[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Rules and Regulations]
[Pages 62022-62035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24658]



[[Page 62022]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2014-0299; FRL-9917-84-Region 3]


Approval and Promulgation of Air Quality Implementation Plans; 
West Virginia; Infrastructure Requirements for the 2010 Sulfur Dioxide 
National Ambient Air Quality Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

ADDRESSES: EPA has established a docket for this action under Docket ID 
Number EPA-R03-OAR-2014-0299. All documents in the docket are listed in 
the www.regulations.gov Web site. Although listed in the electronic 
docket, some information is not publicly available, i.e., confidential 
business information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the Internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State 
submittal are available at the West Virginia Department of 
Environmental Protection, Division of Air Quality, 601 57th Street SE., 
Charleston, West Virginia 25304.

FOR FURTHER INFORMATION CONTACT: Ellen Schmitt, (215) 814-5787, or by 
email at schmitt.ellen@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. Summary of SIP Revision

    On June 22, 2010 (75 FR 35520), EPA promulgated a revised NAAQS for 
the 1-hour primary SO2 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\
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    \1\ In EPA's May 14, 2014 NPR, EPA stated it would take separate 
action on the portions of CAA section 110(a)(2) infrastructure 
elements for the 2010 SO2 NAAQS as they relate to West 
Virginia's prevention of significant deterioration (PSD) permitting 
program, as required by part C of Title I of the CAA. 79 FR 27524. 
This included portions of the following infrastructure elements: 
section 110(a)(2)(C), (D)(i)(II), and (J). In the ``Proposed 
Action'' section of the NPR, EPA inadvertently listed section 
110(a)(2)(J) in our proposed approval without clarifying the 
proposed approval was limited to the portions of 110(a)(2)(J) 
related only to consultation, public notification and visibility 
protection. As the NPR and accompanying Technical Support Document 
discussed the elements EPA intended to propose for approval for 
section 110(a)(2)(J) to the exclusion of PSD portions, EPA believes 
this omission was inadvertent, and EPA clarifies in this action that 
our approval of West Virginia's 2010 SO2 infrastructure 
SIP for section 110(a)(2)(J) is limited to the portions addressing 
consultation, public notification, and visibility protection.
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    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 
SO2 NAAQS. Although West Virginia's infrastructure SIP 
submittal for the 2010 SO2 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 SO2 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.

II. Public Comments and EPA's Responses

    EPA received comments from the Sierra Club on the May 14, 2014 
proposed rulemaking action on West Virginia's 2010 SO2 
infrastructure SIP. A full set of these comments is provided in the 
docket for today's final rulemaking action.

A. Background Comments

1. The Plain Language of the CAA
    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

[[Page 62023]]

infrastructure SIP to prevent NAAQS exceedances in areas not designated 
nonattainment. Sierra Club then contends that the West Virginia 2010 
SO2 infrastructure SIP revision did not revise the existing 
SO2 emission limits in response to the 2010 SO2 
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 SO2 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 
SO2 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 
SO2. 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.
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    \2\ The TSD for this action is available on line at 
www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-0299.
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1. The Legislative History of the CAA
    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.
2. Case Law
    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

[[Page 62024]]

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.
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    \3\ While the commenter does contend that the State shouldn't be 
allowed to rely on emission reductions that were developed for the 
prior SO2 standards (which we address herein), it does 
not claim that any of the measures are not ``emissions limitations'' 
within the definition of the CAA.
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    Two of the 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

[[Page 62025]]

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.
3. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that 
``[e]ach plan must demonstrate that the measures, rules and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the [NAAQS].'' The Commenter asserts that this 
regulation requires 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: 
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.
4. EPA Interpretations in Other Rulemakings
    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 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, Sierra Club cites a 2013 
disapproval of a revision to the SO2 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 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 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 SO2 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 SO2 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.

