[Federal Register Volume 80, Number 197 (Tuesday, October 13, 2015)]
[Rules and Regulations]
[Pages 61311-61317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-25839]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2014-0657; FRL-9935-18-Region 5]


Air Plan Approval; MI; Infrastructure SIP Requirements for the 
2008 Ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve elements of state implementation plan (SIP) 
submissions by Michigan regarding the infrastructure requirements of 
section 110 of the Clean Air Act (CAA) for the 2008 ozone, 2010 
nitrogen dioxide (NO2), 2010 sulfur dioxide 
(SO2), and 2012 fine particulate (PM2.5) national 
ambient air quality standards (NAAQS). The infrastructure requirements 
are designed to ensure that the structural components of each state's 
air quality management program are adequate to meet the requirements of 
the CAA. The proposed rulemaking associated with this final action was 
published on June 24, 2015, and EPA received one comment letter during 
the comment period, which ended on July 24, 2015. The concerns raised 
in this letter, as well as EPA's responses, are addressed in this final 
action.

DATES: This final rule is effective on November 12, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2014-0657. All documents in the docket are listed in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, will be 
publicly-available only in hard copy. Publicly-available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the U.S. Environmental Protection Agency, Region 5, Air 
and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 
60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding Federal holidays. We recommend that you 
telephone Sarah Arra at (312) 886-9401 before visiting the Region 5 
office.

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

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

I. What is the background of these SIP submissions?
II. What is our response to comments received on the proposed 
rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background of these SIP submissions?

A. What does this rulemaking address?

    This rulemaking addresses infrastructure SIP submissions from the 
Michigan Department of Environmental Quality (MDEQ) submitted on July 
10, 2014, for the 2008 ozone, 2010 NO2, 2010 SO2, 
and 2012 PM2.5 NAAQS.

B. Why did the state make this SIP submission?

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

C. What is the scope of this rulemaking?

    EPA is acting upon Michigan's SIP submissions that address the 
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for 
the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS. The requirement for states to make SIP 
submissions of this type arises out of CAA section 110(a)(1). Pursuant 
to section 110(a)(1), states must make SIP submissions ``within 3 years 
(or such shorter period as the Administrator may prescribe) after the 
promulgation of a national primary ambient air quality standard (or any 
revision thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The

[[Page 61312]]

statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon EPA's taking any action other than promulgating a new 
or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    This rulemaking will not cover three substantive areas that are not 
integral to acting on the state's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction (``SSM'') at sources, that may be 
contrary to the CAA and EPA's policies addressing such excess 
emissions; (ii) existing provisions related to ``director's variance'' 
or ``director's discretion'' that purport to permit revisions to SIP 
approved emissions limits with limited public process or without 
requiring further approval by EPA, that may be contrary to the CAA 
(collectively referred to as ``director's discretion''); and, (iii) 
existing provisions for Prevention of Significant Deterioration (PSD) 
programs that may be inconsistent with current requirements of EPA's 
``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as 
amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, EPA 
has the authority to address each one of these substantive areas in 
separate rulemaking. A detailed rationale, history, and interpretation 
related to infrastructure SIP requirements can be found in our May 13, 
2014, proposed rule entitled, ``Infrastructure SIP Requirements for the 
2008 Lead NAAQS'' in the section, ``What is the scope of this 
rulemaking?'' (see 79 FR 27241 at 27242-27245).
    In addition, EPA is not acting on submissions related to a portion 
of section 110(a)(2)(D)(i)(II) with respect to visibility, section 
110(a)(2)(J) with respect to visibility for the 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS 
submittals, and section 110(a)(2)(D)(i)(I), interstate transport 
significant contribution and interference with maintenance for 2008 
ozone, 2010 SO2, and 2012 PM2.5 NAAQS submittals. 
EPA is also not acting on submissions related to section 110(a)(2)(I)--
Nonattainment Area Plan or Plan Revisions Under Part D, in its 
entirety. The rationale for not acting on submittals regarding elements 
of these requirements was included in EPA's June 24, 2015, proposed 
rulemaking.
    EPA's June 24, 2015, proposed rulemaking also proposed approving a 
submission from Michigan addressing the state board requirements under 
section 128 of the CAA. EPA finalized this approval in a separate 
rulemaking on August 3, 2015 (see 80 FR 52399).

