Background

No Man's Land Island, located approximately 3 NM south of Martha's Vineyard, MA, has been used by the military as a gunnery and bombing range dating back to 1943. It was used for this purpose until 1996. In 1998, management of the Island was transferred by the military to the U.S. Fish and Wildlife Service and the Island was designated a National Wildlife Refuge.

Since restricted areas R-4105A and R-4105B, that overlie the Island, are no longer utilized, the Air National Guard reviewed its future plans and requirements and determined that no requirement remains for the airspace.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 by removing restricted areas R-4105A and R-4105B, No Man's Land Island, MA. The Air National Guard and the U.S. Air Force notified the FAA that they no longer require these restricted areas and requested that the airspace be returned to the National Airspace System.

Because this action removes restricted airspace that is no longer needed for military purposes and returns the airspace to the National Airspace System, I find that notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

The FAA has determined that this action only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it returns restricted airspace that is no longer needed by the military to the National Airspace System.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Policies and Procedures, paragraph 311c. This action returns restricted airspace to the National Airspace System. It is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73, as follows:

The statute under which the Secretary of Transportation regulates commercial space transportation, 51 U.S.C. Subtitle V, sections 50901-50923 (chapter 509), provides for the Department of Transportation (DOT), and, through delegation, the Federal Aviation Administration (FAA) to impose civil penalties on persons who violate chapter 509, a regulation issued under chapter 509, or any term or condition of a license or permit issued or transferred under chapter 509. 51 U.S.C. 50906(h)-(i), 50917.

This rule implements the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), Public Law (Pub. L.) 101-410, as amended by the Debt Collection Improvement Act (DCIA) of 1996, Public Law 104-134, codified at 28 U.S.C. 2461 note.

The FCPIAA and DCIA require Federal agencies to adjust minimum and maximum civil penalty amounts for inflation to preserve their deterrent impact. Under these laws, each agency must make an initial inflationary adjustment for all applicable civil monetary penalties, and further adjust these penalties at least once every four years. The agency must adjust the amount of the penalty using a strict statutory formula discussed in more detail below.

This rule is the FAA's second adjustment to the maximum civil penalty found in 14 CFR part 406 which governs commercial space transportation adjudications. The initial adjustment to the maximum civil penalty found in 14 CFR part 406 occurred in 2010. 1

The FCPIAA determines inflationary adjustments by increasing civil penalties by a cost-of-living adjustment (COLA). Under the FCPIAA, the COLA for each civil penalty is the percentage by which the U.S. Department of Labor's Consumer Price Index for all-urban consumers (CPI-U) for the month of June of the calendar year preceding the adjustment exceeds the CPI-U for the month of June of the calendar year in which the amount of such civil penalty was last set or adjusted pursuant to the FCPIAA. The FCPIAA contains specific rules for rounding the inflationary increase.

Section 406.9 of 14 CFR currently imposes a maximum civil penalty of $110,000 for violations of chapter 509, a regulation proscribed under chapter 509, or any term or condition of a license or permit issued or transferred under chapter 509. To determine the appropriate adjustment that must be made pursuant to the FCPIAA, we first find the CPI-U for June of the calendar year preceding the year of adjustment is determined. Because the adjustment in this case is being made in 2014, we will use the June of 2013 CPI-U, which is 233.504. 2 Next, we determine theCPI-U for June of the year the civil penalty was last adjusted. Because the civil penalty was last adjusted in 2010, we would use the CPI-U for June of 2010, which is 217.965. 3

Next, we use the above CPI-U numbers to calculate the COLA. To do this, we subtract the CPI-U for June 2010 (217.965) from the CPI-U of June 2013 (233.504). We then divide the resulting difference (15.539) by theCPI-U for June 2010 (217.965). The resulting quotient (.07129) is then multiplied by 100 yielding a COLA of 7.129%.

To calculate the raw inflationary increase we multiply the current maximum civil penalty ($110,000) by the COLA (7.129%). This provides a raw inflation increase of $7,842. Next, we round the raw inflation amounts by the statutory rounding formula found in Section 5(a) of the FCPIAA. Determination of the proper rounding formula depends on the current amount of the civil penalty at the time the calculation is made, not the size of the raw inflationary increase. The applicable rounding formula for the existing civil penalty of $110,000 would be that “[a]ny increase . . . is rounded to the nearest . . . [m]ultiple of $10,000 in the case of penalties greater than $100,000 but less than or equal to $200,000 . . .” Thus, the raw increase of $7,842 becomes $10,000 after being rounded to the nearest $10,000. Finally, the increase of $10,000 is added to the current civil penalty $110,000, resulting in an inflation-adjusted civil penalty of $120,000.

Under the Administrative Procedure Act, 5 U.S.C. 553(b)(B), a final rule may be issued without public notice and comment if the agency finds good cause that notice and comment are impractical, unnecessary, or contrary to public interest. Good cause exists in this case to dispense with public notice and comment because adjustments to civil penalties for inflation are required by Congress, as set forth in Section 5 of the FCPIAA, in order to maintain the deterrent effect of civil penalties and promote compliance with the law. The FCPIAA serves as a Congressional mandate and the FAA may not exercise any discretion or policy judgments. The FAA also has no discretion as to the amount of the adjustment because the amount of the adjustment is determined using a strict statutory formula. Since the FCPIAA does not provide the FAA with any discretion regarding any aspect of this rulemaking, the FAA would be unable to make any changes to this rule in response to public comment. Accordingly, public comment is unnecessary in this case.

The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there are no current or new requirements for information collection associated with this rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulations justify its costs. Second, the Regulatory Flexibility Act of 1980 (RFA), Public Law 96-354, codified at 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act of 1999 (Trade Act), Public Law 96-39, codified at 19 U.S.C. 2501-2581, prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the U.S. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995, (Pub. L. 104-4), codified at 2 U.S.C. 658, 1501-03, and 1531-34, requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more, in any one year (adjusted for inflation).

DOT Order 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination is as follows. This rule adjusts for inflation the maximum civil penalty for violations of the Commercial Space Launch Act of 1984, to be in compliance with the Federal Civil Penalties Inflation Adjustment Act of 1990. This inflation adjustment is an economic transfer and not a social cost.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

As already noted, this rule adjusts for inflation only, as required by the Federal Civil Penalties Inflation Adjustment Act of 1990. Therefore, as FAA Administrator, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and determined that it would impose identical inflation adjusted civil penalties on domestic and international entities that violate 14 CFR part 406, and thus would have a neutral trade impact. Furthermore, the inflationary adjustment is a legitimate domestic objective preserving the existing deterrent impact of 51 U.S.C. subtitle V, chapter 509. Therefore, we have determined that this rule will result in a neutral impact on international trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $151 million in lieu of $100 million.

Because this final rule only increases a civil penalty by $10,000, as required by FCPIAA, it does not contain a mandate that meets this threshold amount. Therefore, the requirements of Title II of the act do not apply.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The FAA determined that this action would not have a substantial direct effect on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the FAA has determined that this final rule does not have federalism implications.

FAA Order 1050.1E defines FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA) in the absence of extraordinary circumstances. The FAA has determined this final rule qualifies for the categorical exclusion identified in Chapter 3, paragraph 312d, and involves no extraordinary circumstances.

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

You can get an electronic copy of rulemaking documents using the Internet by—

1. Searching the Federal eRulemaking Portal ( http://www.regulations.gov );

2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/rulemaking/; or

3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://www.regulations.gov.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact your local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. You can find out more about SBREFA on the Internet at http://www.faa.gov/regulations-policies/rulemaking/sbre-act/.

In consideration of the Foregoing, the Federal Aviation Administration amends part 406 of Title 14, Code of Federal Regulations as follows:

On March 17, 2011, Treasury published a notice of proposed rulemaking (NPRM) at 76 FR 14592, requesting comment on a proposed amendment to 31 CFR part 223 (Part 223), which implements the requirements of 31 U.S.C. 9304-9308.

The NPRM proposed two main amendments to Part 223. First, under NPRM § 223.17, Treasury proposed to clarify the circumstances under which a Federal agency bond-approving official could decline to accept a bond underwritten by a Treasury-certified surety. Second, under NPRM § 223.20, Treasury proposed to clarify the procedures and standard of review to be used by Treasury in adjudicating any complaint submitted by an agency to Treasury requesting that a surety's certificate be revoked.

After consideration of the comments received, Treasury is amending its regulation to expressly provide that an agency has discretion to decline to accept a bond underwritten by a Treasury-certified surety for cause, provided the agency satisfies the requirements specified in the final rule. Treasury is also revising the procedures it uses to adjudicate any complaint received from an agency requesting that a surety's certificate of authority be revoked.

Treasury sought comments on all aspects of the proposed rule. Treasury received 14 comment letters from a cross-section of entities and individuals associated with the surety industry. Five of these comment letters were submitted by surety companies, four by surety trade associations, three by law firms, and two by individuals. The two individuals work for immigration bonding companies or bonding agencies, but the letters were submitted in their individual capacities.

Thirteen of the commenters submitted comments that were opposed to the NPRM, as written, with several commenters suggesting the NPRM be withdrawn. The commenters who suggested the NPRM be withdrawn expressed the opinion that the current statutes and regulations are adequate to address the collection and performance issues that are of concern to Treasury.

One comment from a national trade association representing construction subcontractors, specialty trade contractors, and suppliers, supported the NPRM. This commenter emphasized that subcontractors working on Federal construction projects “rely on the payment bonds” underwritten by Treasury-certified sureties to ensure their final payment. This commenter emphasized that the Federal Government's extra oversight of this issue “will increase the value of this important payment assurance to subcontractors.”

1. Several commenters expressed the opinion that proposed § 223.17 conflicts with 31 U.S.C. 9305(e). Section 9305(e) provides that: “A surety corporation providing a surety bond under section 9304 of this title [31 U.S.C. 9304] may not provide any additional bond under that section if—(1) the corporation does not pay a final judgment or order against it on the bond; and (2) no appeal or stay of the judgment or order is pending 30 days after the judgment or order is entered.” These commenters suggest that section 9305(e) provides the only circumstances under which an agency can decline to accept a bond from a surety.

Section 223.17 does not conflict with section 9305(e). Section 9305(e) sets the statutory standard under which a surety's certificate of authority to write any additional bond for any agency is revoked by operation of law for failure to pay a final court judgment or order. In contrast, § 223.17, as articulated in the final rule, clarifies the scope of an agency's existing authority to decline to accept a particular bond or bonds from a surety.

Under 31 U.S.C. 9304(b), and its predecessor derivations, Congress expressly conditioned acceptance of a bond on the approval of a Federal agency bond-approving official. This provision authorizes agencies to decline to accept bonds underwritten by Treasury-certified sureties. In enacting this provision, Congress expressed the general intent that Treasury-certification status does not provide a guarantee to a surety that its bonds will be accepted by an agency in all cases. Federal courts have also recognized that agencies have the discretion to decline acceptance of bonds from Treasury-certified sureties. See, e.g., Concord Casualty & Surety Co. v. United States, 69 F.2d 78 (2d Cir. 1934); American Druggists Ins. Co. v. Bogart, 707 F.2d 1229 (11th Cir. 1983).

Several commenters appeared to suggest that a certificate, once granted, gives a surety the right to have its bonds approved in all cases, unless the surety's authority to write bonds is revoked by court order or judgment under 31 U.S.C. 9305(e). This view is incorrect as it fails to give effect to the intent of Congress under section 9304(b).

Moreover, a court judgment or order meeting the requirements of section 9305(e) precludes the surety from writing any Federal bond for any agency. In contrast, § 223.17 authorizes an agency official to decline bonds presented by a Treasury-certified surety to that agency for cause. The Treasury-certified surety is still authorized to present additional bonds to other agencies.

2. Several commenters expressed the view that Federal agencies often err in making administrative determinations that bond obligations are due and owing. These commenters believe that a court is the proper arbiter of bond disputes because agency administrative practices are allegedly deficient.

Treasury recognizes the importance of fair and accurate administrative processes. However, Treasury does not believe it is necessary or appropriate to require an agency to reduce every surety claim to judgment, or submit a surety revocation complaint to Treasury in every instance, in order to facilitate equitable and efficient resolution of surety performance and collection concerns at the agency level.

Under final rule § 223.17(b), a surety company is provided a series of protections before an agency can decline to accept its bonds. First, the agency must provide advance written notice to the surety and provide the surety with the opportunity to rebut the agency's reasons for declination and the opportunity to cure. Second, the agency must consider any submission by the surety and issue a written determination that the bonds should not be accepted. Third, the agency must issue a regulation pursuant to notice and comment rulemaking that articulates the agency's procedures and for cause standards for declining bonds. Treasury believes that these requirements will improve any agency practices that are allegedly deficient and will provide certified surety companies with adequate due process protections before their bonds can be declined by a particular agency.

If a surety is not satisfied with the agency bond-approving official's decision to decline bonds, the surety may petition a court of competent jurisdiction to stay or enjoin the agency's written determination to decline additional bonds from that surety. § 223.17(b)(5)(i).

3. Several commenters expressed concern that “administratively final bond obligation” was not defined in the NPRM for purposes of governing the exercise of agency discretion under § 223.17. One commenter suggested this lack of definition could lead to inconsistent definitions, procedures, and decisions across agencies.

Treasury believes that this determination should be left to the agency that is requiring the bond. Accordingly, final rule § 223.17(b)(3) requires the agency to define in its regulation when a bond obligation becomes administratively final under the agency's procedures.

4. Several commenters expressed concern that an agency bond-approving official could decline additional bonds based on a single bond obligation. One commenter stated the standard was coercive because it could force a surety to capitulate to the agency's demand for payment even if the surety has a good defense on a bond claim. One commenter expressed concern that the proposed rule would allow an agency to decline bonds for a “single, immaterial, or insignificant delinquency” rather than requiring that the declination be limited to a situation where the surety is “significantly delinquent either in the number of outstanding bills or dollar amounts thereof.”

Treasury expects that agencies will act in good faith when exercising their authority to decline bonds. The agency must provide the Treasury-certified surety with extensive administrative due process protections, as specified in § 223.17(b), prior to declining bonds from that surety.

5. Several commenters engaged in one agency's immigration surety bond business alleged that the agency does not afford sureties with adequate due process in determining when a bond obligation is administratively final and that the agency has a high administrative error rate in declaring bond obligations due. One commenter stated that giving that agency's bond-approving official the discretion not to accept additional bonds under the standards articulated in the proposed rule would give the agency unfettered discretion.

Treasury does not believe it would be appropriate to comment specifically on the allegations made by these commenters on a particular agency's alleged internal processes. We do emphasize, however, that Treasury believes that a fair and equitable administrative process is essential.

Our response to Comment #2 summarizes the due process protections afforded to sureties under the final rule. The final rule ensures a fair and equitable administrative process, and expressly provides that each agency may exercise the discretion to decline additional bonds under § 223.17(b), only in accordance with the specified requirements.

6. One commenter raised a concern that permitting agencies to define additional “for cause” reasons to decline bonds in agency-specific regulations, as provided in proposed § 223.17, would provide extraordinary leverage to agencies that already have allegedly flawed administrative processes. Another commenter raised a concern with the proposed “for cause” provision because of its inherent “lack of specificity and consistency, as well as the potential for misapplication and mis-implementation” across disparate agencies.

“For cause” includes circumstances when a surety has failed to pay or satisfy an administratively final bond obligation due the agency. Other “for cause” reasons for declining bonds will depend on the particular needs and concerns of each agency. The final rule under § 223.17(b)(3) requires an agency to issue a regulation subject to notice and comment rulemaking before declining any bonds. This requirement will ensure that surety companies have the opportunity to comment on the “for cause” reasons proposed by each agency.

7. Two commenters suggested the proposed rule would upset, or undermine, the surety bond contract tripartite relationship in which the surety (secondary obligor) agrees to be answerable to the obligee (Federal agency) for the debt or default of the principal (primary obligor). One of these commenters expressed concern that the proposed rule focuses on the obligation of the secondary obligor (the surety) without first affording the primary obligor (the principal) the right to have its position adjudicated. The commenter suggested this focus could yield inconsistent results if the surety satisfies the Federal agency's bond demand and the principal is required to indemnify the surety, but the principal later defeats the Federal agency's default claim in court.

The final rule in § 223.17(b)(3) requires the agency to articulate its procedures and for cause standards for declining bonds in a regulation subject to notice and comment rulemaking before it can decline bonds from a particular surety. That agency regulation must define when a bond obligation is administratively final. The terms of the final rule do not alter existing tripartite bond contract obligations, but reasonably balance the interests of the parties in determining when additional bonds presented to an agency may be declined.

8. As stated in the NPRM, Federal courts have affirmed that section 9304(b) affords agency bond-approving officials discretion to decline to accept a bond underwritten by a Treasury-certified surety, consistent with the due process standards articulated in the proposed rule. See, e.g., Concord Casualty & Surety Co. v. United States, 69 F.2d 78 (2d Cir. 1934); American Druggists Ins. Co. v. Bogart, 707 F.2d 1229 (11th Cir. 1983). One commenter stated that these cases, in dicta, merely stand for the proposition that a bond-approving official could disapprove a particular undertaking in a particular case. One commenter stated this authority is not a basis for the NPRM to authorize agencies to bar a surety on a blanket basis.

Treasury has broad administrative authority over certificate of authority matters. See Concord, 69 F.2d at 80-81 (The “supervision, conduct, and responsibility” of sureties operating under Treasury-issued certificates of authority is placed with Treasury). In the final rule, Treasury, in the exercise of its discretion, has decided that agency bond-approving officials may decline bonds from a Treasury-certified surety under section 9304(b) for cause. The agency must issue a regulation specifying the procedures and for cause standards for declining bonds. The Concord and American Druggists cases provide roadmaps for agencies to decline bonds in particular cases, in the absence of specific Treasury guidance. These cases do not limit, and in fact expressly recognize, Treasury's plenary authority to regulate certificates of authority that it issues.

9. One commenter stated that 31 U.S.C. 9305(d)(1) clearly and unambiguously provides that Treasury may revoke the authority of a surety corporation to do new business if the Secretary decides the corporation is insolvent or is in violation of sections 9304, 9305, 9306. The commenter stated that none of these three sections “authorize a Government agency to reject a bond issued by a surety who has an outstanding unpaid bond obligation that the agency contends is due and owing.”

As explained in the discussion under Comment #1, the discretion of a Federal agency to decline additional bonds underwritten by a Treasury-certified surety, consistent with the requirements of §§ 223.16 and 223.17 in the final rule, is authorized under 31 U.S.C. 9304(b).

10. Several commenters expressed the view that the proposed amendment to part 223 is not necessary as Treasury, in the NPRM, stated it has only recognized a problem with sureties in “anomalous and rare” cases. One commenter expressed the view that the proposed changes are excessive and punitive to sureties. Another commenter suggested the proposed changes would create more strife by compelling litigation and parallel administrative practices. This commenter stated “if the surety has independently investigated the merits of a claim and proceeded in a manner consistent with the outcome of its investigation [e.g., denied the agency's claim], it has acted responsibly and properly, even if it is ultimately determined in subsequent litigation that the surety's decision was incorrect.” In general, these commenters suggested that the government has adequate recourse against sureties, as sureties are precluded from writing additional bonds if they have not paid a final judgment under the standards of 31 U.S.C. 9305(e).

In the NPRM Treasury stated that the regulatory amendment was necessary to facilitate the prompt resolution of bond disputes between Federal agencies and sureties. Treasury noted that, in a limited number of cases, sureties appear to have simply ignored agency final decisions for extended periods of time. Treasury stated these “anomalous and rare” cases represented an unwelcome burden on the Treasury and the public fisc.

The NPRM proposed to address this concern. Treasury is particularly concerned with situations where a surety underwrites high-volume, low-dollar bonds, and hundreds, even thousands, of bond cases remain unresolved for extended periods of time. The commenters appear to suggest that a Treasury certificate, once granted, gives a surety the unilateral authority to decline every agency bond demand with impunity based on the surety's own internal investigations. These commenters suggest that the agency's recourse is to reduce each bond claim to a judgment; otherwise, the agency is compelled to continue doing business with that surety in all cases.

We disagree with this position. In our view, permitting an agency to decline additional bonds under certain circumstances, as provided in the final rule, may reduce litigation as the agency and surety will have the proper incentive to resolve disputes at the administrative level. Moreover, the discretion afforded to agencies under § 223.17(b) is consistent with, and gives effect to, 31 U.S.C. 9304(b).

11. One commenter expressed concern that the proposed rule would enable an agency to reject bonds from a Treasury-certified surety in accordance with standards in an agency-specific rule or regulation. Another commenter expressed concern that agency-specific standards could lead to inconsistent definitions, procedures, and decisions across agencies.

The agency regulations on declining bonds will be subject to notice and comment rulemaking. Surety companies will have the opportunity to express their concerns directly to the agencies during this process.

12. One commenter expressed concern that an agency's decision to decline payment and performance bonds on a project under proposed § 223.17, after the agency has already accepted a project bid bond underwritten by that same surety, could present contract complications, including a claim on the bid bond, because the principal may not be able to obtain a replacement surety in time.

We agree with the commenter that this sequence of events could present unintended contract complications. The final rule has been amended under § 223.17(b)(5)(ii) to provide that an agency's authority to decline bonds does not apply to otherwise acceptable payment and performance contract bonds, when the agency has already accepted a bid bond from the same surety on the particular project.

13. One commenter recommended proposed § 223.17(b)(3) be amended to require that an agency post notice of any proposed declination of bonds in the Federal Register within five days of the date the agency gives the surety written notice of its intention to decline bonds. This commenter also recommended that the proposed declination by the agency be posted by Treasury as an on-line supplement to Department Circular 570.

Section 223.17(b)(4), as provided in the final rule, encourages agencies “to use best efforts to ensure that persons conducting business with the agency are aware that bonds underwritten by the particular certified company will not be accepted.” Treasury believes each agency is in the best position to determine how this information should be provided to principals who may be seeking to do business with the agency. We do not believe it is appropriate to publish this information in Department Circular 570, as the surety will still be certified by Treasury to write bonds for any other agency.

14. One commenter asked whether the scope of an agency's authority to decline additional bonds under proposed § 223.17 is intended to permit the agency to also require the replacement of bonds previously accepted by that agency.

Section 223.17, in the final rule, is prospective and is not intended to require a principal to obtain replacement bonds that have already been accepted. In contrast, when Treasury revokes the authority of a surety to underwrite bonds for any agency, under 31 U.S.C. 9305(b)-(d) and 31 CFR 223.18-223.20, agencies are advised that they should secure new bonds for bonds currently in force if a significant amount of liability remains outstanding, and that continuous bonds should not be renewed.