[[Page 62026]]

Therefore, EPA approves the West Virginia SO2 infrastructure 
SIP.\4\
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    \4\ As stated previously, EPA will take later, separate action 
on several portions of West Virginia's SO2 infrastructure 
SIP submittal including the portions of the SIP submittal addressing 
section 110(a)(2)(C), (D)(i)(II), and (J) for PSD, 
110(a)(2)(D)(i)(II) (visibility protection), and 110(a)(2)(E)(ii) 
for State Boards.
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B. Comments on West Virginia SIP SO2 Emission Limits

    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 SO2 emission 
limits for sources currently allowed to cause NAAQS exceedances. Sierra 
Club asserts the proposed infrastructure SIP fails to include 
enforceable 1-hour SO2 emissions limits or other required 
measures to ensure attainment and maintenance of the SO2 
NAAQS in areas not designated nonattainment as required by section 
110(a)(2)(A). Sierra Club asserts that emission limits are especially 
important for meeting the 1-hour SO2 NAAQS because 
SO2 impacts are strongly source-oriented. Sierra Club states 
coal-fired electric generating units (EGUs) are large contributors to 
SO2 emissions but contends West Virginia did not demonstrate 
that emissions allowed by the proposed infrastructure SIP from such 
large sources of SO2 will ensure compliance with the 2010 1-
hour SO2 NAAQS. The commenter claims the proposed 
infrastructure SIP would allow major sources to continue operating with 
present emission limits. 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 
SO2 NAAQS with either allowable or maximum emissions.\5\ 
Based on the modeling, Sierra Club asserts the West Virginia 
SO2 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 SO2 sufficient to ensure attainment and maintenance of 
the 2010 SO2 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.''
---------------------------------------------------------------------------

    \5\ Sierra Club asserts its modeling followed protocols pursuant 
to 40 CFR Part 50, Appendix W and EPA's March 2011 guidance for 
implementing the 2010 SO2 NAAQS.
---------------------------------------------------------------------------

    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

[[Page 62027]]

above, EPA has interpreted the requirement for emission limitations in 
section 110 to mean that the state may rely on measures already in 
place to address the pollutant at issue or any new control measures 
that the state may choose to submit. Finally, as EPA stated in the 
Infrastructure SIP Guidance which specifically provides guidance to 
states in addressing the 2010 SO2 NAAQS, ``[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 SO2 NAAQS via letters to each of the states. EPA 
communicated in the April 2012 letters that all states were expected to 
submit SIPs meeting the ``infrastructure'' SIP requirements under 
section 110(a)(2) of the CAA by June 2013. At the time, the EPA was 
undertaking a stakeholder outreach process to continue to develop 
possible approaches for determining attainment with the SO2 
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 SO2 
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 
SO2 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\
---------------------------------------------------------------------------

    \6\ In EPA's final SO2 NAAQS preamble (75 FR 35520 
(June 22, 2010)) and subsequent draft guidance in March and 
September 2011, EPA had expressed its expectation that many areas 
would be initially designated as unclassifiable due to limitations 
in the scope of the ambient monitoring network and the short time 
available before which states could conduct modeling to support 
their designations recommendations due in June 2011. In order to 
address concerns about potential violations in these unclassifiable 
areas, EPA initially recommended that states submit substantive 
attainment demonstration SIPs based on air quality modeling by June 
2013 (under section 110(a)) that show how their unclassifiable areas 
would attain and maintain the NAAQS in the future. Implementation of 
the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper for Discussion, 
May 2012 (for discussion purposes with Stakeholders at meetings in 
May and June 2012), available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. However, EPA clearly stated in this 
2012 Draft White Paper its clarified implementation position that it 
was no longer recommending such attainment demonstrations for 
unclassifiable areas for June 2013 infrastructure SIPs. Id. EPA had 
stated in the preamble to the NAAQS and in the prior 2011 draft 
guidance that EPA intended to develop and seek public comment on 
guidance for modeling and development of SIPs for sections 110 and 
191 of the CAA. Section 191 of the CAA requires states to submit 
SIPs in accordance with section 172 for areas designated 
nonattainment with the SO2 NAAQS. After seeking such 
comment, EPA has now issued guidance for the nonattainment area SIPs 
due pursuant to sections 191 and 172. See Guidance for 1-Hour SO2 
Nonattainment Area SIP Submissions, Stephen D. Page, Director, EPA's 
Office of Air Quality Planning and Standards, to Regional Air 
Division Directors Regions 1-10, April 23, 2014. In September 2013, 
EPA had previously issued specific guidance relevant to 
infrastructure SIP submissions due for the NAAQS, including the 2010 
SO2 NAAQS. See Infrastructure SIP Guidance.
---------------------------------------------------------------------------