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

    The public comment period for EPA's proposed actions with respect 
to Michigan's satisfaction of the infrastructure SIP requirements for 
the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 
PM2.5 NAAQS closed on July 24, 2015. EPA received one 
comment letter, which pertained to the 2008 ozone NAAQS, submitted 
jointly by the Sierra Club and Earthjustice. A synopsis of the comments 
contained in this letter and EPA's responses are provided below.
    Comment 1: The commenter states that, on its face, the CAA 
``requires I-SIPs to be adequate to prevent violations of the NAAQS.'' 
In support, the commenter quotes the language in section 110(a)(1) that 
requires states to adopt a plan for implementation, maintenance, and 
enforcement of the NAAQS and the language in section 110(a)(2)(A) which 
requires SIPs to include enforceable emissions limitations as may be 
necessary to meet the requirements of the CAA and which commenter 
claimed include the maintenance plan requirement. The commenter notes 
the CAA definition of ``emission limit'' and reads these provisions 
together to require ``enforceable emission limitations on source 
emissions sufficient to ensure maintenance of the NAAQS.''
    Response 1: EPA disagrees that section 110 must be interpreted in 
the manner suggested by the commenter. Section 110 is only one 
provision that is part of the complex structure governing 
implementation of the NAAQS program under the CAA, as amended in 1990, 
and it must be interpreted in the context of not only that structure, 
but also of the historical evolution of that structure. In light of the 
revisions to section 110 since 1970 and the later-promulgated and more 
specific planning requirements of the CAA, EPA interprets the 
requirement in section 110(a)(2)(A) that the plan provide for 
``implementation, maintenance and enforcement'' to mean that the 
infrastructure SIP must contain enforceable emission limits that will 
aid in attaining and/or maintaining the NAAQS and that the state must 
demonstrate that it has the necessary tools to implement and enforce a 
NAAQS, such as adequate state personnel and an enforcement program.
    Our interpretation that infrastructure SIPs are more general 
planning SIPs is consistent with the statute as understood in light of 
its history and structure. When Congress enacted the CAA in 1970, it 
did not include provisions requiring states and the EPA to label areas 
as attainment or nonattainment. Rather, states were required to include 
all areas of the state in ``air quality control regions'' (AQCRs), and 
section 110 set forth the core substantive planning provisions for 
these AQCRs. At that time, Congress anticipated that states would be 
able to address air pollution quickly pursuant to the very general 
planning provisions in section 110 and could bring all areas into 
compliance with the NAAQS within five years. Moreover, at that time, 
section 110(a)(2)(A)(i) specified that a section 110 plan must provide 
for ``attainment'' of the NAAQS, and section 110(a)(2)(B) specified 
that the plan must include ``emission limitations, schedules, and 
timetables for compliance with such limitations, and such other 
measures as may be necessary to insure attainment and maintenance [of 
the NAAQS].'' In 1977, Congress recognized that the existing structure 
was not sufficient and many areas were still violating the NAAQS. At 
that time, Congress for the first time added provisions requiring 
states and EPA to identify whether areas of the state were violating 
the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., 
were attainment) and established specific planning requirements in 
section 172 for areas not meeting the NAAQS.
    In 1990, many areas still had air quality that did not meet the 
NAAQS, and Congress again amended the CAA, adding yet another layer of 
more prescriptive planning requirements for each of the NAAQS, with the 
primary provisions for ozone in section 182. At that same time, 
Congress modified

[[Page 61313]]