15. Several commenters expressed concern that the proposed rule would require a surety to obtain injunctive relief in court in order to prevent the agency from declining additional bonds under the authority of § 223.17. One of these commenters expressed concern that this standard would permit an agency to impose sanctions which eliminate the obligation of the agency to prove its claim in court, i.e., reduce the claim to final judgment. Another commenter recommended that the agency not be permitted to decline additional bonds until the time to seek judicial review has expired or the judicial review has been completed. Another commenter noted that the injunctive relief requirement would result in a need to file and engage in inefficient fast-track litigation.

As noted above in our response to Comment #10, Treasury is of the view that permitting an agency to decline additional bonds, subject to a court of competent jurisdiction granting the surety injunctive relief, as provided in the final rule, may reduce litigation as the agency and surety will have the proper incentive to resolve disputes at the administrative level.

16. One commenter expressed concern that the “willful conduct” exception in the proposed rule would provide an agency too much discretion in deciding whether to permit the surety to cure its noncompliance to avoid non-acceptance of its bonds by the agency.

Under § 223.17(b)(1)(iv), as provided in the final rule, a surety has the opportunity to cure its noncompliance to avoid non-acceptance of its bonds by the agency. The “willful conduct” exception under § 223.20(g), as proposed and in the final rule, whereby a surety does not have the opportunity to cure its noncompliance in specified circumstances, only applies to Treasury revocation actions. Agencies do not have authority to exercise the “willful conduct” cure exception.

17. One commenter suggested that an agency's proposed decision to decline bonds should be submitted to an independent Administrative Law Judge under 5 U.S.C. 556, due to what the commenter describes as the serious nature of the action, the impact on the principal and surety, costs, and potential delays.

The formal adjudication requirements under the Administrative Procedure Act only apply in cases “required by statute to be determined on the record after an opportunity for an agency hearing.” 5 U.S.C. 554(a) and 556(a). The authority for an agency to decline additional bonds is established under 31 U.S.C. 9304(b) and 31 CFR 223.17(b). Section 556 procedures are not required because the surety statutes, 31 U.S.C. 9304-9308, do not require a formal adjudication to be determined on the record after an opportunity for a hearing.

18. One commenter suggested the proposed rule should be amended to provide guidance on Treasury's role in assuring that the standards in the rule and in an agency's rules and processes, meet minimum due process standards.

Treasury's final rule establishes requirements that apply to all agencies that exercise discretion under § 223.17(b) to decline bonds from Treasury-certified sureties.

19. Several commenters expressed concern that under proposed § 223.20 Treasury would not conduct a de novo review of an agency's administratively final decision (that the surety owes a past-due bond obligation) when adjudicating the agency's complaint requesting that the surety's certificate be revoked. The NPRM specified that Treasury would review whether the agency's administratively final decision (that the surety owes a past-due bond obligation) was reasonable, based on a consideration of relevant factors, and did not involve a clear error of judgment. The commenters expressed concern this standard of review would not provide sufficient opportunity for the surety to present its case to Treasury.

Treasury has amended § 223.20(f) in the final rule to provide that revocation complaints submitted to Treasury will be adjudicated by determining whether the default is clear and whether the company's failure to pay or satisfy the bonds is based on inadequate grounds. This standard of review retains, in large part, the existing standard under current 31 CFR 223.18. This change addresses the concerns raised by these commenters, and ensures that each surety has a meaningful opportunity to present its position to Treasury before a revocation is made. Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (Fundamental due process is satisfied when an individual is given the opportunity to be heard at a “meaningful time and in a meaningful manner”).

The final rule under § 223.20(a)(1) requires that an agency submitting a revocation complaint to Treasury certify that the bond obligation that is the subject of the complaint is administratively final under the agency's regulations or other authorities. In contrast to § 223.17 (which requires an agency to publish a regulation), this means that an agency has the discretion to submit a revocation complaint to Treasury without promulgating a regulation, as long as the bond obligation is administratively final under agency authorities and practices. This flexibility is appropriate due, in part, to the array of due process protections afforded to sureties by Treasury under § 223.20.

Treasury anticipates that its revocation decisions under § 223.20(f) will be subject to judicial review under the “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard set forth in 5 U.S.C. 706(2)(A). This is the judicial review standard of informal agency actions, including agency adjudications where no hearing or formal evidentiary standard is required by statute. Camp v. Pitts, 411 U.S. 138, 142 (1973); Castillo v. Army & Air Force Exchange Serv., 849 F.2d 199, 203, n. 1 (5th Cir. 1988) (reasoning that the arbitrary and capricious test of section 706(2)(A) is the appropriate standard for review of an administrative decision when an informal hearing is held or required, but not pursuant to statute).

20. Several commenters stated Treasury can only revoke a surety's certificate of authority to write Federal bonds if the surety fails to pay a final judgment on a bond that has not been stayed or appealed under 31 U.S.C. 9305(e). One commenter stated that proposed § 223.20 was an impermissible attempt to amend 31 U.S.C. 9305(e).

As detailed above in our responses to Comments #1 and #8, Congress granted to Treasury the administrative authority and responsibility to issue, regulate, and revoke certificates of authority to write Federal bonds. This broad authority is codified in 31 U.S.C. 9305(a)-(d). Section 9305(e) sets a statutory revocation standard that applies by operation of law when a surety fails to pay a final court judgment or order, without substantive review of the underlying dispute by Treasury. It does not preclude Treasury, as licensor, from establishing an administrative revocation standard based on its independent authority to do so under section 9305(a)-(d). Treasury's existing administrative revocation standards have been codified in regulations for many decades. For example, the source authorities for current 31 CFR 223.18-223.20 were published in the Federal Register as early as 1969, 1973, and 1977. Here, Treasury, in the reasonable exercise of its administrative discretion, has decided to update its existing administrative revocation standard under 31 CFR 223.20, as provided in the final rule.

21. Proposed § 223.20(c) provided that Treasury, on receipt of an agency complaint meeting the stated requirements, will notify the surety that its certificate “will” be revoked in the absence of a satisfactory explanation. One commenter suggested this provision should be amended to provided that Treasury “may” revoke the certificate, which is the standard provided in the current regulation.

The final rule has been amended under § 223.20(c) to provide that Treasury will notify the surety of the agency complaint, and the notice will afford the surety the opportunity to address the complaint and demonstrate its qualifications to retain its certificate. The resolution of the complaint by Treasury is governed by § 223.20.

22. One commenter expressed concern that the formal rules of evidence and the formal adjudication standards provided by the Administrative Procedure Act would not apply to the informal hearing afforded to a surety under proposed § 223.20(f) and (h)(6) and (7).

The formal adjudication standards under the Administrative Procedure Act only apply in cases “required by statute to be determined on the record after an opportunity for an agency hearing.” 5 U.S.C. 554(a). As discussed in our response to Comment #17, the surety statutes, 31 U.S.C. 9304-9308, do not require a formal adjudication to be determined on the record after an opportunity for a hearing.

23. Several commenters suggested that the administrative revocation standards under proposed § 223.20 should be amended to provide a surety more due process before Treasury makes a revocation decision. Some commenters suggested the final rule be amended to provide the surety an opportunity for a trial-like evidentiary hearing in § 223.20 revocation actions.

Fundamental due process is satisfied when an individual is given notice and the opportunity to be heard at a “meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976). Section 223.20 in the final rule provides a panoply of due process protections to ensure compliance with this standard. Before Treasury commences a revocation action, the agency must certify to Treasury that the bond obligations that are the subject of the complaint are administratively final under the agency's regulations or other authorities. § 223.20(a)(1). The agency must submit documentation to Treasury supporting the complaint. § 223.20(b). In addition, the agency must certify that the surety's obligation to pay the bonds has not been stayed or enjoined by a court of competent jurisdiction. § 223.20(a)(3).

Upon receipt of the complaint, Treasury notifies the surety of the facts and conduct referenced in the complaint, and provides the surety the opportunity to demonstrate its qualifications to retain its certificate. § 223.20(c). Treasury affords the surety the opportunity to request an informal hearing. § 223.20(h)(1). If an informal hearing is requested, Treasury provides the surety with written notice of the time and place of the hearing, directs the surety to bring all documents necessary and relevant to support its position, offers the surety the opportunity to be represented by counsel at the hearing, and affords the surety the opportunity to present any relevant material and to examine the administrative record. § 223.20(h)(2), (3) and (4). The complaining agency may be requested to send a representative to the hearing to present any relevant material. § 223.20(h)(5). The Treasury Reviewing Official is authorized to require the submission of additional documentation from the complaining agency and the surety to ensure appropriate consideration of relevant factual or legal issues. § 223.20(h)(6). The Treasury Reviewing Official prepares a written recommendation to the Treasury Deciding Official setting forth findings and a recommended disposition. § 223.20(h)(10). The Treasury Deciding Official makes the final decision based on the specified administrative record, which includes documentation submitted by the surety. § 223.20(h)(10).

Due process is flexible “and calls for such procedural protections as the particular situation demands.” Matthews, 424 U.S. at 334 (internal citations omitted). A surety's protected interest in its certificate of authority to write Federal bonds “is indeed narrow.” American Druggists Ins. Co. v. Bogart, 707 F.2d 1229, 1235 (11th Cir. 1983). Given this narrow interest, rudimentary due process requires “notice reasonably calculated to apprise the surety of the charge of unreliability, and an opportunity to rebut that charge.” Id. at 1237. The protections in § 223.20, as provided in the final rule, are more than adequate to satisfy the process required.

24. One trade association, whose members underwrite Federal bonds on which the Customs and Border Protection (CBP) agency is the obligee, expressed the opinion that CBP-specific authorities set a higher standard for actionable surety delinquency and due process standards than the proposed rule. The commenter suggested that Treasury should adopt the CBP standards, or clarify that the Treasury final rule does not take precedence over CBP standards in the context of customs bonds.

CBP has promulgated, under its own specific authority, a regulation that governs when CBP is authorized to decline additional customs bonds from a surety when a surety is in default on a customs bond. See, e.g., 19 U.S.C. 66, 1623, 1624; 19 CFR 113.38. Given the CBP specific authority, the Treasury final rule under § 223.17(b) does not supersede or take precedence over the CBP regulation. However, Treasury declines to accept the CBP standards for government-wide application; therefore, CBP surety bond regulations do not apply to surety bonds presented to, or accepted by, other agencies.

25. The trade association whose members write Federal customs bonds on which the CBP agency is the obligee, recommended that the final rule enhance the CBP-specific regulation in several ways.

Treasury is not in a position to amend a CBP-specific regulation, and declines to do so. Instead, Treasury has considered whether the suggestions made by this commenter are appropriate for the Treasury regulation and has amended the final rule, as appropriate.

26. Two commenters suggested the proposed rule was a “significant regulatory action” which should be subject to additional regulatory review procedures under Executive Order 12866. One of these commenters suggested if an agency declines to accept bonds from a Treasury-certified surety, or if Treasury revokes a surety's certificate, it will have an effect on the economy of $100 million or more, depending on which surety is involved.

Treasury has determined that the proposed regulation will not have an effect on the economy of $100 million or more because of the rule's limited scope. Federal bond-approving officials already have statutory authority under 31 U.S.C. 9304(b) to determine which bonds proffered by Treasury-certified sureties are acceptable. Section 223.17(b) of the final rule provides that an agency bond-approving official may decline bonds from a Treasury-certified surety for cause, provided the due process standards are met. This provision does not impact a Treasury-certified surety's authority to underwrite bonds that are presented to other Federal agencies for acceptance. Under final rule 31 CFR 223.17(b)(5)(i), the agency declination authority does not apply when the “for cause” basis or reason has been stayed or enjoined by a court of competent jurisdiction. In addition, Treasury already has existing authority under current 31 CFR 223.18 to revoke a surety's certificate of authority based on a complaint received from an agency; see also 31 U.S.C. 9305(d)(1) (example of Treasury's revocation authority). The final rule under 31 CFR 223.20 updates the procedures used by Treasury to adjudicate agency revocation complaints. Final rule 31 CFR 223.20(a)(3) requires an agency submitting a revocation complaint to Treasury to certify that the bond obligations which are the subject of the complaint have not been stayed or enjoined by a court of competent jurisdiction.

27. One commenter suggested that the NPRM 60-day comment period should be extended to ensure a sufficient number of responses are received.

The publication of the NPRM in the Federal Register , including the 60-day notice and comment period, resulted in the submission of 14 comment letters to Treasury. These letters, which were submitted by individuals and a cross-section of the industry, included substantive and thorough comments on a broad range of issues associated with the proposed rule. The 60-day notice and comment period gave interested parties the opportunity to participate in the rulemaking, consistent with 5 U.S.C. 553(b)(c).

28. One commenter expressed concern that Federal contractors would be impacted by the revocation of surety certificates of authority under the NPRM. This commenter emphasized that it takes time for a contractor, particularly a small and emerging contractor, to develop a relationship with a surety, and if a surety's certificate is revoked under the terms of the proposed rule, such a contractor may not be able to find a replacement in time to qualify for Federal work. This commenter noted this could cause the contractor to fail and may have the effect of lessening competition on agency contracts.

Treasury certifies sureties for the primary purpose of ensuring that a Federal agency's position is protected in the event of a default by a principal. This purpose is not furthered by a surety that fails to satisfy bond obligation(s), or whose certificate of authority is revoked by Treasury, as provided in § 223.20. Section 223.17(b)(5)(ii) of the final rule mitigates against undue impact on Federal contractors by providing that an agency's authority to decline additional bonds does not apply to proffered payment and performance contract bonds, when the agency has already accepted a bid bond from the principal on the same project. Moreover, the surety is given the right to cure to avoid agency declination of bonds under § 223.17(b)(1)(iv), and, in general, is given the right to cure to avoid revocation of its certificate by Treasury under § 223.20(e)(2).

29. One commenter requested the opportunity to provide testimony on the NPRM if Treasury conducts hearings on the proposed revisions.

The 60-day notice and comment period gave interested parties the opportunity to participate in the rulemaking, consistent with 5 U.S.C. 553(b)(c). Treasury received 14 comment letters from individuals and a cross-section of the industry. These letters included substantive and thorough comments on a broad range of issues associated with the proposed rule. Treasury has considered and addressed these comments, as reflected in the final rule, and Treasury does not believe it would be further informed by conducting a hearing on the NPRM. A hearing is not required. 5 U.S.C. 553(b)(c).

Revised § 223.1 states, in plain language, that Part 223 governs the issuance and revocation of certificates of authority of surety companies to do business with the United States as sureties on, or reinsurers of, Federal surety bond obligations, and the acceptance of such obligations. The final rule deletes archaic language and clarifies that the U.S. Department of the Treasury, Bureau of the Fiscal Service (Treasury), acts on behalf of the Secretary of the Treasury in performing these duties.

Revised § 223.2 provides that applications for certificates of authority should be submitted to Treasury at the location, and in the manner, specified online at http://www.fiscal.treasury.gov/fsreports/ref/suretyBnd/surety_home.htm, as amended from time to time.

Section 223.3(a) establishes, in part, the requirements that must be met by an applicant company in order to be issued a certificate of authority by Treasury. Revised § 223.3(a) restates such requirements in plain language. In addition, the final rule clarifies that any certificate issued by Treasury is expressly subject to continued compliance by the surety with all statutory requirements and the other conditions referenced in this part.

Revised § 223.4 provides that no company will be issued a certificate of authority by Treasury unless it maintains on deposit with the insurance commissioner of the State in which it is incorporated, or other specified State official, legal investments having a current market value of $100,000 or more, for the protection of claimants, including the surety's policyholders in the United States. Revised § 223.4 adds a sentence requiring a company to submit to Treasury with its initial application for a certificate of authority, and annually thereafter, a written statement signed by the State official attesting to the current market value of the deposit and that the legal investments remain on deposit with the State.

Section 223.8 requires Treasury-certified sureties to file annual and quarterly financial reports to Treasury for review. Revised § 223.8(a) updates the specified Treasury official to whom these reports should be submitted. Revised § 223.8(a) specifies that the reports must be submitted using the annual and quarterly statement blanks adopted by the National Association of Insurance Commissioners.

Section 223.9 establishes the criteria by which Treasury values the assets and liabilities of a company for certificate of authority purposes. Revised § 223.9 provides that Treasury will allow credit for reinsurance in all classes of risk if the reinsuring company holds a certificate of authority from Treasury, or has been recognized as an admitted reinsurer by Treasury. Revised § 223.9 clarifies that this credit for reinsurance will be allowed only if the reinsurer is in continued compliance with all certificate of authority requirements.

Revised § 223.11(b) provides that a surety can underwrite a Federal bond in excess of its underwriting limitation if the excess amount is reinsured by a company holding a certificate of authority issued by Treasury, provided the specified reinsurance requirements are met. Revised § 223.11(b) states that the requisite reinsurance bond forms are available on the General Services Administration Web site at www.gsa.gov.

Section 223.12 establishes the application requirements and standards for a company to be recognized by Treasury as an admitted reinsurer (except on excess risks running to the United States) for surety companies doing business with the United States. When a Treasury-certified surety cedes non-Federal risks to an admitted reinsurer, Treasury will credit the surety for the ceded reinsurance when valuing its assets and liabilities, provided applicable requirements are met. Revised § 223.12 updates the specified Treasury official to whom applications and reports pertaining to admitted reinsurer status should be submitted.

Revised § 223.16 adds two new sentences to the end of this subpart. These sentences clarify that Treasury-certified companies have the opportunity to present their bonds to an agency bond-approving official for acceptance, but that the actual acceptance of a bond by an agency bond-approving official is subject to revised § 223.17.

Revised § 223.17(a) provides that a Treasury-certified company may present its bonds to any agency bond-approving official for acceptance, and that such bond-approving official may accept such bonds.

Revised § 223.17(b)(1) provides that an agency bond-approving official may decline bonds from a Treasury-certified surety for cause, provided the agency gives advance written notice to the agency.

Revised 223.17(b)(2) provides that the agency may decline bonds after consideration of any submission by the company and after a written determination by the agency to decline the bonds that is consistent with agency authorities.

Revised § 223.17(b)(3) requires the agency to issue a regulation articulating the agency's procedures and for cause standards for declining to accept bonds. The regulation should define when a bond obligation becomes administratively final under the agency's procedures.

Revised § 223.17(b)(4) encourages agencies to ensure that persons conducting business with the agency are aware that bonds from a particular certified company will not be accepted.

Revised § 223.17(b)(5) provides that the agency's authority to decline bonds does not apply to bonds where the underlying obligation or other for cause reason that forms the basis for the declination has been stayed or enjoined by a court of competent jurisdiction, or to payment and performance contract bonds when the agency has already accepted a bid bond from the company on a particular project.

Revised § 223.17(b)(6) provides that an agency bond-approving official may decline a bond from a Treasury-certified surety without advance notice to the surety if the bond is not executed in proper form, or is not in the correct penal sum amount, or is otherwise technically deficient.

Revised § 223.18 states that revocation of a surety's certificate of authority by Treasury can occur in two ways. First, Treasury can initiate a revocation proceeding on its own initiative under final rule § 223.19 when it has reason to believe that a surety is not complying with 31 U.S.C. 9304-9308 and/or Part 223. Second, Treasury can initiate a revocation proceeding under final rule § 223.20 upon receipt of a complaint from an agency meeting the requirements of that section.

Revised § 223.19 states the process by which Treasury initiates proceedings on its own accord to revoke a surety's certificate of authority for failure to meet the requirements of 31 U.S.C. 9304-9308 and/or Part 223.

Revised § 223.20 specifies the process for an agency to submit a complaint to Treasury requesting that a certified surety's certificate of authority be revoked for failure to pay or satisfy one or more administratively final bond obligations. Under revised § 223.20(a)(1), the agency submitting the complaint to Treasury must certify that the bond obligations that are the subject of the complaint are administratively final under the agency's regulations or other authorities. The agency must also certify to Treasury that the obligation to pay or satisfy the bond obligations has not been stayed or enjoined by a court. § 223.20(a)(3).

Revised § 223.20(c) and (d) afford the surety the opportunity to demonstrate its qualifications to retain its certificate, and establish the role of the Treasury Reviewing Official and the Treasury Deciding Official in the adjudicative process.

Revised § 223.20(f) provides that revocation complaints will be adjudicated by Treasury based on a determination whether the default is clear and whether the surety's failure to pay or satisfy the bonds is based on inadequate grounds.

Revised § 223.20(h) retains the right of a surety to request an informal hearing before Treasury makes its revocation decision. The final rule specifies the procedures under which such an informal hearing would be conducted. Under the final rule, the formal adjudication standards of the Administrative Procedure Act (APA), 5 U.S.C. 554, 556, 557 do not apply to the informal hearing or adjudication process.

In the event that Treasury sustains the agency's complaint and makes a decision that the surety's certificate should be revoked, revised § 223.20(e)(2) provides a surety will be afforded an opportunity to cure the noncompliance to avoid decertification, unless its noncompliance is “willful.” Revised § 223.20(g) articulates the scope and application of the willful exception to the cure opportunity.

Revised § 223.21 provides that a surety whose certificate of authority has been revoked or not renewed by Treasury can apply for reissuance of a certificate of authority after one year. Among other things, such a surety must demonstrate as a condition of reinstatement that the basis for the non-renewal or revocation of its certificate has been eliminated. Under revised § 223.21 the determination of whether the basis for the non-renewal or revocation has been eliminated or effectively cured will be made by Treasury in its discretion.

The final rule does not meet the criteria for a “significant regulatory action” as defined in Executive Order 12866. Therefore, the regulatory review procedures contained therein do not apply.

It is hereby certified that the final rule will not have a significant economic impact on a substantial number of small entities. Treasury-certified sureties have an existing obligation to make payment on bond obligations to ensure acceptance of their bonds by agency bond-approving officials under 31 U.S.C. 9304(b). The rule merely codifies this existing obligation in the regulation and clarifies that Federal agencies can decline to accept bonds underwritten by Treasury-certified sureties for cause. In addition, the final rule revises the existing procedures and standard of review that will be used by Treasury in adjudicating revocation complaints submitted by agencies. Accordingly, a regulatory flexibility analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is not required.

Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (Unfunded Mandates Act), requires that the agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires the agency to identify and consider a reasonable number of regulatory alternatives before promulgating the rule. We have determined that the final rule will not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, we have not prepared a budgetary impact statement or specifically addressed any regulatory alternatives.

For the reasons set out in the preamble, 31 CFR part 223 is amended to read as follows:

I. Background

Section 128 of the CAA requires SIPs to comply with the requirements regarding State Boards. Section 110(a)(2)(E)(ii) of the CAA also references these requirements. Section 128(a) of the CAA requires SIPs to contain provisions that: (1) Any board or body which approves permits or enforcement orders under the CAA shall have at least a majority of its members represent the public interest and not derive any significant portion of their income from persons subject to permits or enforcement orders under the CAA; and (2) any potential conflict of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed. The requirements of section 128(a)(1) are not applicable to Pennsylvania because it does not have any board or body which approves air quality permits or enforcement orders. The requirements of section 128(a)(2), however, are applicable because the heads of the Pennsylvania Department of Environmental Protection (PADEP), the Allegheny County Health Department (ACHD), and Philadelphia Air Management Services (AMS), or their designees, approve permits or enforcement orders within Pennsylvania.

