A. NJDEP

    Comment: NJDEP asserts that Pennsylvania's infrastructure SIP is 
deficient because it does not include any information relating to 
Pennsylvania's ``good neighbor'' obligation to address CAA section 
110(a)(2)(D).\3\ NJDEP asserts the ability of downwind states including 
New Jersey to attain the 2008 ozone NAAQS is substantially impacted by 
interstate transport of pollution from Pennsylvania. NJDEP asserts 
recent EPA modeling for the 2008 ozone NAAQS demonstrates Pennsylvania 
significantly contributes to ozone nonattainment areas in New Jersey 
and other states. New Jersey further asserts that EPA must ``make a 
finding that Pennsylvania has failed to submit a SIP that complies with 
Section 110(a)(2)(D) of the Clean Air Act'' because Pennsylvania did 
not make a submission to address 110(a)(2)(D).
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    \3\ EPA believes NJDEP refers specifically to CAA section 
110(a)(2)(D)(i)(I) which addresses interstate transport of pollution 
and not to section 110(a)(2)(D)(i)(II) which addresses visibility 
protection and prevention of significant deterioration.
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    Response: In this rulemaking EPA is not taking any final action 
with respect to the provisions in section 110(a)(2)(D)(i)(I)--the 
portion of the good neighbor provision which addresses emissions that 
significantly contribute to nonattainment or interfere with maintenance 
of the NAAQS in another state. In its July 15, 2014 infrastructure SIP 
revisions for several NAAQS, the Commonwealth of Pennsylvania did not 
include any provisions in its SIP revision submittals to address the 
requirements of section 110(a)(2)(D)(i)(I). In the NPR, EPA did not 
propose to take any action with respect to Pennsylvania's obligations 
pursuant to section 110(a)(2)(D)(i)(I) for the July 15, 2014 
infrastructure SIP submittals and is not, in this rulemaking action, 
taking any final action on the 110(a)(2)(D)(i)(I) obligations.
    Because Pennsylvania did not make a submission in its July 15, 2014 
SIP submittals to address the requirements of section 
110(a)(2)(D)(i)(I), EPA is not required to have proposed or to take 
final SIP approval or disapproval action on this element under section 
110(k) of the CAA. In this case, there has been no substantive 
submission for EPA to evaluate under section 110(k). EPA interprets its 
authority under section 110(k)(3) of the CAA as affording EPA the 
discretion to approve, or conditionally approve, individual elements of 
Pennsylvania's infrastructure SIP submissions, separate and apart from 
any action with respect to the requirements of section 
110(a)(2)(D)(i)(I) of the CAA. EPA views discrete infrastructure SIP 
requirements in section 110(a)(2), such as the requirements of 
110(a)(2)(D)(i)(I), as severable from the other infrastructure elements 
and interprets section 110(k)(3) as allowing it to act on individual 
severable measures in a plan submission.
    EPA acknowledges NJDEP's concern for the interstate transport of 
air pollutants and agrees in general that sections 110(a)(1) and (a)(2) 
of the CAA require states to submit, within three years of promulgation 
of a new or revised NAAQS, a plan which addresses cross-state air 
pollution under section 110(a)(2)(D)(i)(I). However, in this 
rulemaking, EPA is only approving portions of Pennsylvania's 
infrastructure SIP submissions for the 2008 ozone and 2010 
SO2 NAAQS which did not include provisions for 
110(a)(2)(D)(i)(I) for interstate transport. Findings of failure to 
submit a SIP submission for a NAAQS addressing a specific element, such 
as CAA section 110(a)(2)(D)(i)(I), would need to occur in separate 
rulemakings. As that issue was not addressed in the February 6, 2015 
NPR and is therefore not pertinent to this rulemaking, EPA provides no 
further response. Pennsylvania's obligations regarding interstate 
transport of ozone pollution for the 2008 ozone NAAQS will be addressed 
in another rulemaking.

B. Sierra Club General Comments on Emission Limitations

1. The Plain Language of the CAA
    Comment 1: Sierra Club (hereafter referred to as Commenter) 
contends that the plain language of section 110(a)(2)(A) of the CAA, 
legislative history of the CAA, case law, EPA regulations such as 40 
CFR 51.112(a), and EPA interpretations in rulemakings require the 
inclusion of enforceable emission limits in an infrastructure SIP to 
aid in attaining and maintaining the NAAQS and contends an 
infrastructure SIP must be disapproved where emission limits are 
inadequate to prevent exceedances of the NAAQS. The Commenter states 
EPA may not approve an infrastructure SIP that fails to ensure 
attainment and maintenance of the NAAQS.
    The Commenter states that the main objective of the infrastructure 
SIP process ``is to ensure that all areas of the country meet the 
NAAQS'' and states that nonattainment areas are addressed through 
``nonattainment SIPs.'' The Commenter asserts the NAAQS ``are the 
foundation upon which air emission standards for the entire country are 
set'' including specific emission limitations for most large stationary 
sources, such as coal-fired power plants. The Commenter discusses the 
CAA's framework whereby states have primary responsibility to assure 
air quality within the state pursuant to CAA section 107(a) which the 
states carry out through SIPs such as infrastructure SIPs required by 
section 110(a)(2). The Commenter also states that on its face the CAA 
requires infrastructure SIPs ``to 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 
which the Commenter claims includes attainment and maintenance of the 
NAAQS. The Commenter notes the CAA definition of emission limit and 
reads these CAA provisions together to require ``enforceable emission 
limits on source emissions sufficient to ensure maintenance of the 
NAAQS.''
    Response 1: EPA disagrees that section 110 is clear ``on its face'' 
and must be interpreted in the manner

[[Page 46496]]

suggested by the Commenter. As we have previously explained in response 
to the Commenter's similar comments on EPA's action approving other 
states' infrastructure SIPs, section 110 is only one provision that is 
part of the complicated structure governing implementation of the NAAQS 
program under the CAA, as amended in 1990, and it must be interpreted 
in the context of not only that structure, but also of the historical 
evolution of that structure.\4\
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    \4\ See 80 FR 11557 (March 4, 2015) (approval of Virginia 
SO2 infrastructure SIP); 79 FR 62022 (October 16, 2014) 
(approval of West Virginia SO2 infrastructure SIP); 79 FR 
19001 (April 7, 2014) (approval of West Virginia ozone 
infrastructure SIP); and 79 FR 17043 (March 27, 2014) (approval of 
Virginia ozone infrastructure SIP).
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    EPA interprets infrastructure SIPs as more general planning SIPs, 
consistent with the CAA as understood in light of its history and 
structure. When Congress enacted the CAA in 1970, it did not include 
provisions requiring states and the EPA to label areas as attainment or 
nonattainment. Rather, states were required to include all areas of the 
state in ``air quality control regions'' (AQCRs) and section 110 set 
forth the core substantive planning provisions for these AQCRs. At that 
time, Congress anticipated that states would be able to address air 
pollution quickly pursuant to the very general planning provisions in 
section 110 and could bring all areas into compliance with a new NAAQS 
within five years. Moreover, at that time, section 110(a)(2)(A)(i) 
specified that the section 110 plan provide for ``attainment'' of the 
NAAQS and section 110(a)(2)(B) specified that the plan must include 
``emission limitations, schedules, and timetables for compliance with 
such limitations, and such other measures as may be necessary to insure 
attainment and maintenance [of the NAAQS].''
    In 1977, Congress recognized that the existing structure was not 
sufficient and many areas were still violating the NAAQS. At that time, 
Congress for the first time added provisions requiring states and EPA 
to identify whether areas of a state were violating the NAAQS (i.e., 
were nonattainment) or were meeting the NAAQS (i.e., were attainment) 
and established specific planning requirements in section 172 for areas 
not meeting the NAAQS. In 1990, many areas still had air quality not 
meeting the NAAQS and Congress again amended the CAA and added yet 
another layer of more prescriptive planning requirements for each of 
the NAAQS. At that same time, Congress modified section 110 to remove 
references to the section 110 SIP providing for attainment, including 
removing pre-existing section 110(a)(2)(A) in its entirety and 
renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, 
Congress replaced the clause ``as may be necessary to insure attainment 
and maintenance [of the NAAQS]'' with ``as may be necessary or 
appropriate to meet the applicable requirements of this chapter.'' 
Thus, the CAA has significantly evolved in the more than 40 years since 
it was originally enacted. While at one time section 110 of the CAA did 
provide the only detailed SIP planning provisions for states and 
specified that such plans must provide for attainment of the NAAQS, 
under the structure of the current CAA, section 110 is only the initial 
stepping-stone in the planning process for a specific NAAQS. More 
detailed, later-enacted provisions govern the substantive planning 
process, including planning for attainment of the NAAQS.
    Thus, EPA believes that section 110 of the CAA is only one 
provision that is part of the complicated structure governing 
implementation of the NAAQS program under the CAA, as amended in 1990, 
and it must be interpreted in the context of that structure and the 
historical evolution of that structure. In light of the revisions to 
section 110 since 1970 and the later-promulgated and more specific 
planning requirements of the CAA, EPA reasonably interprets the 
requirement in section 110(a)(2)(A) of the CAA that the plan provide 
for ``implementation, maintenance and enforcement'' to mean that the 
SIP must contain enforceable emission limits that will aid in attaining 
and/or maintaining the NAAQS and that the state demonstrate that it has 
the necessary tools to implement and enforce a NAAQS, such as adequate 
state personnel and an enforcement program. EPA has interpreted the 
requirement for emission limitations in section 110 to mean that the 
state may rely on measures already in place to address the pollutant at 
issue or any new control measures that the state may choose to submit. 
Finally, as EPA stated in the Infrastructure SIP Guidance which 
specifically provides guidance to states in addressing the 2008 ozone 
and 2010 SO2 NAAQS, ``[t]he conceptual purpose of an 
infrastructure SIP submission is to assure that the air agency's SIP 
contains the necessary structural requirements for the new or revised 
NAAQS, whether by establishing that the SIP already contains the 
necessary provisions, by making a substantive SIP revision to update 
the SIP, or both.'' Infrastructure SIP Guidance at p. 2.\5\
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    \5\ Thus, EPA disagrees with the Commenter's general assertion 
that the main objective of infrastructure SIPs is to ensure all 
areas of the country meet the NAAQS, as we believe the 
infrastructure SIP process is the opportunity to review the 
structural requirements of a state's air program. While the NAAQS 
can be a foundation upon which emission limitations are set, as 
explained in responses to subsequent comments, these emission 
limitations are generally set in the attainment planning process 
envisioned by part D of title I of the CAA, including, but not 
limited to, CAA sections 172, 181-182, and 191-192.
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    The Commenter makes general allegations that Pennsylvania does not 
have sufficient protective measures to prevent ozone violations/
exceedances and SO2 NAAQS exceedances. EPA addressed the 
adequacy of Pennsylvania's infrastructure SIP for 110(a)(2)(A) purposes 
to meet applicable requirements of the CAA in the TSD accompanying the 
February 6, 2015 NPR and explained why the SIP includes enforceable 
emission limitations and other control measures necessary for 
maintenance of the 2008 ozone and 2010 SO2 NAAQS throughout 
the Commonwealth.\6\
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    \6\ The TSD for this action is available on line at 
www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-0910.
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2. The Legislative History of the CAA
    Comment 2: The Commenter cites two excerpts from the legislative 
history of the 1970 CAA claiming they support an interpretation that 
SIP revisions under CAA section 110 must include emissions limitations 
sufficient to show maintenance of the NAAQS in all areas of the state. 
The Commenter also contends that the legislative history of the CAA 
supports the interpretation that infrastructure SIPs under section 
110(a)(2) must include enforceable emission limitations, citing the 
Senate Committee Report and the subsequent Senate Conference Report 
accompanying the 1970 CAA.
    Response 2: As provided in the previous response, the CAA, as 
enacted in 1970, including its legislative history, cannot be 
interpreted in isolation from the later amendments that refined that 
structure and deleted relevant language from section 110 concerning 
demonstrating attainment. See also 79 FR at 17046 (responding to 
comments on Virginia's ozone infrastructure SIP). In any event, the two 
excerpts of legislative history the Commenter cites merely provide that 
states should include enforceable emission limits in their SIPs, and 
they do not mention or otherwise address whether states are required to 
include maintenance plans for all areas of the state as part of the 
infrastructure SIP. As provided in