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.
    With regard to the requirement for emission limitations, EPA has 
interpreted this to mean that, for purposes of section 110, the state 
may rely on measures already in place to address the pollutant at issue 
or any new control measures that the state may choose to submit. As EPA 
stated in ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under CAA Sections 110(a)(1) and 110(a)(2),'' dated September 
13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual purpose of 
an infrastructure SIP submission is to assure that the air agency's SIP 
contains the necessary structural requirements for the new or revised 
NAAQS, whether by establishing that the SIP already contains the 
necessary provisions, by making a substantive SIP revision to update 
the SIP, or both. Overall, the infrastructure SIP submission process 
provides an opportunity . . . to review the basic structural 
requirements of the air agency's air quality management program in 
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p. 
2.
    Comment 2: The commenter cites two excerpts from the legislative 
history of the CAA Amendments of 1970 asserting that they support an 
interpretation that SIP revisions under CAA section 110 must include 
emissions limitations sufficient to show maintenance of the NAAQS in 
all areas of Michigan. The commenter also contends that the legislative 
history of the CAA supports the interpretation that infrastructure SIPs 
under section 110(a)(2) must include enforceable emission limitations, 
citing the Senate Committee Report and the subsequent Senate Conference 
Report accompanying the 1970 CAA.
    Response 2: The CAA, as enacted in 1970, including its legislative 
history, cannot be interpreted in isolation from the later amendments 
that refined that structure and deleted relevant language from section 
110 concerning demonstrating attainment. In any event, the two excerpts 
of legislative history the commenter cites merely provide that states 
should include enforceable emission limits in their SIPs; they do not 
mention or otherwise address whether states are required to include 
maintenance plans for all areas of the state as part of the 
infrastructure SIP.
    Comment 3: The commenter cites to 40 CFR 51.112(a), providing that 
each plan must ``demonstrate that the measures, rules, and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the [NAAQS].'' The commenter asserts that this 
regulation requires all SIPs to include emissions limits necessary to 
ensure attainment of the NAAQS. The commenter states that ``[a]lthough 
these regulations were developed before the Clean Air Act separated 
Infrastructure SIPs from nonattainment SIPs--a process that began with 
the 1977 amendments and was completed by the 1990 amendments--the 
regulations apply to ISIPs.'' The commenter relies on a statement in 
the preamble to the 1986 action restructuring and consolidating 
provisions in part 51, in which EPA stated that ``[i]t is beyond the 
scope of th[is] rulemaking to address the provisions of Part D of the 
Act. . . .'' 51 FR 40656 (November 7, 1986).
    Response 3: The commenter's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
``adequate to prohibit NAAQS violations'' and adequate or sufficient to 
ensure the maintenance of the NAAQS is not supported. As an initial 
matter, EPA notes and the commenter recognizes this regulatory 
provision was initially promulgated and ``restructured and 
consolidated'' prior to the CAA Amendments of 1990, in which Congress 
removed all references to ``attainment'' in section 110(a)(2)(A). In 
addition, it is clear on its face that 40 CFR 51.112 applies to plans 
specifically designed to attain the NAAQS. EPA interprets these 
provisions to apply when states are developing ``control strategy'' 
SIPs such as the detailed attainment and maintenance plans required 
under other provisions of the CAA, as amended in 1977 and again in 
1990, such as section 175A and 182.
    The commenter suggests that these provisions must apply to section 
110 SIPs because, in the preamble to EPA's action ``restructuring and 
consolidating'' provisions in part 51, EPA stated that the new 
attainment demonstration provisions in the 1977 Amendments to the CAA 
were ``beyond the scope'' of the rulemaking. It is important to note, 
however, that EPA's action in 1986 was not to establish new substantive 
planning requirements, but rather to consolidate and restructure 
provisions that had previously been promulgated. EPA noted that it had 
already issued guidance addressing the new ``Part D'' attainment 
planning obligations. Also, as to maintenance regulations, EPA 
expressly stated that it was not making any revisions other than to re-
number those provisions. Id. at 40657.
    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``Part D'' of the CAA, it is clear 
that the regulations being restructured and consolidated were intended 
to address control strategy plans. In the preamble, EPA clearly stated 
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: 
SOX and PM (portion)''), 51.14 (``Control strategy: CO, HC, 
Ox and NO2 (portion)''), 51.80 (``Demonstration of 
attainment: Pb (portion)''), and 51.82 (``Air quality data 
(portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112 
contains consolidated provisions that are focused on control strategy 
SIPs, and the infrastructure SIP is not such a plan.
    Comment 4: The commenter references two prior EPA rulemaking 
actions where EPA disapproved or proposed to disapprove SIPs, and 
claimed they were actions in which EPA relied on section 110(a)(2)(A) 
and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first 
points to a 2006 partial approval and partial disapproval of revisions 
to Missouri's existing plan addressing the sulfur dioxide 
(SO2) NAAQS. In that action, EPA cited section 110(a)(2)(A) 
as a basis for disapproving a revision to the state plan on the basis 
that the state failed to demonstrate the SIP was sufficient to ensure 
maintenance of the SO2 NAAQS after revision of an emission 
limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates 
the rules in a SIP are adequate to attain the NAAQS. Second, the 
commenter cites a 2013 proposed disapproval of a revision to the 
SO2 SIP for Indiana, where the revision attempted to remove 
an emission limit that applied to a specific emissions source at a 
facility in the