On July 15, 2014, the Commonwealth of Pennsylvania, through PADEP, submitted a SIP revision to address the requirements of sections 128 and 110(a)(2)(E)(ii) for all criteria pollutants of the NAAQS in relation to State Boards. This submission addressing sections 128 and 110(a)(2)(E)(ii) for all NAAQS was part of a larger SIP revision submitted on the same date which addresses requirements in section 110(a) for the 2008 ozone NAAQS; however, EPA will take later separate rulemaking action on the remainder of that July 15, 2014 SIP submission.

Previously, on September 24, 2012, Pennsylvania submitted a SIP revision to satisfy several requirements of section 110(a)(2) of the CAA for the 2008 Lead NAAQS. On April 7, 2014, EPA published a Final Rulemaking Notice in which EPA approved certain elements of Pennsylvania's SIP submittal for the 2008 Lead NAAQS and stated that EPA would take separate action on the submittal as it related to requirements in sections 110(a)(2)(E)(ii) and 128 of the CAA. 79 FR 19009.

This rulemaking action approves certain statutory provisions for the Pennsylvania SIP submitted by PADEP to meet the requirements of section 128 of the CAA. Upon meeting the requirements of section 128, Pennsylvania will also meet the requirements of section 110(a)(2)(E)(ii) of the CAA for all criteria pollutants of the NAAQS in relation to State Boards.

Pennsylvania's statutory provisions governing the relevant section 128 requirements are in Chapter 11 of the Pennsylvania Public Official and Employee Ethics Act (PA Ethics Act), found at 65 Pa.C.S. sections 1101-1109. The Secretary of PADEP and heads of ACHD and AMS, as well as the state employees subordinate to those positions, are subject to the requirements of Chapter 11 of the PA Ethics Act. In order to meet the requirements of CAA sections 128 and 110(a)(2)(E)(ii), Pennsylvania is seeking to incorporate into the SIP the relevant provisions of Chapter 11 of the PA Ethics Act, including certain relevant portions of sections 1101, 1102, 1104, 1105, and 1109. The Commonwealth's effective dates for these sections of Chapter 11 will be listed in the table in 40 CFR 52.2020(c).

Sections 128 and 110(a)(2)(E)(ii) require that each state's SIP demonstrate how state boards, bodies or heads of executive agencies which approve CAA permits or enforcement orders disclose any potential conflicts of interest. The Secretary of PADEP and heads of ACHD and AMS, or their designees, approve all CAA permits and enforcement orders in Pennsylvania. All three agencies are executive agencies that act through their respective Secretary, head, or delegated subordinate state or local employees. Pennsylvania submitted relevant provisions of Chapter 11 of the PA Ethics Act for inclusion into the SIP as required by sections 128 and 110(a)(2)(E)(ii). Chapter 11 of the PA Ethics Act applies to public officials and employees and requires them to disclose relevant financial information including direct and indirect financial interests, income and gifts. This SIP revision will incorporate existing Pennsylvania law into the SIP and demonstrates that Pennsylvania complies with the requirements of sections 128 and 110(a)(2)(E)(ii) of the CAA for all NAAQS pollutants through the relevant sections of Chapter 11 of the PA Ethics Act for adequate disclosure of potential conflicts of interest.

EPA is approving the portion of the July 15, 2014 Pennsylvania SIP revision that addresses the requirements of sections 128 and 110(a)(2)(E)(ii) of the CAA for all criteria pollutants of the NAAQS. EPA is also specifically approving Pennsylvania's September 24, 2012 SIP revision for the 2008 Lead NAAQS as addressing the requirements in section 110(a)(2)(E)(ii) of the CAA. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 15, 2014 without further notice unless EPA receives adverse comment by November 17, 2014. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action, approving the Pennsylvania SIP revision for purposes of meeting sections 128 and 110(a)(2)(E)(ii) requirements for all criteria pollutants of the NAAQS in relation to State Boards, may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

The FDEP revision requests that EPA remove two state rules—Rule 62-212.600, Florida Administrative Code (F.A.C.), “Sulfur Storage and Handling Facilities” and Rule 62-296.411, F.A.C., “Sulfur Storage and Handling Facilities”—from Florida's SIP. Florida repealed these rules on February 16, 2012.

The requirements of Rule 62-212.600, F.A.C., apply to proposed new or modified sulfur storage and handling facilities. The rule states that the owner or operator of any proposed new or modified sulfur storage and handling facility that is to be located within five kilometers of either a particulate matter (PM) air quality maintenance area or a prevention of significant deterioration (PSD) Class I area shall provide FDEP with an analysis of the probable particulate matter ambient air quality impacts that could result from the operation of the facility. Additionally, the owner or operator shall provide FDEP with an analysis of the probable annual and maximum monthly sulfur deposition rates that could occur as a result of the operation of the facility. The owner or operator shall conduct post-construction air quality and deposition monitoring of sulfur particulate emissions from the facility for two years from the date of issuance of the initial air operation permit for the facility, and, through the permitting process, shall determine the period of time, if any, such monitoring must be continued. The data collected would then be provided to FDEP as specified in the permit. Florida states that the “General Preconstruction Review Requirements” and “Prevention of Significant Deterioration (PSD)” provisions of the Rules 62-212.300 and 62-212.400, F.A.C., respectively, can be used instead of Rule 62-212.600, F.A.C., to prevent PM emissions that would interfere with attainment and maintenance of national ambient air quality standards (NAAQS), prevention of significant deterioration of air quality, or protection of visibility.

Rule 62-296.411, F.A.C., states that no person shall cause, suffer, or allow elemental sulfur to be stored, handled, or transported within the State in crushed bulk or slate form or in any form other than standard sulfur pellets or in molten form, except that sulfur may be transferred within the boundaries of a single facility in other forms. Facilities using standard sulfur pellets or molten sulfur, or sulfur vatting facilities, may be permitted only in conformance with the practices identified in the rule. Florida states that the “General Pollutant Emission Limiting Standards” of Rule 62-296.320, F.A.C., can be applied instead of Rule 62-296.411, F.A.C., to adequately control PM emissions from dry material handling operations such as those associated with sulfur storage and handling facilities.

With removal of the above two rules from the SIP, Florida's PM requirements under the SIP for new and existing sulfur storage and handling facilities would align with the PM requirements for other, similar dry material handling sources in the State. At the time that Florida promulgated its sulfur storage and handling rules, the State was concerned that total suspended particulate matter levels in Florida would be negatively impacted by increased sulfur handling and storage operations to such an extent as to warrant additional facility-specific work practices and monitoring. However, the anticipated increase in sulfur handling and storage operations did not occur, and only 11 facilities are subject to Rule 62-212.300, F.A.C. and Rule 62-212.400, F.A.C. EPA approved these two rules into the SIP on December 24, 1985, at 50 FR 52460. 1

EPA's primary consideration for determining the approvability of Florida's request to remove the existing sulfur storage and handling facilities rules, 62-212.600, F.A.C. and 62-296.411, F.A.C., from the SIP is whether these requested actions comply with section 110(l) of the CAA. Under section 110(l), EPA cannot approve a SIP revision if that revision would interfere with any applicable requirement regarding attainment, reasonable further progress (RFP), or any other applicable requirement established in the CAA. EPA will approve a SIP revision that removes or modifies control measures in the SIP only after the state makes a “noninterference” demonstration that such a removal or modification will not interfere with RFP, attainment or maintenance of any NAAQS, or any other CAA requirement. As such, Florida was required to make a demonstration of noninterference in order to remove the sulfur storage and handling facilities requirements from its SIP.

Because actual emissions are not expected to change, there will be no impact on PSD increments, RFP, visibility, attainment or maintenance of any NAAQS, or any other applicable CAA requirement. Particulate matter, in the form of coarse (PM 10 ) and fine (PM 2.5 ) PM, is the pollutant related to the SIP revision. On January 15, 2013 (78 FR 3086), EPA established an annual primary PM 2.5 NAAQS at 12.0 micrograms per cubic meter (μg/m 3 ) based on a 3-year average of annual mean PM 2.5 concentrations. At that time, EPA retained the 2006 24-hour PM 2.5 NAAQS at 35 μg/m 3 based on a 3-year average of the 98th percentile of 24-hour concentrations. All areas in the State are currently designated as attainment for the PM 10 and PM 2.5 NAAQS.

There are no emissions reductions of carbon monoxide (CO), lead, nitrogen oxides, ozone, or sulfur dioxide (SO 2 ) attributable to the sulfur storage and handling facilities requirements. As a result, the removal of these requirements will not interfere with attainment of these NAAQS.

Of the 11 facilities that are subject to the sulfur handling and storage emission rules, four will experience a relaxation in the opacity limit from 10 or 15 percent to 20 percent if 62-212.600, F.A.C. and 62-296.411, F.A.C. are removed from the SIP, but emissions are not expected to increase because the underlying work practices will remain unchanged. The sulfur particulate emitting emissions units at these four facilities are approximately less than one ton per year, and a majority of the visible emissions tests conducted in 2010-11 for sulfur storage and handling units showed no visible emissions (i.e., zero percent opacity).

Furthermore, several existing state rules incorporated into Florida's SIP can be applied in lieu of Rules 62-212.600, F.A.C. and 62-296.411, F.A.C. to address sulfur PM emissions from sulfur storage and handling emissions units at these facilities. Rules 62-212.300 and 62-212.400, F.A.C., respectively, can be applied instead of the sulfur-specific requirements of paragraph 62-212.600(2)(a), F.A.C., to evaluate potential particulate matter ambient air quality impacts. The sulfur deposition analysis required by paragraph 62-212.600(2)(b), F.A.C., is unnecessary because there is no standard to compare the results with to demonstrate compliance. Rule 62-296.411, F.A.C., the “General Pollutant Emission Limiting Standards” of Rule 62-296.320, F.A.C., and, for some emissions units, the PM Reasonably Available Control Technology requirements of Rule 62-296.711, F.A.C., can be applied to control the sulfur PM emissions from sulfur storage and handling emissions units at these facilities. Rule 62-296.711, F.A.C. generally imposes a five percent opacity limit for existing sulfur handling, sizing, screening, crushing, and grinding operations in former total suspended particulate nonattainment areas or within 50 kilometers of such former areas except where an emissions unit has received a Best Available Retrofit Technology determination or the emissions are insignificant enough to be exempted under Rule 62-296.700(2), F.A.C. The control techniques and work practice standards found in Rule 62-296.411, F.A.C., to control unconfined emissions of particulate matter can also be required by paragraph 62-296.320(4)(c), F.A.C., which prohibits the emission of unconfined particulate matter without taking reasonable precautions to prevent such emissions.

For the reasons discussed above, EPA has determined that removal of the sulfur storage and handling facilities rules will not interfere with attainment or maintenance of the NAAQS in surrounding states or interfere with any other requirement identified in section 110(l). On July 1, 2014 (79 FR 37255), EPA proposed approval of the Florida April 5, 2012, submission. No adverse comments were received on this proposed action and EPA is hereby finalizing approval of the revision.

EPA is taking final action to approve Florida's April 5, 2012, SIP revision to remove Rule 62-212.600, F. A. C. and Rule 62-296.411, F. A. C., related to sulfur storage and handling facilities, from the Florida SIP because the Agency has determined that this revision is consistent with section 110(l) of the CAA.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 final 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 (Public Law 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).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by 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).

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

This final rulemaking addresses the March 12, 2014, WDNR submittal for parallel processing, supplemented on April 15, 2014, revising the rules in the Wisconsin SIP to comply with the 2008 NSR Implementation Rule for PM 2.5 (2008 PM 2.5 NSR Rule) and to address two previous EPA disapprovals. WDNR supplemented its initial submittal for parallel processing with the final version of its rule on August 11, 2014. The original submission for parallel processing, and the supplements thereto, may be found in the docket for this action. EPA proposed approval of this revision to Wisconsin's SIP on June 30, 2014 (79 FR 36689).

WDNR's submittal includes the required PSD elements of the 2008 PM 2.5 NSR Rule including the identification of precursors for PM 2.5 , the significant emissions rates for PM 2.5 and the requirement to include emissions which may condense to form particulate matter at ambient temperatures, known as condensables, in permitting decisions. EPA had previously finalized disapprovals of two Wisconsin SIP submissions pertaining to PM 2.5 NSR implementation. Specifically, on October 29, 2012, EPA finalized disapproval of Wisconsin's infrastructure SIP submittal (77 FR 65478) and on July 25, 2013, EPA finalized disapproval of Wisconsin's May 12, 2011, submittal (78 FR 44881), which included revisions intended to comply with the 2008 PM 2.5 NSR Rule. EPA disapproved these submittals on the bases that they did not explicitly identify precursors to PM 2.5 and did not include the required language regarding condensables as required by the 2008 PM 2.5 NSR Rule and section 110(a)(2)(C) of the CAA. As discussed in the June 30, 2014, proposed approval, EPA has found Wisconsin's March 12, 2014, submittal to contain all of the required elements and to address the previously identified deficiencies.

Although the 2008 PM 2.5 NSR Rule also codified requirements for PM 2.5 in the Nonattainment NSR (NNSR) program, there are currently no areas designated as nonattainment for PM 2.5 located in Wisconsin. As such, Wisconsin is no longer obligated to submit a NNSR plan for PM 2.5 , and there is no longer a Federal Implementation Plan (FIP) obligation for NNSR. As discussed in the June 30, proposed approval, should an area be designated as nonattainment for PM 2.5 , Wisconsin will be required to revise its rules to include a plan to address PM 2.5 in NNSR.

EPA's June 30, 2014, proposed approval was contingent upon Wisconsin providing a final SIP revision that was substantively the same as the March 12, 2014, submittal for parallel processing. Wisconsin provided its final SIP submittal on August 11, 2014, which included the final rules adopted by WDNR on August 1, 2014. There was a typographical error in Wisconsin's August 11, 2014, SIP submittal in which Wisconsin incorrectly identified the rule number of one revision WDNR requested EPA to approve. In a letter dated August 18, 2014, Wisconsin acknowledged that in the August 11, 2014, submittal it incorrectly requested approval of NR 404.02(27)(a)5m and clarified that it intended to request that EPA approve NR 405.02(27)(a)5m, which aligns with the provisions that EPA proposed approval of on June 30, 2014. There were no differences between the March 12, 2014, draft SIP revision, and the August 11, 2014, final SIP revision.

EPA provided a 30-day review and comment period. The comment period closed on July 30, 2014. EPA received no comments on the proposed action.

EPA is taking final action to approve revisions to Wisconsin rules NR 400 and 405. As explained in the June 30, 2014, proposed approval EPA finds WDNR's submittal to be consistent with the CAA and applicable Federal requirements. WDNR's March 12, 2014, submittal requests that EPA approve the following revised rules into Wisconsin's SIP: (1) NR 400.02(123m) and (124); (2) NR 405.02(21)(b)5.a. and b. and 6; (3) NR 405.02(25i)(a), (ag) and (ar); (4) 405.02(27)(a)5m; and (5) NR 408.02(20)(e) 5.a and b. and 6. At this time EPA is only taking action on the portions that pertain to the identification of precursors to PM 2.5 and identification of PM 2.5 and PM 10 condensables. Specifically, today's rulemaking is limited to the following provisions: (1) NR 400.02(123m) and (124); (2) NR 405.02(25i)(ag); (3) NR 405.02(25i)(ar)2. and 3.; and, (4) 405.02(27)(a)5m. EPA proposed approval of the remainder of WDNR's submission as it pertains to NO X as a precursor to ozone and the definition of major modification in a May 2, 2014 proposed approval (79 FR 25063), and will take a final action on those revisions in a separate rulemaking.

With the final approval of this SIP revisions, the FIP clocks started by EPA's October 29, 2012, narrow disapproval and July 25, 2013, disapproval will stop.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note), because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

This rule is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 17, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background

On May 2, 2014 (79 FR 25054), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed approval of several infrastructure elements to satisfy several requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS. The formal SIP revision (12-12) was submitted by the State of Maryland on December 27, 2012.

In the NPR, EPA proposed approval of the following infrastructure elements: Sections 110(a)(2)(A), (B), (C), D(i)(II), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the CAA. The proposed rulemaking does not include action on section 110(a)(2)(I) of the CAA which pertains to the requirements of part D, Title I of the CAA as explained in the NPR. The proposed rulemaking action also did not include any action on Maryland's December 27, 2012 SIP submission addressing section 110(a)(2)(D)(i)(I). EPA provided in the proposal that it will later take separate action on Maryland's December 27, 2012 SIP submission for the 2008 ozone NAAQS for section 110(a)(2)(D)(i)(I). The rationale supporting EPA's proposed rulemaking action, including the scope of infrastructure SIPs in general, is explained in the NPR and the technical support document (TSD) accompanying the NPR and will not be restated here. The TSD is available online at www.regulations.gov, Docket ID Number EPA-R03-OAQ-2014-0177.

With respect to elements (C) and (J) in section 110(a)(2) of the CAA, EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete Prevention of Significant Deterioration (PSD) permitting program meeting the current requirements for all regulated New Source Review (NSR) pollutants. The requirements of element (D)(i)(II) in Section 110(a)(2) which requires a demonstration that emissions from sources in the state do not interfere with the PSD program of another state, may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Maryland has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).

On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT). In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifically, EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification ( e.g. 40 CFR 51.166(b)(48)(v)). EPA anticipates a need to revise federal PSD rules in light of the Supreme Court opinion. In addition, EPA anticipates that many states will revise their existing SIP-approved PSD programs in light of the Supreme Court's decision. The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States Court of Appeals for the District of Columbia Circuit. At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to assure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.

At present, EPA has determined the Maryland SIP is sufficient to satisfy elements C, D(i)(II), and J of section 110(a)(2) with respect to GHGs because the PSD permitting program previously-approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT. Although the approved Maryland PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy elements (C), (D)(i)(II), and (J) in section 110(a)(2) of the CAA. The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision. Accordingly, the Supreme Court decision does not affect EPA's earlier proposed approval of Maryland's 2008 ozone infrastructure SIP as to the requirements of elements (C), (D)(i)(II), and (J) for Section 110(a)(2). EPA is taking final action to approve these elements.

EPA received two sets of comments on the May 2, 2014 proposed rulemaking action on Maryland's 2008 ozone “infrastructure” SIP. The comments were submitted by the State of Maryland and the Sierra Club. The State of Maryland made a brief comment related to the subject matter of transported emissions while Sierra Club made more substantive comments on a variety of subjects including transport of emissions. A full set of these comments is provided in the docket for today's final rulemaking action.

Comment: The State of Maryland inquired regarding EPA's plans to take action on the transport portion of its 2008 ozone infrastructure SIP submittal in light of the recent Supreme Court decision in EPA et al v. EME Homer City Generation, L.P. et al, 134 S. Ct. 1584, 2014 U.S. LEXIS 3108 (2014). 1

Response: In this rulemaking, EPA is not taking final action with respect to the SIP revision addressing the provisions in section 110(a)(2)(D)(i)(I) of the CAA—the portion of the good neighbor provision which addresses emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state. EPA did not propose to take any action in the NPR with respect to Maryland's obligations pursuant to section 110(a)(2)(D)(i)(I). As indicated in EPA's proposal, EPA anticipates taking later, separate action on the section 110(a)(2)(D)(i)(I) portion of Maryland's December 27, 2012 SIP submission for the 2008 ozone NAAQS.

Comment 1: Sierra Club contends that EPA cannot approve the Maryland 2008 ozone infrastructure SIP revision because the plain language of section 110(a)(2)(A) of the CAA, legislative history of the CAA, case law, EPA regulations, such as 40 CFR 51.112(a), and EPA interpretations in rulemakings, require the inclusion of enforceable emission limits in an infrastructure SIP to prevent NAAQS violations  2 in areas not designated nonattainment. Specifically, Sierra Club cites air monitoring reports for Kent County, Maryland indicating violations of the NAAQS based on 2010-2012 and 2011-2013 design values. The commenter alleges that these violations demonstrate that the ozone infrastructure SIP fails to impose necessary restrictions on ozone precursor sources sufficient to ensure attainment and maintenance of the 2008 ozone NAAQS and compliance with section 110(a)(2)(A). The commenter claims Maryland must revise its infrastructure SIP to include enforceable emission limits and other measures to ensure attainment and maintenance of the 2008 ozone NAAQS. The commenter asserts the existing emission limits applicable to coal plants in Maryland's SIP were not intended to ensure maintenance of an 8-hour standard. The commenter asserts that Maryland's infrastructure SIP relies on the Maryland Healthy Air Act (HAA) for nitrogen oxide (NO X ) limitations on Maryland's coal-fired power plants yet the HAA imposes only annual and ozone season caps on NO X at coal-fired power plants while the 8-hour ozone NAAQS requires shorter emissions averaging times. The commenter also urges EPA to encourage Maryland to expeditiously finalize new regulations on coal-fired power plants which Maryland is currently drafting which the commenter claims would require installation and operation of state-of-the-art controls on the largest contributors of NO X in Maryland. Until these new regulations are finalized, the commenter claims “Maryland has not tackled emissions” from the largest NO X sources and has not demonstrated its SIP is sufficient to attain and maintain the 2008 ozone NAAQS. Therefore, the commenter states EPA cannot approve Maryland's infrastructure SIP. Finally, the commenter states Maryland should use its infrastructure SIP process to address current ozone exceedances in Kent County and should prevent Kent County from being designated nonattainment for the 2008 ozone NAAQS by adding appropriate enforceable NO X emission limits on sources. The commenter states EPA cannot approve the infrastructure SIP and Maryland must amend its SIP to ensure the largest NO X sources cannot contribute to exceedances of the 8-hour ozone NAAQS.

Response 1: EPA disagrees with the commenter that the statute is clear on its face that infrastructure SIPs must include detailed attainment and maintenance plans for all areas of the state and must be disapproved if air quality data that became available late in the process or after the SIP was due and submitted changes the status of one or more areas within the state. The commenter's specific arguments that the statutory language, legislative history, case law, EPA regulations, and prior rulemaking actions by EPA mandate the narrow interpretation they advocate are addressed below in subsections (1) through (5) of this response. EPA believes that section 110(a)(2)(A) is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attaining and maintaining a new or revised NAAQS and that they contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS.