    Therefore, EPA asserts 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 SO2 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 SO2. Although the West 
Virginia SIP relies on measures and programs used to implement previous 
SO2 NAAQS, these provisions will provide benefits for the 
2010 SO2 NAAQS. The identified West Virginia SIP measures 
help to reduce overall SO2 and are not limited to reducing 
SO2 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 SO2 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 SO2 NAAQS is through the attainment planning 
process contemplated by those sections of the CAA. On August 5, 2013, 
EPA designated as nonattainment most areas in locations where existing 
monitoring data from 2009-2011 indicated violations of the 1-hour 
SO2 standard. EPA designated portions of Brooke and Marshall 
Counties in West Virginia as nonattainment areas for the 2010 1-hour 
SO2 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 SO2 sources 
through ambient monitoring and/or air quality modeling techniques and 
submit such data to the EPA for designations with 2010 SO2 
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

[[Page 62028]]

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 SO2 emission 
limits on sources independent of the part D attainment planning process 
contemplated by the CAA). EPA believes that the history of the CAA and 
intent of Congress for the CAA as described above demonstrate clearly 
that it is within the section 172 and general part D attainment 
planning process that West Virginia must include additional 
SO2 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 SO2 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 
SO2 infrastructure SIP.
    As noted in EPA's preamble for the 2010 SO2 NAAQS, 
determining compliance with the SO2 NAAQS will likely be a 
source-driven analysis and EPA has explored options to ensure that the 
SO2 designations process realistically accounts for 
anticipated SO2 reductions at sources that we expect will be 
achieved by current and pending national and regional rules. See 75 FR 
35520. As mentioned previously above, EPA has proposed a process to 
address additional areas in states which may not be attaining the 2010 
SO2 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 SO2 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 
SO2 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 
SO2 NAAQS. SO2 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 SO2 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 SO2 
infrastructure SIPs needed for the 2010 SO2 NAAQS. See April 
12, 2012 letters to states regarding SO2 implementation and 
Implementation of the 2010 Primary 1-Hour SO2 NAAQS, Draft White Paper 
for Discussion, May 2012, available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. 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 SO2 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 SO2 
emission limits either on coal-fired EGUs or other large SO2 
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 SO2 NAAQS. The 
commenter refers to EPA's historic use of air dispersion modeling for 
attainment designations as well as ``SIP revisions.'' The Commenter 
cites to prior EPA statements that the Agency has used modeling for 
designations and attainment demonstrations, including statements in the 
2010 SO2 NAAQS preamble, EPA's 2012 Draft White Paper for 
Discussion on Implementing the 2010 SO2 NAAQS, and a 1994 
SO2 Guideline Document, as modeling could better address the 
source-specific impacts of SO2 emissions and historic 
challenges from monitoring SO2 emissions.\7\
---------------------------------------------------------------------------

    \7\ The Commenter also cites to a 1983 EPA Memorandum on section 
107 designations policy regarding use of modeling for designations 
and to the 2012 Mont. Sulphur & Chem. Co. case where EPA had 
designated an area in Montana as nonattainment due to modeled 
violations of the NAAQS.
---------------------------------------------------------------------------

    The Commenter also cited to several cases upholding EPA's use of 
modeling in NAAQS implementation actions, including the Montana Sulphur 
case, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), Republic 
Steel Corp. v. Costle, 621 F.2d 797 (6th Cir. 1980), and Catawba County 
v. EPA, 571 F.3d 20 (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 SO2 
NAAQS violations. The Commenter cites to EPA's history of employing air 
dispersion modeling for increment compliance verifications in the 
permitting process for the 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

[[Page 62029]]