[[Page 46497]]

response to another comment in this rulemaking, the TSD for the 
proposed rule explains why the Pennsylvania SIP includes enforceable 
emissions limitations for ozone precursors and for SO2 for 
the relevant areas.
3. Case Law
    Comment 3: The Commenter also discusses several cases applying the 
CAA which the Commenter claims support its contention that courts have 
been clear that section 110(a)(2)(A) requires enforceable emissions 
limits in infrastructure SIPs to prevent exceedances of the NAAQS. The 
Commenter first cites to language in Train v. 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 to Mision Industrial, Inc. v. EPA, 547 
F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the 
CAA of 1970. The Commenter contends that the 1990 Amendments do not 
alter how courts have interpreted the requirements of section 110, 
quoting Alaska 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''); Conn. Fund for Env't, Inc. v. EPA, 696 F.2d 169, 172 (D.C. 
Cir. 1982) (CAA requires SIPs to contain ``measures necessary to ensure 
attainment and maintenance of NAAQS''). 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 3: None of the cases the Commenter cites support its 
contention that section 110(a)(2)(A) is clear that infrastructure SIPs 
must include detailed plans providing for attainment and maintenance of 
the NAAQS in all areas of the state, nor do they shed light on how 
section 110(a)(2)(A) may reasonably be interpreted. With the exception 
of Train, none of the cases the Commenter cites concerned the 
interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of 
the pre-1990 Act). Rather, the courts reference section 110(a)(2)(A) 
(or section 110(a)(2)(B) of the pre-1990 CAA) in the background 
sections of decisions in the context of a challenge to an EPA action on 
revisions to a SIP that was required and approved or disapproved as 
meeting other provisions of the CAA or in the context of an enforcement 
action.
    In Train, 421 U.S. 60, 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 providing such 
are needed as part of the SIP; rather the issue was which statutory 
provision governed when the state wanted to revise the emission limits 
in its SIP if such revision would not impact attainment or maintenance 
of the NAAQS. To the extent the holding in the case has any bearing on 
how section 110(a)(2)(A) might be interpreted, it is important to 
realize that in 1975, when the opinion was issued, section 110(a)(2)(B) 
(the predecessor to section 110(a)(2)(A)) expressly referenced the 
requirement to attain the NAAQS, a reference that was removed in 1990.
    The decision in Pennsylvania 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 Commonwealth in 
the infrastructure SIPs are ``emissions limitations'' and the decision 
in this case has no bearing here.\7\ In Mont. Sulphur & Chem. Co., 666 
F.3d 1174, the Court was not reviewing an infrastructure SIP, but 
rather EPA's disapproval of a SIP and promulgation of a federal 
implementation plan (FIP) after a long history of the state failing to 
submit an adequate SIP in response to EPA's finding under section 
110(k)(5) that the previously approved SIP was substantially inadequate 
to attain or maintain the NAAQS. The Court cited generally to sections 
107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should 
assure attainment and maintenance of NAAQS through emission 
limitations, but this language was not part of the Court's holding in 
the case, which focused instead on whether EPA's finding of SIP 
inadequacy, disapproval of the state's required responsive attainment 
demonstration under section 110(k)(5), and adoption of a remedial FIP 
under section 110(c) were lawful. The Commenter suggests that Alaska 
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

[[Page 46498]]

made no mention of the changed language. Furthermore, the Commenter 
also quotes the Court's statement that ``SIPs must include certain 
measures Congress specified,'' but that statement specifically 
referenced the requirement in section 110(a)(2)(C), which requires an 
enforcement program and a program for the regulation of the 
modification and construction of new sources. Notably, at issue in that 
case was the state's ``new source'' permitting program, not its 
infrastructure SIP.
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    \7\ While the Commenter does contend that the Commonwealth 
shouldn't be allowed to rely on emission reductions that were 
developed for the prior standards (which we address herein), it does 
not claim that any of the measures are not ``emissions limitations'' 
within the definition of the CAA.
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    Two of the other 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.
    EPA does not believe any of these court decisions addressed 
required measures for infrastructure SIPs and believes nothing in the 
opinions addressed whether infrastructure SIPs need to contain measures 
to ensure attainment and maintenance of the NAAQS.
4. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that 
``[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 infrastructure SIPs to include emissions limits 
necessary to ensure attainment and maintenance of the NAAQS. The 
Commenter states that the provisions of 40 CFR 51.112 are not limited 
to nonattainment SIPs and instead applies to infrastructure SIPs which 
are required to attain and maintain the NAAQS in areas not designated 
nonattainment. The Commenter relies on a statement in the preamble to 
the 1986 action restructuring and consolidating provisions in part 51, 
in which EPA stated that ``[i]t is beyond the scope of th[is] 
rulemaking to address the provisions of Part D of the Act . . .'' 51 FR 
40656, 40656 (November 7, 1986). The Commenter asserts 40 CFR 51.112(a) 
identifies the plans to which it applies as those that implement the 
NAAQS.
    Response 4: The Commenter's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
adequate to ensure attainment and maintenance of the NAAQS is not 
supported. As an initial matter, EPA notes this regulatory provision 
was initially promulgated and later restructured and consolidated prior 
to the CAA Amendments of 1990, in which Congress removed all references 
to ``attainment'' in section 110(a)(2)(A). And, it is clear on its face 
that 40 CFR 51.112 applies to plans specifically designed to attain the 
NAAQS. EPA interprets these provisions to apply when states are 
developing ``control strategy'' SIPs such as the detailed attainment 
and maintenance plans required under other provisions of the CAA, as 
amended in 1977 and again in 1990, such as sections 175A, 181-182, and 
191-192. The Commenter suggests that these provisions must apply to 
section 110 SIPs because in the preamble to EPA's action 
``restructuring and consolidating'' provisions in part 51, EPA stated 
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 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 5: The Commenter also references a prior EPA rulemaking 
action where EPA disapproved a SIP and claims that action shows EPA 
relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject the SIP. The 
Commenter points to a 2006 partial approval and partial disapproval of 
revisions to Missouri's existing control strategy plans addressing the 
SO2 NAAQS. The Commenter claims EPA cited section 
110(a)(2)(A) for disapproving a revision to the state plan on the basis 
that the State failed to demonstrate the SIP was sufficient to ensure 
maintenance of the SO2 NAAQS after revision of an emission 
limit and claims EPA cited to 40 CFR 51.112 as requiring that a plan 
demonstrates the rules in a SIP are adequate to attain the NAAQS. The 
Commenter claims the revisions to Missouri's control strategy SIP for 
SO2 were rejected by EPA because the revised control 
strategy limits were also in Missouri's infrastructure SIP and thus the 
weakened limits would have impacted the infrastructure SIP's ability to 
aid in attaining and maintaining the NAAQS.
    Response 5: EPA does not agree that the prior Missouri rulemaking 
action referenced by the Commenter establishes how EPA reviews 
infrastructure SIPs. It is clear from the final Missouri rule that EPA 
was not reviewing initial infrastructure SIP submissions under section 
110 of the CAA, but rather reviewing revisions that would make an 
already approved SIP designed to demonstrate attainment of the NAAQS 
less stringent. EPA's partial approval and partial disapproval of 
revisions to restrictions on emissions of sulfur compounds for the 
Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an 
infrastructure SIP. Nothing in that action addresses the necessary 
content of the initial infrastructure SIP for a new or revised NAAQS.