As an initial matter, EPA disagrees that air quality monitoring data that became available, as here, four or more years following promulgation of the 2008 ozone NAAQS and shortly after the SIP was submitted in December 2012 provides a basis for disapproving the Maryland ozone infrastructure SIP. States must develop SIPs based on the information they have during the SIP development process, which preceded December 2012 (when Maryland submitted its SIP), and data that becomes available near the end of that process or after that process is completed cannot undermine the reasonable assumptions that were made by the state based on the information it had available as it developed the plan. Thus, the design values for 2012 and 2013 cited by the commenter (based respectively on the three-years of data from 2010-2012 and 2011-2013) should not be considered in determining whether the SIP should be approved. 3 The suggestion that Maryland's ozone infrastructure SIP must include measures addressing violations of the standard that did not occur until shortly before or after the SIP was due and submitted, as is the case here, cannot be supported. The CAA provides states with three years to develop infrastructure SIPs and states cannot reasonably be expected to address the annual change in an area's design value for each year over that period, nor to predict the air quality data in periods after development and submission of the SIPs. Moreover, the CAA recognizes and has provisions to address changes in air quality over time, such as an area slipping from attainment to nonattainment or changing from nonattainment to attainment. These include provisions providing for redesignation in section 107(d) and provisions in section 110(k)(5) allowing EPA to call on the state to revise its SIP, as appropriate.

The commenter suggests that EPA must disapprove the Maryland ozone infrastructure SIP because the fact that an area in Maryland now has air quality data slightly above the standard proves that the infrastructure SIP is inadequate to demonstrate attainment and maintenance for that area. 4 EPA disagrees with the commenter because EPA does not believe that section 110(a)(2)(A) requires detailed planning SIPs demonstrating either attainment or maintenance for specific geographic areas of the state. The infrastructure SIP is triggered by promulgation of the NAAQS, not designation. Moreover, infrastructure SIPs are due three years following promulgation of the NAAQS and designations are not due until two years (or in some cases three years) following promulgation of the NAAQS. Thus, during a significant portion of the period that a state has available for developing the infrastructure SIP, it does not know what the designation will be for individual areas of the state. 5 In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state.

EPA's interpretation that infrastructure SIPs are more general planning SIPs is consistent with the statute as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in “air quality control regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with the NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].” In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of the state were violating the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS, with the primary provisions for ozone in section 182. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the clause “as may be necessary to insure attainment and maintenance [of the NAAQS]” with “as may be necessary or appropriate to meet the applicable requirements of this chapter.” Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. And, more detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS.

EPA shares the commenter's concern regarding the area that is monitoring violations of the 2008 8-hour ozone NAAQS based on its 2012 and 2013 design values and is working with state and local agencies to address such violations. By approving Maryland's infrastructure SIP revision, EPA is affirming that Maryland has sufficient authority to take the types of actions required by the CAA in order to bring such areas back into attainment. For all of these reasons, EPA disagrees with the commenter that EPA must disapprove an infrastructure SIP revision if there are monitored violations of the standard in the state and the section 110(a)(2)(A) revision does not have detailed plans for demonstrating how the state will bring that area into attainment or for demonstrating maintenance. EPA believes the state has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon the submittal. EPA disagrees with the commenter that Maryland should use the infrastructure SIP required by section 110(a)(1) and (2) of the CAA to address any “exceedances” of the 2008 ozone NAAQS or to avoid a designation of nonattainment for Kent County. Other provisions in part D of the CAA address the attainment planning process while section 107(d) of the CAA addresses designations of areas for attainment or nonattainment with a NAAQS. While Maryland may decide to regulate additional sources for pursuing emission reductions in the State to strengthen its SIP, such actions are not relevant to our approval of Maryland's infrastructure SIP in accordance with section 110 of the CAA. As discussed previously, our inquiry at this juncture is whether Maryland's SIP has the required structural elements.

Moreover, as addressed in EPA's proposed approval for this rule, Maryland identified existing emission reduction measures in the SIP that control emissions of volatile organic compounds (VOCs) and NO X . Maryland's SIP revision reflects several provisions that have the ability to reduce ground level ozone and its precursors. The Maryland SIP relies on measures and programs used to address previous ozone NAAQS. Because there is no substantive difference between the previous ozone NAAQS and the more recent ozone NAAQS, other than the level of the standard, the provisions relied on by Maryland will provide benefits for the new NAAQS; in other words, the measures reduce overall ground-level ozone and its precursors and are not limited to reducing ozone levels to meet one specific NAAQS. 6

Finally, EPA appreciates the commenter's support of Maryland's pursuit of additional NO X emission limitations at coal-fired power plants in Maryland. Additional NO X regulations on emissions will likely strengthen the Maryland SIP and lead to additional reductions in NO X emissions benefiting Maryland. However, EPA does not believe that approval of the infrastructure SIP is contingent on Maryland adopting this rule. Congress established the CAA such that each state has primary responsibility for assuring air quality within the state and determines an emission reduction program for its areas subject to EPA approval, with such approval dependent upon whether the SIP as a whole meets the applicable requirements of the CAA. See Commonwealth of Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (DCCir.1995)). EPA cannot condition approval of the Maryland infrastructure SIP upon inclusion of a particular emission reduction program as long as the SIP otherwise meets the requirements of the CAA. As explained in the NPR and the TSD, Maryland's ozone infrastructure SIP meets the requirements in section 110(a)(2). 7

Comment 2: The commenter states that on its face the CAA “requires I-SIPs to be adequate to prevent exceedances of the NAAQS.” In support, the commenter quotes the language in section 110(a)(1) which requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) which requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which commenter claims include the maintenance plan requirement. Sierra Club notes the CAA definition of emission limit and reads these provisions together to require “enforceable emission limits on source emissions sufficient to ensure maintenance of the NAAQS.”

Response 2: EPA disagrees that section 110 is clear “on its face” and must be interpreted in the manner suggested by Sierra Club. As explained previously, section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA interprets the requirement in section 110(a)(2)(A) that the plan provide for “implementation, maintenance and enforcement” to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations, EPA has interpreted this to mean for purposes of section 110, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013 (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at p. 2.

The commenter makes general allegations that Maryland does not have sufficient protective measures addressing ozone pollution. EPA addressed the adequacy of Maryland's infrastructure SIP for 110(a)(2)(A) for purposes of meeting applicable requirements of the CAA in the TSD accompanying the May 2, 2014 NPR and explained why the SIP includes enforceable emission limitations and other control measures. These include applicable portions of COMAR 26.11 such as COMAR 26.11.02, and COMAR 26.11.06.14. As discussed in the TSD accompanying the May 2, 2014 NPR, Maryland's enforceable emission limits, control measures, and related SIP approved regulations can be found in 40 CFR 52.1070. These include enforceable emissions limits, control measures, fees, and compliance schedules adopted for the 1-hour and 1997 8-hour ozone NAAQS but which will also provide ozone reductions benefits for the 2008 ozone NAAQS.

Comment 3: Sierra Club cites two excerpts from the legislative history of the CAA Amendments of 1970 claiming they support an interpretation that SIP revisions under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of Maryland. Sierra Club also contends that the legislative history of the CAA supports the interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA.

Response 3: As provided in the previous response, the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined the structure of the Act and deleted relevant language from section 110 concerning demonstrating attainment. In any event, the two excerpts of legislative history the commenter cites merely provide that states should include enforceable emission limits in their SIPs and they do not mention or otherwise address whether states are required to include maintenance plans for all areas of the state as part of the infrastructure SIP. As provided earlier in this rulemaking action, the TSD for the proposed rule explains why the SIP includes enforceable emissions limitations and meets the requirement in section 110(a)(2)(A).

Comment 4: Sierra Club also discusses several cases applying the CAA which Sierra Club claims support their contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent violations of the NAAQS. Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meet the national standards.” Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that “SIPs must include certain measures Congress specified” to ensure attainment of the NAAQS. The commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“The Clean Air Act directs states to develop implementation plans—SIPs—that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations”); Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (“Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region in the State”). Finally, the commenter cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS.

Response 4: None of the cases the commenter cites support the commenter's contention that section 110(a)(2)(A) is clear that infrastructure SIPs must include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state nor do they shed light on how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, none of the cases the commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the courts reference section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of decisions in the context of a challenge to an EPA action on revisions to a SIP that was required and approved as meeting other provisions of the CAA or in the context of an enforcement action.

In Train, 421 U.S. 60, a case that was decided almost 40 years ago, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The Court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, a reference that was removed in 1990.

The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. Yet, even if the Court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation” not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The commenter does not raise any concerns about whether the measures relied on by the state in the infrastructure SIP are “emissions limitations” and the decision in this case has no bearing here. 8 In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was reviewing a federal implementation plan that EPA promulgated after a long history of the state failing to submit an adequate state implementation plan. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations but this language was not part of the Court's holding in the case. The commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the Court makes no mention of the changed language. Furthermore, the commenter also quotes the Court's statement that “SIPs must include certain measures Congress specified” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state's “new source” permitting program, not its infrastructure SIP.

Two of the cases the commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing “revisions” to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA.

Comment 5: The commenter cites to 40 CFR 51.112(a), providing that “[e]ach plan must demonstrate that the measures, rules and regulations contained in it are adequate to provide for the timely attainment and maintenance of the [NAAQS].” The commenter asserts that this regulation requires all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. The commenter states that “[a]lthough these regulations were developed before the Clean Air Act separated infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the regulations apply to I-SIPs.” The commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . . .” 51 FR 40656, 40656 (November 7, 1986).

Response 5: The commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits “adequate to prohibit NAAQS exceedances” and adequate or sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA notes and the commenter recognizes this regulatory provision was initially promulgated and “restructured and consolidated” prior to the CAA Amendments of 1990, in which Congress removed all references to “attainment” in section 110(a)(2)(A). And, it is clear on its face that 40 CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these provisions to apply when states are developing “control strategy” SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as section 175A and 182. The commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring and consolidating” provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. 51 FR at 40657.

Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “Part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SO x and PM (portion)”), 51.14 (“Control strategy: CO, HC, O x and NO 2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

Comment 6: The commenter also references two prior EPA rulemaking actions where EPA disapproved or proposed to disapprove SIPs and claimed they were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first points to a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the sulfur dioxide (SO 2 ) NAAQS. In that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the State plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure maintenance of the SO 2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. Second, Sierra Club cites a 2013 disapproval of a revision to the SO 2 SIP for Indiana, where the revision removed an emission limit that applied to a specific emissions source at a facility in the State. In its proposed disapproval, EPA relied on 40 CFR 51.112(a) in proposing to reject the revision, stating that the State had not demonstrated that the emission limit was “redundant, unnecessary, or that its removal would not result in or allow an increase in actual SO 2 emissions.” EPA further stated in that proposed disapproval that the State had not demonstrated that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration.” Additionally, the commenter states EPA in its September 2013 Infrastructure SIP Guidance purported to postpone certain start-up, shutdown, and malfunction (SSM) requirements but did not postpone other infrastructure SIP requirements, which the commenter asserts indicates the CAA requires infrastructure SIPs to include enforceable limits adequate to ensure attainment of NAAQS and to impose limits without delay.

Response 6: EPA does not agree that the two prior actions referenced by the commenter establish how EPA reviews infrastructure SIPs. It is clear from both the final Missouri rule and the proposed and final Indiana rule that EPA was not reviewing initial infrastructure SIP submissions under section 110 of the CAA, but rather reviewing revisions that would relax the stringency of an already approved SIP. EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an infrastructure SIP. The Indiana action provides even less support for the commenter's position. In that case, the State had an approved SO 2 attainment plan and was seeking to remove from the SIP provisions relied on as part of the modeled attainment demonstration. EPA proposed that the State had failed to demonstrate under section 110(l) of the CAA why the SIP revision would not result in increased SO 2 emissions and thus interfere with attainment of the NAAQS. Nothing in that rulemaking addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. Rather, it is simply applying the clear statutory requirement that a state must demonstrate why a revision to an approved SIP will not interfere with attainment of the NAAQS.

Finally, EPA disagrees with the comment regarding the Infrastructure SIP Guidance. The commenter correctly asserts that EPA in its September 2013 Infrastructure SIP Guidance clearly stated that EPA does not interpret section 110(a)(2) to require state air agencies and the EPA to address potentially deficient pre-existing SSM SIP provisions when acting on an infrastructure SIP particularly because EPA has alternative tools in the CAA to address such deficiencies. Infrastructure SIP Guidance at pgs. 19-20. However, this affirmative statement regarding potential SSM deficiencies in a state's SIP cannot be construed to mean or imply EPA cannot approve an infrastructure SIP without a demonstration that the SIP contains adequate enforceable limits to ensure attainment with a NAAQS. For all of the reasons discussed previously, we do not interpret section 110(a)(2)(A) to require that the state demonstrate attainment of the NAAQS. As explained above, and similar to our position on SSM deficiencies, the CAA establishes separate provisions that govern attainment SIPs for areas. As discussed previously, EPA reviews infrastructure SIPs to ensure a SIP has the appropriate structural requirements.

Comment 7: The commenter states that EPA must evaluate Maryland's provisions submitted in the 2008 ozone NAAQS infrastructure SIP to address section 110(a)(2)(D)(i)(I) and determine whether they are sufficient enough to meet requirements of section 110(a)(2)(D)(i)(I). In light of the Supreme Court's decision in EME Homer City in April 2014, the commenter argues that the EPA should act quickly to address pollution that may be contributing to another state's nonattainment or interfering with another state's maintenance of the 2008 ozone NAAQS. The commenter argues EPA must evaluate whether Maryland addresses the section 110(a)(2)(D)(i)(I) requirements regarding emissions that would contribute to exceedances of or interfere with the maintenance of the 2008 ozone NAAQS and cannot delay its review of Maryland's provisions to address such requirements. The commenter states EPA must disapprove the Maryland infrastructure SIP transport provision and adequately address the impact of ozone emissions from Maryland on other states. Because Maryland's transport SIP submittal relies on CSAPR and the HAA, the commenter asserts EPA should determine Maryland has not adequately addressed its cross-state impacts. The commenter claims CSAPR only addresses the less stringent 1997 ozone NAAQS and claims that even Maryland said additional reductions are needed for 2008 ozone NAAQS beyond CSAPR. The commenter also claims Maryland's HAA was developed under the “outdated” 1997 ozone NAAQS and claims Maryland's reductions from the HAA do not demonstrate Maryland is not contributing to nonattainment or interfering with maintenance of the NAAQS. The commenter also claims Maryland cannot rely on voluntary control measures to address transport of emissions. Therefore, the commenter asserts EPA cannot approve the Maryland infrastructure SIP and Maryland must revise its SIP to address section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.

Response 7: As EPA has stated previously both in the NPR and this final rulemaking, EPA is not taking any final action with respect to the good neighbor provisions in section 110(a)(2)(D)(i)(I). In the NPR, EPA did not propose to take any action with respect to Maryland's obligations pursuant to section 110(a)(2)(D)(i)(I) and is not, in this rulemaking action, taking any such action. Thus, the comments relating to the substance and approvability of Maryland's good neighbor provision in its 2008 ozone NAAQS infrastructure SIP submission are not relevant to this present rulemaking action. As stated herein and in the NPR, EPA will take later, separate action on Maryland's 2008 ozone NAAQS infrastructure SIP submission to address section 110(a)(2)(D)(i)(I).

EPA believes the statutory language in the CAA supports our ability to approve Maryland's December 27, 2012 2008 ozone NAAQS infrastructure SIP while taking later, separate action on the portion of the SIP submittal which addresses Maryland's obligation to address section 110(a)(2)(D)(i)(I). Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve the states' SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).

As such, EPA interprets its authority under section 110(k)(3), as affording EPA the discretion to approve or conditionally approve individual elements of Maryland's infrastructure submission for the 2008 8-hour ozone NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. The commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in EME Homer City alters our interpretation that we may act on individual severable measures including the requirements of section 110(a)(2)(D)(i)(I) in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014) (affirming a state's obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA's action finding significant contribution or interference with maintenance).

EPA's proposed approval of the Maryland December 27, 2012 infrastructure SIP submission for the 2008 ozone NAAQS for the portions described in the NPR was therefore appropriate.

Comment 8: The commenter indicates that Maryland is not meeting the requirements of CAA section 110(a)(2)(J) and does not meet the requirements of section 127 relating to public notification. The commenter asserts section 127 mandates a SIP contain provisions to effectively notify the public of NAAQS exceedances and provides that the state must advise of health hazards of pollution. The commenter contends Maryland's Environmental Article, section 2-103.2(b) ensures air monitoring data is available online but does not provide public notification of NAAQS exceedances. Additionally the commenter questions whether the ozone forecasts provided by Maryland online provide information about ozone NAAQS exceedances and says Maryland must revise its infrastructure SIP to ensure compliance with section 110(a)(2)(J).

Response 8: EPA disagrees with the commenter that the Maryland SIP does not meet the requirement of section 110(a)(2)(J) for public notification. In the TSD accompanying the NPR, EPA discussed Environment Article, section 2-103.2(b) of the Annotated Code of Maryland, which requires public access to all air monitoring data online via the internet. By providing information to the public on the internet for 8-hour ozone levels, the State of Maryland provides adequate public notification of ozone levels and provides to the public both in and outside the State of Maryland information that can be used to examine ozone levels and determine when and where exceedances occurred or might occur. The commenter does not explain why this information is not adequate “public notice” of exceedances of the NAAQS. In addition to providing access to the ozone monitor data on the internet, the Maryland SIP contains approved procedures for permitting, attainment planning, and emergency episodes which provide information about the ozone air quality conditions and about the emission controls that may be implemented to reduce ozone levels. Section 2-303(b) of the Environment Article of the Annotated Code of Maryland requires that public hearings be held before Maryland finalizes air quality regulations. In the TSD, EPA also identified other regulatory and statutory provisions in Maryland which address public notification and hearings including COMAR 26.11.02 and 26.11.03 for permits and COMAR 26.11.04.02 which adopts 40 CFR 58.50 for reporting air quality to the public several times per day. In addition, COMAR 26.11.05.02 and 26.11.05.03 provide for public notification when ozone levels may reach or exceed levels considered injurious to human health. The remaining provisions in COMAR 26.11.05 provide for responsive actions to address such injurious accumulations of air pollution. Maryland provides historical information on exceedances statewide for each calendar year at http://www.mde.state.md.us/programs/Air/AirQualityMonitoring/Pages/HistoricalData.aspx which contains links to a statewide listing of recorded exceedances at specific locations including the Millington monitor in Kent County. Maryland also provides air quality forecasts at http://www.mde.state.md.us/programs/Air/AirQualityMonitoring/Pages/AQForecast.aspx which also includes information on actions the public can take to reduce pollution and protect their health.

As explained in the TSD accompanying the NPR and herein, Maryland's ozone infrastructure SIP submission clearly demonstrates that Maryland regularly notifies the public of instances or areas in which the 2008 ozone NAAQS was exceeded, advises the public of the health hazards associated with such exceedances, and enhances public awareness of measures that can prevent such exceedances and of ways in which the public can participate in regulatory and other efforts to improve air quality. Thus, EPA believes the Maryland statutory and regulatory provisions discussed previously and in the TSD provide effective methods to provide information and notification to the public when the ozone standard may be or has been exceeded.

EPA is approving the following infrastructure elements of Maryland's December 27, 2012 SIP revision for the 2008 ozone NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M) as a revision to the Maryland SIP. This rulemaking action does not include Section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of Part D Title I of the CAA. This rulemaking action also does not include any action on Section 110(a)(2)(D)(i)(I). EPA will take later separate action on Maryland's December 27, 2012 SIP submission addressing Section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.

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.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 15, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, which satisfies certain infrastructure requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS for the State of Maryland, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

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.

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.

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 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.

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 interpretation.

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.

The proposed rulemaking associated with today's final action was published on July 25, 2014 (79 FR 43338). The 2008 Pb, 2010 NO 2 , and 2010 SO 2 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 above 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.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

This rule is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by 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).)

40 CFR part 52 is amended as follows:

I. Summary of SIP Revision

On June 22, 2010 (75 FR 35520), EPA promulgated a revised NAAQS for the 1-hour primary SO 2 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 June 25, 2013, the West Virginia Department of Environmental Protection (WV DEP) submitted a SIP revision that addresses the infrastructure elements specified in section 110(a)(2) of the CAA, necessary to implement, maintain, and enforce the 2010 sulfur dioxide NAAQS. On May 14, 2014 (79 FR 27524), EPA published a notice of proposed rulemaking (NPR) for the State of West Virginia proposing approval of West Virginia's submittal. In the NPR, EPA proposed approval of the following infrastructure elements: Section 110(a)(2)(A), (B), (C) (enforcement and minor new source review), (D)(ii), (E)(i) and (iii), (F), (G), (H), (J) (consultation, public notification, and visibility protection), (K), (L), and (M), or portions thereof. 1

West Virginia did not submit section 110(a)(2)(I) which pertains to the nonattainment requirements of part D, Title I of the CAA, since this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1), and will be addressed in a separate process. EPA will take separate action on the portions of section 110(a)(2)(C), (D)(i)(II), and (J) as they relate to West Virginia's prevention of significant deterioration (PSD) program. EPA had previously approved West Virginia's PSD program with the narrow exception of the definition of regulated new source review pollutant for its failure to include condensables. See 77 FR 63736 (October 17, 2012) and 78 FR 27062 (May 9, 2013) (finalizing limited, narrow disapproval). At this time, EPA is not proposing action on section 110(a)(2)(D)(i)(II) for visibility protection for the 2010 SO 2 NAAQS. Although West Virginia's infrastructure SIP submittal for the 2010 SO 2 NAAQS referred to West Virginia's regional haze SIP for section 110(a)(2)(D)(i)(II) for visibility protection, EPA intends to take separate action on West Virginia's submittal for this element at a later date as explained in the technical support document (TSD) for the May 14, 2014 NPR. The Agency will also take separate action on section 110(a)(2)(E)(ii) as it relates to section 128 (State Boards). This rulemaking action also does not include action on section 110(a)(2)(D)(i)(I) of the CAA because West Virginia's June 25, 2013 infrastructure SIP submittal did not include provisions for this element. EPA will take later, separate action on section 110(a)(2)(D)(i)(I) for the 2010 SO 2 NAAQS for West Virginia.

The rationale supporting EPA's proposed rulemaking action, including the scope of infrastructure SIPs in general, is explained in the published 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-2014-0299.

EPA received comments from the Sierra Club on the May 14, 2014 proposed rulemaking action on West Virginia's 2010 SO 2 infrastructure SIP. A full set of these comments is provided in the docket for today's final rulemaking action.

Comment 1: Sierra Club contends in background comments 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 prevent NAAQS exceedances in areas not designated nonattainment. Sierra Club then contends that the West Virginia 2010 SO 2 infrastructure SIP revision did not revise the existing SO 2 emission limits in response to the 2010 SO 2 NAAQS and fails to comport with CAA requirements for SIPs to establish enforceable emission limits that are adequate to prohibit NAAQS exceedances in areas not designated nonattainment.