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 SO2 
emission limits on a source due to cross-state impacts. The Commenter 
claims the Third Circuit in GenOn REMA upheld EPA's actions after 
examining the record which included EPA's air dispersion modeling of 
the one source as well as other data.
    The Commenter cites to Vehicle Mfrs. Ass'n v. State Farm Mut. Auto 
Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254 
(D.C. Cir. 2009) for the general proposition that it would be arbitrary 
and capricious for an agency to ignore an aspect of an issue placed 
before it and for the statement that an agency must consider 
information presented during notice-and-comment rulemaking.
    Finally, the Commenter claims that West Virginia's proposed 
SO2 infrastructure SIP lacks emission limitations informed 
by air dispersion modeling and therefore fails to ensure West Virginia 
will achieve and maintain the 2010 SO2 NAAQS. Sierra Club 
claims EPA must require adequate, 1-hour SO2 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 SO2 NAAQS. However, EPA disagrees with 
the Commenter that EPA must disapprove the West Virginia SO2 
infrastructure SIP for its alleged failure to include source-specific 
SO2 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 SO2 emission 
limits on specific sources. While EPA had initially suggested in the 
final 2010 SO2 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 SO2 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 SO2 NAAQS, which could 
include use of air dispersion modeling. See April 23, 2014 Guidance for 
1-Hour SO2 Nonattainment Area SIP Submissions and 79 FR 
27446 (proposing process and timetables for additional SO2 
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 SO2 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 SO2 in a SO2 
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.
---------------------------------------------------------------------------

    \8\ The February 6, 2013 ``Next Steps for Area Designations and 
Implementation of the Sulfur Dioxide National Ambient Air Quality 
Standard,'' one of the April 12, 2012 state letters, and the May 
2012 Draft White Paper are available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
---------------------------------------------------------------------------

    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

[[Page 62030]]

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 SO2 National 
Ambient Air Quality Standard'' (U.S. EPA, 2010a), AERMOD is the 
preferred model for single source modeling to address the 1-hour 
SO2 NAAQS as part of the NSR/PSD permit programs. Therefore, 
as attainment SIPs, designations, and NSR/PSD actions are outside the 
scope of a required infrastructure SIP for the 2010 SO2 
NAAQS for section 110(a), EPA provides no further response to the 
Commenter's discussion of air dispersion modeling for these 
applications. If 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 SO2 emissions limitations on an 
EGU pursuant to CAA section 126. GenOn REMA, LLC v. EPA, 722 F.3d 513. 
Pursuant to section 126, any state or political subdivision may 
petition EPA for a finding that any major source or group of stationary 
sources emits or would emit any air pollutant in violation of the 
prohibition of section 110(a)(2)(D)(i)(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 SO2 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 SO2 NAAQS.
    Comment 8: Sierra Club asserts that EPA may not approve the West 
Virginia proposed SO2 infrastructure SIP because it fails to 
include enforceable emission limitations with a 1-hour averaging time 
that applies at all times. The Commenter cites to CAA section 302(k) 
which requires emission limits to apply on a continuous basis. The 
Commenter claims EPA has stated that 1-hour averaging times are 
necessary for the 2010 SO2 NAAQS citing to a February 3, 
2011, EPA Region 7 letter to the Kansas Department of Health and 
Environment regarding need for 1-hour SO2 emission limits in 
a PSD permit, an EPA Environmental Hearing Board (EHB) decision 
rejecting use of 3-hour averaging time for a SO2 limit in a 
PSD permit, and EPA's disapproval of a Missouri SIP which relied on 
annual averaging for SO2 emission rates.\9\
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    \9\ Sierra Club cited to In re: Mississippi Lime Co., PSDAPLPEAL 
11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and 71 FR 
12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy 
SO2 SIP).
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    Sierra Club also contends EPA must include monitoring of 
SO2 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 SO2 CEMs to monitor SO2 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 
SO2 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 SO2 
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 
SO2 emission limitations to ensure attainment and

[[Page 62031]]

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 SO2 emissions is necessary to 
demonstrate compliance with emission limits to show attainment of the 
2010 NAAQS as EPA believes such SO2 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 SO2 infrastructure SIP approvable without the 
additional SO2 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.
---------------------------------------------------------------------------