C. Sierra Club Comments on Pennsylvania SIP SO2 Emission 
Limits

    The Commenter contends that the Pennsylvania 2008 ozone and 2010 
SO2 infrastructure SIP revisions did not revise the existing 
ozone precursor emission limits and SO2 emission limits in 
response to the 2008 ozone and 2010 SO2 NAAQS and fail to 
comport with assorted CAA requirements for SIPs to establish 
enforceable emission limits that are adequate to prohibit NAAQS 
exceedances in areas not designated nonattainment. EPA will address 
SO2 comments and ozone comments respectively.
    Comment 6: Citing section 110(a)(2)(A) of the CAA, the Commenter 
contends that EPA may not approve Pennsylvania's proposed 2010 
SO2 infrastructure SIP because it does not include 
enforceable 1-hour SO2 emission limits for sources currently

[[Page 46499]]

allowed to cause ``NAAQS exceedances.'' The Commenter asserts the 
proposed infrastructure SIP fails to include enforceable 1-hour 
SO2 emissions limits or other required measures to ensure 
attainment and maintenance of the SO2 NAAQS in areas not 
designated nonattainment as the Commenter claims is required by section 
110(a)(2)(A). The Commenter asserts an infrastructure SIP must ensure, 
through state-wide regulations or source specific requirements, proper 
mass limitations and emissions rates with short term averaging on 
specific large sources of pollutants such as power plants. The 
Commenter asserts that emission limits are especially important for 
meeting the 1-hour SO2 NAAQS because SO2 impacts 
are strongly source-oriented. The Commenter states coal-fired electric 
generating units (EGUs) are large contributors to SO2 
emissions but contends Pennsylvania did not demonstrate that emissions 
allowed by the proposed infrastructure SIP from such large sources of 
SO2 will ensure compliance with the 2010 1-hour 
SO2 NAAQS. The Commenter claims the proposed infrastructure 
SIP would allow major sources to continue operating with present 
emission limits.\8\ The Commenter then refers to air dispersion 
modeling it conducted for five coal-fired EGUs in Pennsylvania, 
including Brunner Island Steam Electric Station, Montour Steam Electric 
Station, Cheswick Power Station, New Castle Power Plant, and Shawville 
Coal Plant. The Commenter asserts the results of the air dispersion 
modeling it conducted employing EPA's AERMOD program for modeling used 
the plants' allowable emissions and showed the plants could cause 
exceedances of the 2010 SO2 NAAQS with allowable 
emissions.\9\ Based on the modeling, the Commenter asserts the 
Pennsylvania SO2 infrastructure SIP submittal authorizes the 
EGUs to cause exceedances of the NAAQS with allowable emission rates 
and therefore the infrastructure SIP fails to include adequate 
enforceable emission limitations or other required measures for sources 
of SO2 sufficient to ensure attainment and maintenance of 
the 2010 SO2 NAAQS.\10\ The Commenter therefore asserts EPA 
must disapprove Pennsylvania's proposed 2010 SO2 
infrastructure SIP revision. In addition, the Commenter asserts ``EPA 
may only approve an I-SIP that incorporates enforceable emission 
limitations on major sources of SO2 pollution in the state, 
including coal-fired power plants, with one-hour averaging times that 
are no less stringent than the modeling based limits . . . necessary to 
protect the one-hour SO2 NAAQS and attain and maintain the 
standard in Pennsylvania. These emission limits must apply at all times 
. . . to ensure that Pennsylvania is able to attain and maintain the 
2010 SO2 NAAQS.'' The Commenter claimed additional modeling 
for two EGUs, Brunner Island and Montour, done with actual historical 
hourly SO2 emissions show these facilities have actually 
been causing ``exceedances of the NAAQS'' while operating pursuant to 
existing emission limits which the Commenter claims Pennsylvania 
included as part of the SO2 infrastructure SIP submission. 
The Commenter also asserts that any coal-fired units slated for 
retirement should be incorporated into the infrastructure SIP with an 
enforceable emission limit or control measure.
---------------------------------------------------------------------------

    \8\ The Commenter provides a chart in its comments claiming 80 
percent of SO2 emissions in Pennsylvania are from coal-
electric generating units based on 2011 data.
    \9\ The Commenter asserts its modeling followed protocols 
pursuant to 40 CFR part 51, Appendix W and EPA's modeling guidance 
issued March 2011 and December 2013.
    \10\ The Commenter again references 40 CFR 51.112 in support of 
its position that the infrastructure SIP must include emission 
limits for attainment and maintenance of the 2010 SO2 
NAAQS.
---------------------------------------------------------------------------

    Response 6: EPA disagrees with the Commenter that EPA must 
disapprove Pennsylvania's SO2 infrastructure SIP for the 
reasons provided by the Commenter including the Commenter's modeling 
results and insufficient SO2 emission limits. EPA is not in 
this action making a determination regarding the Commonwealth's current 
air quality status or regarding whether its control strategy is 
sufficient to attain and maintain the NAAQS. Therefore, EPA is not 
making any judgment on whether the Commenter's submitted modeling 
demonstrates the NAAQS exceedances that the Commenter claims. EPA 
believes that section 110(a)(2)(A) of the CAA is reasonably interpreted 
to require states to submit infrastructure SIPs that reflect the first 
step in their planning for attainment and maintenance of a new or 
revised NAAQS. These SIP revisions should contain a demonstration that 
the state has the available tools and authority to develop and 
implement plans to attain and maintain the NAAQS and show that the SIP 
has enforceable control measures. In light of the structure of the CAA, 
EPA's 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. As mentioned above, EPA has interpreted 
this to mean, with regard to the requirement for emission limitations 
that states may rely on measures already in place to address the 
pollutant at issue or any new control measures that the state may 
choose to submit.
    As stated in response to a previous more general comment, section 
110 of the CAA is only one provision that is part of the complicated 
structure governing implementation of the NAAQS program under the CAA, 
as amended in 1990, and it must be interpreted in the context of not 
only that structure, but also of the historical evolution of that 
structure. In light of the revisions to section 110 since 1970 and the 
later-promulgated and more specific planning requirements of the CAA, 
EPA reasonably interprets the requirement in section 110(a)(2)(A) of 
the CAA that the plan provide for ``implementation, maintenance and 
enforcement'' to mean that the SIP must contain enforceable emission 
limits that will aid in attaining and/or maintaining the NAAQS and that 
the Commonwealth demonstrate that it has the necessary tools to 
implement and enforce a NAAQS, such as adequate state personnel and an 
enforcement program. As discussed above, EPA has interpreted the 
requirement for emission limitations in section 110 to mean 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. 
Finally, as EPA stated in the Infrastructure SIP Guidance which 
specifically provides guidance to states in addressing the 2010 
SO2 NAAQS and the 2008 Ozone NAAQS, ``[t]he conceptual 
purpose of an infrastructure SIP submission is to assure that the air 
agency's SIP contains the necessary structural requirements for the new 
or revised NAAQS, whether by establishing that the SIP already contains 
the necessary provisions, by making a substantive SIP revision to 
update the SIP, or both.'' Infrastructure SIP Guidance at p. 2.
    On April 12, 2012, EPA explained its expectations regarding 
implementation of the 2010 SO2 NAAQS via letters to each of 
the states. EPA communicated in the April 2012 letters that all states 
were expected to submit SIPs meeting the ``infrastructure'' SIP 
requirements under section 110(a)(2) of the CAA by June 2013. At the 
time, EPA was undertaking a stakeholder outreach process to continue to 
develop possible approaches for determining attainment status under the 
SO2 NAAQS and

[[Page 46500]]

implementing this NAAQS. EPA was abundantly clear in the April 2012 
letters that EPA did not expect states to submit substantive attainment 
demonstrations or modeling demonstrations showing attainment for areas 
not designated nonattainment in infrastructure SIPs due in June 2013. 
Although EPA had previously suggested in its 2010 SO2 NAAQS 
preamble and in prior draft implementation guidance in 2011 that states 
should, in the unique SO2 context, use the section 110(a) 
SIP process as the vehicle for demonstrating attainment of the NAAQS, 
this approach was never adopted as a binding requirement and was 
subsequently discarded in the April 2012 letters to states. The April 
2012 letters recommended states focus infrastructure SIPs due in June 
2013, such as Pennsylvania's SO2 infrastructure SIP, on 
traditional ``infrastructure elements'' in section 110(a)(1) and (2) 
rather than on modeling demonstrations for future attainment for areas 
not designated as nonattainment.\11\
---------------------------------------------------------------------------

    \11\ In EPA's final SO2 NAAQS preamble (75 FR 35520 
(June 22, 2010)) and subsequent draft guidance in March and 
September 2011, EPA had expressed its expectation that many areas 
would be initially designated as unclassifiable due to limitations 
in the scope of the ambient monitoring network and the short time 
available before which states could conduct modeling to support 
their designations recommendations due in June 2011. In order to 
address concerns about potential violations in these unclassifiable 
areas, EPA initially recommended that states submit substantive 
attainment demonstration SIPs based on air quality modeling by June 
2013 (under section 110(a)) that show how their unclassifiable areas 
would attain and maintain the NAAQS in the future. Implementation of 
the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper for 
Discussion, May 2012 (2012 Draft White Paper) (for discussion 
purposes with Stakeholders at meetings in May and June 2012), 
available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. However, EPA clearly stated in this 2012 Draft White 
Paper its clarified implementation position that it was no longer 
recommending such attainment demonstrations for unclassifiable areas 
for June 2013 infrastructure SIPs. Id. EPA had stated in the 
preamble to the NAAQS and in the prior 2011 draft guidance that EPA 
intended to develop and seek public comment on guidance for modeling 
and development of SIPs for sections 110 and 191 of the CAA. Section 
191 of the CAA requires states to submit SIPs in accordance with 
section 172 for areas designated nonattainment with the 
SO2 NAAQS. After seeking such comment, EPA has now issued 
guidance for the nonattainment area SIPs due pursuant to sections 
191 and 172. See Guidance for 1-Hour SO2 Nonattainment 
Area SIP Submissions, Stephen D. Page, Director, EPA's Office of Air 
Quality Planning and Standards, to Regional Air Division Directors 
Regions 1-10, April 23, 2014. In September 2013, EPA had previously 
issued specific guidance relevant to infrastructure SIP submissions 
due for the NAAQS, including the 2010 SO2 NAAQS. See 
Infrastructure SIP Guidance.
---------------------------------------------------------------------------