The Commenter states that on its face the CAA “requires I-SIPs to be adequate to prevent exceedances of the NAAQS.” In support, the Commenter quotes the language in section 110(a)(1) which requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) which requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which commenter claims include the maintenance plan requirement. Sierra Club notes the CAA definition of emission limit and reads these provisions together to require “enforceable emission limits on source emissions sufficient to ensure maintenance of the NAAQS.”

Response 1: EPA disagrees that section 110 is clear “on its face” and must be interpreted in the manner suggested by Sierra Club. Section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA interprets the requirement in section 110(a)(2)(A) that the plan provide for “implementation, maintenance and enforcement” to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations, EPA has interpreted this to mean for purposes of section 110, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013 (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at p. 2.

The Commenter makes general allegations that West Virginia does not have sufficient protective measures to prevent SO 2 NAAQS exceedances. EPA addressed the adequacy of West Virginia's infrastructure SIP for 110(a)(2)(A) purposes to meet applicable requirements of the CAA in the TSD accompanying the May 14, 2014 NPR and explained why the SIP includes enforceable emission limitations and other control measures necessary for maintenance of the 2010 SO 2 NAAQS throughout the state. 2 These include applicable portions of 45CSR10 (To Prevent and Control Air Pollution from the Emissions of Sulfur Oxides), 45CSR11 (Prevention of Air Pollution Emergency Episodes), 45CSR13 (Permits for Construction, Modification, Relocation and Operation of Stationary Sources of Air Pollutants, Notification Requirements, Temporary Permits, General Permits, and Procedures for Evaluation), 45CSR14 (Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration), 45CSR19 (Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution Which Cause or Contribute to Nonattainment), and 45CSR41 (Control of Annual Sulfur Dioxide Emissions to Mitigate Interstate Transport of Fine Particulate Matter and Sulfur Dioxide). Additionally, the following state rules are applicable to sulfur oxide emission limitations and control measures: 45CSR10A (Testing, Monitoring, Recordkeeping and Reporting Requirements Under 45CSR10), 45CSR16 (Standards of Performance for New Stationary Sources), and 45CSR18 (Control of Air Pollution from Combustion of Solid Waste), 45CSR33 (Acid Rain Provisions and Permits). Further, in 2012, EPA granted limited approval and limited disapproval of West Virginia's regional haze SIP which also includes emission measures related to SO 2 . 77 FR 16932 (March 23, 2012). As discussed in the TSD for this rulemaking, EPA finds these provisions adequately address section 110(a)(2)(A) to aid in attaining and/or maintaining the NAAQS and finds West Virginia demonstrated that it has the necessary tools to implement and enforce the NAAQS.

Comment 2: Sierra Club 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 West Virginia. Sierra Club also contends that the legislative history of the CAA supports the interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA.

Response 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. In any event, the two excerpts of legislative history the commenter cites merely provide that states should include enforceable emission limits in their SIPs and they do not mention or otherwise address whether states are required to include maintenance plans for all areas of the state as part of the infrastructure SIP. As provided earlier in this rulemaking action, the TSD for the proposed rule explains why the SIP includes enforceable emissions limitations for the relevant area.

Comment 3: Sierra Club also discusses several cases applying the CAA which Sierra Club claims support their contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent violations of the NAAQS. Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meet the national standards.” Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS, and 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 the Commenter's contention that section 110(a)(2)(A) is clear that infrastructure SIPs must include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, none of the cases the Commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the courts reference section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of decisions in the context of a challenge to an EPA action on revisions to a SIP that was required and approved as meeting other provisions of the CAA or in the context of an enforcement action.

In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The Court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, a reference that was removed in 1990.

The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. Yet, even if the Court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation” not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the Commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The Commenter does not raise any concerns about whether the measures relied on by the state in the infrastructure SIP are “emissions limitations” and the decision in this case has no bearing here. 3 In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was reviewing a federal implementation plan (FIP) that EPA promulgated after a long history of the state failing to submit an adequate state implementation plan in response to EPA's finding under section 110(k)(5) that the previously approved SIP was in substantially adequate to attain or maintain the NAAQS, which triggered the state's duty to submit a new SIP to show how it would remedy that deficiency and attain 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 and adoption of a remedial FIP 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 makes no mention of the changed language. Furthermore, the Commenter also quotes the Court's statement that “SIPs must include certain measures Congress specified,” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state's “new source” permitting program, not its infrastructure SIP.

Two of the cases the commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing “revisions” to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA.

Finally, in Conn. Fund for Env't, Inc. v. EPA, the D.C. Circuit was reviewing EPA action on a control measure SIP provision which adjusted the percent of sulfur permissible in fuel oil. 696 F.2d 169 (D.C. Cir. 1982). The D.C. Circuit focused on whether EPA needed to evaluate effects of SIP revision on one pollutant or effects of change on all possible pollutants; therefore, the D.C. Circuit did not address required measures for infrastructure SIPs and nothing in the opinion addressed whether infrastructure SIPs needed to contain measures to ensure attainment and maintenance of the NAAQS.

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 all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. The Commenter states that “[a]lthough these regulations were developed before the Clean Air Act separated infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the regulations apply to I-SIPs.” The Commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act. . . .” 51 FR 40656, 40656 (November 7, 1986).

Response 4: The Commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits “adequate to prohibit NAAQS exceedances” and adequate or sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA notes and the Commenter recognizes this regulatory provision was initially promulgated and “restructured and consolidated” prior to the CAA Amendments of 1990, in which Congress removed all references to “attainment” in section 110(a)(2)(A). And, it is clear on its face that 40 CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these provisions to apply when states are developing “control strategy” SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as section 175A and 182. The Commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring and consolidating” provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. 51 FR at 40657.

Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “Part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SO X and PM (portion)”), 51.14 (“Control strategy: CO, HC, O X and NO 2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

Comment 5: The Commenter also references two prior EPA rulemaking actions where EPA disapproved or proposed to disapprove SIPs and claimed they were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. The Commenter first points to a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the SO 2 NAAQS. In that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the state plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure maintenance of the SO 2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. Second, Sierra Club cites a 2013 disapproval of a revision to the SO 2 SIP for Indiana, where the revision removed an emission limit that applied to a specific emissions source at a facility in the State. In its proposed disapproval, EPA relied on 40 CFR 51.112(a) in proposing to reject the revision, stating that the State had not demonstrated that the emission limit was “redundant, unnecessary, or that its removal would not result in or allow an increase in actual SO 2 emissions.” EPA further stated in that proposed disapproval that the State had not demonstrated that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration.”

Response 5: EPA does not agree that the two prior actions referenced by the Commenter establish how EPA reviews infrastructure SIPs. It is clear from both the final Missouri rule and the proposed and final Indiana rule that EPA was not reviewing initial infrastructure SIP submissions under section 110 of the CAA, but rather reviewing revisions that would 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. The Indiana action provides even less support for the Commenter's position. The review in that rule was of a completely different requirement than the section 110(a)(2)(A) SIP. Rather, in that case, the State had an approved SO 2 attainment plan and was seeking to remove from the SIP provisions relied on as part of the modeled attainment demonstration. EPA proposed that the State had failed to demonstrate under section 110(l) of the CAA why the SIP revision would not result in increased SO 2 emissions and thus interfere with attainment of the NAAQS. Nothing in that rulemaking addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. Rather, it is simply applying the clear statutory requirement that a state must demonstrate why a revision to an approved attainment plan will not interfere with attainment of the NAAQS.

As discussed in detail in the TSD and NPR, EPA finds the West Virginia SIP meets the appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the NAAQS and that the State demonstrated that it has the necessary tools to implement and enforce a NAAQS. Therefore, EPA approves the West Virginia SO 2 infrastructure SIP. 4

Comment 6: Citing section 110(a)(2)(A) of the CAA, Sierra Club contends that EPA may not approve the proposed infrastructure SIP because it does not include enforceable 1-hour SO 2 emission limits for sources currently allowed to cause NAAQS exceedances. Sierra Club asserts the proposed infrastructure SIP fails to include enforceable 1-hour SO 2 emissions limits or other required measures to ensure attainment and maintenance of the SO 2 NAAQS in areas not designated nonattainment as required by section 110(a)(2)(A). Sierra Club asserts that emission limits are especially important for meeting the 1-hour SO 2 NAAQS because SO 2 impacts are strongly source-oriented. Sierra Club states coal-fired electric generating units (EGUs) are large contributors to SO 2 emissions but contends West Virginia did not demonstrate that emissions allowed by the proposed infrastructure SIP from such large sources of SO 2 will ensure compliance with the 2010 1-hour SO 2 NAAQS. The commenter claims the proposed infrastructure SIP would allow major sources to continue operating with present emission limits. Sierra Club then refers to air dispersion modeling it conducted for three coal-fired EGUs in West Virginia including the John E. Amos Plant (Amos), the Harrison Power Station (Harrison), and the Kanawha River Plant (Kanawha). Sierra Club asserts the results of the air dispersion modeling it conducted employing EPA's AERMOD program for modeling used the plants' allowable and maximum emissions and showed the plants could cause exceedances of the 2010 SO 2 NAAQS with either allowable or maximum emissions. 5 Based on the modeling, Sierra Club asserts the West Virginia SO 2 infrastructure SIP submittal authorizes the three EGUs to cause exceedances of the NAAQS with allowable and maximum emission rates and therefore the infrastructure SIP fails to include adequate enforceable emission limitations or other required measures for sources of SO 2 sufficient to ensure attainment and maintenance of the 2010 SO 2 NAAQS and, therefore, EPA must disapprove West Virginia's proposed SIP revision. In addition, Sierra Club asserts “EPA must impose additional emission limits on the plants that ensure attainment and maintenance of the NAAQS at all times.”

Response 6: EPA believes that section 110(a)(2)(A) of the CAA is reasonably interpreted to require states to submit SIPs that reflect the first step in their planning for attainment and maintenance of a new or revised NAAQS. These SIP revisions, also known as infrastructure SIPs, should contain enforceable control measures and a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS. In light of the structure of the CAA, EPA's 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, with regard to the requirement for emission limitations, EPA has interpreted this to mean 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.

EPA's interpretation that infrastructure SIPs are more general planning SIPs is 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. And, more detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS.

As stated in response to a previous comment, EPA asserts that section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for “implementation, maintenance and enforcement” to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. 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 SO 2 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 the 2010 SO 2 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, the EPA was undertaking a stakeholder outreach process to continue to develop possible approaches for determining attainment with the SO 2 NAAQS and implementing this NAAQS. EPA was abundantly clear in the April 2012 letters to states that EPA did not expect states to submit substantive attainment demonstrations or modeling demonstrations showing attainment for unclassifiable areas in infrastructure SIPs due in June 2013 as EPA had previously suggested in its 2010 SO 2 NAAQS preamble based upon information available at the time and in prior draft implementation guidance in 2011 while EPA was gathering public comment. The April 2012 letters to states recommended states focus infrastructure SIPs due in June 2013, such as West Virginia's SO 2 infrastructure SIP, on traditional infrastructure elements” in section 110(a)(1) and (2) rather than on modeling demonstrations for future attainment for unclassifiable areas. 6

Therefore, EPA asserts the elements of section 110(a)(2) which address SIP revisions for nonattainment areas including measures and modeling demonstrating attainment are due by the dates statutorily prescribed under subparts 2 through 5 under part D, extending as far as 10 years following area designations for some elements. The CAA directs states to submit these 110(a)(2) elements 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. 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 states to include in the infrastructure SIP submission, and the CAA does not provide explicit requirements for demonstrating attainment for areas designated as “unclassifiable” (or 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 West Virginia 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 West Virginia, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission. For example, West Virginia submitted a list of existing emission reduction measures in the SIP that control emissions of SO 2 as discussed above in response to a prior comment and discussed in detail in our TSD. West Virginia's SIP revision reflects several provisions that have the ability to reduce SO 2 . Although the West Virginia SIP relies on measures and programs used to implement previous SO 2 NAAQS, these provisions will provide benefits for the 2010 SO 2 NAAQS. The identified West Virginia SIP measures help to reduce overall SO 2 and are not limited to reducing SO 2 levels to meet one specific NAAQS.

Additionally, as discussed in EPA's TSD supporting the NPR, West Virginia 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 W.Va. Code section 22-5-4(a)(16) (authorizing WV DEP to do all things necessary to prepare and submit SIPs).

EPA believes the requirements for emission reduction measures for an area designated nonattainment to come into attainment with the 2010 primary SO 2 NAAQS are in sections 172 and 192 of the CAA, and, therefore, the appropriate time for implementing requirements for necessary emission limitations for demonstrating attainment with the 2010 1-hour SO 2 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 SO 2 standard. EPA designated portions of Brooke and Marshall Counties in West Virginia as nonattainment areas for the 2010 1-hour SO 2 NAAQS. 78 FR 47191 (August 5, 2013). In separate future actions, EPA intends to address the designations for all other areas for which the Agency has yet to issue designations. See 79 FR 27446 (May 13, 2014) (proposing process and timetables by which state air agencies would characterize air quality around SO 2 sources through ambient monitoring and/or air quality modeling techniques and submit such data to the EPA for designations with 2010 SO 2 NAAQS). For the partial areas designated nonattainment in August 2013 within West Virginia, attainment SIPs are due by April 4, 2015 and must contain demonstrations that the areas will attain 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. EPA believes it is not appropriate to bypass 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 SO 2 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 West Virginia must include additional SO 2 emission limits on sources in order to demonstrate future attainment, where needed, for the portions of Brooke and Marshall Counties designated nonattainment to reach attainment with the 2010 1-hour SO 2 NAAQS.

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 clearly on its face applies to plans specifically designed to attain the NAAQS and not to infrastructure SIPs which show the states have in place structural requirements necessary to implement the NAAQS. Therefore, EPA finds 40 CFR 51.112 inapplicable to its analysis of the West Virginia SO 2 infrastructure SIP.

As noted in EPA's preamble for the 2010 SO 2 NAAQS, determining compliance with the SO 2 NAAQS will likely be a source-driven analysis and EPA has explored options to ensure that the SO 2 designations process realistically accounts for anticipated SO 2 reductions at sources that we expect will be achieved by current and pending national and regional rules. See 75 FR 35520. As mentioned previously above, EPA has proposed a process to address additional areas in states which may not be attaining the 2010 SO 2 NAAQS. 79 FR 27446 (proposing process for further designations with additional monitoring or modeling). In addition, in response to lawsuits in district courts seeking to compel EPA's remaining designations of undesignated areas under the NAAQS, EPA has proposed to enter a settlement under which this process would require an earlier round of designations focusing on areas with larger sources of SO 2 emissions, as well as enforceable deadlines for the later rounds of designations. However, because the purpose of an infrastructure SIP submission is for more general planning purposes, EPA does not believe West Virginia was obligated during this infrastructure SIP planning process to account for controlled SO 2 levels at individual sources. See Homer City/Mansfield Order at 10-19.

Regarding the air dispersion modeling conducted by Sierra Club pursuant to AERMOD for the coal-fired EGUs including Amos, Harrison, and Kanawha, EPA is not at this stage prepared to opine on whether it demonstrates violations of the NAAQS, and does not find the modeling information relevant at this time for review of an infrastructure SIP. EPA has issued non-binding guidance for states to use in conducting, if they choose, additional analysis to support designations for the 2010 SO 2 NAAQS . SO 2 NAAQS Designations Modeling Technical Assistance Document, 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 . Sierra Club's AERMOD modeling for the West Virginia EGUs was conducted prior to the issuance of this guidance and may not address all recommended elements EPA may consider important to modeling for 2010 SO 2 NAAQS for designations purposes or for eventual attainment demonstration purposes for the counties in West Virginia designated nonattainment. In addition, while EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations, EPA has recommended that such modeling was not needed for the SO 2 infrastructure SIPs needed for the 2010 SO 2 NAAQS. See April 12, 2012 letters to states regarding SO 2 implementation and Implementation of the 2010 Primary 1-Hour SO 2 NAAQS, Draft White Paper for Discussion, May 2012, available at http://www.epa.gov/airquality/sulfurdioxide/implement.html . In contrast, EPA recently discussed modeling for designations in our May 14, 2014 proposal at 79 FR 27446 and for nonattainment planning in the April 23, 2014 Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions .

In conclusion, EPA disagrees with Sierra Club's statements that EPA must disapprove West Virginia's infrastructure SIP submission because it does not establish at this time specific enforceable SO 2 emission limits either on coal-fired EGUs or other large SO 2 sources in order to demonstrate attainment with the NAAQS.

Comment 7: Sierra Club asserts that modeling is the appropriate tool for evaluating adequacy of infrastructure SIPs and ensuring attainment and maintenance of the 2010 SO 2 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 SO 2 NAAQS preamble, EPA's 2012 Draft White Paper for Discussion on Implementing the 2010 SO 2 NAAQS, and a 1994 SO 2 Guideline Document, as modeling could better address the source-specific impacts of SO 2 emissions and historic challenges from monitoring SO 2 emissions. 7

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 (D.C. Cir. 2009). The Commenter discusses statements made by EPA staff discussing use of modeling and monitoring in setting emission limitations or determining ambient concentrations resulting from sources, discussing performance of AERMOD as a model, and discussing that modeling is capable of predicting whether the NAAQS is attained and whether individual sources contribute to SO 2 NAAQS violations. The Commenter cites to EPA's history of employing air dispersion modeling for increment compliance verifications in the permitting process for the PSD program required in part C of the CAA. The Commenter claims the Amos, Kanawha, and Harrison plants are examples of sources in elevated terrain where the AERMOD model functions appropriately in evaluating ambient impacts.

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 SO 2 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 for the statement that an agency must consider information presented during notice-and-comment rulemaking.

Finally, the Commenter claims that West Virginia's proposed SO 2 infrastructure SIP lacks emission limitations informed by air dispersion modeling and therefore fails to ensure West Virginia will achieve and maintain the 2010 SO 2 NAAQS. Sierra Club claims EPA must require adequate, 1-hour SO 2 emission limits in the infrastructure SIP that show no exceedances of NAAQS when modeled.

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 and in the attainment SIP process pursuant to sections 172 and 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 designations process and attainment demonstration process, as well as in analyses of whether existing approved SIPs remain adequate to show attainment and maintenance of the SO 2 NAAQS. However, EPA disagrees with the Commenter that EPA must disapprove the West Virginia SO 2 infrastructure SIP for its alleged failure to include source-specific SO 2 emission limits that show no exceedances of the NAAQS when modeled.

As discussed previously above and in the Infrastructure SIP Guidance, EPA believes the 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 and that the infrastructure SIP submission process provides an opportunity to review the basic structural requirements of the air agency's air quality management program in light of the new or revised NAAQS. See Infrastructure SIP Guidance at p. 2. EPA believes the attainment planning process detailed in part D of the CAA, including attainment SIPs required by sections 172 and 192 for areas not attaining the NAAQS, is the appropriate place for the state to evaluate measures needed to bring nonattainment areas into attainment with a NAAQS and to impose additional emission limitations such as SO 2 emission limits on specific sources. While EPA had initially suggested in the final 2010 SO 2 NAAQS preamble (75 FR 35520) and subsequent draft guidance in March and September 2011 that EPA recommended states submit substantive attainment demonstration SIPs based on air quality modeling in section 110(a) SIPs due in June 2013 to show how areas expected to be designated as unclassifiable would attain and maintain the NAAQS, these initial statements in the preamble and 2011 draft guidance were based on EPA's initial expectation that most areas would by June 2012 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 designations recommendations in 2011. However, after 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 to the states and in the May 2012 Implementation of the 2010 Primary 1-Hour SO 2 NAAQS, Draft White Paper for Discussion that EPA was clarifying its implementation position and that EPA was no longer recommending such attainment demonstrations supported by air dispersion modeling for unclassifiable areas (which had not yet been designated) for June 2013 infrastructure SIPs. EPA reaffirmed this position that EPA did not expect attainment demonstrations for areas not designated nonattainment for infrastructure SIPs in the February 6, 2013 memorandum, “Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard.”  8 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 191-192 and 172 and proposed a process for further designations for the 2010 SO 2 NAAQS, which could include use of air dispersion modeling. See April 23, 2014 Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions and 79 FR 27446 (proposing process and timetables for additional SO 2 designations informed through ambient monitoring and/or air quality modeling). While the EPA guidance for attainment SIPs and the proposed process for additional designations discusses use of air dispersion modeling, EPA's 2013 Infrastructure SIP Guidance did not require use of air dispersion modeling to inform emission limitations for section 110(a)(2)(A) to ensure no exceedances of the NAAQS when sources are modeled. Therefore, as discussed previously, EPA believes the West Virginia SO 2 infrastructure SIP submittal contains the structural requirements to address elements in section 110(a)(2) as discussed in detail in our TSD supporting our proposed approval and in our Response to a prior comment. 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 such as SO 2 in a SO 2 infrastructure SIP. In the TSD for this rulemaking action, EPA provided a detailed explanation of West Virginia's ability and authority to conduct air quality modeling when required and its authority to submit modeling data to the EPA.

EPA finds Sierra Club's discussion of case law, guidance, and EPA staff statements regarding advantages of AERMOD as an air dispersion model to be irrelevant to our analysis here of the West Virginia infrastructure SIP, as this SIP for section 110(a) is not an attainment SIP required to demonstrate attainment of the NAAQS pursuant to section 172. In addition, Sierra Club'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 West Virginia's infrastructure SIP is unrelated to the section 107 designations process. Nor is our 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 SO 2 National Ambient Air Quality Standard” (U.S. EPA, 2010a), AERMOD is the preferred model for single source modeling to address the 1-hour SO 2 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 SO 2 NAAQS for section 110(a), EPA provides no further response to the Commenter's discussion of air dispersion modeling for these applications. If Sierra Club resubmits its air dispersion modeling for the West Virginia EGUs or updated modeling information in the appropriate context, EPA will address the resubmitted modeling or updated modeling in the appropriate future context when an analysis of whether West Virginia's emissions limits are adequate to show attainment and maintenance of the NAAQS is warranted.

The Commenter correctly noted that the Third Circuit upheld EPA's Section 126 Order imposing SO 2 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)(I) which relates to significant contributions to nonattainment or maintenance 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 violations of the NAAQS. The Commenter appears to have cited to this matter to demonstrate again EPA's use of modeling for certain aspects of the CAA. EPA agrees with the Commenter regarding the appropriate role air dispersion modeling has for designations, attainment SIPs, and demonstrating significant contributions to interstate transport. However, EPA's approval of West Virginia's infrastructure SIP is based on our determination that West Virginia has the required structural requirements pursuant to section 110(a)(2) in accordance with our explanation of the intent for infrastructure SIPs as discussed in the 2013 Infrastructure SIP Guidance. Therefore, while air dispersion modeling may be appropriate for consideration in certain circumstances, EPA does not find air dispersion modeling demonstrating no exceedances of the NAAQS to be a required element before approval of infrastructure SIPs for section 110(a) or specifically for 110(a)(2)(A). Thus, EPA disagrees with the Commenter that EPA must require additional emission limitations in the West Virginia SO 2 infrastructure SIP informed by air dispersion modeling and demonstrating attainment and maintenance of the 2010 NAAQS.

