[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Rules and Regulations]
[Pages 62019-62021]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24350]



40 CFR Part 52

[EPA-R05-OAR-2011-0969; FRL-9917-62-Region 5]

Approval and Promulgation of Air Quality Implementation Plans; 
Ohio; Infrastructure SIP Requirements for the 2008 Ozone NAAQS

AGENCY: Environmental Protection Agency.

ACTION: Final rule.


SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve elements of a state implementation plan (SIP) 
submission from Ohio regarding the infrastructure requirements of 
section 110 of the Clean Air Act (CAA) for the 2008 ozone National 
Ambient Air Quality Standards (NAAQS). The infrastructure requirements 
are designed to ensure that the structural components of each state's 
air quality management program are adequate to meet the state's 
responsibilities under the CAA. The proposed rulemaking associated with 
today's final action was published on July 25, 2014, and EPA received 
one comment pertaining to infrastructure for the 2008 ozone 
NAAQS during the comment period, which ended on August 25, 2014. The 
2008 lead (Pb), and 2010 Nitrogen Dioxide (NO2), and 2010 
Sulfur Dioxide (SO2) infrastructure SIPs were also addressed 
in the proposed rulemaking but will be addressed in a separate final 

DATES: This final rule is effective on November 17, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2011-0969. All documents in the docket are listed in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, will be 
publicly-available only in hard copy. Publicly-available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the U.S. Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 
60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding Federal holidays. We recommend that you 
telephone Sarah Arra at (312) 886-9401 before visiting the Region 5 

FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What is the background of these SIP submissions?
    A. What does this rulemaking address?
    B. Why did the state make this SIP submissions?
    C. What is the scope of this rulemaking?
II. What is our response to comments received on the proposed 
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background of these SIP submissions?

A. What does this rulemaking address?

    This rulemaking addresses submissions from the Ohio Environmental 
Protection Agency. The state submitted the infrastructure SIP for the 
2008 ozone NAAQS on December 27, 2012, supplemented on June 7, 2013.

B. Why did the state make this SIP submissions?

    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure that their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS, including 
the 2008 ozone NAAQS. These submissions must contain any revisions 
needed for meeting the applicable SIP requirements of section 
110(a)(2), or certifications that their existing SIPs for the NAAQS 
already meet those requirements.
    EPA has highlighted this statutory requirement in multiple guidance 
documents, including the most recent guidance document entitled 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and (2)'' issued on September 
13, 2013.

C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submission from Ohio that addresses the 
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for 
the 2008 ozone NAAQS. The requirement for states to make a SIP 
submission of this type arises out of CAA section 110(a)(1). Pursuant 
to section 110(a)(1), states must make SIP submissions ``within 3 years 
(or such shorter period as the Administrator may prescribe) after the 
promulgation of a national primary ambient air quality standard (or any 
revision thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon EPA's taking any action other than promulgating a new 
or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the

[[Page 62020]]

visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    A detailed rationale, history, and interpretation related to 
infrastructure SIP requirements can be found in our May 13, 2014 
proposed rule entitled, ``Infrastructure SIP Requirements for the 2008 
Lead NAAQS'' in the section, ``What is the scope of this rulemaking?'' 
(see 79 FR 27241 at 27242-27245).
    This rulemaking will not cover three substantive areas that are not 
integral to acting on a state's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction (``SSM'') at sources, that may be 
contrary to the CAA and EPA's policies ``SSM''; (ii) existing 
provisions related to ``director's variance'' or ``director's 
discretion'' that purport to permit revisions to SIP approved emissions 
limits with limited public process or without requiring further 
approval by EPA, that may be contrary to the CAA (collectively referred 
to as ``director's discretion''); and, (iii) existing provisions for 
PSD programs that may be inconsistent with current requirements of 
EPA's ``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), 
as amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, 
EPA has the authority to address each one of these substantive areas in 
separate rulemaking.
    In addition, EPA is not acting on section 110(a)(2)(D)(i)--
Interstate transport, section 110(a)(2)(J)--visibility protection, and 
portions of Ohio's submission addressing the prevention of significant 
deterioration, sections 110(a)(2)(C), (D)(i)(II), (D)(ii), and the 
prevention of significant deterioration (PSD) portion of (J) for 2008 
ozone NAAQS. EPA is also not acting on section 110(a)(2)(I)--
Nonattainment Area Plan or Plan Revisions Under Part D, in its 
entirety. The rationale for not acting on elements of these 
requirements was included in EPA's July 25, 2014 proposed rulemaking.