[[Page 61314]]

state. EPA relied on 40 CFR 51.112(a) in proposing to reject the 
revision, stating that the state had not demonstrated that the emission 
limit was ``redundant, unnecessary, or that its removal would not 
result in or allow an increase in actual SO2 emissions.'' 
EPA further stated in that proposed disapproval that the state had not 
demonstrated that removal of the limit would not ``affect the validity 
of the emission rates used in the existing attainment demonstration.''
    Response 4: EPA does not agree that the two prior actions 
referenced by the commenter establish how EPA reviews infrastructure 
SIPs. It is clear from both the final Missouri rule and the now final 
Indiana rule that EPA was not reviewing initial infrastructure SIP 
submissions under section 110 of the CAA, but rather reviewing 
revisions that would make an already approved SIP designed to 
demonstrate attainment of the NAAQS less stringent.
    EPA's partial approval and partial disapproval of revisions to 
restrictions on emissions of sulfur compounds for the Missouri SIP 
addressed a control strategy SIP and not an infrastructure SIP (71 FR 
12623).
    Similarly, the Indiana action also does not support for the 
commenter's position (78 FR 78720). The review in that rule was of a 
completely different requirement than the 110(a)(2)(A) SIP. Rather, in 
that case, the state had an approved SO2 attainment plan and 
was seeking to remove from the SIP provisions relied on as part of the 
modeled attainment demonstration. EPA determined that the state had 
failed to demonstrate under section 110(l) of the CAA that the SIP 
revision would not result in increased SO2 emissions and 
thus not interfere with attainment of the NAAQS. Nothing in that 
rulemaking addresses the necessary content of the initial 
infrastructure SIP for a new or revised NAAQS. Rather, it is simply 
applying the clear statutory requirement that a state must demonstrate 
why a revision to an approved attainment plan will not interfere with 
attainment of the NAAQS.
    Comment 5: The commenter discusses several cases applying to the 
CAA which it claims support its contention that courts have been clear 
that section 110(a)(2)(A) requires enforceable emissions limits in 
infrastructure SIPs to prevent violations of the NAAQS and demonstrate 
maintenance throughout the area. The commenter first cites to language 
in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement 
for ``emission limitations'' and stating that emission limitations 
``are specific rules to which operators of pollution sources are 
subject, and which if enforced should result in ambient air which meet 
the national standards.'' The commenter also cites to Pennsylvania 
Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for 
the proposition that the CAA directs EPA to withhold approval of a SIP 
where it does not ensure maintenance of the NAAQS and Mision 
Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which 
quoted section 110(a)(2)(B) of the CAA of 1970. The commenter contends 
that the 1990 Amendments do not alter how courts have interpreted the 
requirements of section 110, quoting Alaska Dept. of Envtl. 
Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted 
section 110(a)(2)(A) of the CAA and also stated that ``SIPs must 
include certain measures Congress specified'' to ensure attainment of 
the NAAQS. The commenter quotes several additional opinions in this 
vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 
2012) (``The Clean Air Act directs states to develop implementation 
plans--SIPs--that `assure' attainment and maintenance of [NAAQS] 
through enforceable emissions limitations''); Hall v. EPA 273 F.3d 
1146, 1153 (9th Cir. 2001) (``Each State must submit a [SIP] that 
specif[ies] the manner in which [NAAQS] will be achieved and maintained 