In its comments, Sierra Club relies on Motor Vehicle Mfrs. Ass'n and NRDC v. EPA to support its comments that EPA must consider the Sierra Club's modeling data on the Amos, Kanawha, and Harrison plants based on administrative law principles regarding consideration of comments provided during a rulemaking process. EPA asserts that it has considered the modeling submitted by the Commenter as well as all the submitted comments of Sierra Club. As discussed in detail in the Responses above, however, EPA does not believe the infrastructure SIPs required by section 110(a) are the appropriate place to require emission limits demonstrating future attainment with a NAAQS. Part D of the CAA contains numerous requirements for the NAAQS attainment planning process including requirements for attainment demonstrations in section 172 supported by appropriate modeling. As also discussed previously, section 107 supports EPA's use of modeling in the designations process. In Catawba, the D.C. Circuit upheld EPA's consideration of data or factors for designations other than ambient monitoring. EPA does not believe state 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 not evaluated the persuasiveness of the Commenter's submitted modeling in finding that it is not relevant to the approvability of West Virginia's proposed infrastructure SIP for the 2010 SO 2 NAAQS.

Comment 8: Sierra Club asserts that EPA may not approve the West Virginia proposed SO 2 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 SO 2 NAAQS citing to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding need for 1-hour SO 2 emission limits in a PSD permit, an EPA Environmental Hearing Board (EHB) decision rejecting use of 3-hour averaging time for a SO 2 limit in a PSD permit, and EPA's disapproval of a Missouri SIP which relied on annual averaging for SO 2 emission rates. 9

Sierra Club also contends EPA must include monitoring of SO 2 emission limits on a continuous basis using a continuous emission monitor system or systems (CEMs) and cites to section 110(a)(2)(F) which requires a SIP to establish a system to monitor emissions from stationary sources and to require submission of periodic emission reports. Sierra Club contends infrastructure SIPs must require such SO 2 CEMs to monitor SO 2 sources regardless of whether sources have control technology installed to ensure limits are protective of the NAAQS. Thus, Sierra Club contends EPA must require enforceable emission limits, applicable at all times, with 1-hour averaging periods, monitored continuously by large sources of SO 2 emissions and must disapprove West Virginia's infrastructure SIP which fails to require emission limits with adequate averaging times.

Response 8: EPA disagrees that EPA must disapprove the proposed West Virginia infrastructure SIP without enforceable SO 2 emission limitations with 1-hour averaging periods that apply at all times and with required CEMs, as these issues are not appropriate for resolution at this stage in advance of the state's submission of an attainment demonstration for its designated nonattainment areas. As explained in detail in previous Responses, the purpose of the infrastructure SIP is to ensure that a state has the structural capability to attain and maintain the NAAQS and thus additional SO 2 emission limitations to ensure attainment and maintenance of the NAAQS are not required for such infrastructure SIPs. 10 Likewise, EPA need not address for the purpose of approving West Virginia's infrastructure SIP whether CEMs or some other appropriate monitoring of SO 2 emissions is necessary to demonstrate compliance with emission limits to show attainment of the 2010 NAAQS as EPA believes such SO 2 emission limits and an attainment demonstration are not a prerequisite to our approval of West Virginia's infrastructure SIP. 11 Therefore, because EPA finds West Virginia's SO 2 infrastructure SIP approvable without the additional SO 2 emission limitations showing attainment of the NAAQS, EPA finds the issues of appropriate averaging periods and monitoring requirements for such future limitations not relevant at this time for our approval of the infrastructure SIP. Sierra Club 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 not relevant nor applicable to section 110 infrastructure SIPs. In addition, as discussed previously, 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 our analysis of infrastructure SIP requirements.

EPA has explained in the TSD supporting this rulemaking action how the West Virginia SIP meets requirements in section 110(a)(2)(F) related to monitoring. W.Va. Code section 22-5-4(a)(15) authorizes West Virginia to require installation, maintenance, and replacement of equipment such as CEMs to monitor continuously SO 2 emissions where necessary and required. Further, W.Va. Code section 22-5-4(a)(14) and (15) authorizes West Virginia to require information such as periodic reports on the nature and amounts of emissions and emissions-related data from owners or operators of stationary sources of SO 2 emissions which West Virginia then requires through permits and compliance orders. Pursuant to 40 CFR Part 51, subpart A, “Air Emission Reporting Rule,” West Virginia provides source-specific emissions data to EPA. Thus, EPA finds West Virginia has the authority and responsibility to monitor air quality for the relevant NAAQS pollutants at appropriate locations and to submit data to EPA in a timely manner in accordance with 110(a)(2)(F) and the Infrastructure SIP Guidance. See Infrastructure SIP Guidance at p. 45-46.

Comment 9: Sierra Club states that enforceable emission limits in SIPs or permits are necessary to avoid nonattainment designations in areas where modeling or monitoring shows SO 2 levels exceed the 1-hour SO 2 NAAQS and cites to a February 6, 2013 EPA document, Next Steps for Area Designations and Implementation of the Sulfur Dioxide Nation Ambient Air Quality Standard, which Sierra Club contends discussed how states could avoid future nonattainment designations. The Commenter asserts EPA should add enforceable emission limits to the West Virginia Infrastructure SIP to prevent future nonattainment designations and to protect public health. The Commenter claims the modeling it conducted for Amos, Kanawha, and Harrison indicates thirty-one counties in West Virginia are at risk for being designated nonattainment with the 2010 SO 2 NAAQS without such enforceable SO 2 limits. The Commenter states EPA must ensure large sources cannot cause exceedances of the one-hour SO 2 NAAQS to comply with section 110(a)(2)(A) and to avoid future nonattainment designations. The Commenter asserts nonattainment designations create rigorous CAA requirements which could be avoided presently if states adopt and EPA approves such SO 2 emission limitations. In addition, the Commenter asserts adding SO 2 emission limitations on certain sources now would bring regulatory certainty for coal-fired EGUs and ultimately save such entities money as the sources could plan now for compliance with emission limits as well as with other CAA requirements such as the Mercury Air Toxic Standards, transport rules and regional haze requirements. In summary, the Commenter asserts EPA must disapprove the West Virginia infrastructure SIP and establish enforceable emission limits to ensure large sources of SO 2 do not cause exceedances of the 2010 SO 2 NAAQS which would avoid nonattainment designations and bring “regulatory certainty” to sources in West Virginia.

Response 9: EPA appreciates the Commenter's concern with assisting West Virginia in avoiding nonattainment designations with the 2010 SO 2 NAAQS and with assisting coal-fired EGUs in achieving regulatory certainty as EGUs make informed decisions on how to comply with CAA requirements. However, Congress designed the CAA such that states have the primary responsibility for assuring air quality within their geographic area by submitting SIPs which will specify how the state will achieve and maintain the NAAQS within the state. 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 SO 2 NAAQS in August 2013. EPA proposed on May 14, 2014 an additional process for further designations of additional areas in each state for the 2010 SO 2 NAAQS. 79 FR 27446. EPA has also proposed to enter a settlement to resolve deadline suits reading the remaining designations that would, if entered by the court, impose deadlines for three more rounds of designations. Under these proposed schemes, West Virginia would have the initial opportunity for proposing additional areas for designations for the 2010 SO 2 NAAQS. While EPA appreciates Sierra Club's comments, further designations will occur pursuant to the section 107(d) process, and in accordance with any applicable future court orders addressing the designations deadline suits and, if promulgated, future EPA rules addressing additional monitoring or modeling to be conducted by states. West Virginia may on its own accord decide to impose additional SO 2 emission limitations to avoid future designations to nonattainment. However, such considerations are not required of West Virginia to consider at the infrastructure SIP stage of NAAQS implementation, as this action relates to our approval of West Virginia's SO 2 infrastructure SIP submittal pursuant to section 110(a) of the CAA, and Sierra Club's comments regarding designations under section 107 are neither relevant nor germane to EPA's approval of West Virginia's SO 2 infrastructure SIP. Likewise, while EPA appreciates Sierra Club's concern for providing “regulatory certainty” for coal-fired EGUs in West Virginia, such concerns for regulatory certainty are not requirements for infrastructure SIPs as outlined by Congress in section 110(a)(2) nor as discussed in EPA's Infrastructure SIP Guidance. 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 (D.C. Cir. 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). Thus, EPA does not believe it is appropriate and necessary to condition approval of West Virginia's infrastructure SIP upon inclusion of a particular emission reduction program as long as the SIP otherwise meets the requirements of the CAA. Sierra Club's comments regarding emission limits providing “regulatory certainty” for EGUs are irrelevant to our approval of West Virginia's infrastructure SIP for the 2010 SO 2 NAAQS, and EPA disagrees that we must disapprove the infrastructure SIP for not including enforceable emissions limitations to prevent future nonattainment designations or aid in providing “regulatory certainty.”

Comment 10: The Commenter claims EPA must disapprove the proposed 2010 SO 2 NAAQS for its failure to include measures to ensure compliance with section 110(a)(2)(A) for the 2010 SO 2 NAAQS. The Commenter claims the provisions listed by West Virginia for section 110(a)(2)(A) in its 2010 SO 2 NAAQS infrastructure SIP are not appropriate for the NAAQS as evidenced by the Commenter's modeling for plants which are not in areas presently designated nonattainment for the 2010 SO 2 NAAQS. Sierra Club claims West Virginia wrongly relies on CAA part D attainment planning requirements to address NAAQS exceedances. 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. The Commenter claims the proposed infrastructure SIP relies on emission limits added to the SIP prior to the 2010 SO 2 NAAQS and does not include hourly SO 2 emission limits. Sierra Club therefore contends the proposed infrastructure SIP cannot ensure West Virginia will attain and maintain the 2010 SO 2 NAAQS and EPA must disapprove the SIP and require 1-hour emission limits to address exceedances shown by Sierra Club's submitted modeling.

Response 10: EPA disagrees with Sierra Club that it must disapprove the West Virginia proposed infrastructure SIP for the 2010 SO 2 NAAQS for the reasons already discussed in response to other comments from Sierra Club. Generally, it is not appropriate to bypass the attainment planning process by imposing separate requirements, such as additional SO 2 emission limits on sources, outside the attainment planning process. Such actions would be disruptive and premature absent exceptional circumstances. See Homer City/Mansfield Order at 10-19 (finding Pennsylvania SIP did not require imposition of 1-hour SO 2 emission limits on sources independent of the part D attainment planning process contemplated by the CAA). As discussed in the Homer City/Mansfield Order, imposing different emission limitation requirements outside of the attainment planning process contemplated by Congress in part D of the CAA to address requirements for attaining the NAAQS might ultimately prove inconsistent with the attainment SIP West Virginia will submit for nonattainment areas even where one source is likely responsible for nonattainment. Id. As discussed in great detail above, the conceptual purpose of an infrastructure SIP submission is to assure that an air agency's SIP contains the necessary structural requirements for the new or revised NAAQS. Infrastructure SIP Guidance at p. 2.

As mentioned previously, while EPA had in 2010 initially suggested that states submit in section 110(a) infrastructure SIPs substantive attainment demonstration SIPs for unclassifiable areas based on air dispersion modeling, EPA subsequently gathered additional information and clarified its position. The April 12, 2012 letters to states, draft White Paper in May 2012 and February 6, 2013 memorandum on next steps, as previously discussed, clearly recommend states focus section 110(a) infrastructure SIPs due in June 2013, such as West Virginia's SO 2 infrastructure SIP, on “traditional infrastructure elements” in section 110(a)(1) and (2) rather than on modeling demonstrations for future attainment for unclassifiable areas. 12

Therefore, EPA disagrees with the Commenter that the infrastructure SIP must be disapproved for failure to include measures to ensure compliance with the 2010 SO 2 NAAQS. As Congress provided for state primacy in implementing the NAAQS, West Virginia will appropriately evaluate and impose necessary SO 2 emission limits on sources where needed for areas in West Virginia designated nonattainment with the 2010 SO 2 NAAQS under section 107. 13

Comment 11: The Commenter alleges that the proposed SO 2 infrastructure SIP does not address sources significantly contributing to nonattainment or interfering with maintenance of the NAAQS in other states as required by section 110(a)(2)(D)(i)(I) of the CAA, and states EPA must therefore disapprove the infrastructure SIP and impose a Federal implementation plan (FIP). Sierra Club claims its modeling shows that at least one plant in the State, Harrison, is contributing to exceedances in other states. Sierra Club states that the CAA requires infrastructure SIPs to address cross-state air pollution within three years of the NAAQS promulgation. The Commenter argues that West Virginia has not done so and that the EPA must disapprove the proposed infrastructure SIP and issue a FIP to correct these shortcomings. The Commenter references the recent Supreme Court decision, EPA v. EME Homer City Generation, L.P. et al., 134 S. Ct. 1584 (2014), which supports the states' mandatory duty to address cross-state pollution under section 110(a)(2)(D)(i)(I) and affirmed EPA's ability to impose a FIP upon states' failures to address cross-state air pollution.

Response 11: EPA disagrees with Sierra Club's statement that EPA must disapprove the submitted 2010 SO 2 infrastructure SIP due to West Virginia's failure to address section 110(a)(2)(D)(i)(I). In EPA's NPR proposing to approve West Virginia's infrastructure SIP for the 2010 SO 2 NAAQS, EPA clearly stated that it was not taking any final action with respect to the good neighbor provision in section 110(a)(2)(D)(i)(I) which addresses emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state. West Virginia did not make a SIP submission to address the requirements of section 110(a)(2)(D)(i)(I) for the 2010 SO 2 NAAQS, and thus there is no such submission upon which EPA could take action under section 110(k) of the CAA. EPA cannot act under section 110(k) to disapprove a SIP submission that has not been submitted to EPA. EPA also disagrees with the Commenter that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. EPA additionally believes there is no basis for the contention that EPA has triggered its obligation to issue a FIP addressing the good neighbor obligation under section 110(c), as EPA has neither found that West Virginia failed to timely submit a required 110(a)(2)(D)(i)(I) SIP submission as to the 2010 SO 2 NAAQS or made such a submission that was incomplete, nor has EPA disapproved a SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2010 SO 2 NAAQS.

EPA acknowledges the Commenter's concern for the interstate transport of air pollutants and agrees in general with the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally 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, EPA disagrees with the Commenter's argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).

EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve or conditionally approve individual elements of West Virginia's infrastructure SIP submission for the 2010 1-hour SO 2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if West Virginia had made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2010 SO 2 NAAQS, which to date it has not, EPA would still have discretion under section 110(k) of the CAA to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate.

The Commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in EME Homer City alters our interpretation that we may act on individual severable measures, including the requirements of section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA's action finding significant contribution or interference with maintenance). In sum, the concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve the portions of West Virginia's June 25, 2013 infrastructure SIP submission for the 2010 SO 2 NAAQS.

Furthermore, as discussed above, EPA has no obligation to issue a FIP pursuant to 110(c)(1) to address West Virginia's obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds West Virginia failed to make the required submission addressing the element or the State has made such a submission but it is incomplete, or EPA disapproves a SIP submittal addressing that element. Until either occurs, EPA does not have the authority to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the Commenter's contention that it must issue a FIP for West Virginia to address 110(a)(2)(D)(i)(I) for the 2010 SO 2 NAAQS at this time.

Comment 12: Sierra Club contends that the EPA must disapprove the proposed infrastructure SIP because it does not contain adequate provisions to prohibit sources and emissions in West Virginia from interfering with another state's visibility as required by section 110(a)(2)(D)(i)(II) of the CAA. The Commenter cites to the Supreme Court's decision in EME Homer City in support of its statement that West Virginia's duty to protect visibility is a mandatory duty. The Commenter asserts EPA ignores its deadline by not acting in the present rulemaking on the visibility prong of section 110(a)(2)(D)(i)(II) and asserts EPA cites no legally defensible reason for not acting. The Commenter also asserts EPA must also act on section 110(a)(2)(J) when a NAAQS is revised. Finally, the Commenter argues that the “deadline for state action has passed” and EPA must disapprove the SO 2 infrastructure SIP and issue a FIP to address the failings of the infrastructure SIP to protect visibility in other states.

Response 12: EPA disagrees with the Commenter that in today's rulemaking action EPA must disapprove the West Virginia SO 2 infrastructure SIP for its failure to protect visibility and issue a FIP for West Virginia addressing visibility protection. In EPA's NPR proposing to approve West Virginia's infrastructure SIP for the 2010 SO 2 NAAQS, EPA clearly stated that it was not proposing to take final action at that time with respect to the visibility protection provisions in section 110(a)(2)(D)(i)(II). While West Virginia did make a SIP submission to address the requirements of section 110(a)(2)(D)(i)(II) for visibility protection and cited to its regional haze SIP as meeting these requirements, EPA did not propose to take any action in the NPR with respect to West Virginia's visibility protection obligations pursuant to section 110(a)(2)(D)(i)(II). 14 As indicated in EPA's NPR, EPA anticipates taking action in the future on the portion of West Virginia's June 25, 2013 SIP submission addressing visibility protection. 15 EPA disagrees with the Commenter that EPA cannot approve a portion of an infrastructure SIP submittal without taking action on the visibility protection provision. Further, there is no basis for the contention that EPA must issue a FIP under section 110(c) within two years, as EPA has neither disapproved nor found that West Virginia failed to submit a required 110(a)(2)(D)(i)(II) SIP submission addressing visibility protection for the 2010 SO 2 NAAQS.

As previously discussed regarding good-neighbor SIP provisions for infrastructure SIPs, EPA disagrees with the Commenter's argument that EPA cannot approve a SIP without certain elements such as the visibility protection element. 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. As discussed above, this authority to approve SIP revisions in separable parts was included in the 1990 Amendments to the CAA. 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).

As discussed above, EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve individual elements of West Virginia's infrastructure submission for the 2010 SO 2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(II) for visibility protection. EPA views discrete infrastructure SIP requirements as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual, severable measures. In short, EPA believes we have discretion under section 110(k) of the CAA to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate. The concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve portions of West Virginia's June 25, 2013 infrastructure SIP submission for the 2010 SO 2 NAAQS.

EPA also has no obligation to issue a FIP to address West Virginia's obligations under section 110(a)(2)(D)(i)(II) until EPA first finds West Virginia failed to satisfy its visibility protection obligations with a complete SIP submittal addressing that element or disapproves any SIP submittal addressing that element. Until such occurs, EPA may not issue any further FIP for visibility protection pursuant to section 110(c).

With regards to the Commenter's concerns for section 110(a)(2)(J), EPA also disagrees with the Commenter that EPA “must act” on section 110(a)(2)(J) when a NAAQS is revised. Preliminarily, EPA notes that we did propose to approve in the NPR the portion of the June 25, 2013 infrastructure SIP submittal for the 2010 SO 2 NAAQS which addressed section 110(a)(2)(J) for visibility protection. As discussed in the TSD accompanying the NPR for this rulemaking, EPA stated that it recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. 16 In the establishment of a new NAAQS such as the 2010 SO 2 NAAQS, however, the visibility and regional haze program requirements under part C of Title I of the CAA do not change and there are no applicable visibility obligations under part C “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. Therefore, EPA appropriately proposed approval of West Virginia's 2010 SO 2 infrastructure SIP revision for section 110(a)(2)(J) for the reasons identified in the TSD (i.e., West Virginia's SIP addresses visibility protection for section 110(a)(2)(J) and for part C of the CAA through its regional haze SIP).

EPA is approving the following infrastructure elements or portions thereof of West Virginia's SIP revision: Section 110(a)(2)(A), (B), (C) (enforcement and minor new source review), (D)(ii), (E)(i) and (iii), (F), (G), (H), (J) (consultation, public notification, and visibility protection), (K), (L), and (M). EPA will take separate rulemaking action for the 2010 SO 2 NAAQS on the portions of section 110(a)(2)(C), (D)(i)(II), and (J) as they relate to West Virginia's PSD program and will take separate action on section 110(a)(2)(E)(ii) as it relates to section 128 (State Boards) and section 110(a)(2)(D)(i)(II) for visibility protection. This rulemaking action does not include section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, since this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1), and will be addressed in a separate process. This rulemaking action also does not include action on section 110(a)(2)(D)(i)(I) for the 2010 SO 2 NAAQS.

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.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 15, 2014. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action, which satisfies certain infrastructure requirements of section 110(a)(2) of the CAA for the 2008 ozone NAAQS for the State of West Virginia, may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

This rulemaking addresses a December 12, 2011, submission from the Indiana Department of Environmental Management (IDEM) intended to meet the applicable infrastructure SIP requirements for the 2008 Pb NAAQS.

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 Pb 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 Pb 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.

EPA is acting upon the SIP submission Indiana that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 Pb NAAQS. The requirement for states to make SIP submissions of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D.

This rulemaking will not cover three substantive areas that are not integral to acting on 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 addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (collectively referred to as “director's discretion”); and, (iii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas in separate rulemaking. A detailed rationale, history, and interpretation related to infrastructure SIP requirements can be found in our May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” ( see 79 FR 27241 at 27242—27245).

In addition, on a portion of section 110(a)(2)(J)—visibility protection. 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 August 19, 2013, proposed rulemaking or discussed below in today's response to comments.

The public comment period for EPA's proposed actions with respect to Indiana's satisfaction of the infrastructure SIP requirements for the 2008 Pb NAAQS closed on September 18, 2013. EPA received one comment letter, which was from the Sierra Club, and a synopsis of the comments contained in this letter and EPA's responses, are provided below.

Comment 1: The Sierra Club states that on its face the CAA “requires I-SIPs to be adequate to prevent violations of the NAAQS.” In support, the commenter quotes the language in section 110(a)(1) which requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) which requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which commenters claimed include the maintenance plan requirement. Sierra Club notes the CAA definition of emission limit and reads these provisions together to require “enforceable emission limitations on source emissions sufficient to ensure maintenance of the NAAQS.”

Response 1: EPA disagrees that section 110 must be interpreted in the manner suggested by Sierra Club. Section 110 is only one provision that is part of the complex structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA interprets the requirement in section 110(a)(2)(A) that the plan provide for “implementation, maintenance and enforcement” to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. With regard to the requirement for emission limitations, EPA has interpreted this to mean that, for purposes of section 110, the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013 (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at p. 2.

Comment 2: Sierra Club also cites two excerpts from the legislative history of the CAA Amendments of 1970 claiming they support an interpretation that SIP revisions under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of Indiana. Sierra Club also contends that the legislative history of the CAA supports the interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA.