II. What is our response to comments received on the proposed 

    The public comment period for EPA's proposed actions with respect 
to Ohio's satisfaction of the infrastructure SIP requirements for the 
2008 ozone NAAQS closed on August 25, 2014. EPA received one comment 
letter related to the 2008 ozone NAAQS, and a synopsis of the adverse 
comments contained in this letter, as well as EPA's response, are 
provided below.
    Comment: The State of Connecticut asserts that Connecticut's 
ability to attain the 2008 ozone NAAQS is substantially compromised by 
interstate transport of pollution from upwind states. Specifically, 
Cross-State Air Pollution Rule (CSAPR) modeling shows emissions from 
Ohio contributing to the nonattainment problem in Connecticut. The 
State of Connecticut asserts it has done its share to reduce in-state 
emissions, and EPA should ensure that each upwind state addresses 
contribution to another downwind state's nonattainment. Connecticut 
states that CAA section 110(a)(1) requires states like Ohio to submit, 
within three years of promulgation of a new NAAQS, a plan which 
provides for implementation, maintenance, and enforcement of such NAAQS 
within the state. Connecticut characterizes Ohio's 2008 ozone 
submission for the good neighbor element of Ohio's SIP as relying on 
state regulations which implement the Clean Air Interstate Rule and 
CSAPR, and that such programs were intended by EPA to address the 1997 
ozone NAAQS and not the more stringent 2008 standard. Connecticut 
asserts EPA should therefore disapprove the Ohio submission. 
Connecticut also argues that, under section 110(a)(2), Ohio was 
required to submit a complete SIP that demonstrated compliance with the 
good neighbor provision of section 110(a)(2)(D)(i)(I). Connecticut 
further argues that the CAA does not give EPA discretion to take no 
action on the submitted good neighbor provisions on the grounds of 
taking a separate action. Instead, it asserts that the only action 
available to EPA is to determine the approvability of the good neighbor 
provision of Ohio's 2008 ozone NAAQS infrastructure SIP submission, or 
promulgate a FIP under section 110(c)(1) within two years.
    Response: As explained in the notice of proposed rulemaking (NPR), 
this action does not address, for the 2008 ozone NAAQS, the good 
neighbor provision in section 110(a)(2)(D)(i)(I), which prohibits 
emissions that significantly contribute to nonattainment or interfere 
with maintenance of the NAAQS in another state. Thus, to the extent the 
comment relates to the substance or approvability of the good neighbor 
provision in Ohio's 2008 ozone infrastructure SIP submission, the 
comment is not relevant to the present rulemaking. As stated herein and 
in the NPR, EPA will take later, separate action to address section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.
    EPA disagrees with the commenters' argument that EPA cannot approve 
a SIP without the good neighbor provision. Section 110(k)(3) of the CAA 
authorizes EPA to approve a plan in full, disapprove it in full, or 
approve it in part and disapprove it in part, depending on the extent 
to which such plan meets the requirements of the CAA. This authority to 
approve the states' SIP revisions in separable parts was included in 
the 1990 Amendments to the CAA to overrule a decision in the Court of 
Appeals for the Ninth Circuit holding that EPA could not approve 
individual measures in a plan submission without either approving or 
disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 
U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of 
Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).
    The Agency interprets its authority under section 110(k)(3) as 
affording EPA the discretion to approve or conditionally approve 
individual elements of Ohio's infrastructure submission for the 2008 
ozone NAAQS, separate and apart from any action with respect to the 
requirements of section 110(a)(2)(D)(i)(I) with respect to that NAAQS. 
EPA views discrete infrastructure SIP requirements, such as the 
requirements of 110(a)(2)(D)(i)(I), as severable from the other 
infrastructure elements, and interprets section 110(k)(3) as allowing 
EPA to act on individual severable measures in a plan submission. In 
short, EPA has discretion under section 110(k) to act upon the various 
individual elements of the state's infrastructure SIP submission, 
separately or together, as appropriate. The commenters raise no 
compelling legal or environmental rationale for an alternate 
    EPA notes, however, that it is working with state partners to 
assess next steps to address air pollution that crosses state 
boundaries and will later take a separate action to address section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. EPA's approval of the Ohio 
infrastructure SIP submission for the 2008 ozone NAAQS for the portions 
described in the NPR was therefore appropriate.

