[Federal Register Volume 72, Number 103 (Wednesday, May 30, 2007)]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10317]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Oxides of Nitrogen Regulations, Phase II
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
SUMMARY: The EPA is proposing to approve Indiana's oxides of nitrogen
(NOX) rules which satisfy the requirements of EPA's
NOX SIP Call Phase II Rule (the Phase II Rule). We are
proposing to approve these rules based on Indiana's demonstration that
the State will meet the Phase II Rule requirements through rules
regulating stationary internal combustion (IC) engines. Limiting
NOX emissions from IC engines will enable the State to meet
the Phase II budget of 4,244 tons during the ozone season, thereby
improving air quality and protecting the health of Indiana citizens. We
are also proposing to approve other changes to Indiana's NOX
rules. These are minor clerical corrections and changes in definitions
made by Indiana to conform to EPA's Phase II Rule. Citizens who wish to
comment on this proposed approval of the Indiana Phase II
NOX plan are encouraged to do so within the timeframe noted
DATES: Comments must be received on or before June 29, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0540, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
2. E-mail: [email protected].
3. Fax: (312) 886-5824.
4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: John M. Mooney, Chief, Criteria Pollutant
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such
deliveries are only accepted during the Regional Office normal hours of
operation, and special arrangements should be made for deliveries of
boxed information. The Regional Office official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2006-0540. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
you provide it in the body of your comment. If you send an e-mail
comment directly to EPA without going through www.regulations.gov your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
instructions on submitting comments, go to Section I of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. We
recommend that you telephone John Paskevicz, Engineer, at (312) 886-
6084 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: John Paskevicz, Engineer, Criteria
Pollutant Section, Air Programs Branch (AR-18J), U. S. Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604, (312) 886-6084, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This SUPPLEMENTARY INFORMATION
section is arranged as follows:
I. What should I consider as I prepare my comments for EPA?
III. Who is affected by the new Phase II rule and the amendments to
the Phase I rules?
IV. What would approval of this rule accomplish?
V. How are owners and operators expected to comply with the new
VI. What action is EPA taking today?
VII. Statutory and Executive Order Reviews.
I. What should I consider as I prepare my comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--The EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
6. Provide specific examples to illustrate your concerns, and
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
8. Make sure to submit your comments by the comment period deadline
On October 27, 1998 (63 FR 57356), EPA issued the NOX
SIP Call in which it required 22 states, including Indiana, to prepare
plans to reduce the transport of ozone throughout the eastern part of
the United States. This was to be accomplished by reducing emissions of
NOX from selected source categories, primarily major fuel
burning sources, using available cost-effective measures. The rule
established a cap on emissions of NOX from each state.
States had flexibility in determining which fuel burning sources were
to be included in their rules. For the most part, states targeted
NOX reductions from electric utilities and other large
industrial boilers, cement kilns, and IC engines as sources which could
be controlled in a cost-effective manner. Background information in
this regard is available from documents prepared by EPA, and can be
found at http://www.epa.gov/ttn/rto/otag/index.html.
Some states and industry challenged the rule. In Michigan v. EPA,
213 F.3d 663 (D.C.Cir. 2000), cert. denied, 121 S. Ct. 1225 (2001), the
Court largely upheld EPA's rulemaking. It did, however, remand a
portion of the rule concerning IC engines to EPA for further notice and
Subsequent to the Court's decision, EPA proceeded initially with
rules concerning electric generating units (EGU), industrial boilers
(non-EGU) and cement kilns as Phase I sources. The IC engines fell into
the Phase II group, to be addressed at a later date. Indiana adopted
its Phase I rules and submitted them to EPA. We approved the Phase I
rules on November 8, 2001 (66 FR 56465).
On April 21, 2004 (69 FR 21603), EPA issued the Phase II Rule. It
required most States with Phase I budget programs to submit a Phase II
plan to achieve incremental reductions not addressed by Phase I rules.
The Phase II Rule also included amendments to the Phase I rules
affecting definitions for EGUs, and identified the additional
NOX budget reductions (incremental reductions) that would be
required by regulating large (greater than one ton per day emissions)
IC engines. The amount of incremental reductions required resulted from
the re-calculation of the overall budget to reflect a control level of
82 percent from natural gas-fired lean-burn IC engines with greater
than one ton per day NOX emissions. IDEM drafted the new
rule (326 IAC 10-5, NOX Reduction Program from IC Engines)
based on guidance from EPA dated September 19, 2004, which contained an
example model rule. The State also made some clerical changes to 326
IAC 10-3 and 10-4 as fix-ups to IDEM's existing NOX SIP.
