[Federal Register Volume 86, Number 43 (Monday, March 8, 2021)]
[Notices]
[Pages 13360-13362]
[FR Doc No: 2021-04746]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. CP15-554-009; CP15-555-007]

Atlantic Coast Pipeline, LLC, Eastern Gas Transmission and
Storage, Inc.; Notice of Amendment of Certificates and Opening of
Scoping Period

    Take notice that on January 4, 2021, Atlantic Coast Pipeline, LLC
(ACP), 120 Tredegar Street, Richmond, VA 23219, filed its Atlantic
Coast Project Disposition and Restoration Plan, and on November 20,
2020, Eastern Gas Transmission and Storage, Inc. (EGTS),\1\ 6603 West
Broad Street, Richmond, Virginia 23230, filed the Supply Header Project
Restoration Plan.\2\ On July 5, 2020, Dominion Energy Transmission,

Inc. and Duke Energy issued a press release announcing the cancellation
of the Atlantic Coast Project, which the Commission authorized on
October 13, 2017.\3\ The Restoration Plans describe ACP's and EGTS's
plans for the disposition of Atlantic Coast and Supply Header Projects,
including proposed restoration activities which would modify their
original authorizations to such an extent that it is appropriate to
treat the plans as amendments to the certificates of public convenience
and necessity issued for the projects. The two plans are on file with
the Commission and open for public inspection.
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    \1\ On November 1, 2020, Dominion Energy sold certain companies
including Dominion Energy Transmission, Inc., the Supply Header
Project developer, to Berkshire Hathaway Energy Company and Dominion
Energy Transmission, Inc. changed its name to Eastern Gas
Transmission and Storage, Inc.
    \2\ Both plans were submitted in response to Commission staff's
October 27, 2020 Data Request.
    \3\ Atlantic Coast Pipeline, LLC & Dominion Energy Transmission,
Inc. 161 FERC ] 61,042 (2017) (Certificate Order), reh'g denied, 164
FERC ] 61,100 (2018).
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    In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://ferc.gov) using the
``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. At this time,
the Commission has suspended access to the Commission's Public
Reference Room, due to the proclamation declaring a National Emergency
concerning the Novel Coronavirus Disease (COVID-19), issued by the
President on March 13, 2020. For assistance, contact the Federal Energy
Regulatory Commission at<EMAIL_ADDRESS>or call toll-free,
(886) 208-3676 or TYY,<PHONE_NUMBER>.
    Any questions regarding the proposed project should be directed to
Sharon L. Burr, Chief Deputy Counsel, Atlantic Coast Pipeline, LLC, 120
Tredegar Street, Richmond, VA 23219, or by phone at<PHONE_NUMBER>, or
email at<EMAIL_ADDRESS>or Matthew R. Bley,
Director, Gas Transmission Certificates Eastern Gas Transmission and
Storage, Inc., 6603 West Broad Street, Richmond, Virginia 23230; or by
phone at<PHONE_NUMBER>, or email at<EMAIL_ADDRESS>    ACP and EGTS are directed to provide this notice to all affected
landowners and towns, communities, and local, state and federal
governments and agencies involved in the project within 10 business
days of its publication in the Federal Register.
    This notice also announces the opening of a scoping period the
Commission will use to gather input from the public and interested
agencies regarding the proposed restoration activities associated with
the disposition of the Atlantic Coast and Supply Header Projects. By
this notice, the Commission requests public comments on the scope of
issues to address in the environmental document.
    Pursuant to Section 157.9 of the Commission's Rules of Practice and
Procedure,\4\ within 90 days of this Notice the Commission staff will
either: Complete its environmental review and place it into the
Commission's public record (eLibrary) for this proceeding; or issue a
Notice of Schedule for Environmental Review. If a Notice of Schedule
for Environmental Review is issued, it will indicate, among other
milestones, the anticipated date for the Commission staff's issuance of
the final environmental impact statement (FEIS) or environmental
assessment (EA) for this proposal. The filing of an EA in the
Commission's public record for this proceeding or the issuance of a
Notice of Schedule for Environmental Review will serve to notify
federal and state agencies of the timing for the completion of all
necessary reviews, and the subsequent need to complete all federal
authorizations within 90 days of the date of issuance of the Commission
staff's FEIS or EA.
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    \4\ 18 CFR (Code of Federal Regulations) 157.9.
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Public Participation

    There are two ways to become involved in the Commission's review of
the companies' proposals: You can file comments on the proposals, and
you can file a motion to intervene in the proceeding. There is no fee
or cost for filing comments or intervening. The deadline for filing a
motion to intervene is 5:00 p.m. Eastern Time on April 16, 2021.

Comments

    Any person wishing to comment on the proposals may do so. Comments
may include statements of support or objections to the proposals as a
whole or specific aspects of the proposal. The more specific your
comments, the more useful they will be. To ensure that your comments
are timely and properly recorded, please submit your comments on or
before April 16, 2021.
    There are three methods you can use to submit your comments to the
Commission. In all instances, please reference the Project docket
numbers CP15-554-009 and/or CP15-555-007 in your submission.
    (1) You may file your comments electronically by using the eComment
feature, which is located on the Commission's website at www.ferc.gov
under the link to Documents and Filings. Using eComment is an easy
method for interested persons to submit brief, text-only comments on a
project;
    (2) You may file your comments electronically by using the eFiling
feature, which is located on the Commission's website (www.ferc.gov)
under the link to Documents and Filings. With eFiling, you can provide
comments in a variety of formats by attaching them as a file with your
submission. New eFiling users must first create an account by clicking
on ``eRegister.'' You will be asked to select the type of filing you
are making; first select ``General'' and then select ``Comment on a
Filing''; or
    (3) You can file a paper copy of your comments by mailing them to
the following address below. Your written comments must reference the
Project docket number CP15-554-009 and/or CP15-555-007.

To mail via USPS, use the following address: Kimberly D. Bose,
Secretary, Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426
To mail via any other courier, use the following address: Kimberly D.
Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins
Avenue, Rockville, Maryland 20852

    The Commission encourages electronic filing of comments (options 1
and 2 above) and has eFiling staff available to assist you at (202)
502-8258 or [email protected]
    Persons who comment on the environmental review of this project,
and provide their mailing address, will be placed on the Commission's
environmental mailing list, and will receive notification when the
environmental documents (EA or EIS) are issued for this project and
will be notified of meetings associated with the Commission's
environmental review process.
    The Commission considers all comments received about the project in
determining the appropriate action to be taken. However, the filing of
a comment alone will not serve to make the filer a party to the
proceeding. To become a party, you must intervene in the proceeding.
For instructions on how to intervene, see below.

Interventions

    All intervenors in the previous proceedings for the projects (CP15-
554-000; CP15-554-001; CP15-555-000) will be considered intervenors in
this amendment proceeding and do not need to file a new motion to
intervene.

    Any other person, which includes individuals, organizations,
businesses, municipalities, and other entities,\5\ has the option to
file a motion to intervene in this proceeding. Only intervenors have
the right to request rehearing of Commission orders issued in this
proceeding and to subsequently challenge the Commission's orders in the
U.S. Circuit Courts of Appeal.
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    \5\ 18 CFR 385.102(d).
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    To intervene, you must submit a motion to intervene to the
Commission in accordance with Rule 214 of the Commission's Rules of
Practice and Procedure \6\ and the regulations under the NGA \7\ by the
intervention deadline for the project, which is April 16, 2021. As
described further in Rule 214, your motion to intervene must state, to
the extent known, your position regarding the proceeding, as well as
your interest in the proceeding. [For an individual, this could include
your status as a landowner, ratepayer, resident of an impacted
community, or recreationist. You do not need to have property directly
impacted by the project in order to intervene.] For more information
about motions to intervene, refer to the FERC website at https://www.ferc.gov/resources/guides/how-to/intervene.asp.
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    \6\ 18 CFR 385.214.
    \7\ 18 CFR 157.10.
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    There are two ways to submit your motion to intervene. In both
instances, please reference the Project docket number CP15-554-009 and/
or CP15-555-007 in your submission.
    (1) You may file your motion to intervene by using the Commission's
eFiling feature, which is located on the Commission's website
(www.ferc.gov) under the link to Documents and Filings. New eFiling
users must first create an account by clicking on ``eRegister.'' You
will be asked to select the type of filing you are making; first select
``General'' and then select ``Intervention.'' The eFiling feature
includes a document-less intervention option; for more information,
visit https://www.ferc.gov/docs-filing/efiling/document-less-intervention.pdf.; or
    (2) You can file a paper copy of your motion to intervene, along
with three copies, by mailing the documents to the address below. Your
motion to intervene must reference the Project docket number CP15-554-
009 and/CP15-555-007.