within each air quality control region in the state''). The commenter 
also cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th 
Cir. 2000) for the proposition that EPA may not approve a SIP revision 
that does not demonstrate how the rules would not interfere with 
attainment and maintenance of the NAAQS.
    Response 5: None of the cases the commenter cites supports the 
commenter's contention that section 110(a)(2)(A) requires that 
infrastructure SIPs include detailed plans providing for attainment and 
maintenance of the NAAQS in all areas of the state, nor do they shed 
light on how section 110(a)(2)(A) may reasonably be interpreted. With 
the exception of Train, 421 U.S. 60, none of the cases the commenter 
cites concerned the interpretation of CAA section 110(a)(2)(A) (or 
section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a 
challenge to an EPA action, revisions to a SIP that were required and 
approved as meeting other provisions of the CAA or in the context of an 
enforcement action, the court references section 110(a)(2)(A) (or 
section 110(a)(2)(B) of the pre-1990 CAA) in the background section of 
its decision.
    In Train, a case that was decided almost 40 years ago, the court 
addressed a state revision to an attainment plan submission made 
pursuant to section 110 of the CAA, the sole statutory provision at 
that time regulating such submissions. The issue in that case concerned 
whether changes to requirements that would occur before attainment was 
required were variances that should be addressed pursuant to the 
provision governing SIP revisions or were ``postponements'' that must 
be addressed under section 110(f) of the CAA of 1970, which contained 
prescriptive criteria. The court concluded that EPA reasonably 
interpreted section 110(f) not to restrict a state's choice of the mix 
of control measures needed to attain the NAAQS and that revisions to 
SIPs that would not impact attainment of the NAAQS by the attainment 
date were not subject to the limits of section 110(f). Thus, the issue 
was not whether a section 110 SIP needs to provide for attainment or 
whether emissions limits are needed as part of the SIP; rather the 
issue was which statutory provision governed when the state wanted to 
revise the emission limits in its SIP if such revision would not impact 
attainment or maintenance of the NAAQS. To the extent the holding in 
the case has any bearing on how section 110(a)(2)(A) might be 
interpreted, it is important to realize that in 1975, when the opinion 
was issued, section 110(a)(2)(B) (the predecessor to section 
110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, 
a reference that was removed in 1990.
    The decision in Pennsylvania Dept. of Envtl. Resources was also 
decided based on the pre-1990 provision of the CAA. At issue was 
whether EPA properly rejected a revision to an approved plan where the 
inventories relied on by the state for the updated submission had gaps. 
The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of 
EPA's disapproval, but did not provide any interpretation of that 
provision. Yet, even if the court had interpreted that provision, EPA 
notes that it was modified by Congress in 1990; thus, this decision has 
little bearing on the issue here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of 
``emissions limitation,'' not whether section 110 requires the state to 
demonstrate how all areas of the state will attain and maintain the 
NAAQS as part of its infrastructure SIPs. The language from the opinion 
which the commenter quotes does not interpret but rather merely 
describes section 110(a)(2)(A). The commenters do not raise any 
concerns about whether the measures relied on by the state in the 
infrastructure SIP are ``emissions