Response 2: The CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning demonstrating attainment. In any event, the two excerpts of legislative history the commenter cites merely provide that states should include enforceable emission limits in their SIPs; they do not mention or otherwise address whether states are required to include maintenance plans for all areas of the state as part of the infrastructure SIP.

Comment 3: The commenter cites to 40 CFR 51.112(a), providing that each plan must “demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the [NAAQS].” The commenter asserts that this regulation requires all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. The commenter states that “[a]lthough these regulations were developed before the Clean Air Act separated Infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the regulations apply to I-SIPs.” The commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act. . . .” 51 FR 40656 (November 7, 1986).

Response 3: The commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits “adequate to prohibit NAAQS violations” and adequate or sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA notes and the commenter recognizes this regulatory provision was initially promulgated and “restructured and consolidated” prior to the CAA Amendments of 1990, in which Congress removed all references to “attainment” in section 110(a)(2)(A). In addition, it is clear on its face that 40 CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these provisions to apply when states are developing “control strategy” SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as section 175A and 182. The commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring and consolidating” provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. Id. at 40657.

Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SO X and PM (portion)”), 51.14 (“Control strategy: CO, HC, OX and NO 2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

Comment 4: The commenter references two prior EPA rulemaking actions where EPA disapproved or proposed to disapprove SIPs, and claimed they were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first points to a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the sulfur dioxide (SO 2 ) NAAQS. In that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the State plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure maintenance of the SO 2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. Second, commenter cites a 2013 proposed disapproval of a revision to the SO 2 SIP for Indiana, where the revision removed an emission limit that applied to a specific emissions source at a facility in the State. EPA relied on 40 CFR 51.112(a) in proposing to reject the revision, stating that the State had not demonstrated that the emission limit was “redundant, unnecessary, or that its removal would not result in or allow an increase in actual SO 2 emissions.” EPA further stated in that proposed disapproval that the State had not demonstrated that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration.”

Response 4: EPA does not agree that the two prior actions referenced by the commenter establish how EPA reviews infrastructure SIPs. It is clear from both the final Missouri rule and the now final Indiana rule that EPA was not reviewing initial infrastructure SIP submissions under section 110 of the CAA, but rather reviewing revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP addressed a control strategy SIP and not an infrastructure SIP (71 FR 12623). The Indiana action provides even less support for the commenter's position (78 FR 78720). The review in that rule was of a completely different requirement than the 110(a)(2)(A) SIP. Rather, in that case, the State had an approved SO 2 attainment plan and was seeking to remove from the SIP, provisions relied on as part of the modeled attainment demonstration. EPA determined that the State had failed to demonstrate under section 110(l) of the CAA why the SIP revision would not result in increased SO 2 emissions and thus interfere with attainment of the NAAQS. Nothing in that rulemaking addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. Rather, it is simply applying the clear statutory requirement that a state must demonstrate why a revision to an approved attainment plan will not interfere with attainment of the NAAQS.

Comment 5: Sierra Club discusses several cases applying to the CAA which Sierra Club claims support their contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent violations of the NAAQS. Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meet the national standards.” Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the 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”). The commenter also cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS.

Response 5: None of the cases the commenter cites supports the commenter's contention that section 110(a)(2)(A) requires that infrastructure SIPs include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, 421 U.S. 60, none of the cases the commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a challenge to an EPA action, revisions to a SIP that were required and approved as meeting other provisions of the CAA or in the context of an enforcement action, the court references section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of its decision.

In Train, a case that was decided almost 40 years ago, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, a reference that was removed in 1990.

The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. Yet, even if the court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation” not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The commenters do not raise any concerns about whether the measures relied on by the state in the infrastructure SIP are “emissions limitations” and the decision in this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the court was reviewing a Federal implementation plan that EPA promulgated after a long history of the state failing to submit an adequate state implementation plan. The court cited generally to section 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations but this language was not part of the court's holding in the case. The commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, the commenter also quotes the court's statement that “SIPs must include certain measures Congress specified” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state's “new source” permitting program, not its infrastructure SIP.

Two of the cases the commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing “revisions” to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA.

Comment 6: The commenter asserted that Indiana's infrastructure SIP fails to meet the requirements of section 110(a)(2)(A) and section 110(a)(2)(E) because IC 13-14-8-8 contains provisions that would allow the board to grant variances to rules when the rules would impose “undue hardships or burden.” The commenter noted that EPA had cited IC 13-14-8 as one of IDEM's mechanisms for satisfying the requirements of section 110(a)(2)(A) and section 110(a)(2)(E), but contended that the variance provisions in IC 13-14-8-8 are too broad and vague to ensure that emission limits and controls are properly enforced, or to ensure that adequate legal authority is provided to carry out Indiana's SIP. Therefore, EPA cannot approve IC 13-14-8 to meet any requirements of section 110.

Response 6: EPA disagrees the commenter's claim that Indiana's infrastructure SIP fails to meet the requirements of section 110(a)(2)(A) and section 110(a)(2)(E). As an initial matter, IC 13-14-8-8 is not a regulation that has been approved into the SIP. Thus, any variance granted by the state pursuant to this provision would not modify the requirements of the SIP. Furthermore, for a variance from the state to be approved into the SIP, a demonstration must be made under CAA section 110(l) showing that the revision does not interfere with any requirements of the act including attainment or maintenance of a NAAQS. We disagree that the existence of this provision as solely a matter of State law means that the State does not have adequate authority to carry out the implementation plan.

Comment 7: The commenter asserted that EPA must disapprove Indiana's infrastructure SIP because it does not address the visibility provisions under section 110(a)(2)(D)(i)(II). The commenter noted that EPA's basis for proposing approval for the visibility protection provisions of section 110(a)(2)(D)(i)(II) was contingent upon EPA's claim that Indiana has an approved regional haze SIP. The commenter contended that Indiana's regional haze SIP was only partially approved and no action has been taken on issues addressing the Best Available Retrofit Technology requirements for EGUs. Therefore, the commenter believes that EPA must disapprove the visibility protection requirements found in section 110(a)(2)(D)(i)(II) for Indiana's infrastructure SIP.

Response 7: Section 110(a)(2)(D)(i)(II) of the CAA requires that states have a SIP, or submit a SIP revision, containing provisions “prohibiting any source or other type of emission activity within the state from emitting any air pollutant in amounts which will . . . interfere with measures required to be included in the applicable implementation plan for any other State under part C [of the CAA] to protect visibility.” States were required to submit a SIP by December 2007 with measures to address regional haze—visibility impairment that is caused by the emissions of air pollutants from numerous sources located over a wide geographic area. Under the regional haze program, each State with a Class I area must submit a SIP with reasonable progress goals for each such area that provides for an improvement in visibility for the most impaired days and ensures no degradation of the best days.

Because of the often significant impacts on visibility from the interstate transport of pollutants, we interpret the “good neighbor” provisions of section 110 of the CAA described above as requiring states to include in their SIPs measures to prohibit emissions that would interfere with the reasonable progress goals set to protect Class I areas in other states. This is consistent with the requirements in the regional haze program which explicitly require each State to address its share of the emission reductions needed to meet the reasonable progress goals for surrounding Class I areas. 64 FR 35714, 35735 (July 1, 1999). States working together through a regional planning process are required to address an agreed upon share of their contribution to visibility impairment in the Class I areas of their neighbors. 40 CFR 51.308(d)(3)(ii). Indiana worked through a regional planning organization, the Midwest Regional Planning Organization (Midwest RPO), and consulted directly with other states to develop strategies to address regional haze in the Class I areas potentially affected by emissions from Indiana.

The commenter is correct that EPA issued a limited disapproval of Indiana's regional haze SIP, but our limited disapproval was based on Indiana's reliance on the Clean Air Interstate Rule (CAIR) to satisfy certain requirements for controlling emissions of SO 2 and NO X from EGUs. EPA disagrees, however, with the commenter that because Indiana's regional haze SIP did not fully meet certain requirements for controlling emissions of SO 2 and NO X , EPA must disapprove its infrastructure SIP for Pb.

Pb generally has an insignificant impact on visibility. According to the Memorandum from Mark Schmidt, Office of Air Quality Planning and Standards (OAQPS), when evaluating the extent that Pb could impact visibility, Pb-related visibility impacts were found to be insignificant (e.g., less than 0.10%) (“Ambient Pb's Contribution to Class 1 Area Visibility Impairment,” June 17, 2011). There is no evidence in Indiana's regional haze SIP to indicate that emissions of Pb from sources in the state were anticipated to cause or contribute to visibility impairment in any Class I area. In addition, nothing in the Indiana regional haze SIP indicates that any state assumed (or requested) that Indiana would be making reductions in emission of Pb to improve visibility. As such, the reasonable progress goals for the Class I areas in nearby states do not reflect any assumptions regarding Pb emissions from Indiana. Given this, we conclude that the Indiana SIP contains adequate measures to ensure that emissions of Pb from sources in the State will not interfere with the reasonable progress goals of nearby Class I areas.

Comment 8: The commenter asserted that EPA must disapprove Indiana's infrastructure SIP because it does not address the visibility protection provisions, as described above, for section 110(a)(2)(J). The commenter contended that EPA did not provide a rationale for why the visibility provisions in section 110(a)(2)(J) are not applicable to the 2008 Pb and 2008 ozone NAAQS.

Response 8: The visibility provisions in section 110(a)(2)(J) are not applicable to the 2008 Pb NAAQS for the following reason. Under 40 CFR part 51 subpart P, implementing the visibility requirements of CAA title I, part C, states are subject to requirements for RAVI, new source review for possible impacts on air quality related values in Class I areas, and regional haze planning. Specific requirements stemming from these CAA sections are codified at 40 CFR 55 part 51, subpart P. However, when the EPA establishes or revises a NAAQS, these requirements under part C do not change. The EPA believes that there are no new visibility protection requirements under part C as a result of a revised NAAQS. Therefore, there are no newly applicable visibility protection obligations pursuant to Element J after the promulgation of a new or revised NAAQS.

Comment 9: The commenter asserted that EPA must clarify two repealed regulations that were cited in the proposed rulemaking. Specifically, the commenter observed that EPA cited 326 IAC 11-5 as helping Indiana satisfy the requirements of section 110(a)(2)(G) “Emergency Powers” and IC 13-4-8 which was cited to satisfy section 110(a)(2)(H), “Future SIP Revisions.”

Response 9: EPA did not intend to engender any confusion with these citations. The commenter is correct in noting that 326 IAC 11-5 has been repealed. That rule was of little relevance to section 110(a)(2)(G) and was incorrectly cited; the correct citation that was provided by IDEM is SIP-approved IAC 1-5, “Alert Levels.” In a similar manner, IDEM provided IC 13-14-8 as helping to meet the requirements under section 110(a)(2)(H), but EPA incorrectly cited IC 13-4-8.

Comment 10: The commenter asserted that EPA must disapprove portions of Indiana's infrastructure SIP for the 2008 Pb NAAQS addressing certain PM 2.5 requirements under section 110(a)(2)(C). In particular, the commenter objected that Indiana has not codified the increments for areas designated Class I or Class III for PM 2.5. The commenter noted that while Indiana does not have Class I or Class III areas, the increments for Class I and Class III areas are still a requirement to satisfy section 110(a)(2)(C). The commenter contends it is insufficient for EPA to “hope” that the state will adopt the increments if areas in the state are later redesignated to Class I or Class III, and therefore EPA must disapprove this section of Indiana's infrastructure SIP.

Response 10: EPA disagrees with the commenter's view that Indiana's infrastructure SIP related to section 110(a)(2)(C) must be disapproved because the state has not codified the PM 2.5 increments for Class I and Class III areas as provided at 40 CFR 52.166(c) and 40 CFR 52.21(c). As explained in the August 19, 2013 proposed approval, Indiana does not currently have any areas designated Class I or Class III for PM 2.5 . Accordingly, EPA does not consider the PM 2.5 increments for Class I and Class III areas to be necessary for the implementation of PSD permitting in Indiana at this time. In the event that areas in Indiana are one day classified as Class I or Class III, EPA expects IDEM to adopt these increments and submit them for incorporation into the SIP ( see 78 FR 50360 at 50364). Section 40 CFR 51.166(g)(1) and 52.21(g)(1) specify that if a state seeks to have an area reclassified to either Class I or Class III, it must submit such a request as a revision to its SIP for approval by the EPA Administrator. Thus, no areas in Indiana can be reclassified to Class I or Class III without EPA approval, and the process of evaluating such a request for approval requires a notice-and-comment rulemaking process. The EPA and other interested parties can evaluate the adequacy of Indiana's PSD regulations as they apply to the proposed reclassified area at that time and, if necessary, initiate a process to cure any identified deficiency. However, at this time, EPA does not believe there to be an applicability gap for the PM 2.5 increments as they apply in the state of Indiana.

For the reasons discussed in our August 19, 2013, proposed rulemaking and in the above responses to public comments, EPA is taking final action to approve, as proposed, Indiana's infrastructure SIPs for the 2008 Pb NAAQS. In EPA's August 19, 2013, proposed rulemaking for these infrastructure SIPs, we also proposed to approve Indiana's satisfaction of the state board requirements contained in section 128 of the CAA, as well as certain PSD requirements obligated by EPA's October 20, 2010, final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 NSR Rule). The final approvals for each of the above requirements were published in the Federal Register on December 24, 2013 ( see 78 FR 77599, state board requirements), July 2, 2014 ( see 79 FR 37646, 2010 NSR Rule requirements) and August 11, 2013 (see 79 FR 46709, 2010 NSR Rule requirements, continued). EPA also proposed rulemaking on the 2008 ozone NAAQS and will be taking final action in a separate rulemaking. In today's rulemaking, we are taking final action on only the infrastructure SIP requirements for the 2008 Pb NAAQS. Our final actions by element of section 110(a)(2) and NAAQS, are contained in the table below.

In the table above, the key is as follows:

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

This rule is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, 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).)

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

This rulemaking addresses a December 31, 2012, submission and a June 11, 2014, clarification from the Illinois Environmental Protection Agency (Illinois EPA) intended to address all applicable infrastructure requirements for the 2008 ozone, 2010 NO 2 , and 2010 SO 2 NAAQS.

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, 2010 NO 2 , and 2010 SO 2 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.

EPA is acting upon the SIP submission from Illinois that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 ozone, 2010 NO 2 , and 2010 SO 2 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 visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D.

This rulemaking will not cover three substantive areas that are not integral to acting on 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 addressing such excess emissions; (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (collectively referred to as “director's discretion”); and, (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has the authority to address each one of these substantive areas in separate rulemaking. A detailed rationale, history, and interpretation related to infrastructure SIP requirements can be found in our May 13, 2014, proposed rule entitled, “Infrastructure SIP Requirements for the 2008 Lead NAAQS” in the section, “What is the scope of this rulemaking?” ( see 79 FR 27241 at 27242-27245).

In addition, EPA is not acting on portions of section 110(a)(2)(D)(i)—Interstate transport for 2008 ozone and 2010 SO 2 , and portions of section 110(a)(2)(J)—visibility protection and section 110(a)(2)(E)—state boards, for 2008 ozone, 2010 NO 2 , and 2010 SO 2 . 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 14, 2014, proposed rulemaking. EPA will also not be taking action on 110(a)(2)(A) and the rational is included in the response to comments.

The public comment period for EPA's proposed actions (79 FR 40693) with respect to Illinois' satisfaction of the infrastructure SIP requirements for the 2008 ozone, 2010 NO 2 , and 2010 SO 2 NAAQS closed on August 13, 2014. EPA received one comment letter. A synopsis of the adverse comments contained in this letter and EPA's responses are provided below.

Comment 1— The commenter states that the plain language of the CAA requires infrastructure SIPs to be adequate to prevent violations of the NAAQS. In support, the commenter quotes the language in section 110(a)(1) that requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) that requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which commenters claimed include the maintenance plan requirement. Sierra Club also contends that the legislative history of the CAA supports the interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA. The commenter cites 40 CFR 51.112(a), providing that each plan must “demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the [NAAQS].” The commenter asserts that this regulation requires all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. The commenter states that “[a]lthough these regulations were developed before the Clean Air Act separated Infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the regulations apply to I-SIPs.” The commenter also references two prior EPA rulemaking actions where EPA disapproved or proposed to disapprove SIPs and claimed they were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs including a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the sulfur dioxide (SO 2 ) NAAQS, where EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the state plan on the basis that the state failed to demonstrate the SIP was sufficient to ensure maintenance of the SO 2 NAAQS and a 2013 disapproval of a revision to the SO 2 SIP for Indiana, where the revision removed an emission limit that applied to a specific emissions source at a facility in the state. Sierra Club also discusses several cases applying to the CAA which Sierra Club claims support their contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent violations of the NAAQS including Train v. NRDC, 421 U.S. 60, 78 (1975), Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991), Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004), Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012), and Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000). The commenter also contends that Illinois' infrastructure SIP does not adequately protect the 2008 ozone NAAQS because it does not provide emissions limits for ozone precursors. The commenter notes that the state has exceedances of the standard and should add emissions limits, especially for coal-fired power plants.

Response 1 —While EPA does not agree with all of the statements made by the commenter regarding what is required under CAA section 110(a)(2)(A), we do agree that Illinois' submittal lacks identification of “emissions limitations” in the existing EPA-approved SIP provisions or new SIP provisions that the Illinois EPA has adopted and submitted for EPA approval that limit emissions of pollutants relevant to the 2008 ozone standard, including limits on ozone precursors. We are aware that the state does have numerous provisions in existing SIP that may be adequate to meet this requirement and we are working with the state to provide a submission that addresses this requirement. At this time, EPA is not taking final action on 110(a)(2)(A) for the 2008 ozone standard. We will take action in a separate rulemaking after providing the state with an opportunity to provide the necessary information.

Comment 2 —The commenter contends that the current emissions limits in the permits of several Illinois coal-fired power plants are “insufficient to attain and maintain the 2010 SO 2 NAAQS.” The commenter supplies air dispersion modeling for several Illinois power plants showing their asserted impact on the 2010 SO 2 NAAQS and tables summarizing the concentration of SO 2 from the different facilities. The commenter alleges that the air dispersion modeling shows exceedances of the standard that should be addressed through emissions limits in Illinois' SO 2 Infrastructure SIP. The commenter also contends that “air dispersion modeling is the best method for evaluating the short-term impacts of large SO 2 sources,” supporting this reasoning with statements from EPA's 1994 SO 2 Guideline Document, EPA's 1983 Section 107 Designation Policy Summary and EPA's final 2010 SO 2 NAAQS rule, as well as the court cases Montana Sulphur, Sierra Club v. Costle, Republic Steel Corp. v. Costle, and Catawba County v. EPA. The commenter also contends that compliance with 110(a)(2)(A) requires proper averaging time for emissions limits, specifically a one-hour averaging time for the one-hour SO 2 NAAQS. The commenter cites a February 3, 2011 letter from EPA Region 7 to the Kansas Department of Health and Environment regarding the need for one-hour SO 2 emission limits in a PSD permit, EPA's disapproval of a Missouri SIP which relied on annual averaging for SO 2 emission rates, and In re: Mississippi Lime Co., PSDAPPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 13, 2006), where EPA disapproved a control strategy SO 2 SIP for which the commenter quotes, “Emission limits should be based on concentration estimates for the averaging time that results in the most stringent control requirements.” The commenter also contends that the number of nonattainment areas in Illinois will jump with future rounds of designations, therefore establishing emissions limits in the infrastructure SIP that comply with NAAQS provides regulatory certainty for facilities currently considering controls for other rules.

The commenter contends that Illinois must require continuous emissions monitoring systems (CEMS) to comply with the requirements of section 110(a)(2)(F) for a system to monitor emissions from stationary sources.

Response 2 —While EPA does not agree with all of the statements made by the commenter regarding what is required under CAA section 110(a)(2)(A), we do agree that Illinois' submittal lacks identification of “emissions limitations” in the existing EPA-approved SIP provisions or new SIP provisions that the air agency has adopted and submitted for EPA approval that limit emissions of pollutants relevant to the 2010 SO 2 standard. We are aware that the state does have numerous provisions in existing SIP that may be adequate to meet this requirement and we are working with the state to provide a submission that addresses this requirement. At this time, EPA is not taking final action on 110(a)(2)(A) for the 2010 SO 2 standard. We will take action in a separate rulemaking after providing the state with an opportunity to provide the necessary information.

Regarding the requirement in 110(a)(2)(F), this provision merely requires the state to address monitoring and reporting requirements “prescribed by the Administrator.” EPA has not prescribed any new or different monitoring or reporting requirements for the 2010 SO 2 NAAQS.

Comment 3 —The commenter contends that Illinois' 2010 NO 2 infrastructure SIP fails to ensure attainment and maintenance of the 2010 NO 2 NAAQS because it does not include emissions limits or additional monitoring.

Response 3 —While EPA does not agree with all of the statements made by the commenter regarding what is required under CAA section 110(a)(2)(A), EPA agrees that Illinois' submittal lacks identification of “emissions limitations” in the existing EPA-approved SIP provisions or new SIP provisions that the air agency has adopted and submitted for EPA approval that limit emissions of pollutants relevant to the 2010 NO 2 standard. We are aware that the state does have numerous provisions in existing SIP that may be adequate to meet this requirement and we are working with the state to provide a submission that addresses this requirement. At this time, EPA is not taking final action on 110(a)(2)(A) for the 2010 NO 2 standard. We will take action in a separate rulemaking after providing the state with an opportunity to provide the necessary information.

Comment 4 —The commenter contends that the Illinois infrastructure SIPs for 2008 ozone, 2010 NO 2, and 2010 SO 2 are inadequate to protect those NAAQS because they allow for “ambient air incremental increases, variances, exemptions, or exclusions with regard to limits placed on sources of pollutants.” The commenter claims that 415 ILCS 5/28.1 and 415 ILCS 5/35 provide for wide discretion to amend or promulgate rules that exempt certain sources from complying with standards. The commenter also mentions the example of a variance in 2013 for the formerly Ameren-owned power plants. The commenter also asserts that it was not able to intervene in the proceeding of a variance, and that the Illinois Court of Appeals rejected the commenter's petition for judicial review of that variance. Therefore, the commenter also contends that the infrastructure SIP prohibits judicial review of variances. The commenter contends that the allowance of these variances, inadequacies, and exemptions implies that the infrastructure SIP cannot ensure the protection of the NAAQS.

Response 4 —The statutes mentioned are not part of the SIP, and any variance granted pursuant to that state authority would not affect the approved SIP requirement. If the state exercised its authority to grant a variance pursuant to those state regulations, the requirement in the SIP would only be changed if the state submits the new requirement to EPA as a SIP revision and EPA approves that change into the SIP.