To mail via USPS, use the following address: Kimberly D. Bose,
Secretary, Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426
To mail via any other courier, use the following address: Kimberly D.
Bose, Secretary, Federal Energy Regulatory Commission, 12225 Wilkins
Avenue, Rockville, Maryland 20852

    The Commission encourages electronic filing of motions to intervene
(option 1 above) and has eFiling staff available to assist you at (202)
502-8258 or [email protected]
    Motions to intervene must be served on the applicant either by mail
or email at: Sharon L. Burr, Chief Deputy Counsel, Atlantic Coast
Pipeline, LLC, 120 Tredegar Street, Richmond, VA 23219;
<EMAIL_ADDRESS>or Matthew R. Bley, Director, Gas
Transmission Certificates Eastern Gas Transmission and Storage, Inc.,
6603 West Broad Street, Richmond, Virginia 23230;
<EMAIL_ADDRESS>Any subsequent submissions by an
intervenor must be served on the applicant and all other parties to the
proceeding. Contact information for parties can be downloaded from the
service list at the eService link on FERC Online. Service can be via
email with a link to the document.
    All timely, unopposed \8\ motions to intervene are automatically
granted by operation of Rule 214(c)(1).\9\ Motions to intervene that
are filed after the intervention deadline are untimely, and may be
denied. Any late-filed motion to intervene must show good cause for
being late and must explain why the time limitation should be waived
and provide justification by reference to factors set forth in Rule
214(d) of the Commission's Rules and Regulations.\10\ A person
obtaining party status will be placed on the service list maintained by
the Secretary of the Commission and will receive copies (paper or
electronic) of all documents filed by the applicant and by all other
parties.
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    \8\ The applicant has 15 days from the submittal of a motion to
intervene to file a written objection to the intervention.
    \9\ 18 CFR 385.214(c)(1).
    \10\ 18 CFR 385.214(b)(3) and (d).
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Tracking the Proceeding

    Throughout the proceeding, additional information about the project
will be available from the Commission's Office of External Affairs, at
(866) 208-FERC, or on the FERC website at www.ferc.gov using the
``eLibrary'' link as described above. The eLibrary link also provides
access to the texts of all formal documents issued by the Commission,
such as orders, notices, and rulemakings.
    In addition, the Commission offers a free service called
eSubscription which allows you to keep track of all formal issuances
and submittals in specific dockets. This can reduce the amount of time
you spend researching proceedings by automatically providing you with
notification of these filings, document summaries, and direct links to
the documents. For more information and to register, go to
www.ferc.gov/docs-filing/esubscription.asp.
    Intervention and Scoping Comments Deadline: 5:00 p.m. Eastern Time
on April 16, 2021.

Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2021-04746 Filed 3-5-21; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 79, Number 64 (Thursday, April 3, 2014)]
[Rules and Regulations]
[Pages 18644-18654]
[FR Doc No: 2014-07459]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0408; FRL-9909-11-Region-3]

Approval and Promulgation of Air Quality Implementation Plans;
Delaware; Infrastructure Requirements for the 2008 Ozone 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 Delaware
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 Delaware
has made a submittal addressing the infrastructure requirements for the
2008 ozone NAAQS.

DATES: This final rule is effective on May 5, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID
Number EPA-R03-OAR-2013-0408. 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 Delaware Department of Natural Resources
and Environmental Control (DNREC), 89 Kings Highway, P.O. Box 1401,
Dover, Delaware 19903.

FOR FURTHER INFORMATION CONTACT: Rose Quinto,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    On August 30, 2013 (78 FR 53709), EPA published a notice of
proposed rulemaking (NPR) for the State of Delaware. In the NPR, EPA
proposed approval of Delaware's submittal that provides the basic
elements specified in section 110(a)(2) of the CAA, necessary to
implement, maintain, and enforce the 2008 ozone NAAQS.

II. Summary of SIP Revision

    On March 27, 2013, the Delaware Department of Natural Resources and
Environmental Control (DNREC) 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 2008 ozone NAAQS. This
submittal addressed the following infrastructure elements of section
110(a)(2): (A), (B), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L),
and (M). EPA has analyzed the above identified submission and is
approving the submittal as addressing the requirements of section
110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J),
(K), (L), and (M) of the CAA. As discussed in the NPR, EPA will take
separate action on the portions of the submittal which address section
110(a)(2)(I) for the Part D, Title I nonattainment planning
requirements and section 110(a)(2)(D)(i)(I) which addresses significant
contribution to nonattainment or interference with maintenance of the
NAAQS in another state.
    The rationale for EPA's rulemaking action, including the scope of
infrastructure SIPs in general, is explained in the NPR and the
technical support document (TSD) accompanying the NPR and will not be
restated here. The TSD for this rulemaking is available at
www.regulations.gov, Docket number EPA-R03-OAR-2013-0408.

III. Public Comments and EPA Responses

    EPA received three sets of comments on the August 30, 2013 proposed
approval of Delaware's 2008 ozone infrastructure SIP. The commenters
included the State of Connecticut, the Delaware Solid Waste Authority
(DSWA), and the Sierra Club. A full set of these comments is provided
in the docket for today's final rulemaking action.