    Therefore, EPA asserts that evaluations of modeling demonstrations 
such as those submitted by the Commenter are more appropriately to be 
considered in actions that make determinations regarding states' 
current air quality status or regarding future air quality status. EPA 
also asserts that SIP revisions for SO2 nonattainment areas 
including measures and modeling demonstrating attainment are due by the 
dates statutorily prescribed under subpart 5 under part D. Those 
submissions are due no later than 18 months after an area is designed 
nonattainment for SO2, under CAA section 191(a). Thus, the 
CAA directs states to submit these SIP requirements that are specific 
for nonattainment areas on a separate schedule from the ``structural 
requirements'' of 110(a)(2) which are due within three years of 
adoption or revision of a NAAQS and which apply statewide. The 
infrastructure SIP submission requirement does not move up the date for 
any required submission of a part D plan for areas designated 
nonattainment for the new NAAQS. Thus, elements relating to 
demonstrating attainment for areas not attaining the NAAQS are not 
necessary for infrastructure SIP submissions, and the CAA does not 
provide explicit requirements for demonstrating attainment for areas 
that have not yet been designated regarding attainment with a 
particular NAAQS.
    As stated previously, EPA believes that the proper inquiry at this 
juncture is whether Pennsylvania has met the basic structural SIP 
requirements appropriate at the point in time EPA is acting upon the 
infrastructure submittal. Emissions limitations and other control 
measures needed to attain the NAAQS in areas designated nonattainment 
for that NAAQS are due on a different schedule from the section 110 
infrastructure elements. A state, like Pennsylvania, may reference pre-
existing SIP emission limits or other rules contained in part D plans 
for previous NAAQS in an infrastructure SIP submission. Pennsylvania's 
existing rules and emission reduction measures in the SIP that control 
emissions of SO2 were discussed in the TSD. These provisions 
have the ability to reduce SO2 overall. Although the 
Pennsylvania SIP relies on measures and programs used to implement 
previous SO2 NAAQS, these provisions are not limited to 
reducing SO2 levels to meet one specific NAAQS and will 
continue to provide benefits for the 2010 SO2 NAAQS.
    Additionally, as discussed in EPA's TSD supporting the NPR, 
Pennsylvania has the ability to revise its SIP when necessary (e.g. in 
the event the Administrator finds the plan to be substantially 
inadequate to attain the NAAQS or otherwise meet all applicable CAA 
requirements) as required under element H of section 110(a)(2). See 
Section 4(1) of the APCA, 35 P.S. Sec.  4004(1), which empowers PADEP 
to implement the provisions of the CAA. Section 5 of the APCA, 35 P.S. 
Sec.  4005, authorizes the Environmental Quality Board (EQB) to adopt 
rules and regulations for the prevention, control, reduction and 
abatement of air pollution throughout the Commonwealth.
    EPA believes the requirements for emission reduction measures for 
an area designated nonattainment for the 2010 primary SO2 
NAAQS are in sections 172 and 191-192 of the CAA, and therefore, the 
appropriate avenue for implementing requirements for necessary emission 
limitations for demonstrating attainment with the 2010 SO2 
NAAQS is through the attainment planning process contemplated by those 
sections of the CAA. On August 5, 2013, EPA designated as nonattainment 
most areas in locations where existing monitoring data from 2009-2011 
indicated violations of the 1-hour SO2 standard. 78 FR 
47191. At that time, four areas in Pennsylvania had monitoring data 
from 2009-2011 indicating violations of the 1-hour SO2 
standard, and these areas were designated nonattainment in 
Pennsylvania. See 40 CFR 81.339. Also on March 2, 2015 the United 
States District Court for the Northern District of California entered a 
Consent Decree among the EPA, Sierra Club and Natural Resources Defense 
Council to resolve litigation concerning the deadline for completing 
designations for the 2010 SO2 NAAQS. Pursuant to the terms 
of the Consent Decree, EPA will complete additional designations for 
all remaining areas of the country including remaining areas in 
Pennsylvania.\12\
---------------------------------------------------------------------------

    \12\ The Consent Decree, entered March 2, 2015 by the United 
States District Court for the Northern District of California in 
Sierra Club and NRDC v. EPA, Case 3:13-cv-03953-SI (N.D. Cal.) is 
available at http://www.epa.gov/airquality/sulfurdioxide/designations/pdfs/201503FinalCourtOrder.pdf.
---------------------------------------------------------------------------

    For the four areas designated nonattainment in Pennsylvania in 
August 2013, attainment SIPs were due by April 4, 2015 and must contain 
demonstrations that the areas will attain the 2010 SO2 NAAQS 
as expeditiously as practicable, but no later than October 4, 2018 
pursuant to sections 172, 191 and 192, including a plan for enforceable 
measures to reach attainment of the NAAQS. Similar attainment planning 
SIPs for any additional areas which EPA subsequently designates 
nonattainment with the 2010 SO2 NAAQS will be due for such 
areas within the timeframes specified in CAA section 191. EPA

[[Page 46501]]

believes it is not appropriate to interpret the overall section 
110(a)(2) infrastructure SIP obligation to require bypassing the 
attainment planning process by imposing separate requirements outside 
the attainment planning process. Such actions would be disruptive and 
premature absent exceptional circumstances and would interfere with a 
state's planning process. See In the Matter of EME Homer City 
Generation LP and First Energy Generation Corp., Order on Petitions 
Numbers III-2012-06, III-2012-07, and III 2013-01 (July 30, 2014) 
(hereafter, Homer City/Mansfield Order) at 10-19 (finding Pennsylvania 
SIP did not require imposition of 1-hour SO2 emission limits 
on sources independent of the part D attainment planning process 
contemplated by the CAA). EPA believes that the history of the CAA and 
intent of Congress for the CAA as described above demonstrate clearly 
that it is within the section 172 and general part D attainment 
planning process that Pennsylvania must include 1-hour SO2 
emission limits on sources, where needed, for the four areas designated 
nonattainment to reach attainment with the 2010 1-hour SO2 
NAAQS and for any additional areas EPA may subsequently designate 
nonattainment.
    The Commenter's reliance on 40 CFR 51.112 to support its argument 
that infrastructure SIPs must contain emission limits adequate to 
provide for timely attainment and maintenance of the standard is also 
not supported. As explained previously in response to the background 
comments, EPA notes this regulatory provision applies to planning SIPs, 
such as those demonstrating how an area will attain a specific NAAQS 
and not to infrastructure SIPs which are intended to support that the 
states have in place structural requirements necessary to implement the 
NAAQS.
    As noted in EPA's preamble for the 2010 SO2 NAAQS, 
determining compliance with the SO2 NAAQS will likely be a 
source-driven analysis and EPA has explored options to ensure that the 
SO2 designations process realistically accounts for 
anticipated SO2 reductions at sources that we expect will be 
achieved by current and pending national and regional rules. See 75 FR 
35520. As mentioned previously, EPA will act in accordance with the 
entered Consent Decree's schedule for conducting additional 
designations for the 2010 SO2 NAAQS and any areas designated 
nonattainment must meet the applicable part D requirements for these 
areas. However, because the purpose of an infrastructure SIP submission 
is for more general planning purposes, EPA does not believe 
Pennsylvania was obligated during this infrastructure SIP planning 
process to account for controlled SO2 levels at individual 
sources. See Homer City/Mansfield Order at 10-19.
    Regarding the air dispersion modeling conducted by the Commenter 
pursuant to AERMOD for the coal-fired plants including the Brunner 
Island, Montour, Cheswick, New Castle and Shawville facilities, EPA 
does not find the modeling information relevant at this time for review 
of an infrastructure SIP. While EPA has extensively discussed the use 
of modeling for attainment demonstration purposes and for designations, 
EPA has affirmatively stated such modeling was not needed to 
demonstrate attainment for the SO2 infrastructure SIPs under 
the 2010 SO2 NAAQS. See April 12, 2012 letters to states 
regarding SO2 implementation and Implementation of the 2010 
Primary 1-Hour SO2 NAAQS, Draft White Paper for Discussion, 
May 2012, available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.\13\
---------------------------------------------------------------------------

    \13\ EPA has provided draft guidance for states regarding 
modeling analyses to support the designations process for the 2010 
SO2 NAAQS. SO2 NAAQS Designations Modeling 
Technical Assistance Document (draft), EPA Office of Air and 
Radiation and Office of Air Quality Planning and Standards, December 
2013, available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
---------------------------------------------------------------------------