III. What action is EPA taking?

    The proposed rulemaking associated with today's final action was 
published on July 25, 2014 (79 FR 43338). The 2008 Pb, 2010 
NO2, and 2010 SO2 infrastructure SIPs were also 
addressed in the proposed rulemaking but will be addressed in a 
separate final rulemaking.
    For the reasons discussed in our proposed rulemaking and in the 

[[Page 62021]]

response to public comment, EPA is taking final action to approve, as 
proposed, Ohio's infrastructure SIP for the 2008 ozone NAAQS. Our final 
actions by element of section 110(a)(2) and NAAQS, are contained in the 
table below.

                   Element                             2008 Ozone
(A): Emission limits and other control         A
(B): Ambient air quality monitoring and data   A
(C)1: Enforcement of SIP measures............  A
(C)2: PSD program for Pb.....................  NA
(C)3: NOX as a precursor to ozone for PSD....  NA
(C)4: PM2.5 Precursors/PM2.5 and PM10          NA
 condensables for PSD.
(C)5: PM2.5 Increments.......................  NA
(C)5: GHG permitting thresholds in PSD         NA
(D)1: Contribute to nonattainment/interfere    NA
 with maintenance of NAAQS.
(D)2: PSD....................................  NA
(D)3: Visibility Protection..................  NA
(D)4: Interstate Pollution Abatement.........  A
(D)5: International Pollution Abatement......  A
(E): Adequate resources......................  A
(E): State boards............................  A
(F): Stationary source monitoring system.....  A
(G): Emergency power.........................  A
(H): Future SIP revisions....................  A
(I): Nonattainment area plan or plan           NA
 revisions under part D.
(J)1: Consultation with government officials.  A
(J)2: Public notification....................  A
(J)3: PSD....................................  NA
(J)4: Visibility protection..................  +
(K): Air quality modeling and data...........  A
(L): Permitting fees.........................  A
(M): Consultation and participation by         A
 affected local entities.
In the above table, the key is as follows:
NA--No Action/Separate Rulemaking.
+--Not germane to infrastructure SIPs.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    This rule is not approved to apply on any Indian reservation land 
or in any other area where EPA or an Indian tribe has demonstrated that 
a tribe has jurisdiction. In those areas of Indian country, the rule 
does not have tribal implications as specified by Executive Order 13175 
(65 FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 15, 2014. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action 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, ozone, Reporting and 
recordkeeping requirements.

    Dated: September 30, 2014.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:


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

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

2. Section 52.1891 is amended by adding paragraph (g) to read as 

Sec.  52.1891  Section 110(a)(2) infrastructure requirements.

* * * * *
    (g) Approval-- In a December 27, 2012, submittal, supplemented on 
June 7, 2013, Ohio certified that the State has satisfied the 
infrastructure SIP requirements of section 110(a)(2)(A) through (H), 
and (J) through (M) for the 2008 Ozone NAAQS. We are not finalizing 
action on section 110(a)(2)(D)(i)--Interstate transport, the visibility 
portions of section 110(a)(2)(J), and submissions addressing the 
prevention of significant deterioration requirements (PSD) in sections 
110(a)(2)(C), (D)(i)(II), (D)(ii), and the PSD portion of (J).

[FR Doc. 2014-24350 Filed 10-15-14; 8:45 am]