[[Page 61315]]

limitations,'' thus, the decision in this case has no bearing here.
    In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the court reviewed a 
Federal implementation plan that EPA promulgated after a long history 
of the state failing to submit an adequate SIP. The court cited 
generally to sections 107 and 110(a)(2)(A) of the CAA for the 
proposition that SIPs should assure attainment and maintenance of NAAQS 
through emission limitations, but this language was not part of the 
court's holding in the case.
    The commenter suggests that Alaska Dept. of Envtl. Conservation, 
540 U.S. 461, stands for the proposition that the 1990 CAA Amendments 
do not alter how courts interpret section 110. This claim is 
inaccurate. Rather, the court quoted section 110(a)(2)(A), which, as 
noted previously, differs from the 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 the provision 
of CAA section 110(l) governing ``revisions'' to plans, and not the 
initial plan submission requirement under section 110(a)(2) for a new 
or revised NAAQS, such as the infrastructure SIP at issue in this 
instance. In those cases, the courts cited to section 110(a)(2)(A) 
solely for the purpose of providing a brief background of the CAA.
    Comment 6: The commenter contends that EPA cannot approve the 
section 110(a)(2)(A) portion of Michigan's 2008 ozone infrastructure 
SIP revision because an infrastructure SIP should include enforceable 
emission limits to prevent NAAQS violations in areas not designated 
nonattainment. Specifically, the commenter cited air monitoring reports 
for Allegan, Berrien, and Muskegon Counties indicating violations of 
the NAAQS based on 2010-2012, 2011-2013, and 2012-2014 design values. 
The commenter alleges that these violations demonstrate that the 
infrastructure SIP fails to ensure that air pollution levels meet or 
are below the level of the NAAQS and thus the infrastructure SIP must 
be disapproved. The commenter noted that the design values for the 
monitors in Allegan and Muskegon Counties have exceeded the 2008 ozone 
standard for every three year period since 2001-2003, with the 
exception of 2008-2010. The commenter also notes that the EPA denied 
the Sierra Club's petition to redesignate all areas violating the 2008 
ozone standard based on 2012 data. The commenter contends that, as a 
result of the denial of the petition, the areas mentioned above do not 
have any requirements associated with nonattainment areas.
    Furthermore, the commenter suggests that there are available 
controls for the state to adopt for reducing NOX, a 
precursor to ozone. The commenter also contends that EPA should have 
conducted an analysis to determine whether the SIP revision would 
interfere with any applicable requirement concerning attainment, as 
required by CAA section 110(l).
    Response 6: We disagree with the commenter that infrastructure SIPs 
must include detailed attainment and maintenance plans for all areas of 
the state and must be disapproved if air quality data that became 
available late in the process or after the SIP was due and submitted 
changes the status of areas within the state. We believe that section 
110(a)(2)(A) is reasonably interpreted to require states to submit SIPs 
that reflect the first step in their planning for attaining and 
maintaining a new or revised NAAQS, and that contain enforceable 
control measures and a demonstration that the state has the available 
tools and authority to develop and implement plans to attain and 
maintain the NAAQS.
    The suggestion that the infrastructure SIP must include measures 
addressing violations of the standard that did not occur until shortly 
before or even after the SIP was due and submitted cannot be supported. 
The CAA provides states with three years to develop infrastructure SIPs 
and states cannot reasonably be expected to address the annual change 
in an area's design value for each year over that period. Moreover, the 
CAA recognizes and has provisions to address changes in air quality 
over time, such as an area slipping from attainment to nonattainment or 
changing from nonattainment to attainment. These include provisions 
providing for redesignation in section 107(d) and provisions in section 
110(k)(5) allowing EPA to call on a state to revise its SIP, as 
appropriate.
    We do not believe that section 110(a)(2)(A) requires detailed 
planning SIPs demonstrating either attainment or maintenance for 
specific geographic areas of the state. The infrastructure SIP is 
triggered by promulgation of the NAAQS, not designation. Moreover, 
infrastructure SIPs are due three years following promulgation of the 
NAAQS and designations are not due until two years (or in some cases 
three years) following promulgation of the NAAQS. Thus, during a 
significant portion of the period that the state has available for 
developing the infrastructure SIP, it does not know what the 
designation will be for individual areas of the state.\1\ In light of 
the structure of the CAA, EPA's long-standing position regarding 
infrastructure SIPs is that they are general planning SIPs to ensure 
that the state has adequate resources and authority to implement a 
NAAQS in general throughout the state, and not detailed attainment and 
maintenance plans for each individual area of the state.
---------------------------------------------------------------------------

    \1\ While it is true that there may be some monitors within a 
state with values so high as to make a nonattainment designation of 
the county with that monitor almost a certainty, the geographic 
boundaries of the nonattainment area associated with that monitor 
would not be known until EPA issues final designations.
---------------------------------------------------------------------------