A. State of Connecticut

    Comment: The State of Connecticut asserts that its ability to
attain the 2008 ozone NAAQS is compromised by interstate transport of
pollution from upwind states. Connecticut claims it would require
additional reductions from upwind emissions to address transported
emissions into Connecticut and to be able to attain the 2008 ozone
NAAQS based on modeling from the Ozone Transport Commission and
modeling done by EPA for the Cross State Air Pollution Rule (CSAPR).
Connecticut comments that remaining measures to reduce in-state
emissions were limited and not cost effective. Connecticut asserts that
it and other states like Delaware had done their fair share to reduce
in-state emissions while upwind states failed to fulfill minimal
obligations under the CAA. Connecticut states that section 110(a)(1) of
the CAA requires states like Delaware to submit, within three years of
promulgation of a new NAAQS, a plan which provides for implementation,
maintenance, and enforcement of such NAAQS within the state.
Connecticut states that Delaware had submitted a plan to address its
good neighbor obligations under section 110(a)(2)(D)(i)(I) of the CAA
for Delaware's March 27, 2013 infrastructure SIP for the 2008 ozone
NAAQS. Connecticut states that it had previously commented on
Delaware's draft infrastructure SIP for the 2008 ozone NAAQS by stating
Connecticut believed Delaware's already adopted control measures are
sufficient to alleviate Delaware's contribution to Connecticut's ozone
problems by December 15, 2015, which is Connecticut's attainment
deadline for the 2008 ozone NAAQS.
    Connecticut argues that EPA lacks the discretion to defer action on
Delaware's good neighbor portion of Delaware's infrastructure SIP for
2008 ozone NAAQS (for section 110(a)(2)(D)(i)(I) of the CAA).
Connecticut further argues that the CAA does not give EPA discretion to
approve a SIP without the good neighbor provision on the grounds that
EPA would take separate action on Delaware's obligations under section
110(a)(2)(D)(i)(I). Connecticut asserts that EPA should either approve
Delaware's infrastructure SIP with respect to its impact on
Connecticut's ambient ozone levels or address Delaware's failure to
satisfy its good neighbor obligations by promulgating a Federal
Implementation Plan (FIP) under section 110(c)(1) of the CAA within two
years to address section 110(a)(2)(D)(i)(I) of the CAA.
    Response: EPA acknowledges the commenter's concerns with regard to
the interstate transport of ozone and ozone precursors. EPA also agrees
in general with the commenter that each state should address its
contribution to another state's nonattainment and that section
110(a)(1) of the CAA requires states like Delaware to submit within
three years of promulgation of a new or revised NAAQS a plan which
provides for implementation, maintenance and enforcement of such NAAQS
within the state. Many of the commenter's concerns, however, go to
issues beyond the scope of this rulemaking action and the commenter
does not allege that deferring action on Delaware's SIP will have any
negative impact on Connecticut. To the contrary, the commenter asserts
that ``it is very likely that the adopted control programs noted in the
DNREC proposed SIP are sufficient to alleviate Delaware's contributions
to Connecticut's ozone problems'' by Connecticut's attainment deadline
for the 2008 eight-hour ozone NAAQS.
    In this rulemaking action, EPA is not taking any final action with
respect to the provisions in section 110(a)(2)(D)(i)(I)--the portion of
the good neighbor provision that addresses emissions that significantly
contribute to nonattainment or interfere with maintenance of the NAAQS
in another state. EPA did not propose to take any action with respect
to Delaware's obligations pursuant to section 110(a)(2)(D)(i)(I) and is
not, in this notice, taking any such action. As explained in this
rulemaking action, while section 110(k) of the CAA requires EPA to act
on all SIP submissions whether required or not, nothing in section
110(k) requires EPA to act on all parts of a SIP submission in a single
action or requires EPA to act on Delaware's section 110(a)(2)(D)(i)(I)
submission at this time. Moreover, even if EPA were to disapprove the
110(a)(2)(D)(i)(I) portion of the SIP submitted by Delaware, pursuant
to the U.S. Court of Appeals for the District of Columbia (DC Circuit
Court) opinion in EME Homer City, any such disapproval would not at
this time trigger an obligation for EPA to promulgate a FIP within two
years.
    EPA disagrees with the commenter that EPA cannot defer action on
the 110(a)(2)(D)(i)(I) portion of the Delaware SIP submittal and
therefore must now approve or disapprove Delaware's section
110(a)(2)(D)(i)(I) SIP submission for the 2008 ozone NAAQS. EPA
indicated in its notice of proposed rulemaking that it intended to take
separate rulemaking action on the 110(a)(2)(D)(i)(I) portion of
Delaware's SIP submission and nothing in the CAA bars EPA from
concluding that action on that portion of the submittal should be
deferred. EPA found Delaware's March 27, 2013 infrastructure SIP for
the 2008 ozone NAAQS complete on May 20, 2013. Therefore, pursuant to
section 110(k)(2) of the CAA, EPA has until May 20, 2014 to act on all
portions of Delaware's submittal. In this case, EPA has chosen to act
on a portion of the SIP submittal prior to that deadline. The commenter
has not identified any provision of the CAA that prohibits EPA from
doing so. The commenter has also not identified any provision of the
CAA that prohibits EPA from approving a SIP without the good neighbor
provision or

that prohibits EPA from deciding to act separately on the portion of a
SIP submission addressing that provision. Section 110(k)(3) of the CAA
authorizes EPA to approve a plan in full, disapprove it in full, or
approve it in part and disapprove it in part, depending on the extent
to which such plan meets the requirements of the CAA. This authority to
approve the states' SIP revisions in separable parts was included in
the 1990 Amendments to the CAA to overrule a decision in the Court of
Appeals for the Ninth Circuit holding that EPA could not approve
individual measures in a plan submission without either approving or
disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990
U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of
Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).
    As such, EPA interprets its authority under section 110(k)(3) as
affording EPA the discretion to approve or conditionally approve
individual elements of Delaware's infrastructure SIP submission for the
2008 ozone NAAQS, separate and apart from any action with respect to
the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect
to that NAAQS. EPA views discrete infrastructure SIP requirements, such
as the requirements of section 110(a)(2)(D)(i)(I) of the CAA, as
severable from the other infrastructure elements and interprets section
110(k)(3) of the CAA as allowing it to act on individual severable
measures in a plan submission. While EPA acknowledges it has an
obligation under section 110(k)(2) to act on the 110(a)(2)(D)(i)(I)
portion of the March 27, 2013 SIP submittal, EPA believes it has
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 has not raised a
compelling legal or environmental rationale for an alternate
interpretation. As the time for EPA to act upon the 110(a)(2)(D)(i)(I)
portion of Delaware's submittal has not yet expired, EPA believes it
may appropriately act upon the remainder of the SIP submittal and take
action on the 110(a)(2)(D)(i)(I) portion in a separate action. And the
decision to defer action on the portion of the submission addressing
section 110(a)(2)(D)(i)(I) of the CAA is reasonable in light of the
uncertainty created by the Supreme Court review of the DC Circuit Court
decision in EME Homer City--a decision which, among other things,
interpreted that section of the CAA.
    Additionally, EPA notes that the commenter has not demonstrated
that EPA could take either of the actions requested. The commenter has
neither demonstrated that the 110(a)(2)(D)(i)(I) portion of the SIP
submission is sufficient to prohibit any emissions that significantly
contribute to nonattainment or interfere with maintenance in any other
state, nor demonstrated that EPA at this time could establish a two
year deadline for EPA to promulgate a FIP addressing any such
emissions. In light of the DC Circuit Court opinion in EME Homer City,
there is not at this time any basis for contending that EPA must issue
a FIP within two years of any future disapproval of Delaware's
110(a)(2)(D)(i)(I) SIP submission as EPA has not yet quantified
Delaware's good neighbor obligations under the 2008 ozone NAAQS.
    EPA has historically interpreted the CAA as requiring states to
submit SIPs addressing the requirements of section 110(a)(2)(D)(i)(I)
of the CAA within three years of the promulgation or revision of a
NAAQS. Similarly, EPA has interpreted the CAA as providing that any
disapproval of a 110(a)(2)(D)(i)(I) SIP submission, or a finding that a
state has failed to make such a submission, would trigger an obligation
for EPA to promulgate a FIP within two years if the state did not
correct the SIP deficiency within that time. EPA continues to agree
that the plain language of the statute establishes these obligations.
However, the DC Circuit Court clearly articulated in its opinion in EME
Homer City that SIPs under section 110(a)(2)(D)(i)(I) of the CAA are
not due until EPA has defined a state's contribution to nonattainment
or interference with maintenance in another state. See EME Homer City
Generation, LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted 133
U.S. 2857 (2013). EPA has not yet done this for the 2008 ozone NAAQS.
While the Supreme Court has agreed to review the EME Homer City
decision, the DC Circuit Court's decision currently remains in place.
EPA intends to act in accordance with the EME Homer City opinion unless
it is reversed or otherwise modified by the Supreme Court. See also 78
FR 14683 (concluding that, under the DC Circuit Court opinion in EME
Homer City, disapproval of a 110(a)(2)(D)(i)(I) SIP submitted by
Kentucky did not start a FIP clock).
    Further, because the EPA rule known as CSAPR reviewed by the DC
Circuit Court in EME Homer City was designated by EPA as a ``nationally
applicable'' rule within the meaning of section 307(b)(1) of the CAA
with petitions for review of CSAPR required to be filed in the DC
Circuit Court, EPA believes the DC Circuit Court's decision in EME
Homer City is also nationally applicable. As such, EPA does not intend
to take any actions, even if they are only reviewable in another
Federal Circuit Court of Appeals that are inconsistent with the
decision of the DC Circuit Court. For this reason, even if EPA were to
disapprove the 110(a)(2)(D)(i)(I) SIP submission from Delaware, any
such disapproval would not at this time trigger an obligation for EPA
to issue a FIP within two years.
    In sum, the concerns raised by the commenter do not establish that
it is inappropriate or unreasonable for EPA to approve the portions of
Delaware's March 27, 2013 infrastructure SIP submission for the 2008
ozone NAAQS described in the proposed approval. Moreover, EPA notes
that it is actively working with state partners to assess next steps to
address air pollution that crosses state boundaries and has begun work
on a rulemaking to address transported air pollution affecting the
ability of states in the eastern half of the United States to attain
and maintain the 2008 ozone NAAQS. That rulemaking action is separate
from this SIP approval rulemaking action. It is also technically
complex and must comply with the rulemaking requirements of section
307(d) of the CAA.