The public process for the State's IC engine rule started on May 4,
2005, and ended on October 5, 2005. The Indiana Air Pollution Control
Board (IAPCB) adopted the rules and they became effective on February
26, 2006. New rule 326 IAC 10-5 applies to any person who owns or
operates a large reciprocating stationary IC engine that emits more
than one ton of NOX per day during the ozone season. At the
time of the State rulemaking, the only two subject Indiana companies
were ANR Pipeline and Panhandle Eastern Company, which operate most of
the gas-fired engines in the State. These companies own a total of 17
large lean-burn engines and many smaller engines throughout the State
serving compressor stations located on pipelines that transport natural
gas to customers.
The IAPCB also adopted minor changes to its Phase I rules in 326
IAC 10-3 and 10-4, to conform to changes EPA had made to its rule.
On March 8, 2006, the Indiana Department of Environmental
Management (IDEM) submitted its Phase II rules to EPA. IDEM sent
additional follow-up information addressing the budget demonstration
for this source category in a June 22, 2006, letter requesting EPA
approval. IDEM also
asked in this submittal for EPA to approve the minor changes to the
Phase I NOX rules. The State's budget demonstration, which
contains enforceable emission limits for Indiana IC engines, uses the
information in the source compliance plans to conclude that these
sources will meet the incremental reduction called for in the Phase II
The overall NOX budget for Indiana was originally
calculated using emissions data from base year 1995. This number was
based on the assumption that IC engines would be controlled at a highly
cost-effective (90 percent) control level. However, the Court ruled in
Michigan v. EPA that EPA had failed to provide adequate notice of the
90 percent control level assumed for IC engines. In the original
proposed rule, EPA had proposed a range of control levels from 82 to 91
percent for the IC engine portion of the budget. As a result of the
Court's decision, EPA set the control level at 82 percent for gas-fired
lean-burn engines and recalculated the budget. The recalculation
resulted in an overall budget number which for most states is smaller
than the budget published by EPA on March 2, 2000. The incremental
difference is the target reduction which Indiana is required to (and
expects) to achieve with the Phase II Rule.
In the Phase II Rule, EPA calculated the 2007 base year emissions
inventory from which Indiana needed additional reductions of 4,244 tons
per ozone season, based upon achieving an 82 percent reduction at all
IC engines in Indiana with greater than one ton per day of
NOX emissions. EPA allows states flexibility to use company-
wide emissions averaging to achieve the needed emissions reductions.
(See August 22, 2002 memorandum from Lydia Wegman, Director, Air
Quality Strategies and Standards Division, Office of Air Quality
Planning and Standards, to EPA Air Division Directors). EPA's example
model rule is sufficiently flexible to allow companies with multiple
affected engines to comply using a specific emission rate limit for
each engine listed in the source compliance plan. (see http://epa.gov/ttncaaa1/t1/reports/23814qnaasfin.pdf; undated memorandum, Phase II of
the NOX SIP Call: Q&As and Example Rule). Emission rate
limits must be reflected in a Federally enforceable permit, the
enforcement mechanism for the compliance plan, which shows that the
control measures are adequate to meet the State's Phase II budget
The Indiana rule requires sources to show that the emission
reductions associated with a source will meet the facility seasonal
NOX tonnage reduction assigned to the source. Sources are
required to project 2007 base emissions and then show the emissions
reductions associated with the control technology or other reduction
methodology (engine replacement, for example). The Indiana budget
demonstration shows that sources will meet the required seasonal
tonnage reductions by reducing emissions from various other engines in
the inventory, so that the overall reductions are equivalent to
achieving 82 percent reductions on IC engines with greater than one ton
per day NOX emissions. Some of the engines use combustion
modification and some engines have been replaced with newer engines.
Demonstrated reductions resulting from the replacement of older engines
with newer engines in some cases exceeds 82 percent. More importantly,
the compliance plans for the two companies, as noted in the Indiana
budget demonstration, show that the sources meet the NOX SIP
Call emission reductions specified for Indiana.
III. Who is affected by the new Phase II rule and the amendments to the
Phase I rules?