    EPA has proposed a Data Requirements Rule which, if promulgated, 
will be relevant to the SO2 designations process. See, e.g., 
79 FR 27446 (May 13, 2014) (proposing process by which state air 
agencies would characterize air quality around SO2 sources 
through ambient monitoring and/or air quality modeling techniques and 
submit such data to the EPA). The proposed rule includes a lengthy 
discussion of how EPA anticipates addressing modeling that informs 
determinations of states' air quality status under the 2010 
SO2 NAAQS. As stated above, EPA believes it is not 
appropriate to bypass the attainment planning process by imposing 
separate attainment planning process requirements outside part D and 
into the infrastructure SIP process.
    Finally, EPA also disagrees with the Commenter that the 
Pennsylvania infrastructure SIP must, to be approved, incorporate the 
planned retirement dates of coal-fired EGUs to ensure attainment and 
maintenance of the SO2 NAAQS. Because EPA does not believe 
Pennsylvania's infrastructure SIP requires at this time 1-hour 
SO2 emission limits on these sources or other large 
stationary sources to ensure attainment or maintenance or ``prevent 
exceedances'' of the 2010 SO2 NAAQS, EPA likewise does not 
believe incorporating planned retirement dates for SO2 
emitters is necessary for our approval of an infrastructure SIP which 
we have explained meets the structural requirements of section 
110(a)(2). Pennsylvania can address any SO2 emission 
reductions that may be needed to attain the 2010 SO2 NAAQS, 
including reductions through source retirements, in the separate 
attainment planning process of part D of title I of the CAA for areas 
designated nonattainment.
    In conclusion, EPA disagrees with the Commenter's statements that 
EPA must disapprove Pennsylvania's infrastructure SIP submission 
because it does not establish specific enforceable SO2 
emission limits, either on coal-fired EGUs or other large 
SO2 sources, in order to demonstrate attainment and 
maintenance with the NAAQS at this time.\14\
---------------------------------------------------------------------------

    \14\ Finally, EPA does not disagree with the Commenter's claim 
that coal fired EGUs are a large source of SO2 emissions 
in Pennsylvania based on the 2011 NEI. However, EPA does not agree 
that this information is relevant to our approval of the 
infrastructure SIP which EPA has explained meets requirements in CAA 
section 110(a)(2).
---------------------------------------------------------------------------

    Comment 7: The Commenter asserts that modeling is the appropriate 
tool for evaluating adequacy of infrastructure SIPs and ensuring 
attainment and maintenance of the 2010 SO2 NAAQS. The 
Commenter refers to EPA's historic use of air dispersion modeling for 
attainment designations as well as ``SIP revisions.'' The Commenter 
cites to prior EPA statements that the Agency has used modeling for 
designations and attainment demonstrations, including statements in the 
2010 SO2 NAAQS preamble, EPA's 2012 Draft White Paper for 
Discussion on Implementing the 2010 SO2 NAAQS, and a 1994 
SO2 Guideline Document, as modeling could better address the 
source-specific impacts of SO2 emissions and historic 
challenges from monitoring SO2 emissions.\15\
---------------------------------------------------------------------------

    \15\ The Commenter also cites to a 1983 EPA Memorandum on 
section 107 designations policy regarding use of modeling for 
designations and to the 2012 Mont. Sulphur & Chem. Co. case which 
upheld EPA's finding that the previously approved SIP for an area in 
Montana was substantially inadequate to attain the NAAQS due to 
modeled violations of the NAAQS.
---------------------------------------------------------------------------

    The Commenter also cited to several cases upholding EPA's use of 
modeling in NAAQS implementation actions, including the Montana Sulphur 
case, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), Republic 
Steel Corp. v. Costle, 621 F.2d 797 (6th Cir. 1980), and Catawba County 
v. EPA, 571 F.3d 20

[[Page 46502]]

(D.C. Cir. 2009).\16\ The Commenter discusses statements made by EPA 
staff regarding the use of modeling and monitoring in setting emission 
limitations or determining ambient concentrations as a result of a 
source's emissions, discussing performance of AERMOD as a model, if 
AERMOD is capable of predicting whether the NAAQS is attained, and 
whether individual sources contribute to SO2 NAAQS 
violations. The Commenter cites to EPA's history of employing air 
dispersion modeling for increment compliance verifications in the 
permitting process for the Prevention of Significant Deterioration 
(PSD) program required in part C of Title I of the CAA. The Commenter 
claims several coal-fired EGUs including Brunner Island, Montour, 
Cheswick, New Castle, and Shawville are examples of sources located in 
elevated terrain where the AERMOD model functions appropriately in 
evaluating ambient impacts.
---------------------------------------------------------------------------

    \16\ Montana Sulphur & Chemical Co. v. EPA, 666 F.3d 1174 (9th 
Cir. 2012).
---------------------------------------------------------------------------

    The Commenter asserts EPA's use of air dispersion modeling was 
upheld in GenOn REMA, LLC v. EPA, 722 F.3d 513 (3rd Cir. 2013) where an 
EGU challenged EPA's use of CAA section 126 to impose SO2 
emission limits on a source due to cross-state impacts. The Commenter 
claims the Third Circuit in GenOn REMA upheld EPA's actions after 
examining the record which included EPA's air dispersion modeling of 
the one source as well as other data.
    The Commenter cites to Vehicle Mfrs. Ass'n v. State Farm Mut. Auto 
Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254 
(D.C. Cir. 2009) for the general proposition that it would be arbitrary 
and capricious for an agency to ignore an aspect of an issue placed 
before it and that an agency must consider information presented during 
notice-and-comment rulemaking.\17\
---------------------------------------------------------------------------

    \17\ The Commenter also claims it raised similar arguments to 
Pennsylvania during the Pennsylvania proposal process for the 
infrastructure SIPs.
---------------------------------------------------------------------------

    Finally, the Commenter claims that Pennsylvania's proposed 
SO2 infrastructure SIP lacks emission limitations informed 
by air dispersion modeling and therefore fails to ensure Pennsylvania 
will attain and maintain the 2010 SO2 NAAQS. The Commenter 
claims EPA must disapprove the SO2 infrastructure SIP as it 
does not ``prevent exceedances'' or ensure attainment and maintenance 
of the SO2 NAAQS.
    Response 7: EPA agrees with the Commenter that air dispersion 
modeling, such as AERMOD, can be an important tool in the CAA section 
107 designations process for SO2 and in developing SIPs for 
nonattainment areas as required by sections 172 and 191-192, including 
supporting required attainment demonstrations. EPA agrees that prior 
EPA statements, EPA guidance, and case law support the use of air 
dispersion modeling in the SO2 designations process and 
attainment demonstration process, as well as in analyses of the 
interstate impact of transported emissions and whether existing 
approved SIPs remain adequate to show attainment and maintenance of the 
SO2 NAAQS. However, as provided in the previous responses, 
EPA disagrees with the Commenter that EPA must disapprove the 
Pennsylvania SO2 infrastructure SIP for its alleged failure 
to include source-specific SO2 emission limits that show no 
exceedances of the NAAQS when modeled or ensure attainment and 
maintenance of the NAAQS.
    In acting to approve or disapprove an infrastructure SIP, EPA is 
not required to make findings regarding current air quality status of 
areas within the state, regarding such area's projected future air 
quality status, or regarding whether existing emissions limits in such 
area are sufficient to meet a NAAQS in the area. All of the actions the 
Commenter cites, instead, do make findings regarding at least one of 
those issues. The attainment planning process detailed in part D of the 
CAA, including sections 172 and 191-192 attainment SIPs, is the 
appropriate place for the state to evaluate measures needed to bring 
in-state nonattainment areas into attainment with a NAAQS and to impose 
additional emission limitations such as SO2 emission limits 
on specific sources.
    EPA had initially recommended that states submit substantive 
attainment demonstration SIPs based on air quality modeling in the 
final 2010 SO2 NAAQS preamble (75 FR 35520) and in 
subsequent draft guidance issued in September 2011 for the section 
110(a) SIPs due in June 2013 in order to show how areas then-expected 
to be designated as unclassifiable would attain and maintain the NAAQS. 
These initial statements in the preamble and 2011 draft guidance, 
presented only in the context of the new 1-hour SO2 NAAQS 
and not suggested as a matter of general infrastructure SIP policy, 
were based on EPA's expectation at the time, that by June 2012, most 
areas would initially be designated as unclassifiable due to 
limitations in the scope of the ambient monitoring network and the 
short time available before which states could conduct modeling to 
support designations recommendations in 2011. However, after conducting 
extensive stakeholder outreach and receiving comments from the states 
regarding these initial statements and the timeline for implementing 
the NAAQS, EPA subsequently stated in the April 12, 2012 letters and in 
the 2012 Draft White Paper that EPA was clarifying its 2010 
SO2 NAAQS implementation position and was no longer 
recommending such attainment demonstrations supported by air dispersion 
modeling for unclassifiable areas (which had not yet been designated) 
for the June 2013 infrastructure SIPs. Instead, EPA explained that it 
expected states to submit infrastructure SIPs that followed the general 
policy EPA had applied under other NAAQS. EPA then reaffirmed this 
position in the February 6, 2013 memorandum, ``Next Steps for Area 
Designations and Implementation of the Sulfur Dioxide National Ambient 
Air Quality Standard.'' \18\ As previously mentioned, EPA had stated in 
the preamble to the NAAQS and in the prior 2011 draft guidance that EPA 
intended to develop and seek public comment on guidance for modeling 
and development of SIPs for sections 110, 172 and 191-192 of the CAA. 
After receiving such further comment, EPA has now issued guidance for 
the nonattainment area SIPs due pursuant to sections 172 and 191-192. 
See April 23, 2014 Guidance for 1-Hour SO2 Nonattainment 
Area SIP Submissions. In addition, modeling may be an appropriate 
consideration for states and EPA in further designations for the 
SO2 NAAQS in accordance with the Sierra Club and NRDC 
Consent Decree and proposed data requirements rule mentioned 
previously.\19\ While the EPA guidance for attainment SIPs and for 
designations for CAA section 107 and proposed process for 
characterizing SO2 emissions from larger sources discuss the 
use of air dispersion modeling, EPA's 2013 Infrastructure SIP Guidance 
did not suggest that states use