B. Delaware Solid Waste Authority

    Comment: DSWA comments on the possibility of Delaware adopting the
Ozone Transport Commission's anti-idling recommendations for certain
motor vehicles. DSWA expresses its concern with the temperature
exemptions meant to safeguard the equipment operators. DSWA recommends
changing the temperature range when exemptions are allowed from anti-
idling regulations from below 25 degrees Fahrenheit and above 85
degrees Fahrenheit to below 40 degrees Fahrenheit and above 75 degrees
Fahrenheit. DSWA asserts the recommended temperature exemption was
overly optimistic and the narrower temperature range (below 40 degrees
Fahrenheit and above 75 degrees Fahrenheit) would allow operation of
heating and air conditioning systems in certain motor vehicles when
idling when temperature control may be necessary for safeguarding
operators of those motor vehicles.
    Response: EPA appreciates DSWA's comment. However, in this
rulemaking action, EPA is neither approving nor disapproving any
existing state rules or regulations into the Delaware SIP. Thus, the
comment is not relevant to this

rulemaking action. Delaware already has an anti-idling regulation,
Regulation 1145, Excessive Idling of Heavy Duty Vehicles. In addition,
EPA has previously approved this regulation, Regulation 1145, into the
Delaware SIP. See 40 CFR 52.420(c) and 74 FR 51792, October 8, 2009.
While Delaware's infrastructure SIP for the 2008 ozone NAAQS has listed
Regulation 1145 as one enforceable control measure for section
110(a)(2)(A) of the CAA which meets applicable requirements of the CAA,
EPA is acting on the infrastructure SIP as meeting the section
110(a)(2) requirements overall. As EPA stated in ``Guidance on
Infrastructure SIP Elements under CAA Sections 110(a)(1) and
110(a)(2),'' dated September 13, 2013 (Infrastructure SIP Guidance),
``[t]he conceptual purpose of an infrastructure SIP submission is to
assure that the air agency's SIP contains the necessary structural
requirements for the new or revised NAAQS, whether by establishing that
the SIP already contains the necessary provisions, by making a
substantive SIP revision to update the SIP, or both.'' Infrastructure
SIP Guidance at p. 2. EPA has established that Delaware's existing SIP
meets requirements of section 110(a)(2)(A) of the CAA and is not adding
any regulations to the Delaware SIP. As DSWA is commenting about
suggested changes in a provision which is already Delaware law, EPA
suggests DSWA pursue its comments with DNREC. EPA believes Delaware's
infrastructure SIP adequately address section 110(a)(2)(A) of the CAA
for the 2008 ozone NAAQS.

C. Sierra Club

    Comment 1: Sierra Club contends that EPA cannot approve the section
110(a)(2)(A) portion of Delaware's 2008 ozone infrastructure SIP
revision because the plain language of 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 in an infrastructure SIP of enforceable emission limits to
prevent NAAQS violations in areas not designated nonattainment.
Specifically, Sierra Club cites air monitoring reports for Kent County,
Delaware indicating a violation of the NAAQS based on Kent County's
2010-2012 design value. The commenter states EPA must disapprove the
infrastructure SIP because it impermissibly fails to include
enforceable eight-hour ozone emission limits to ensure attainment and
maintenance of the NAAQS in areas designated attainment. Sierra Club
comments that Delaware had only added two provisions, related to
visibility and state boards, to its ``old SIP'' which addressed the
1997 ozone NAAQS and claims the Delaware SIP is insufficient for
Delaware to attain and maintain the 2008 ozone NAAQS as evidenced by
the monitoring data from Kent County showing violation of the 2008
ozone NAAQS for 2010-2012.
    The commenter alleges that this violation in Kent County, a
designated attainment area, demonstrates that the Delaware
infrastructure SIP lacks adequate emission limits to attain and
maintain the 2008 ozone NAAQS and thus EPA must disapprove the
infrastructure SIP. Sierra Club notes that Delaware has not specified
how it plans to address the violation in Kent County nor established
emission limits to reduce the ``dangerous ozone concentrations'' in the
county. The commenter states EPA must require Delaware to amend its
infrastructure SIP to include enforceable eight-hour ozone emission
limits that ensure sources cannot cause violations of the 2008 ozone
NAAQS in areas designated attainment. Sierra Club contends that the
infrastructure SIP must be disapproved because it fails to include
adequate enforceable eight-hour emission limitations for sources of
ozone precursors to ensure attainment and maintenance of the NAAQS in
areas designated attainment in violation of section 110(a)(1) and
(a)(2)(A) of the CAA and 40 CFR 51.112.
    Response 1: EPA disagrees with the commenter that the statute is
clear on its face that infrastructure SIPs must include detailed
attainment and maintenance plans for all areas of the state and must be
disapproved if air quality data that became available late in the
process or after the infrastructure SIP was due and submitted changes
the status of areas within the state. In subsections (a) through (e) of
this rulemaking action, EPA addresses the commenter's specific
arguments that the statutory language, legislative history, case law,
EPA regulations, and prior rulemaking actions by EPA mandate the narrow
interpretation they advocate. EPA believes that section 110(a)(2)(A) is
reasonably interpreted to require states to submit SIPs that reflect
the first step in their planning for attaining and maintaining a new or
revised NAAQS and that they contain enforceable control measures and a
demonstration that the state has the available tools and authority to
develop and implement plans to attain and maintain the NAAQS.
    As an initial matter, EPA disagrees that air quality monitoring
that became available four years following promulgation of the 2008
ozone NAAQS and after the ozone infrastructure SIP was submitted
provides a basis for disapproving the Delaware ozone infrastructure
SIP. States must develop SIPs based on the information they have during
the SIP development process and data that becomes available after that
process is completed cannot undermine the reasonable assumptions that
were made by the state based on the information it had available as it
developed the plan. Thus, the data cited by the commenter should not be
considered in determining whether the SIP should be approved. The
suggestion that Delaware's ozone infrastructure SIP must include
measures addressing a violation of the standard that did not occur
until shortly after the SIP was due and submitted cannot be supported.
The CAA provides states with three years to develop infrastructure SIPs
and states cannot reasonably be expected to address the annual change
in an area's design value for each year over that period, nor to
predict the air quality data in periods after development and
submission of the SIPs. Moreover, the CAA recognizes and has provisions
to address changes in air quality over time, such as an area slipping
from attainment to nonattainment or changing from nonattainment to
attainment. These include provisions providing for redesignation in
section 107(d) of the CAA and provisions in section 110(k)(5) of the
CAA allowing EPA to call on the state to revise its SIP, as
appropriate.
    The commenter suggests that EPA must disapprove the Delaware ozone
infrastructure SIP because the fact that an area in Delaware has air
quality data slightly above the standard proves that the infrastructure
SIP is inadequate to demonstrate maintenance for that area. EPA
disagrees because we do not believe that section 110(a)(2)(A) of the
CAA requires detailed planning SIPs demonstrating either attainment or
maintenance for specific geographic areas of the state. The
infrastructure SIP is triggered by promulgation of the NAAQS, not
designation. Moreover, infrastructure SIPs are due three years
following promulgation of the NAAQS and designations are not due until
two years (or in some cases three years) following promulgation of the
NAAQS. Thus, during a significant portion of the period that a state
has available for developing the infrastructure SIP, it does not know
what the designation will be for individual areas of the state.\1\

In light of the structure of the CAA, EPA's long-standing position
regarding infrastructure SIPs is that they are general planning SIPs to
ensure that the state has adequate resources and authority to implement
a NAAQS in general throughout the state and not detailed attainment and
maintenance plans for each individual area of the state.
---------------------------------------------------------------------------