    For all of the above reasons, we disagree with the commenter that 
EPA must disapprove an infrastructure SIP revision if there are 
monitored violations of the standard in the state and the section 
110(a)(2)(A) revision does not have detailed plans for demonstrating 
how the state will bring that area into attainment. Rather, EPA 
believes that the proper inquiry when EPA is acting on a submittal is 
whether the state has met the basic structural SIP requirements.
    Moreover, Michigan's SIP contains existing emission reduction 
measures that control emissions of VOCs and NOX found in 
Michigan Administrative Code sections R 336.1601 through R 336.1661 and 
R 336.1701 through R 336.1710 for VOCs and sections R 336.1801 through 
R 336.1834 for NOX. Michigan's SIP revision reflects several 
provisions that can lead to reductions in ground level ozone and its 
precursors. The Michigan SIP relies on measures and programs used to 
implement previous ozone NAAQS. Because there is no substantive 
difference between the previous ozone NAAQS and the more recent ozone 
NAAQS, other than the level of the standard, the provisions relied on 
by Michigan will provide benefits for the new NAAQS; in other words, 
the measures reduce overall ground-level ozone and its precursors and 
are not limited to reducing ozone levels to meet one specific NAAQS.
    The commenters assertion that CAA section 110(l) requirements 
should

[[Page 61316]]

apply are incorrect, because the infrastructure SIP does not approve 
any new rules or rule modifications and therefore by itself does not 
have any effect on emissions of the relevant pollutants. Rather, 
approving Michigan's infrastructure SIP revision is simply affirming 
that Michigan has sufficient authority to take the types of actions 
required by the CAA in order to bring such areas back into attainment 
and implement the current NAAQS. The commenter has not provided any 
information to demonstrate that emissions will be affected by the 
infrastructure SIP submission.
    The denial of the redesignation petition also is not relevant to 
Michigan's infrastructure SIP because as mentioned above, the 
designation process and infrastructure submittals are separable actions 
on completely different timelines and infrastructure requirements are 
the same regardless of the designation status of the area.

III. What action is EPA taking?

    For the reasons discussed in our June 24, 2015, proposed rulemaking 
and the responses to comments, above, EPA is taking final action to 
approve Michigan's infrastructure SIP for the 2008 ozone, 2010 
NO2, 2010 SO2, and 2012 PM2.5 NAAQS as 
proposed.\2\ In the June 24, 2015, rulemaking, EPA also proposed 
approval for Michigan's CAA section 128 submittal. EPA finalized this 
approval in separate rulemaking on August 3, 2015 (see 80 FR 52399). 
Our final actions, by element of section 110(a)(2) and NAAQS, are 
contained in the table below.
---------------------------------------------------------------------------

    \2\ As stated previously, EPA will take later, separate action 
on portions of Michigan's 2008 ozone, 2010 NO2, 2010 
SO2, and 2012 PM2.5 infrastructure SIP 
submittals including the portions of the SIP submittals addressing 
the visibility portions of section 110(a)(2)(D)(i)(II) and section 
110(a)(2)(D)(i)(I) for the 2008 ozone, 2010 SO2, and 2012 
PM2.5 NAAQS submittals.

----------------------------------------------------------------------------------------------------------------
                         Element                           2008 Ozone     2010 NO2      2010 SO2     2012 PM2.5
----------------------------------------------------------------------------------------------------------------
(A)--Emission limits and other control measures.........            A             A             A             A
(B)--Ambient air quality monitoring/data system.........            A             A             A             A
(C)1--Program for enforcement of control measures.......            A             A             A             A
(C)2--PSD...............................................            A             A             A             A
(D)1--I Prong 1: Interstate transport--significant                 NA             A            NA            NA
 contribution...........................................
(D)2--I Prong 2: Interstate transport--interfere with              NA             A            NA            NA
 maintenance............................................
(D)3--II Prong 3: Interstate transport--prevention of               A             A             A             A
 significant deterioration..............................
(D)4--II Prong 4: Interstate transport--protect                    NA            NA            NA            NA
 visibility.............................................
(D)5--Interstate and international pollution abatement..            A             A             A             A
(E)1--Adequate resources................................            A             A             A             A
(E)2--State board requirements..........................            A             A             A             A
(F)--Stationary source monitoring system................            A             A             A             A
(G)--Emergency power....................................            A             A             A             A
(H)--Future SIP revisions...............................            A             A             A             A
(I)--Nonattainment planning requirements of part D......            +             +             +             +
(J)1--Consultation with government officials............            A             A             A             A
(J)2--Public notification...............................            A             A             A             A
(J)3--PSD...............................................            A             A             A             A
(J)4--Visibility protection.............................            +             +             +             +
(K)--Air quality modeling/data..........................            A             A             A             A
(L)--Permitting fees....................................            A             A             A             A
(M)--Consultation and participation by affected local               A             A             A             A
 entities...............................................
----------------------------------------------------------------------------------------------------------------