[[Page 46503]]

air dispersion modeling for purposes of the section 110(a)(2) 
infrastructure SIP. Therefore, as discussed previously, EPA believes 
the Pennsylvania SO2 infrastructure SIP submittal contains 
the structural requirements to address elements in section 110(a)(2) as 
discussed in detail in the TSD accompanying the proposed approval. EPA 
believes infrastructure SIPs are general planning SIPs to ensure that a 
state has adequate resources and authority to implement a NAAQS. 
Infrastructure SIP submissions are not intended to act or fulfill the 
obligations of a detailed attainment and/or maintenance plan for each 
individual area of the state that is not attaining the NAAQS. While 
infrastructure SIPs must address modeling authorities in general for 
section 110(a)(2)(K), EPA believes 110(a)(2)(K) requires infrastructure 
SIPs to provide the state's authority for air quality modeling and for 
submission of modeling data to EPA, not specific air dispersion 
modeling for large stationary sources of pollutants. In the TSD for 
this rulemaking action, EPA provided a detailed explanation of 
Pennsylvania's ability and authority to conduct air quality modeling 
when required and its authority to submit modeling data to the EPA.
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    \18\ The February 6, 2013 ``Next Steps for Area Designations and 
Implementation of the Sulfur Dioxide National Ambient Air Quality 
Standard,'' one of the April 12, 2012 state letters, and the May 
2012 Draft White Paper are available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
    \19\ The Consent Decree in Sierra Club and NRDC v. EPA, Case 
3:13-cv-03953-SI (N.D. Cal.) is available at http://www.epa.gov/airquality/sulfurdioxide/designations/pdfs/201503FinalCourtOrder.pdf. See 79 FR 27446 (EPA's proposed data 
requirements rule). See also Updated Guidance for Area Designations 
for the 2010 Primary Sulfur Dioxide National Ambient Air Quality 
Standard, Stephen D. Page, Director, EPA's Office of Air Quality 
Planning Standards, March 20, 2015, available at http://www.epa.gov/airquality/sulfurdioxide/pdfs/20150320SO2designations.pdf.>
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    EPA finds the Commenter's discussion of case law, guidance, and EPA 
staff statements regarding advantages of AERMOD as an air dispersion 
model for purposes of demonstrating attainment of the NAAQS to be 
irrelevant to the analysis of Pennsylvania's infrastructure SIP, which 
as we have explained is separate from the SIP required to demonstrate 
attainment of the NAAQS pursuant to sections 172 or 192. In addition, 
the Commenter's comments relating to EPA's use of AERMOD or modeling in 
general in designations pursuant to section 107, including its citation 
to Catawba County, are likewise irrelevant as EPA's present approval of 
Pennsylvania's infrastructure SIP is unrelated to the section 107 
designations process. Nor is EPA's action on this infrastructure SIP 
related to any new source review (NSR) or PSD permit program issue. As 
outlined in the August 23, 2010 clarification memo, ``Applicability of 
Appendix W Modeling Guidance for the 1-hour SO2 National 
Ambient Air Quality Standard'' (U.S. EPA, 2010a), AERMOD is the 
preferred model for single source modeling to address the 1-hour 
SO2 NAAQS as part of the NSR/PSD permit programs. Therefore, 
as attainment SIPs, designations, and NSR/PSD actions are outside the 
scope of a required infrastructure SIP for the 2010 SO2 
NAAQS for section 110(a), EPA provides no further response to the 
Commenter's discussion of air dispersion modeling for these 
applications. If the Commenter resubmits its air dispersion modeling 
for the Pennsylvania EGUs, or updated modeling information in the 
appropriate context, EPA will address the resubmitted modeling or 
updated modeling at that time.
    The Commenter correctly noted that the Third Circuit upheld EPA's 
section 126 finding imposing SO2 emissions limitations on an 
EGU pursuant to CAA section 126. GenOn REMA, LLC v. EPA, 722 F.3d 513. 
Pursuant to section 126, any state or political subdivision may 
petition EPA for a finding that any major source or group of stationary 
sources emits, or would emit, any air pollutant in violation of the 
prohibition of section 110(a)(2)(D)(i) which relates to significant 
contributions to nonattainment or interference with maintenance of a 
NAAQS in another state. The Third Circuit upheld EPA's authority under 
section 126 and found EPA's actions neither arbitrary nor capricious 
after reviewing EPA's supporting docket which included air dispersion 
modeling as well as ambient air monitoring data showing exceedances of 
the NAAQS. The Commenter appears to have cited to this matter to 
demonstrate EPA's use of modeling for certain aspects of the CAA. We do 
not disagree that such modeling is appropriate for other actions, such 
as those under section 126. But, for the reasons explained above, such 
modeling is not required for determining whether Pennsylvania's 
infrastructure SIP has the required structural requirements pursuant to 
section 110(a)(2). As noted above, EPA is not acting on an interstate 
transport SIP in this action because Pennsylvania has not made such a 
submission. The decision in GenOn Rema does not otherwise speak to the 
role of air dispersion modeling as to any other planning requirements 
in the CAA.
    In its comments, the Commenter relies on Motor Vehicle Mfrs. Ass'n 
and NRDC v. EPA to support its comments that EPA must consider the 
Commenter's modeling data on several Pennsylvania EGUs including 
Brunner Island, Montour, Cheswick, New Castle, and Shawville based on 
administrative law principles regarding consideration of comments 
provided during a rulemaking process. For the reasons previously 
explained, the purpose for which the Commenter submitted the modeling--
namely, to assert that current air quality in the areas in which those 
sources are located does not meet the NAAQS--is not relevant to EPA's 
action on this infrastructure SIP, and consequently EPA is not required 
to consider the modeling in evaluating the approvability of the 
infrastructure SIP.\20\ EPA does not believe infrastructure SIPs must 
contain emission limitations informed by air dispersion modeling in 
order to meet the requirements of section 110(a)(2)(A). Thus, EPA has 
evaluated the persuasiveness of the Commenter's submitted modeling in 
finding that it is not relevant to the approvability of Pennsylvania's 
proposed infrastructure SIP for the 2010 SO2 NAAQS, but EPA 
has made no judgment regarding whether the Commenter's submitted 
modeling is sufficient to show violations of the NAAQS.
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    \20\ EPA notes that PADEP provided similar responses to the 
Commenter's claims regarding evaluation of modeling data for an 
infrastructure SIP as specifically recounted by the Commenter in its 
March 9, 2015 comments to EPA on this rulemaking action. EPA agrees 
with PADEP's responses that emissions limitations for attainment of 
the NAAQS are appropriate for consideration in the part D planning 
process and not for the infrastructure SIP process. Thus, EPA 
provides no further response on this issue as PADEP responded to the 
Commenter in Pennsylvania's rulemaking and EPA's responses are 
provided in this action.
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    While EPA does not believe that infrastructure SIP submissions are 
required to contain emission limits assuring in-state attainment of the 
NAAQS, as suggested by the Commenter, EPA does recognize that in the 
past, states have, in their discretion, used infrastructure SIP 
submittals as a `vehicle' for incorporating regulatory revisions or 
source-specific emission limits into the state's plan. See 78 FR 73442 
(December 6, 2013) (approving regulations Maryland submitted for 
incorporation into the SIP along with the 2008 ozone infrastructure SIP 
to address ethics requirements for State Boards in sections 128 and 
110(a)(2)(E)(ii)). While these SIP revisions are intended to help the 
state meet the requirements of section 110(a)(2), these ``ride-along'' 
SIP revisions are not intended to signify that all infrastructure SIP 
submittals must, in order to be approved by EPA, have similar 
regulatory revisions or source-specific emission limits. Rather, the 
regulatory provisions and source-specific emission limits the state 
relies on when showing compliance with section 110(a)(2) have, in many 
cases, likely already been incorporated into the state's SIP prior to 
each new infrastructure SIP submission; in some cases this was done for 
entirely separate CAA requirements, such as attainment

[[Page 46504]]

plans required under section 172, or for previous NAAQS.
    Comment 8: The Commenter asserts that EPA may not approve the 
Pennsylvania proposed SO2 infrastructure SIP because it 
fails to include enforceable emission limitations with a 1-hour 
averaging time that applies at all times. The Commenter cites to CAA 
section 302(k) which requires emission limits to apply on a continuous 
basis. The Commenter claims EPA has stated that 1-hour averaging times 
are necessary for the 2010 SO2 NAAQS citing to EPA's April 
23, 2014 Guidance for 1-Hour SO2 Nonattainment Area SIP 
Submissions, a February 3, 2011, EPA Region 7 letter to the Kansas 
Department of Health and Environment regarding the need for 1-hour 
SO2 emission limits in a PSD permit, an EPA Environmental 
Hearing Board (EHB) decision rejecting use of a 3-hour averaging time 
for a SO2 limit in a PSD permit, and EPA's disapproval of a 
Missouri SIP which relied on annual averaging for SO2 
emission rates.\21\
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    \21\ Sierra Club cited to In re: Mississippi Lime Co., 
PSDAPLPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and 
71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control 
strategy SO2 SIP).
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    Thus, the Commenter contends EPA must disapprove Pennsylvania's 
infrastructure SIP which the Commenter claims fails to require emission 
limits with adequate averaging times.
    Response 8: EPA disagrees that EPA must disapprove the proposed 
Pennsylvania infrastructure SIP because the SIP does not contain 
enforceable SO2 emission limitations with 1-hour averaging 
periods that apply at all times, as this issue is not appropriate for 
resolution at this stage. The comment does not assert that the 
SO2 emission limits in Pennsylvania's SIP are not 
enforceable or that they do not apply at all times, instead the comment 
focuses on the lack of 1-hour averaging times. We do not believe, as 
suggested by the Commenter, that the emission limits are not 
``continuous'' within the meaning of section 302(k). As EPA has noted 
previously, the purpose of the section 110(a)(2) SIP is to ensure that 
the State has the necessary structural components to implement programs 
for attainment and maintenance of the NAAQS.\22\ While EPA does agree 
that the averaging time is a critical consideration for purposes of 
substantive SIP revisions, such as attainment demonstrations, the 
averaging time of existing rules in the SIP is not relevant for 
determining that the State has met the applicable requirements of 
section 110(a)(2) with respect to the infrastructure elements addressed 
in the present SIP action.\23\ Therefore, because EPA finds 
Pennsylvania's SO2 infrastructure SIP approvable without the 
additional SO2 emission limitations showing in-state 
attainment of the NAAQS, EPA finds the issues of appropriate averaging 
periods for such future limitations not relevant at this time. The 
Commenter has cited to prior EPA discussion on emission limitations 
required in PSD permits (from an EAB decision and EPA's letter to 
Kansas' permitting authority) pursuant to part C of the CAA, which is 
neither relevant nor applicable to the present SIP action. In addition, 
as previously discussed, the EPA disapproval of the 2006 Missouri SIP 
was a disapproval relating to a control strategy SIP required pursuant 
to part D attainment planning and is likewise not relevant to the 
analysis of infrastructure SIP requirements.
---------------------------------------------------------------------------