Comment 5 —The commenter contends that Illinois' infrastructure SIP fails to address interstate transport with respect to NO 2 and that as a result EPA should disapprove the submittal. The commenter notes that infrastructure SIPs must be submitted within three years of promulgation of a NAAQS under CAA section 110. The commenter contends that the state cannot rely on EPA's failure to address the interstate transport provisions in its 2013 infrastructure SIP guidance as a basis for not addressing this component in its SIP. The commenter also contends that under the Cross-State Air Pollution Rule (CSAPR), Illinois was required to reduce NO X and SO 2 emissions to address cross-state pollution for ozone and PM 2.5 standards that were less stringent than the 2008 ozone and 2010 SO 2 standards. In addition, the commenter claims that Illinois cannot rely on Illinois Mercury Rule, 35 IAC part 225, to demonstrate that it is addressing its contributions to other states without conducting modeling to determine the transport of NO X emissions.

Response 5 —EPA is not entirely clear which standards the commenter believed were deficient as to the interstate transport obligation in CAA section 110(a)(2)(D)(i)(I). Therefore, EPA will respond to the comment first as to the 2010 NO 2 standard and then as to the ozone and SO 2 standards.

For the 2010 NO 2 standard, as the commenter notes, the transport provisions of infrastructure SIPs should prohibit emissions that will contribute significantly to a nonattainment area in another state or interfere with another state's maintenance of a NAAQS. However, the infrastructure submittal requirement applies only to the promulgated standard that triggered the requirement for the infrastructure submittal. The commenter's argument appears to be that the 2010 NO 2 standard is not being met because of existing modeling from CSAPR showing NO X transport. However, the commenter does not explain how the modeling demonstrates issues associated with the attainment and maintenance of the 2010 NO 2 NAAQS. The arguments that the commenter does make rely on modeling of NO X and SO 2 as precursors to PM 2.5 and ozone, which is not solely based on NO 2 emissions and is not germane to the attainment or maintenance of the 2010 NO 2 standard. Even if the CSAPR modeling demonstrates that NO X emissions from the Illinois are generally transported downwind, the commenter has not demonstrated that these emissions are associated with a nonattainment or maintenance problem as to the 2010 NO 2 NAAQS in a downwind state. As noted in the proposed rule, Illinois does have rules controlling NO 2 emissions, including the Illinois Mercury Rule, and because there are no areas violating the 2010 NO 2 standard or any expected future violations, EPA finds the current controls sufficient to meet the requirements of 110(a)(2)(D)(i)(I) for the 2010 NO 2 standard.

To the extent that the commenter alleges the state has failed to address interstate transport as to the 2008 ozone and 2010 SO 2 NAAQS, as explained in the notice of proposed rulemaking (NPR), this action does not address the “good neighbor provision” in section 110(a)(2)(D)(i)(I) as to these NAAQS. Illinois did not make a SIP submission to address the requirements of section 110(a)(2)(D)(i)(I) as to ozone or SO 2 and thus there is no such submission upon which EPA could take action under section 110(k). EPA did not propose to take any action with respect to Illinois' obligations pursuant to section 110(a)(2)(D)(i)(I) as to these NAAQS and is not in this rulemaking action taking any such action. Further, EPA could not act under section 110(k) to disapprove a SIP that has not been submitted to EPA. Thus, to the extent the comment relates to the substance or approvability of the “good neighbor provision” as to the 2008 ozone and 2010 SO 2 infrastructure SIP submissions, the comment is not relevant to this present rulemaking. As stated in this final action and in the proposed rule, EPA will take later, separate action to address section 110(a)(2)(D)(i)(I) requirements for the 2008 ozone and 2010 SO 2 NAAQS.

EPA disagrees with the commenters' argument to the extent it asserts 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)).

As such, the Agency interprets its authority under section 110(k)(3) as affording EPA the discretion to approve or conditionally approve individual elements of Illinois' infrastructure submission for the 2008 ozone and 2010 SO 2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) with respect to those NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA 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 interpretation.

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 and 2010 SO 2 NAAQS. EPA's approval of the Illinois infrastructure SIP submission for the 2008 ozone and 2010 SO 2 NAAQS for the portions described in the NPR is therefore appropriate.

Comment 6 —The commenter contends that Illinois does not have the adequate personnel, funding, and authority, required by section 110(a)(2)(E) of the CAA, to properly administer its Title V program, shown by overdue permits and improper reissuing of expired permits. The commenter provided an example of a recently proposed significant modification action for the Kincaid Generation Station as an interim step for a 20-year process that “based on an application submitted almost nineteen years ago . . . left unacceptable gaps in the permit's conditions.” The commenter states that this improper process is also the case for two other coal-fired power plants and, therefore, the state's Title V program for coal-fired power plants is seriously deficient.

Response 6 —EPA disagrees that the issue raised by the commenter implies that Illinois EPA does not meet the criteria of section 110(a)(2)(E). Although Title V programs are not a component of the SIP, EPA fully approved Illinois' Title V program on December 4, 2001 (66 FR 62946). Illinois has funding for its program through Title V fees, and has the authority to implement the programs though a number of state rules to implement 40 CFR part 70, and dedicated staff for implementation of their Title V program. EPA acknowledges the commenter's concern over the backlog issue at Illinois EPA, including the Kincaid permit, however, Illinois EPA is actively addressing this issue, and has taken many corrective actions, including significant increases in recent personnel hirings and permit issuance rates.

For the reasons discussed in our July 14, 2014, proposed rulemaking and in the above responses to public comments, EPA is taking final action to approve, Illinois' infrastructure SIPs for the 2008 ozone, 2010 NO 2 , and 2010 SO 2 NAAQS with the exception of section 110(a)(2)(D)(i)—Interstate transport for 2008 ozone and 2010 SO 2. EPA is also not taking action on section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D, section 110(a)(2)(A)- Emission Limits, portions of section 110(a)(2)(E)—state boards, or portions of section 110(a)(2)(J)—visibility protection for the 2008 ozone, 2010 NO 2 , and 2010 SO 2 standards.

Our final actions by element of section 110(a)(2) and NAAQS, are contained in the table below.

In the above table, the key is as follows:

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

This rule is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, 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).)

40 CFR part 52 is amended as follows:

I. Background

ONRR is amending its appeal regulations. On May 13, 1999, the Department of the Interior (Department) published in the Federal Register (64 FR 26240) a final rule governing the appeal of the former Minerals Management Service's (MMS) Minerals Revenue Management (MRM) orders. In this rule, ONRR clarifies the appeal regulations by removing ambiguity regarding the ONRR definition of an Order, the timing of appeals of orders to perform restructured accounting, and the orders that have become final for the Department that the recipient has not paid or appealed.

On May 19, 2010, the Secretary of the Interior (Secretary) separated the responsibilities previously performed by the former MMS and reassigned those responsibilities to three separate organizations. As part of this reorganization, the Secretary renamed MMS's MRM the Office of Natural Resources Revenue and directed that ONRR transition from the Office of the Assistant Secretary for Land and Minerals Management to the Office of the Assistant Secretary for Policy, Management and Budget (PMB). This change required the reorganization of title 30, Code of Federal Regulations (30 CFR). In response, ONRR published a direct final rule on October 4, 2010 (75 FR 61051), to establish a new chapter XII in 30 CFR; to remove certain regulations from chapter II; and to recodify these regulations in the new chapter XII. Therefore, all references to ONRR in this rule include its predecessor MRM, and all references to 30 CFR part 1290 in this rule include former 30 CFR part 290, subpart B.

ONRR published the proposed rule on July 22, 2013 (78 FR 43843). We received comments on the proposed rule from 1 oil and gas producer, 1 Indian Tribe, and 1 trade association. We have analyzed these comments, which are discussed below:

Public Comments: Both the company and trade association expressed concern over the definition of an “order.” Specifically, they believe that paragraph 2(vi) which states that “[a]ny correspondence that does not include the right to appeal in writing” is not an “order,” is too broad, confusing, and unnecessary. Their primary concern is that correspondence that contains a requirement to pay or other “substantive obligation to perform,” but does not set out the right to appeal, forces the recipient to either (1) comply with the correspondence “but have no right to appeal” or (2) call ONRR to find out if ONRR intentionally left out the appeals language. The trade association thus suggests that we delete paragraph 2(vi) in the final rule or add language to paragraph 2(vi) that correspondence “without express appeal language has no immediate legal effect on the recipient.” The company suggests that ONRR correspondence state whether it is appealable or not instead of stating in the rule that correspondence is not appealable if it does not contain appeal rights.

ONRR Response: In the proposed rule we explained that “the rule proposes to amend existing appeal regulations in titles 30 and 43 to clarify which ONRR correspondence are appealable orders . . . [because] ONRR has received appeals filed in response to “Dear Payor,” “Dear Operator,” and “Dear Reporter” letters. These letters contain policy and guidance that do not contain mandatory or ordering language, and, thus, are not ONRR orders.” In addition to clarifying that such correspondence are not appealable “orders,” we also proposed to add new language stating that any ONRR correspondence that does not set out the right to appeal in writing is not an appealable “order” consistent with the Interior Board of Land Appeals (IBLA) decision in Xanadu Exploration Company, 157 IBLA 183, 186 (2002).

With respect to our proposal to add a new paragraph 2(vi) that provides an order does not include “[a]ny correspondence that does not include the right to appeal in writing” we disagree with removing paragraph 2(vi) in the final rule for a several reasons.

First, the concern that a company could receive correspondence that actually was an “order” with a “substantive obligation to perform,” but would have no right to appeal is unfounded. If you receive correspondence from ONRR that does not contain the right to appeal, then by definition under paragraph 2(vi) of § 1290.102 it is not an “order” and, thus, the company need not comply. Simply stated, if you received a document from ONRR that tells you to take some action, but does not contain appeal rights, you have no obligation to comply with that correspondence and may not appeal that correspondence because under new paragraph 2(iv), it is not an “order.” However, if you received a document from ONRR that tells you to take some action and sets out the right to appeal, you have an obligation to comply with that correspondence and may appeal that “order.”

Second, we do not believe we need to add language to paragraph 2(vi) to state that correspondence without appeal rights has no legal effect. By definition, as explained above, such correspondence is not an “order,” and, thus, has no legal effect. We also do not agree that adding language to the final rule that documents without express appeal language have no legal effect would clarify the definition of what constitutes an “order”. We agree that ONRR correspondence should state whether it is appealable or not—and often does. For example, Preliminary Determination Letters—so-called “Issue Letters”—that ONRR, States, and Tribes send to companies prior to an order do not state they are appealable—because they are not. On the other hand, Dear Payor Letters that merely provide guidance state they are not appealable. Finally, some ONRR correspondence such as orders to pay or report or interest bills, do state that they are appealable, and thus are appealable “orders.” Nevertheless, we decline to codify that all ONRR correspondence must state whether it is appealable or not because if a company received correspondence that was silent on the right to appeal, it would create the same problem this rule is remedying—the company would be forced to appeal the correspondence in case ONRR merely omitted language providing a right to appeal. Whereas, under this rule, if the correspondence does not set out the right to appeal, as stated above, the recipient is not legally required to comply with the correspondence because, under this final rule the correspondence is not an “order.” Therefore, we are retaining paragraph 2(vi) in the final rule.

Public Comments: The trade association suggests that we also clarify the portion of the definition of an order that states an order “means any document issued by the ONRR Director or a delegated state. . . .” Specifically, it recommends removing the word “Director” from the quoted portion of the definition because it allows an appeal of a Director's Order to the Director. The trade association believes this language conflicts with § 1290.110(b)(1) which states an appellant does not have to exhaust administrative remedies ( i.e. appeal to the IBLA) if an order was made effective by the Director.

ONRR Response: We agree that inclusion of the word “Director” in the definition of “order” is confusing and are removing it in the final rule. An order or decision the ONRR Director issues is appealable to the IBLA, not the Director. Therefore, we are making that clear in the final rule. Also, we are making a corresponding change to § 1290.110(b) which states appellants do not have to exhaust administrative remedies if an order was made effective by the Director. Appellants do have to exhaust administrative remedies if an order is made effective by the Director. The ONRR Director and the BIA Director are not delegated authority to issue orders or decisions that are final for the Department and nonappealable. Paragraph (b)(1) conflicts with the requirement to appeal orders to perform a restructured accounting the Director issues to the IBLA under 1290.105(a)(2) and orders and decisions the ONRR Director issues to the IBLA under § 1290.108. Accordingly, we are removing paragraph (b)(1) in this final rule.

Upon reviewing revised 30 CFR 1290.105(a)(1)(i), we determined we inadvertently omitted the phrase “Indian mineral leases” from the portion of this subparagraph pertaining to appeals of Orders to Perform Restructured Accounting. We have added this phrase to clarify that the 30-day appeal period applies to Orders to Perform Restructured Accounting involving Indian mineral leases.

Public Comments: The trade association suggests that we also clarify proposed 30 CFR 1290.108(a) covering appeals to the IBLA. Specifically, it recommends removing the statement that a party may appeal “a final decision of the ONRR Director or the Director, Bureau of Indian Affairs” to the IBLA and instead state that a party may appeal “an order issued or made effective by the Director.” The trade association believes that the term “final decision” should be reserved for decisions that are final for the Department—such as IBLA and Assistant Secretary's decisions.

Both the company and trade association disagree with our proposal to extend the period for ONRR to file an answer in an appeal to the IBLA in proposed 1290.108(b). The trade association believes ONRR's stated premise for the change “to allow ONRR to assemble the administrative record in royalty appeals” is flawed because it believes “ONRR should have already prepared and submitted the administrative record in support of its order prior to the due date for the appellant's Statement of Reasons.” It also is concerned that allowing ONRR more time to assemble the administrative record could “impair” an appellant's access to the administrative record. The company believes that ONRR should already have all of the information so no time is necessary to assemble the administrative record.

ONRR Response: We agree that ONRR and BIA Director's decisions and orders are not “final for the Department”—which, as discussed above, is why we are removing § 1290.110(b)(1) in this final rule. Therefore, in the final rule, we are also revising section 1290.108(a) to state that a party may appeal to the IBLA “an order the ONRR Director issues or a decision the ONRR Director or Director, Bureau of Indian Affairs issues under this part.”

With respect to 1290.108(b), ONRR will retain the extended period for it to file its answer in the final rule for two reasons. First, any assumption that ONRR has all of the records already in its possession, and the administrative record is already assembled, is incorrect. When a party appeals an order to the Director, the Director's decision is based on the order, issue letter, responses to the issue letter, appellant's statement of reasons, field reports if requested, and additional information either the appellant or office that issued the order provides. Also, the Director's decision is limited to only the issues the appellant raises on appeal. However, appellants often raise new issues or arguments on appeal to the IBLA. In order to ensure we provide a complete record to the IBLA and appellant, the Office of Enforcement and Appeal's Litigation Support Branch (LSB) asks the office that issued the order to send the LSB all audit and compliance review records, even if portions of those audits or compliance reviews were not at issue in the appeal to the Director (for example, schedules not at issue in the appeal). Because an order may be issued by ONRR satellite offices, a delegated State, or by ONRR based on a delegated State or Tribal audit, it takes time for LSB to gather all of the documents to include in the record. LSB then organizes, indexes, and bates stamps the record—a service that benefits not only ONRR, but also the appellant and IBLA.

Second, we believe the concern that allowing ONRR more time to assemble the administrative record could somehow “impair” an appellant's access to the administrative record is unwarranted. As stated above, ONRR's goal is to provide the most complete, well-organized record possible. Moreover, the appellant should already have most of the documents necessary to prepare its statement of reasons. And, to the extent the administrative record contains information the appellant did not have prior to filing its statement of reasons, which is not likely, the appellant may file a reply brief within 15 days of ONRR filing an answer. 43 CFR 4.412(d).

Public Comments: The Tribe submitted a comment in support of proposed § 1290.111. Section 1290.111 makes clear that, if you receive an ONRR order and you neither pay nor appeal that order under 30 CFR part 1290, the order is the final decision of the Department, and you may not contest the merits of that order in any subsequent proceeding seeking to enforce the order under 30 CFR part 1241. For example, if ONRR issued a Notice of Noncompliance (NONC) under 30 CFR part 1241 to enforce an order you did not pay or appeal, you may not contest your liability under the order in a hearing on the NONC. However, if you did not comply with the NONC enforcing the order, and ONRR assessed civil penalties for your failure to comply with the NONC, you could contest the amount of the penalty assessment.

ONRR Response: ONRR appreciates the Tribe's support and will retain § 1290.111 in the final rule.

Public Comments: The trade association and company made the same comments to the definition of “order” in section 4.903 as those they made for 30 CFR 1290.102. Definition of “order” discussed above.

ONRR Response: See our response to the comments to 30 CFR 1290.102 above.

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

The Department certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

This rule will affect lessees under Federal and Indian mineral leases and other recipients of ONRR orders or other official correspondence. Lessees of Federal and Indian mineral leases are generally companies classified under the North American Industry Classification System (NAICS) Code 211111, which includes companies that extract crude petroleum and natural gas. For this NAICS code classification, a small company is one with fewer than 500 employees. Because this rule applies to all mineral leases, even though the NAICS classification only applies to oil and gas leases, we are using the same classification system for all mineral leases. The Department believes that a meaningful number of businesses affected by this rule will be small businesses.

This rule will have no economic effect on small businesses. Businesses will not lose any opportunity to appeal any orders which may have an economic effect. This rule only will serve to clarify the proper forum for certain appeals, conform with other regulations, and codify previously enacted Federal law. A Regulatory Flexibility Analysis will not be required. Accordingly, a Small Entity Compliance Guide will not be required.

Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and ten Regional Fairness Boards receive comments from small businesses about Federal agency enforcement actions. The Ombudsman annually evaluates the enforcement activities and rates each agency's responsiveness to small business. If you wish to comment on the actions of ONRR, call 1-888-734-3247. You may comment to the Small Business Administration without fear of retaliation. Allegations of discrimination/retaliation filed with the Small Business Administration will be investigated for appropriate action.

This rule is not a major rule under 5 U.S.C. 804(2) of the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq. ). This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or Tribal governments, or the private sector of more than $100 million per year. This rule will not have a significant or unique effect on State, local, or Tribal governments, or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ) is not required.

Under the criteria in section 2 of E.O. 12630, this rule does not have any significant takings implications. This rule is not a governmental action capable of interference with constitutionally protected property rights. A Takings Implication Assessment is not required.

Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This rule does not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in Outer Continental Shelf (OCS) activities, this rule does not affect that role. A Federalism summary impact statement is not required.

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

a. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

b. Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and tribal sovereignty. Under the Department's consultation policy and the criteria in E.O. 13175, we evaluated this rule and determined that it will have no substantial direct effects on federally recognized Indian Tribes. Indian Tribes will be unaffected by clarifications to this appeals rule because the changes would affect the procedures for appeal by lessees, but not the rights of lessors, such as individual Indian mineral owners and Tribes.

This rule does not contain information collection requirements, and a submission to OMB is not required under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. We are not required to provide a detailed statement under the National Environmental Policy Act of 1969 (NEPA) because this rule qualifies for categorical exclusion under 43 CFR 46.210(c) and (i) and the DOI Departmental Manual, part 516, section 15.4.D: “ (c) Routine financial transactions including such things as . . . audits, fees, bonds, and royalties . . . (i) Policies, directives, regulations, and guidelines: That are of an administrative, financial, legal, technical, or procedural nature.” See 43 CFR 46.210(i) and the DOI Departmental Manual, part 516, section 15.4.D (2004). We have also determined that this rule is not involve in any of the extraordinary circumstances listed in 43 CFR 46.215 that requires further analysis under NEPA. The procedural changes resulting from these amendments have no consequences with respect to the physical environment. This rule will not alter, in any material way, natural resource exploration, production, or transportation.

This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.

For the reasons stated in the preamble, the Department of the Interior amends 30 CFR part 1290 and 43 CFR part 4, subpart J, as follows:

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2014 Greenland turbot ITAC in the Bering Sea subarea of the BSAI is 1,410 metric tons (mt) as established by the final 2014 and 2015 harvest specifications for groundfish in the BSAI (79 FR 12108, March 4, 2014). In accordance with § 679.20(d)(1)(i) and (ii)(B), the Administrator, Alaska Region, NMFS, has determined that the 2014 Greenland turbot ITAC in the Bering Sea subarea of the BSAI will be needed as incidental catch to support other groundfish fisheries. Therefore, the Regional Administrator is establishing a directed fishing allowance of 0 mt, and is setting aside the remaining 1,410 mt as incidental catch. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Greenland turbot in the Bering Sea subarea of the BSAI.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Greenland turbot in the Bering Sea subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 9, 2014.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands management area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

NMFS closed the directed fishery for Pacific ocean perch (POP) in the Bering Sea subarea of the BSAI under § 679.20(d)(1)(iii) (79 FR 12108, March 4, 2014).

NMFS has determined that approximately 4,500 metric tons of POP remain in the directed fishing allowance. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2014 total allowable catch of POP in the Bering Sea subarea of the BSAI, NMFS is terminating the previous closure and is opening directed fishing for POP in Bering Sea subarea of the BSAI, effective 1200 hrs, A.l.t., October 15, 2014, through 1200 hrs, A.l.t., December 31, 2014. This will enhance the socioeconomic well-being of harvesters dependent on POP in this area.

The Administrator, Alaska Region considered the following factors in reaching this decision: (1) The current catch of POP in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels participating in this fishery.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of POP directed fishing in the Bering Sea subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 11, 2014.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Without this inseason adjustment, NMFS could not allow the fishery for POP in the Bering Sea subarea of the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until October 31, 2014.

This action is required by § 679.20 and § 679.25 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

NMFS closed directed fishing for Pacific ocean perch, northern rockfish, and dusky rockfish in the Western Regulatory Area of the GOA under § 679.20(d)(1)(iii) on July 1, 2014 (79 FR 37960, July 3, 2014).

As of September 30, 2014, NMFS has determined that approximately 2,300 metric tons (mt) of Pacific ocean perch, 1,250 mt of northern rockfish, and 295 mt of dusky rockfish TAC remain in the Western Regulatory Area of the GOA. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the TAC of Pacific ocean perch, northern rockfish, and dusky rockfish in the Western Regulatory Area of the GOA, NMFS is terminating the previous closure and is reopening directed fishing for Pacific ocean perch, northern rockfish, and dusky rockfish in the Western Regulatory Area of the GOA, effective 1200 hrs, A.l.t., October 15, 2014.

The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific ocean perch, northern rockfish, and dusky rockfish in the Western Regulatory Area of the GOA and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for Pacific ocean perch, northern rockfish, and dusky rockfish in the Western Regulatory Area of the GOA. Immediate notification is necessary to allow for the orderly conduct and efficient operation of these fisheries, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a document providing time for public comment because the most recent, relevant data only became available as of October 8, 2014.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Without this inseason adjustment, NMFS could not allow these rockfish fisheries the Western Regulatory Area of the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until October 27, 2014.

This action is required by § 679.25 and is exempt from review under Executive Order 12866.