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

    Our interpretation that infrastructure SIPs are more general
planning SIPs is consistent with the statute as understood in light of
its history and structure. When Congress enacted the CAA in 1970, it
did not include provisions requiring states and the EPA to label areas
as attainment or nonattainment. Rather, states were required to include
all areas of the state in ``air quality control regions'' (AQCRs) and
section 110 set forth the core substantive planning provisions for
these AQCRs. At that time, Congress anticipated that states would be
able to address air pollution quickly pursuant to the very general
planning provisions in section 110 and could bring all areas into
compliance with the NAAQS within five years. Moreover, at that time,
section 110(a)(2)(A)(i) of the CAA specified that the section 110 plan
provide for ``attainment'' of the NAAQS and section 110(a)(2)(B)
specified that the plan must include ``emission limitations, schedules,
and timetables for compliance with such limitations, and such other
measures as may be necessary to insure attainment and maintenance [of
the NAAQS].'' In 1977, Congress recognized that the existing structure
was not sufficient and many areas were still violating the NAAQS. At
that time, Congress for the first time added provisions requiring
states and EPA to identify whether areas of the state were violating
the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e.,
were attainment) and established specific planning requirements in
section 172 of the CAA for areas not meeting the NAAQS. In 1990, many
areas still had air quality not meeting the NAAQS and Congress again
amended the CAA and added yet another layer of more prescriptive
planning requirements for each of the NAAQS, with the primary
provisions for ozone in section 182 of the CAA. 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) of the CAA. Additionally, Congress replaced the
clause ``as may be necessary to insure attainment and maintenance [of
the NAAQS]'' with ``as may be necessary or appropriate to meet the
applicable requirements of this chapter.'' Thus, the CAA has
significantly evolved in the more than 40 years since it was originally
enacted. While at one time section 110 did provide the only detailed
SIP planning provisions for states and specified that such plans must
provide for attainment of the NAAQS, under the structure of the current
CAA, section 110 is only the initial stepping-stone in the planning
process for a specific NAAQS. And, more detailed, later-enacted
provisions govern the substantive planning process, including planning
for attainment of the NAAQS.
    For all of these reasons, EPA disagrees with the commenter that EPA
must disapprove an infrastructure SIP revision if there are monitored
violations of the standard in the state and the section 110(a)(2)(A)
revision does not have detailed plans for demonstrating how the state
will bring that area into attainment. Rather, EPA believes that the
proper inquiry at this juncture is whether the state has met the basic
structural SIP requirements appropriate at the point in time EPA is
acting upon the submittal.
    Moreover, as addressed in EPA's proposed approval for this rule,
Delaware submitted a list of existing emission reduction measures in
the SIP that control emissions of volatile organic compounds (VOCs) and
nitrogen oxides (NOx). Delaware's SIP revision reflects several
provisions that have the ability to reduce ground level ozone and its
precursors. The Delaware SIP relies on measures and programs used to
implement previous ozone NAAQS. Because there is no substantive
difference between the previous ozone NAAQS and the more recent ozone
NAAQS, other than the level of the standard, the provisions relied on
by Delaware will provide benefits for the new NAAQS; in other words,
the measures reduce overall ground-level ozone and its precursors and
are not limited to reducing ozone levels to meet one specific NAAQS.
    EPA shares the commenter's concern regarding Kent County's
violation of the 2008 eight-hour ozone NAAQS in 2010-2012 and will work
appropriately with the State to address any issues.\2\ Further, in
approving Delaware's infrastructure SIP revision, EPA is affirming that
Delaware has sufficient authority to take the types of actions required
by the CAA in order to bring such areas back into attainment.
---------------------------------------------------------------------------

    \2\ EPA notes that preliminary monitoring data for 2013
indicates that Kent County, Delaware is not violating the 2008 ozone
NAAQS for the period 2011-2013. The 2013 data is uncertified. States
are required to certify 2013 data by May 1, 2014.
---------------------------------------------------------------------------

a. The Plain Language of the CAA
    Comment 2: The commenter states that on its face the CAA ``requires
I-SIPs to be adequate to prevent violations of the NAAQS.'' In support,
the commenter quotes the language in section 110(a)(1) which requires
states to adopt a plan for implementation, maintenance, and enforcement
of the NAAQS and the language in section 110(a)(2)(A) of the CAA which
requires SIPs to include enforceable emissions limitations as may be
necessary to meet the requirements of the CAA and which commenter
claims includes the maintenance plan requirement. Sierra Club notes the
CAA definition of emission limit and reads these provisions together to
require ``enforceable emission limits on source emissions sufficient to
ensure maintenance of the NAAQS.''
    Response 2: EPA disagrees that section 110 is ``clear on its face''
and must be interpreted in the manner suggested by Sierra Club. As
explained earlier in this rulemaking action, 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) 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 of the CAA 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 SIP Elements under CAA Sections 110(a)(1) and
110(a)(2),'' dated September 13, 2013 (Infrastructure SIP Guidance),
``[t]he conceptual purpose of an infrastructure SIP submission is to
assure that the air agency's SIP contains the necessary structural
requirements for the new or revised NAAQS, whether by establishing that
the SIP already contains the necessary provisions, by making a
substantive SIP revision to update the SIP, or both. Overall, the
infrastructure SIP submission process provides an opportunity . . . to
review the basic structural requirements of the air agency's air
quality management program in light of each new or revised NAAQS.''
Infrastructure SIP Guidance at p. 2.
    The commenter makes a general allegation that Delaware does not
have regulations sufficient to ensure compliance with the 2008 ozone
NAAQS ``proven by the fact that Kent County violated the 2008 Ozone
NAAQS.'' EPA addressed the adequacy of Delaware's infrastructure SIP
for 110(a)(2)(A) purposes to meet applicable requirements of the CAA in
the TSD accompanying the August 30, 2013 NPR and explained why EPA
believes the SIP includes enforceable emission limitations and other
control measures necessary for maintenance of the 2008 ozone NAAQS
throughout the state. For Delaware, including Kent County, these
include Delaware's enforceable emission limitations and other control
measures at: 7 DE Admin. Codes 1113, 1124, 1141, 1144, 1145, 1146, and
1148. These regulations are identified as part of the Delaware SIP at
40 CFR 52.420(c). Enforceable emission limitations and schedules are
also contained in Delaware's submitted Reasonable Further Progress
(RFP) and attainment demonstration SIPs that were approved on April 8,
2010 (75 FR 17863) and October 5, 2012 (77 FR 60914), respectively.
b. The Legislative History of the CAA
    Comment 3: Sierra Club cites two excerpts from the legislative
history of the CAA Amendments of 1970 claiming they support an
interpretation that SIP revisions under section 110 of the CAA must
include emissions limitations sufficient to show maintenance of the
NAAQS in Delaware, citing the Senate Committee Report and the
subsequent Senate Con ference Report accompany ing the 1970 CAA.
    Response 3: As provided in the previous response, the CAA, as
enacted in 1970, including its legislative history, cannot be
interpreted in isolation from the later amendments that refined that
structure and deleted relevant language from section 110 concerning
demonstrating attainment. In any event, the two excerpts of legislative
history cited by the commenter 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. Moreover, the cited legislative history pertains to
section 110 as promulgated in 1970 and not to section 110 as amended by
the CAA Amendments of 1990. As provided earlier in this rulemaking
action, the TSD for the proposed rule explains why EPA believes the SIP
includes enforceable emissions limitations for the State of Delaware
including Kent County.
c. Case Law
    Comment 4: Sierra Club also discusses several cases applying the
CAA which Sierra Club claims support their contention that courts have
been clear that section 110(a)(2)(A) of the CAA requires enforceable
emissions limits in infrastructure SIPs to prevent violations of the
NAAQS. Sierra Club first cites to language in Train v. NRDC, 421 U.S.
60, 78 (1975), addressing the requirement for ``emission limitations''
and stating that emission limitations ``are specific rules to which
operators of pollution sources are subject, and which if enforced
should result in ambient air which meet the national standards.''
Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v.
EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA
directs EPA to withhold approval of a SIP where it does not ensure
maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 547 F.2d
123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA
of 1970. The commenter contends that the 1990 Amendments do not alter
how courts have interpreted the requirements of section 110 of the CAA,
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
states that ``SIPs must include certain measures Congress specified''
to ensure attainment of the NAAQS. The commenter also quotes several
additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666
F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to
develop implementation plans--SIPs--that `assure' attainment and
maintenance of [NAAQS] through enforceable emissions limitations'');
Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must
submit a [SIP] that specif[ies] the manner in which [NAAQS] will be
achieved and maintained within each air quality control region in the
State''). Finally, they cited Mich. Dept. of Envtl. Quality v. Browner,
230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not
approve a SIP revision that does not demonstrate how the rules would
not interfere with attainment and maintenance of the NAAQS.
    Response 4: None of the cases cited by the commenter 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) of the CAA may
reasonably be interpreted. With the exception of Train, none of the
cases cited by the commenter concerned the interpretation of section
110(a)(2)(A) of the CAA (or section 110(a)(2)(B) of the pre-1990 CAA).
Rather, in the context of a challenge to an EPA action on revisions to
a SIP that were required and approved as meeting other provisions of
the CAA or in the context of an enforcement action, the D.C. Circuit
Court references section 110(a)(2)(A) (or section 110(a)(2)(B) of the
pre-1990 CAA) in the background section of its decision.
    In Train, 421 U.S. 60, a case that was decided almost 40 years ago,
the D.C. Circuit 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 D.C. Circuit
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) of the CAA 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 D.C. Circuit 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 D.C. Circuit 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 of the CAA 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 quoted by the commenter 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 D.C. Circuit Court was reviewing a FIP that EPA
promulgated after a long history of the state failing to submit an
adequate SIP. The D.C. Circuit Court cited generally to section 107 and
110(a)(2)(A) of the CAA for the proposition that SIPs should assure
attainment and maintenance of NAAQS through emission limitations, but
this language was not part of the court's holding in the case. The
commenter suggested 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 D.C. Circuit 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 D.C. Circuit Court's statement that
``SIPs must include certain measures Congress specified'' but that
statement specifically referenced the requirement in section
110(a)(2)(C)of the CAA, 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.
---------------------------------------------------------------------------