    \22\ As EPA has stated, some areas are designated nonattainment 
areas pursuant to CAA section 107 for the 2010 SO2 NAAQS 
in the Commonwealth. Thus, while the Commonwealth, at this time, has 
an obligation to submit attainment plans for the 2010 SO2 
NAAQS for sections 172, 191 and 192, EPA believes the appropriate 
time for examining necessity of the averaging periods within any 
submitted SO2 emission limits on specific sources is 
within the attainment planning process.
    \23\ For a discussion on emission averaging times for emissions 
limitations for SO2 attainment SIPs, see the April 23, 
2014 Guidance for 1-Hour SO2 Nonattainment Area SIP 
Submissions. EPA explained that it is possible, in specific cases, 
for states to develop control strategies that account for 
variability in 1-hour emissions rates through emission limits with 
averaging times that are longer than 1-hour, using averaging times 
as long as 30-days, but still provide for attainment of the 2010 
SO2 NAAQS as long as the limits are of at least 
comparable stringency to a 1-hour limit at the critical emission 
value. EPA has not yet evaluated any specific submission of such a 
limit, and so is not at this time prepared to take final action to 
implement this concept.
---------------------------------------------------------------------------

    Comment 9: The Commenter states that enforceable emission limits in 
SIPs or permits are necessary to avoid nonattainment designations in 
areas where modeling or monitoring shows SO2 levels exceed 
the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA 
document, Next Steps for Area Designations and Implementation of the 
Sulfur Dioxide National Ambient Air Quality Standard, which the 
Commenter contends discusses how states could avoid future 
nonattainment designations. The Commenter asserts EPA must ensure 
enforceable emission limits in the Pennsylvania infrastructure SIP will 
not allow ``exceedances'' of the SO2 NAAQS. The Commenter 
claims the modeling it conducted for Brunner Island, Montour, Cheswick, 
New Castle, and Shawville indicates at least 28 additional counties in 
Pennsylvania must be designated nonattainment with the 2010 
SO2 NAAQS without such enforceable SO2 limits. In 
summary, the Commenter asserts EPA must disapprove the Pennsylvania 
infrastructure SIP and ensure emission limits will not allow large 
sources of SO2 to cause exceedances of the 2010 
SO2 NAAQS.
    Response 9: EPA appreciates the Commenter's concern with avoiding 
nonattainment designations in Pennsylvania for the 2010 SO2 
NAAQS. However, Congress designed the CAA such that states have the 
primary responsibility for achieving and maintaining the NAAQS within 
their geographic area by submitting SIPs which will specify the details 
of how the state will meet the NAAQS. Pursuant to section 107(d), the 
states make initial recommendations of designations for areas within 
each state and EPA then promulgates the designations after considering 
the state's submission and other information. EPA promulgated initial 
designations for the 2010 SO2 NAAQS in August 2013 for areas 
in which monitoring at that time showed violations of the NAAQS, but 
has not yet issued designations for other areas and will complete the 
required designations pursuant to the schedule contained in the 
recently entered Consent Decree. EPA will designate additional areas 
for the 2010 SO2 NAAQS in accordance with the CAA section 
107 and existing EPA policy and guidance. Pennsylvania may, on its own 
accord, decide to impose additional SO2 emission limitations 
to avoid future designations to nonattainment. If additional 
Pennsylvania areas are designated nonattainment, Pennsylvania will then 
have the initial opportunity to develop additional emissions 
limitations needed to attain the NAAQS, and EPA would be charged with 
reviewing whether the SIP is adequate to demonstrate attainment. See 
Commonwealth of Virginia, 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)) (discussing that states have primary 
responsibility for determining an emission reductions program for its 
areas subject to EPA approval dependent upon whether the SIP as a whole 
meets applicable requirements of the CAA). However, such considerations 
are not required of Pennsylvania at the infrastructure SIP stage of 
NAAQS implementation, as the Commenter's statements concern the 
separate designations process under section 107.\24\ EPA disagrees that 
the

[[Page 46505]]

infrastructure SIP must be disapproved for not including enforceable 
emissions limitations to prevent future 1-hour SO2 
nonattainment designations.
---------------------------------------------------------------------------

    \24\ EPA also notes that in EPA's final rule regarding the 2010 
SO2 NAAQS, EPA noted that it anticipates several 
forthcoming national and regional rules, such as the Industrial 
Boilers standard under CAA section 112, are likely to require 
significant reductions in SO2 emissions over the next 
several years. See 75 FR 35520. EPA continues to believe similar 
national and regional rules will lead to SO2 reductions 
that will help achieve compliance with the 2010 SO2 
NAAQS. If it appears that states with areas designated nonattainment 
in 2013 will nevertheless fail to attain the NAAQS as expeditiously 
as practicable (but no later than October 2018) during EPA's review 
of attainment SIPs required by section 172, the CAA provides 
authorities and tools for EPA to solve such failure, including, as 
appropriate, disapproving submitted SIPs and promulgating federal 
implementation plans. Likewise, for any areas designated 
nonattainment after 2013, EPA has the same authorities and tools 
available to address any areas which do not timely attain the NAAQS.
---------------------------------------------------------------------------

D. Sierra Club Comments on Pennsylvania 2008 Ozone Infrastructure SIP

    Comment 10: The Commenter claims EPA must disapprove the proposed 
infrastructure SIP for the 2008 ozone NAAQS for its failure to include 
enforceable measures on sources of volatile organic compounds (VOCs) 
and nitrogen oxides (NOX) to ensure attainment and 
maintenance of the NAAQS in areas not designated nonattainment and to 
ensure compliance with section 110(a)(2)(A) for the 2008 ozone NAAQS. 
The Commenter specifically mentions EGUs as well as the oil and gas 
production industry as sources needing additional controls as they are 
major sources of ozone precursors. The Commenter claims stringent 
emission limits must apply at all times to ensure all areas in 
Pennsylvania attain and maintain the ozone NAAQS. The Commenter claims 
the provisions listed by Pennsylvania for section 110(a)(2)(A) in its 
2008 ozone NAAQS infrastructure SIP are insufficient for attaining and 
maintaining the 2008 ozone NAAQS as evidenced by the Commenter's review 
of air quality monitoring data in areas which are not presently 
designated nonattainment for the 2008 ozone NAAQS. Specifically, the 
Commenter cites air monitoring in a number of Pennsylvania counties 
including Mercer, Indiana, Lebanon, Dauphin, Erie and York counties 
indicating ``exceedances'' of the NAAQS and what the Commenter asserts 
are design values above the NAAQS in 2010-2012, 2011-2013, and 2012-
2014. The Commenter alleges that these ``exceedances'' demonstrate that 
the Pennsylvania 2008 ozone infrastructure SIP with existing 
regulations, statutes, source-specific limits and programs fails to 
demonstrate the infrastructure SIP will ensure attainment and 
maintenance of the 2008 ozone NAAQS. Thus, the Commenter asserts EPA 
must disapprove the 2008 ozone infrastructure SIP.
    In addition, the Commenter asserts that the infrastructure SIP 
required by section 110(a) must provide assurances that the NAAQS will 
be attained and maintained for areas not designated nonattainment and 
asserts that the Pennsylvania infrastructure SIP must contain state-
wide regulations and emission limits that ``ensure that the proper mass 
limitations and short term averaging periods are imposed on certain 
specific large sources of NOX such as power plants. These 
emission limits must apply at all times . . . to ensure that all areas 
of Pennsylvania attain and maintain the 2008 eight-hour Ozone NAAQS.'' 
The Commenter suggests limits should be set on a pounds per hour (lbs/
hr) basis for EGUs to address variation in mass emissions and ensure 
protection of the ambient air quality. The Commenter cites to 
NOX limits from PSD permits issued to EGUs with low 
NOX emission rates, claiming such rates and related control 
efficiencies are achievable for EGUs. The Commenter suggests short-term 
averaging limits would ensure EGUs cannot emit NOX at higher 
rates on days when ozone levels are worst while meeting a longer-term 
average. The Commenter also contends that adding control devices and 
emission limits on EGUs are a ``cost effective option to reduce 
NOX pollution and attain and maintain the 2008 ozone 
NAAQS.''
    Finally, the Commenter contends the proposed ozone infrastructure 
SIP cannot ensure Pennsylvania will attain and maintain the 2008 ozone 
NAAQS and contends EPA must disapprove the SIP for lack of emission 
limits to attain and maintain the ozone NAAQS statewide.
    Response 10: EPA disagrees with the commenter that the 
infrastructure SIPs must include detailed attainment and maintenance 
plans for all areas of the state and must be disapproved if ozone 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.\25\ 
EPA has addressed in detail in prior responses above the Commenter's 
general arguments that the statutory language, legislative history, 
case law, EPA regulations, and prior rulemaking actions by EPA mandate 
the interpretation it advocates--i.e., that infrastructure SIPs must 
ensure attainment and maintenance of the NAAQS. 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, including the 2008 ozone NAAQS.
---------------------------------------------------------------------------