    In the above table, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A.................................  Approve.
NA................................  No Action/Separate Rulemaking.
+.................................  Not Germaine to Infrastructure.
------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and will not impose

[[Page 61317]]

substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by December 14, 2015. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Particulate matter, Reporting and recordkeeping requirements, Sulfur 
oxides, Volatile organic compounds.

    Dated: September 23, 2015.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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


0
2. In Sec.  52.1170, the table in paragraph (e) is amended by adding 
entries at the end of the table for ``Section 110(a)(2) Infrastructure 
Requirements for the 2008 ozone NAAQS,'' ``Section 110(a)(2) 
Infrastructure Requirements for the 2010 nitrogen dioxide 
(NO2) NAAQS,'' ``Section 110(a)(2) Infrastructure 
Requirements for the 2008 sulfur dioxide (SO2) NAAQS,'' and 
``Section 110(a)(2) Infrastructure Requirements for the 2012 
particulate matter (PM2.5) NAAQS'' to read as follows:


Sec.  52.1170  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                       Applicable          State
   Name of nonregulatory SIP         geographic or       submittal    EPA approval date          Comments
           provision               nonattainment area       date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)                Statewide............    7/10/2014  10/13/2015,         This action addresses
 Infrastructure Requirements                                          [insert Federal     the following CAA
 for the 2008 ozone NAAQS.                                            Register            elements:
                                                                      citation].          110(a)(2)(A), (B),
                                                                                          (C), (D), (E), (F),
                                                                                          (G), (H), (J), (K),
                                                                                          (L), and (M). We are
                                                                                          not taking action on
                                                                                          (D)(i)(I) and the
                                                                                          visibility portion of
                                                                                          (D)(i)(II).
Section 110(a)(2)                Statewide............    7/10/2014  10/13/2015,         This action addresses
 Infrastructure Requirements                                          [insert Federal     the following CAA
 for the 2010 nitrogen dioxide                                        Register            elements:
 (NO2) NAAQS.                                                         citation].          110(a)(2)(A), (B),
                                                                                          (C), (D), (E), (F),
                                                                                          (G), (H), (J), (K),
                                                                                          (L), and (M). We are
                                                                                          not taking action on
                                                                                          the visibility portion
                                                                                          of (D)(i)(II).
Section 110(a)(2)                Statewide............    7/10/2014  10/13/2015,         This action addresses
 Infrastructure Requirements                                          [insert Federal     the following CAA
 for the 2008 sulfur dioxide                                          Register            elements:
 (SO2) NAAQS.                                                         citation].          110(a)(2)(A), (B),
                                                                                          (C), (D), (E), (F),
                                                                                          (G), (H), (J), (K),
                                                                                          (L), and (M). We are
                                                                                          not taking action on
                                                                                          (D)(i)(I) and the
                                                                                          visibility portion of
                                                                                          (D)(i)(II).
Section 110(a)(2)                Statewide............    7/10/2014  10/13/2015,         This action addresses
 Infrastructure Requirements                                          [insert Federal     the following CAA
 for the 2012 particulate                                             Register            elements:
 matter (PM2.5) NAAQS.                                                citation].          110(a)(2)(A), (B),
                                                                                          (C), (D), (E), (F),
                                                                                          (G), (H), (J), (K),
                                                                                          (L), and (M). We are
                                                                                          not taking action on
                                                                                          (D)(i)(I) and the
                                                                                          visibility portion of
                                                                                          (D)(i)(II).
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-25839 Filed 10-9-15; 8:45 am]
BILLING CODE 6560-50-P