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

    Two of the cases cited by the commenter, Mich. Dept. of Envtl.
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret section
110(l) of the CAA, 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 D.C. Circuit Court cited to section
110(a)(2)(A) of the CAA solely for the purpose of providing a brief
background of the CAA.
d. EPA Regulations, Such as 40 CFR 51.112(a)
    Comment 5: The comments cite 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, November 7, 1986).
    Response 5: The commenter's reliance on 40 CFR 51.112 to support
its argument that infrastructure SIPs must contain emission limits
``adequate to prohibit NAAQS violations'' and adequate or sufficient to
ensure the maintenance of the NAAQS is not supported. As an initial
matter, EPA notes and the commenter recognizes this regulatory
provision was initially promulgated and ``restructured and
consolidated'' prior to the CAA Amendments of 1990, in which Congress
removed all references to ``attainment'' in section 110(a)(2)(A). 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. Id. at 40657.
    Although EPA was explicit that it was not establishing requirements
interpreting the provisions of new ``part D'' of the CAA, it is clear
that the regulations being restructured and consolidated were intended
to address control strategy plans. In the preamble, EPA clearly stated
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy:
SOx and p.m. (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 51.112
contains consolidated provisions that are focused on control strategy
SIPs and the infrastructure SIP is not such a plan.
e. EPA Interpretations in Other Rulemakings
    Comment 6: The commenter also references two prior EPA rulemaking
actions where EPA disapproved or proposed to disapprove SIPs and claims
they were actions in which EPA relied on section 110(a)(2)(A) of the
CAA and 40 CFR 51.112 to reject infrastructure SIPs. The commenter
first points to a 2006 partial approval and partial disapproval of
revisions to Missouri's existing plan addressing the sulfur dioxide
(SO2) NAAQS. In that action,

EPA cited section 110(a)(2)(A) of the CAA 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
proposed 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. 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 6: EPA does not agree that the two prior actions
referenced by the commenter establish how EPA reviews infrastructure
SIPs. It is clear from both the final Missouri rule and the proposed
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.
As an initial matter, the Indiana action is a proposal and thus cannot
be presumed to reflect the Agency's final position. In any event, the
review in that rule was of a completely different requirement than the
110(a)(2)(A) SIP. Rather, in that case, the State had an approved
SO2 attainment plan and was seeking to remove from the SIP
provisions relied on as part of the modeled attainment demonstration.
EPA 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.
    Comment 7: Sierra Club states that EPA should disapprove Delaware's
infrastructure SIP submittal for the 2008 ozone NAAQS with regard to
section 110(a)(2)(D)(i)(II) (visibility prong) and 110(a)(2)(J) because
the commenter asserts that Delaware failed to submit its five-year
progress report for regional haze by the required date and EPA has not
evaluated the report or taken final action on that report. Sierra Club
states that Delaware's five-year progress report for regional haze was
due on September 25, 2013 pursuant to 40 CFR 51.308(g) because
Delaware's initial regional haze SIP was submitted on September 25,
2008. Sierra Club states EPA could not assess the efficacy of
Delaware's regional haze SIP without reviewing the five-year progress
report nor determine if the Delaware regional haze SIP was effective in
improving visibility in other states. In addition, the commenter
contends that Delaware does not have adequate best available retrofit
technology (BART) limits because Delaware based its BART determination
on comparing reductions that would be obtained under its multi-
pollutant rule from BART and non-BART eligible sources to the
reductions that would be obtained from just BART eligible sources
applying BART. Therefore, Sierra Club states EPA should disapprove the
visibility elements of the Delaware infrastructure SIP submittal for
2008 ozone NAAQS because NOX is a visibility impairing
pollutant.
    Response 7: EPA disagrees with the commenter that EPA must
disapprove the visibility elements of Delaware's ozone infrastructure
SIP due to allegedly inadequate BART limits in its regional haze SIP.
The Delaware regional haze SIP did not include source-specific BART
emission limits but rather required alternative measures that the State
showed would achieve greater reasonable progress than BART. See (76 FR
27973, May 13, 2011). EPA agreed, finding that the total emission
reductions from Delaware's Regulation 1146, a multi-pollutant
regulation for EGUs, greatly exceeded the reductions to be expected
from BART at the four BART-eligible units in Delaware. Id.; see also
(76 FR 42557, July 19, 2011). Although the commenter is now suggesting
that the demonstration that Regulation 1146 would provide for greater
reasonable progress than BART was flawed, EPA approved Delaware's
regional haze plan as meeting the regional haze requirements, including
those addressing BART, in July 2011. (76 FR 42557, July 19, 2011).
    The adequacy of the measures in the Delaware regional haze SIP
addressing the BART requirements, however, is irrelevant to the
question of whether Delaware's SIP meets the requirements of section
110(a)(2)(D) of the CAA with respect to visibility. EPA interprets the
visibility provisions in this section of the CAA as requiring states to
include in their SIPs measures to prohibit emissions that would
interfere with the reasonable progress goals set to protect Class I
areas in other states. The regional haze rule at 40 CFR 51.308(d)(3)
includes a similar requirement. EPA notes that in 2011, EPA determined
that Delaware's regional haze SIP adequately prevents sources in
Delaware from interfering with the reasonable progress goals adopted by
other states to protect visibility during the first planning period.
See 76 FR 27979. Specifically, EPA found that the Delaware regional
haze SIP included the appropriate enforceable emission limitations,
compliance schedules, and other measures necessary to achieve the
reasonable progress goals set by New Jersey for the one Class I area
influenced by Delaware emissions. Id. EPA also found that the Delaware
regional haze SIP met the requirements of section 110(a)(2)(D)(i)(II)
of the CAA regarding visibility for the 1997 eight-hour Ozone NAAQS and
the 1997 and 2006 PM2.5 NAAQS. 76 FR 27984 (proposal); 76 FR
42557 (final). EPA notes that the requirements of section
110(a)(2)(D)(i)(II) of the CAA regarding visibility for the 2008 ozone
NAAQS are the same as those for the 1997 eight-hour ozone NAAQS and the
earlier PM2.5 standards. The commenter has not explained how
the allegedly inadequate BART determination would affect these prior
findings.
    EPA also disagrees with the commenter that EPA must disapprove
Delaware's ozone infrastructure SIP because the State has not submitted
and EPA has not approved a regional haze progress report. The regional
haze regulations at 40 CFR 51.308(g) require Delaware (and other
states) to submit a report to EPA five years from the submittal of its
initial regional haze SIP. In the report, the state must, among other
things, assess whether its current regional haze SIP is sufficient to
enable nearby states to meet their established reasonable progress
goals. Subsequent to EPA's proposed approval of the ozone
infrastructure SIP, Delaware submitted as a proposed SIP revision,
dated September 24, 2013, its five-year progress report on its approved
regional haze SIP. In a separate rulemaking