    \25\ EPA notes however that the data presented by the Commenter 
in table 5 of its March 9, 2015 comments indicates a general 
improving trend in ozone air quality for the specific counties the 
Commenter included. The data could equally be used to indicate 
improving ozone air quality based on existing measures in the 
Pennsylvania SIP.
---------------------------------------------------------------------------

    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 the state to 
revise its SIP, as appropriate.
    The Commenter suggests that EPA must disapprove the Pennsylvania 
ozone infrastructure SIP because the fact that a few areas in 
Pennsylvania recently had air quality data slightly above the standard 
therefore proves that the infrastructure SIP is inadequate to 
demonstrate maintenance of the ozone NAAQS for those areas. 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.\26\ 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

[[Page 46506]]

authority to implement a NAAQS in general throughout the state and not 
detailed attainment and maintenance plans for each individual area of 
the state.
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    \26\ While 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 five areas of concern to the Commenter do not fit that 
description in any event.
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    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 as explained previously in response to prior 
comments. 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, part D of title I of the CAA (not 
CAA section 110) governs the substantive planning process, including 
planning for attainment and maintenance of the NAAQS.
    For the reasons explained by EPA in this action, 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 
ensure maintenance of the NAAQS. Rather, EPA believes that the proper 
inquiry at this juncture is whether the state has met the basic 
structural SIP requirements appropriate at the point in time EPA is 
acting upon the submittal. EPA's NPR and TSD for this rulemaking 
address why the Pennsylvania SIP meets the basic structural SIP 
requirements as to the elements addressed in section 110(a)(2) in the 
NPR for the 2008 ozone NAAQS.
    As addressed in EPA's proposed approval for this rule, Pennsylvania 
submitted a list of existing emission reduction measures in the SIP 
that control emissions of NOX and VOCs. Pennsylvania's SIP 
revision reflects numerous provisions that have the ability to reduce 
ground level ozone and its precursors. The Pennsylvania 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 Pennsylvania 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. Although additional control measures for ozone 
precursors such as those mentioned by the Commenter may be considered 
by PADEP and could be submitted with an infrastructure SIP, these 
additional measures are not a requirement in order for Pennsylvania to 
meet CAA section 110(a)(2)(A). In approving Pennsylvania's 
infrastructure SIP revision, EPA is affirming that Pennsylvania has 
sufficient authority to take the types of actions required by the CAA 
in order to bring such areas back into attainment.
    Finally, EPA appreciates the Commenter's information regarding EGU 
NOX control measures and reduction efficiencies as well as 
emissions limitations applicable to new or modified EGUs which were set 
during the PSD or NSR permit process. Additional NOX 
regulations on emissions from EGUs would likely reduce ozone levels 
further in one or more areas in Pennsylvania. Congress established the 
CAA such that each state has primary responsibility for assuring air 
quality within the state and each state is first given the opportunity 
to determine 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 Virginia v. EPA, 108 
F.3d at 1410. The Commonwealth could choose to consider additional 
control measures for NOX at EGUs to ensure attainment and 
maintenance of the ozone NAAQS as Pennsylvania moves forward to meet 
the more prescriptive planning requirements of the CAA in the future. 
However, as we have explained, the Commonwealth is not required to 
regulate such sources for purposes of meeting the infrastructure SIP 
requirements of CAA section 110(a)(2).
    In addition, emission limits with the shorter-term averaging rates 
suggested by the Commenter could be considered within the part D 
planning process to ensure attainment and maintenance of the 2008 ozone 
NAAQS. As EPA finds Pennsylvania's NOX and VOC provisions 
presently in the SIP sufficient for infrastructure SIP purposes and 
specifically for CAA section 110(a)(2)(A), further consideration of 
averaging times is not appropriate or relevant at this time. Thus, EPA 
disagrees with the Commenter that Pennsylvania's ozone infrastructure 
SIP must be disapproved for failure to contain sufficient measures to 
ensure attainment and maintenance of the NAAQS.
    Comment 11: The Commenter states enforceable emission limits are 
necessary to avoid future nonattainment designations in areas where 
Pennsylvania's monitoring network has shown ``exceedances'' with the 
2008 ozone NAAQS in recent years. The Commenter stated EPA must address 
inadequacies in enforceable emission limitations relied upon by 
Pennsylvania for its ozone infrastructure SIP to comply with CAA 
section 110(a)(2)(A) and stated EPA must disapprove the ozone 
infrastructure SIP to ensure large sources of NOX and VOCs 
cannot contribute to exceedances of the ozone NAAQS and prohibit 
attainment and maintenance of the ozone NAAQS in all of Pennsylvania.
    Response 11: For the reasons previously discussed, EPA disagrees 
with the Commenter that we must disapprove the Pennsylvania ozone 
infrastructure SIP because it does not demonstrate how areas that may 
be newly violating the ozone NAAQS since the time of designation can be 
brought back into attainment. Enforceable emission limitations to avoid 
future nonattainment designations are not required for EPA to approve 
an infrastructure SIP under CAA section 110, and any emission 
limitations needed to assure attainment and maintenance with the ozone 
NAAQS will be determined by Pennsylvania and reviewed by EPA as part of 
the part D attainment SIP planning process. Thus, EPA disagrees with 
the Commenter that EPA must disapprove the ozone infrastructure SIP to 
ensure large sources of NOX and VOC do not contribute to 
exceedances of the NAAQS or prohibit implementation, attainment or 
maintenance of the ozone NAAQS. As explained in the NPR and TSD, 
Pennsylvania has sufficient emission limitations and measures to 
address NOX and VOC emissions for CAA section 110(a)(2)(A).

III. Final Action

    EPA is approving the following elements of Pennsylvania's June 15, 
2014 SIP revisions for the 2008 ozone NAAQS and the 2010 SO2 
NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (PSD requirements), 
(D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Pennsylvania's SIP 
revisions provide the basic program elements specified in Section 
110(a)(2) necessary to implement, maintain, and enforce the 2008 ozone 
NAAQS and the 2010 SO2 NAAQS. This final rulemaking action 
does not include action on section 110(a)(2)(I) which pertains to the 
nonattainment planning requirements of part D, Title I of the CAA, 
because this element is not required to be submitted by the 3-year 
submission deadline of section 110(a)(1) of the CAA, and will be 
addressed in a separate process. This final rulemaking action also does 
not include action on section 110(a)(2)(D)(i)(I) for interstate 
transport for the 2008 ozone or the 2010 SO2 NAAQS as 
Pennsylvania's July 15,

[[Page 46507]]

2014 SIP submissions did not address this element for either NAAQS nor 
does this rulemaking include any action on section 110(a)(2)(D)(i)(II) 
for visibility protection for either NAAQS. While Pennsylvania's July 
15, 2014 SIP submissions for the 2008 ozone and 2010 SO2 
NAAQS included provisions addressing visibility protection, EPA will 
take later, separate action on this element for both of these NAAQS.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 5, 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 pertaining to Pennsylvania's section 110(a)(2) 
infrastructure elements for the 2008 ozone NAAQS and 2010 
SO2 NAAQS 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, 
Reporting and recordkeeping requirements, Sulfur oxides, Volatile 
organic compounds.

    Dated: July 24, 2015.
William C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

Subpart NN--Pennsylvania

0
2. In Sec.  52.2020, the table in paragraph (e)(1) is amended by adding 
two entries for ``Section 110(a)(2) Infrastructure Requirements for the 
2008 ozone NAAQS'' and ``Section 110(a)(2) Infrastructure Requirements 
for the 2010 SO2 NAAQS'' at the end of the table to read as 
follows:


Sec.  52.2020  Identification of plan.

* * * * *
    (e) * * *
    (1) * * *

----------------------------------------------------------------------------------------------------------------
                                                          State
   Name of non-regulatory SIP          Applicable       submittal    EPA Approval date    Additional explanation
            revision                geographic area        date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure  Statewide..........      7/15/14  8/5/15 [Insert       This rulemaking action
 Requirements for the 2008 ozone                                     Federal Register     addresses the
 NAAQS.                                                              citation].           following CAA
                                                                                          elements:
                                                                                          110(a)(2)(A), (B),
                                                                                          (C), (D)(i)(II)
                                                                                          (prevention of
                                                                                          significant
                                                                                          deterioration),
                                                                                          (D)(ii), (E), (F),
                                                                                          (G), (H), (J), (K),
                                                                                          (L), and (M).
Section 110(a)(2) Infrastructure  Statewide..........      7/15/14  8/5/15 [Insert       This rulemaking action
 Requirements for the 2010 SO2                                       Federal Register     addresses the
 NAAQS.                                                              citation].           following CAA
                                                                                          elements:
                                                                                          110(a)(2)(A), (B),
                                                                                          (C), (D)(i)(II)
                                                                                          (prevention of
                                                                                          significant
                                                                                          deterioration),
                                                                                          (D)(ii), (E), (F),
                                                                                          (G), (H), (J), (K),
                                                                                          (L), and (M).
----------------------------------------------------------------------------------------------------------------


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[FR Doc. 2015-19090 Filed 8-4-15; 8:45 am]
 BILLING CODE 6560-50-P