    \10\ For a discussion on emission averaging times for emissions 
limitations for SO2 attainment SIPs, see the April 23, 
2014 Guidance for 1-Hour SO2 Nonattainment Area SIP 
Submissions. EPA explained that it is possible, in specific cases, 
for states to develop control strategies that account for 
variability in 1-hour emissions rates through emission limits with 
averaging times that are longer than 1-hour, using averaging times 
as long as 30-days, but still provide for attainment of the 2010 
SO2 NAAQS as long as the limits are of at least 
comparable stringency to a 1-hour limit at the critical emission 
value. EPA has not yet evaluated any specific submission of such a 
limit, and so is not at this time prepared to take final action to 
implement this concept. If and when a state submits an attainment 
demonstration that relies upon a limit with such a longer averaging 
time, EPA will evaluate it then.
    \11\ EPA believes the appropriate time for application of 
monitoring requirements to demonstrate continuous compliance by 
specific sources is when such 1-hour emission limits are set for 
specific sources whether in permits issued by West Virginia pursuant 
to the SIP or in attainment SIPs submitted in the part D planning 
process.
---------------------------------------------------------------------------

    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 SO2 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 
SO2 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 SO2 levels exceed 
the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA 
document, Next Steps for Area Designations and Implementation of the 
Sulfur Dioxide 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 SO2 NAAQS without 
such enforceable SO2 limits. The Commenter states EPA must 
ensure large sources cannot cause exceedances of the one-hour 
SO2 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 SO2 emission 
limitations. In addition, the Commenter asserts adding SO2 
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 SO2 do not cause exceedances of the 2010 
SO2 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 
SO2 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 SO2 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 
SO2 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 SO2 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 SO2 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 SO2 
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 
SO2 infrastructure SIP.

[[Page 62032]]

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 SO2 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 SO2 NAAQS for its failure to include measures to ensure 
compliance with section 110(a)(2)(A) for the 2010 SO2 NAAQS. 
The Commenter claims the provisions listed by West Virginia for section 
110(a)(2)(A) in its 2010 SO2 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 SO2 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 
SO2 NAAQS and does not include hourly SO2 
emission limits. Sierra Club therefore contends the proposed 
infrastructure SIP cannot ensure West Virginia will attain and maintain 
the 2010 SO2 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 
SO2 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 SO2 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 SO2 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 
SO2 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\
---------------------------------------------------------------------------

    \12\ The February 6, 2013 memorandum is more completely the 
February 6, 2013 memorandum, ``Next Steps for Area Designations and 
Implementation of the Sulfur Dioxide National Ambient Air Quality 
Standard'' available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.
---------------------------------------------------------------------------

    Therefore, EPA disagrees with the Commenter that the infrastructure 
SIP must be disapproved for failure to include measures to ensure 
compliance with the 2010 SO2 NAAQS. As Congress provided for 
state primacy in implementing the NAAQS, West Virginia will 
appropriately evaluate and impose necessary SO2 emission 
limits on sources where needed for areas in West Virginia designated 
nonattainment with the 2010 SO2 NAAQS under section 107.\13\
---------------------------------------------------------------------------

    \13\ EPA also notes that in EPA's final rule regarding the 2010 
SO2 NAAQS, EPA noted that it anticipates several 
forthcoming national and regional rules, such as the Industrial 
Boilers standard under CAA section 112, are likely to require 
significant reductions in SO2 emissions over the next 
several years. See 75 FR 35520. EPA continues to believe similar 
national and regional rules will lead to SO2 reductions 
that will help achieve compliance with the 2010 SO2 NAAQS 
prior to 2017. If it appears that states with areas designated 
nonattainment in 2013 will nevertheless fail to attain the NAAQS as 
expeditiously as practicable (but no later than August 2018) during 
EPA's review of attainment SIPs required by section 172, the CAA 
provides authorities and tools for EPA to solve such failure, 
including, as appropriate, disapproving submitted SIPs and 
promulgating federal implementation plans.
---------------------------------------------------------------------------

    Comment 11: The Commenter alleges that the proposed SO2 
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 SO2 infrastructure SIP 
due to West Virginia's failure to address section