signed February 11, 2014, EPA has proposed to approve Delaware's
progress report; however, final action on the September 24, 2013
submittal is not due pursuant to section 110(k)(2) of the CAA at this
time. See (79 FR 10442, February 25, 2014). EPA accordingly disagrees
with the commenter that EPA's approval of Delaware's five-year progress
report is a required structural element necessary before EPA may
approve Delaware's infrastructure SIP for element 110(a)(2)(D)(i)(II).
    EPA also disagrees with the commenter that Delaware's five-year
report was overdue at the time EPA proposed to approve Delaware's
infrastructure SIP for the 2008 ozone NAAQS. On August 30, 2013, the
date of EPA's proposed action on the Delaware infrastructure SIP,
Delaware was under no obligation as yet to submit its five-year
progress report to meet the requirements in 40 CFR 51.308(g). As
correctly identified by Sierra Club, the Delaware five-year progress
report required by 40 CFR 51.308(g) was due on September 25, 2013.
Although EPA has not taken final action to approve Delaware's progress
report, from EPA's review of data provided by Delaware in its five-year
progress report, including EPA's review of emissions data from 2008
through 2011 on Delaware electric generating units (EGUs) from EPA's
Clean Air Markets Division (CAMD) as provided by the State in its SIP
submittal, emissions of SO2, the primary contributor to
visibility impairment in the Mid-Atlantic/Northeast Visibility Union
(MANE-VU) region, have declined significantly in the State since the
Delaware regional haze SIP was submitted to EPA on September 25, 2008.
Emissions of NOX from EGUs also have declined significantly
since the regional haze SIP submittal. Specifically, Delaware's five-
year progress report notes that total SO2 emissions from
point sources using ``currently available'' information were
significantly less than the 2018 point source projections in the
Delaware 2008 regional haze SIP submittal.\4\ EPA's review of
visibility data from Delaware in its five-year progress report also
shows the Class I area impacted by sources within Delaware is meeting
or below its reasonable progress goals. In addition, based on EPA's
review of the Delaware five-year progress report as discussed in EPA's
proposed approval of the report, EPA has no reason to question the
accuracy of Delaware's negative declaration to EPA pursuant to 40 CFR
51.308(h) that no revision to Delaware's regional haze SIP is needed at
this time to achieve established goals for visibility improvement and
emissions reductions.
---------------------------------------------------------------------------

    \4\ Delaware's five-year progress report calculated total
SO2 emissions from point sources using 2008 emissions
inventory information supplemented with 2011 SO2
emissions data for EGUs from EPA's CAMD to compare ``currently
available'' data to projections for 2018 which were in Delaware's
2008 regional haze SIP submittal.
---------------------------------------------------------------------------

    Therefore, based upon EPA's review of the relevant visibility data,
emissions data, and modeling results provided by Delaware in the five-
year progress report and upon Delaware's approved regional haze SIP,
EPA continues to believe that the State's existing SIP contains
adequate provisions prohibiting sources from emitting visibility
impairing pollutants in amounts which would interfere with neighboring
states' SIP measures to protect visibility.
    In addition, with regard to the visibility protection aspect of
section 110(a)(2)(J) of the CAA, 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. In the establishment of a new NAAQS such as the 2008
ozone 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. Given
this, Delaware was under no obligation to address section 110(a)(2)(J)
in its 2008 ozone infrastructure SIP.
    Comment 8: Sierra Club contends that EPA should not approve
Delaware's 2008 eight-hour ozone infrastructure SIP revision because
Delaware's SIP fails to incorporate the 2008 ozone NAAQS of 75 parts
per billion (ppb) in Delaware Regulation 1103 and therefore fails to
meet requirements of section 110(a)(2)(A) and 110(a)(2)(E)(i) of the
CAA.
    Response 8: Sierra Club is correct that Regulation 1103, as
reflected in the existing Delaware SIP, does not reference the 2008
ozone NAAQS. However, Sierra Club fails to explain why they believe the
failure of this regulation to reference the 2008 ozone standard would
prevent approval of the infrastructure SIP. Regulation 1103
specifically provides ``[t]he absence of a specific ambient air quality
standard shall not preclude actions by the Department to control
contaminants to assure protection, safety, welfare, and comfort of the
people of the State of Delaware.'' Thus, even in the absence of an
explicit reference to the 2008 ozone NAAQS, Regulation 1103 clearly
provides that the State has the authority to adopt and implement
regulations for that standard. Moreover, Sierra Club does not cite and
EPA is not aware of any other provisions in Delaware's regulations that
would undermine such authority. While certain regulations reference
specific ozone NAAQS in the ``purposes'' section (see e.g., Regulation
1142) in the context of describing the designation of areas for those
standards, we have not identified any regulations that would expire or
would no longer be effective for purposes of the 2008 ozone NAAQS. In
short, EPA sees nothing in the SIP that indicates that the State does
not have the ability to implement and enforce the 2008 ozone NAAQS.
Although we do not believe that the failure of Regulation 1103 to
specifically reference the 2008 ozone NAAQS renders the infrastructure
SIP unapprovable, EPA notes that the State recently revised Regulation
1103 to expressly include that standard and submitted that regulation
to EPA as a SIP revision dated February 17, 2014. EPA plans to act on
that SIP submission shortly.
    Comment 9: Sierra Club contends that EPA should not approve
Delaware's 2008 eight-hour ozone infrastructure SIP revision until EPA
and Delaware clarify what was intended by citing to two provisions of
Delaware regulations in EPA's TSD for the NPR. First, Sierra Club
comments that EPA cited to 7 DE Admin. Code 1137 to satisfy section
110(a)(2)(F) of the CAA. The commenter states it could not find 7 DE
Admin. Code 1137 in the Delaware General Assembly: Delaware
Regulations: Administrative Code: Title 7: 1000: 1100. Second, the
commenter mentions that EPA cited in its TSD to 7 Del. C. Chapter 29 in
discussing the requirements of section 110(a)(2)(J) of the CAA relating
to public notification and states 7 Del. C. Chapter 29 is not relevant
to the 2008 ozone NAAQS.
    Response 9: EPA agrees with the commenter regarding the incorrect
reference to these two provisions; however, EPA disagrees with the
commenter that EPA cannot approve the Delaware infrastructure SIP
submittal for 2008 ozone NAAQS. After reviewing Delaware's March 27,
2013 infrastructure SIP submittal and EPA's TSD reviewing that SIP
submittal, EPA acknowledges that Delaware inadvertently included a
citation to Delaware Regulation 1137 in its March 27, 2013 SIP
submittal listing provisions meeting requirements in section
110(a)(2)(F) of the CAA, and EPA inadvertently also refers to Delaware
Regulation 1137 when discussing in the TSD how Delaware met the
requirements of section 110(a)(2)(F) of