[[Page 62033]]

110(a)(2)(D)(i)(I). In EPA's NPR proposing to approve West Virginia's 
infrastructure SIP for the 2010 SO2 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 SO2 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 SO2 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 SO2 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 SO2 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 SO2 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 SO2 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 
SO2 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 SO2 
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 SO2 
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 
SO2 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\

[[Page 62034]]

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 SO2 NAAQS.
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    \14\ On March 23, 2012 (77 FR 16937), EPA finalized a limited 
approval and limited disapproval of West Virginia's June 18, 2008 
regional haze SIP to address the first implementation period for 
regional haze. There was a limited disapproval of this SIP because 
of West Virginia's reliance on the Clean Air Interstate Rule (CAIR) 
to meet certain regional haze requirements, which EPA replaced in 
August 2011 with the Cross-State Air Pollution Rule (CSAPR) (76 FR 
48208 (August 8, 2011)). In a separate but related action, EPA 
issued a FIP that replaced West Virginia's reliance on CAIR with 
reliance on CSAPR for certain regional haze requirements. 77 FR 
33642 (June 7, 2012). Later, the D.C. Circuit issued a decision in 
EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), 
cert. granted 133 U.S. 2857 (2013) vacating CSAPR and keeping CAIR 
in place pending the promulgation of a valid replacement rule. 
Subsequently, on April 30, 2014, the Supreme Court vacated the D.C. 
Circuit decision and remanded the matter including CSAPR to the D.C. 
Circuit for further proceedings. EME Homer City, 134 S. Ct. 1584. 
EPA believes that the EME Homer City decision impacts the reasoning 
that formed the basis for EPA's limited approval and limited 
disapproval of West Virginia's regional haze SIP and the FIP. 
Depending upon the outcome of additional proceedings concerning 
CSAPR in the D.C. Circuit on remand, EPA will take further 
rulemaking action, if necessary or required, regarding the limited 
approval and limited disapproval of the West Virginia regional haze 
SIP. As of the time of this rulemaking, CSAPR remains stayed before 
the D.C. Circuit pending further proceedings.
    \15\ One way in which section 110(a)(2)(D)(i)(II) for visibility 
protection may be satisfied for any relevant NAAQS is through an air 
agency's confirmation in its infrastructure SIP submission that it 
has an approved regional haze SIP that fully meets the requirements 
of 40 CFR 51.308 or 51.309. Infrastructure SIP Guidance at p. 33. As 
previously indicated, West Virginia has a regional haze SIP with 
limited approval and limited disapproval and a FIP which addresses 
replacement of CSAPR for CAIR for certain regional haze 
requirements.
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    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 SO2 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 SO2 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 SO2 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 SO2 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 SO2 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).
---------------------------------------------------------------------------

    \16\ The TSD is available in the docket for this rulemaking at 
www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-0299.
---------------------------------------------------------------------------

III. Final Action

    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 SO2 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 SO2 NAAQS.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);

[[Page 62035]]

     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

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

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Reporting and recordkeeping requirements, Sulfur dioxide.

    Dated: September 30, 2014.
William C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

Subpart XX--West Virginia

0
2. In Sec.  52.2520, the table in paragraph (e) is amended by adding 
the entry for Section 110(a)(2) Infrastructure Requirements for the 
2010 Sulfur Dioxide NAAQS at the end of the table to read as follows:


Sec.  52.2520  Identification of plan.

* * * * *
    (e) * * *

----------------------------------------------------------------------------------------------------------------
                                                     State
  Name of non-regulatory  SIP      Applicable      submittal     EPA approval         Additional explanation
           revision             geographic  area      date           date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)               Statewide.......      6/25/13  10/16/14 [Insert  This action addresses the
 Infrastructure Requirements                                    Federal           following CAA elements:
 for the 2010 1-Hour Sulfur                                     Register          110(a)(2)(A), (B), (C)
 Dioxide NAAQS.                                                 citation].        (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).
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[FR Doc. 2014-24658 Filed 10-15-14; 8:45 am]
BILLING CODE 6560-50-P