the CAA. Sierra Club correctly identified that there is no Delaware
Regulation 1137. However, EPA believes this was merely a typographical
mistake within a list of applicable regulations which do address
Delaware's programs for monitoring and reporting in both Delaware's SIP
submittal and in EPA's TSD. As mentioned in the TSD, Delaware has
numerous regulations within its program and SIP for requiring
installation and maintenance of monitoring equipment and periodic
emissions reporting including 7 DE Admin. Codes 1112, 1123, 1124, 1126,
1131, 1139, 1140, 1141, 1142, and others in the approved Delaware SIP,
which is identified at 40 CFR 52.420(c). EPA maintains these provisions
appropriately support Delaware's ozone infrastructure SIP for section
110(a)(2)(F) for adequate provisions for monitoring and reporting.
EPA's and Delaware's inadvertent inclusion of the reference to
Regulation 1137 was merely a typographical mistake and immaterial to
EPA's conclusion regarding approvability of the Delaware SIP
submission.
    Regarding Sierra Club's second comment, EPA acknowledges it
inadvertently refers to 7 Del. C. Chapter 29 as an additional provision
which satisfies section 110(a)(2)(J)'s requirements relating to public
notification. EPA believes the remaining Delaware provision discussed
in EPA's TSD for section 110(a)(2)(J) requirements related to public
notice, 7 Del. C. Chapter 60, adequately supports that Delaware has met
the requirements of section 110(a)(2)(J) of the CAA. 7 Del. C. Chapter
60 requires SIP revisions and new or amended regulations to undergo
public notice and hearing, publication in newspapers and in the
Delaware Register, and opportunity for comment by the public and local
political subdivisions. Therefore, EPA believes it appropriately
proposed that Delaware's March 27, 2013 infrastructure SIP submittal
for the 2008 ozone NAAQS meets all requirements of section 110(a)(2)(F)
and 110(a)(2)(J) of the CAA. EPA's inadvertent mention of 7 Del. C.
Chapter 29 is immaterial to EPA's conclusion regarding approvability of
the Delaware SIP submission.

IV. Final Action

    EPA is approving Delaware's submittal which provides the basic
program elements specified in sections 110(a)(2)(A), (B), (C),
(D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) of the
CAA, necessary to implement, maintain, and enforce the 2008 ozone
NAAQS, as a revision to the Delaware SIP. This rulemaking action does
not include approval of Delaware's submittal for 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) of the CAA and
will be addressed in a separate process. This rulemaking action also
does not include approval of the portion of Delaware's submittal
relating to section 110(a)(2)(D)(i)(I) which will be addressed in a
separate rulemaking action.

V. Statutory and Executive Order Reviews

A. General Requirements

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

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 2, 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 pertaining to Delaware's section 110(a)(2)
infrastructure elements for the 2008 ozone NAAQS may not be challenged
later in proceedings to enforce its requirements. (See section
307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: March 21, 2014.
W.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 I-- Delaware

0
2. In Sec.  52.420, the table in paragraph (e) is amended by adding an
entry for Section 110(a)(2) Infrastructure Requirements for the 2008
Ozone NAAQS at the end of the table to read as follows:

Sec.  52.420  Identification of plan.

* * * * *
    (e) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          State
 Name of non-regulatory SIP revision     Applicable geographic area     submittal         EPA approval date               Additional explanation
                                                                          date
--------------------------------------------------------------------------------------------------------------------------------------------------------

                                                                      * * * * * * *
Section 110(a)(2) Infrastructure       Statewide....................       3/27/13  4/3/14 [Insert Federal        This action addresses the following
 Requirements for the 2008 Ozone                                                     Register page number where    CAA elements: 110(a)(2)(A), (B), (C),
 NAAQS.                                                                              the document begins and       (D)(i)(II), (D)(ii), (E), (F), (G),
                                                                                date].                        (H), (J), (K), (L), and (M).
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. 2014-07459 Filed 4-2-14; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 89 (Thursday, May 7, 2020)]
[Proposed Rules]
[Pages 27181-27183]
[FR Doc No: 2020-09474]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2020-0249; Airspace Docket No. 20-ACE-2]
RIN 2120-AA66

Proposed Establishment of Class E Airspace; Ness City, KS

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action proposes to establish Class E airspace extending
upward from 700 feet above the surface at Ness City Municipal Airport,
Ness City, KS. The FAA is proposing this action as the result of new
public instrument procedures being developed at this airport. Airspace
design is necessary for the safety and management of instrument flight
rules (IFR) operations at this airport.

DATES: Comments must be received on or before June 22, 2020.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone
(202) 366-9826, or<PHONE_NUMBER>. You must identify FAA Docket No.
FAA-2020-0249/Airspace Docket No. 20-ACE-2 at the beginning of your
comments. You may also submit comments through the internet at https://www.regulations.gov. You may review the public docket containing the
proposal, any comments received, and any final disposition in person in
the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through
Friday, except federal holidays.

    FAA Order 7400.11D, Airspace Designations and Reporting Points, and
subsequent amendments can be viewed online at https://www.faa.gov/air_traffic/publications/. For further information, you can contact the
Airspace Policy Group, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783. The Order is also available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of FAA Order 7400.11D at NARA, call<PHONE_NUMBER>, or go
to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

FOR FURTHER INFORMATION CONTACT: Jeffrey Claypool, Federal Aviation
Administration, Operations Support Group, Central Service Center, 10101
Hillwood Parkway, Fort Worth, TX 76177; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it would establish Class E airspace extending upward from 700 feet
above the surface at Ness City Municipal Airport, Ness City, KS, to
support IFR operations at this airport.

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in
triplicate to the address listed above. Commenters wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. FAA-2020-0249/
Airspace Docket No. 20-ACE-2.'' The postcard will be date/time stamped
and returned to the commenter.
    All communications received before the specified closing date for
comments will be considered before taking action on the proposed rule.
The proposal contained in this notice may be changed in light of the
comments received. A report summarizing each substantive public contact
with FAA personnel concerned with this rulemaking will be filed in the
docket.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
internet at https://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.
    You may review the public docket containing the proposal, any
comments received, and any final disposition in person in the Dockets
Office (see ADDRESSES section for the address and phone number) between
9:00 a.m. and 5:00 p.m., Monday through Friday, except federal
holidays. An informal docket may also be examined during normal
business hours at the Federal Aviation Administration, Air Traffic
Organization, Central Service Center, Operations Support Group, 10101
Hillwood Parkway, Fort Worth, TX 76177.

Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11D, Airspace
Designations and Reporting Points, dated August 8, 2019, and effective
September 15, 2019. FAA Order 7400.11D is publicly available as listed
in the ADDRESSES section of this document. FAA Order 7400.11D lists
Class A, B, C, D, and E airspace areas, air traffic service routes, and
reporting points.

The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal
Regulations (14 CFR) part 71 by establishing Class E airspace extending
upward from 700 feet above the surface within a 6.4-mile radius of the
Ness City Municipal Airport, Ness City, KS.
    This action is necessary due to new public instrument procedures
being developed at this airport.
    Class E airspace designations are published in paragraph 6005 of
FAA Order 7400.11D, dated August 8, 2019, and effective September 15,
2019, which is incorporated by reference in 14 CFR 71.1. The Class E
airspace designation listed in this document will be published
subsequently in the Order. FAA Order 7400.11, Airspace Designations and
Reporting Points, is published yearly and effective on September 15.

Regulatory Notices and Analyses

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

Environmental Review

    This proposal will be subject to an environmental analysis in
accordance with FAA Order 1050.1F, ``Environmental Impacts: Policies
and Procedures'' prior to any FAA final regulatory action.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for 14 CFR part 71 continues to read as
follows:

    Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11D,
Airspace Designations and Reporting Points, dated August 8, 2019, and
effective September 15, 2019, is amended as follows:

Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth.

* * * * *

ACE KS E5 Ness City, KS [Establish]

Ness City Municipal Airport, KS
    (Lat 38[deg]28'26'' N, long. 99[deg]54'33'' W)

    That airspace extending upward from 700 feet above the surface
within a 6.4-mile radius of Ness City Municipal Airport.

    Issued in Fort Worth, Texas, on April 27, 2020.
Steven Phillips,
Acting Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2020-09474 Filed 5-6-20; 8:45 am]
 BILLING CODE 4910-13-P