New rule 326 IAC 10-5 applies to any person who owns or operates a
large stationary reciprocating IC engine and other smaller stationary
IC engines that are included in a compliance plan. A large IC engine is
defined as an engine that emits more than one ton of NOX per
ozone season day, based on operation during the 1995 ozone season.
Pipeline energy companies are the major users of large IC engines and
the State developed its budget demonstration based on control of
engines used in this energy transport industry.
The minor amendments to 326 IAC 10-3 and 326 IAC 10-4 clarify
regulatory language and correct various clerical errors. They also
incorporate changes applicable to EGUs and non-EGUs, made in accordance
with EPA's Phase II Rule, including the definitions of ``EGU'' and
``non-EGU'' as applied to co-generation units.
IV. What would approval of this rule accomplish?
Approval of rule 326 IAC 10-05 will provide a means by which the
State of Indiana will meet the required reductions of NOX
emissions from IC engines during the ozone season. The State rule
affects NOX SIP Call IC engines as well as any other
stationary IC engine subject to NOX control in the State's
rule. The emission reductions for some large engines will be permanent
and year-round resulting from low emission combustion measures
retrofitted to existing engines. Low emission combustion measures
cannot be cycled off once the changes are made to the engine. The
combustion control technology is a permanent, physical change to the
design and operation of the engine which, when implemented, is expected
to reduce emissions of NOX year-round. A source subject to
these rules may achieve the required reductions through a facility-wide
or State-wide averaging program approved by Indiana. The State's rules
include provisions which the sources must follow to demonstrate
compliance with the rules. The environmental benefits and health
implications are expected to be permanent.
The amendments to the plan also make clarifying clerical and
formatting corrections to previously approved rules 326 IAC 10-3 and
326 IAC 10-4. They incorporate changes contained in EPA's Phase II Rule
applicable to EGUs and non-EGUs, including the definitions of ``EGU''
and ``non-EGU'' as applied to co-generation units. These amendments
will bring the originally approved Phase I NOX State rules
into conformance with the Clean Air Act (CAA) and current EPA
V. How are owners and operators expected to comply with the new
Owners of large IC engines were required to submit to IDEM, by May
1, 2006, compliance plans showing how the companies will meet the
emission reductions in their respective systems. The State's budget
demonstration shows that the owners of the large NOX SIP
Call engines will reach the required reductions by reducing emissions
from all of the engines in their respective systems and not just from
the large, one-ton-per-day, engines. These reductions shown in the
budget demonstration are taken from the compliance plans submitted to
IDEM by the two companies currently subject to the rule, and must be
achieved by May 1, 2007. The applicable emission rate, along with
monitoring, record keeping and reporting requirements, must be
incorporated into Federally enforceable State permits to be issued to
the companies. As public documents, these permits and compliance
reports can be viewed by the public to verify compliance with the
Known subject sources have met the first increment of compliance by
submitting to the State of Indiana compliance plans as required by
rule. The next major increment is completion of the requirements listed
in the source
plans which bring the sources into compliance. This step, which
includes the application of low emission technology (or other controls)
or source averaging or both, must be completed by May 2007.
EPA published the incremental budget for affected States, including
Indiana, in the April 21, 2004, Federal Register (69 FR 21604). The
State's budget demonstration shows that, through the use of low
emission combustion technology, installation of new units to replace
old engines, and the use of averaging NOX emissions system-
wide by the two companies identified above, the State will be able to
reduce emissions of NOX to meet the Phase II incremental
difference of 4244 tons of NOX for the ozone season.
The State rule 326 IAC 10-5-3 includes a requirement that an owner
or operator of a large IC engine shall not operate an affected engine
during the ozone period unless there is a compliance plan which meets
the requirements of the rule. The compliance plan was required to be
submitted to the State by May 1, 2006, and the rules prohibit operation
of affected engines after May 1, 2007, if they are not in compliance
with the requirements. Included in the compliance plan is a requirement
that the projected NOX emissions from the engine, in grams
per break horsepower-hour, be included in a Federally enforceable
permit. This information will enable the State to determine if
reductions from the covered sources should meet the Phase II budget
increment. The failure of a source to meet the required NOX
reductions is a violation of the provisions of the permit. The State of
Indiana is expected to determine non-compliance with its rules by
reviewing monitoring and testing information submitted by the owners
and operators of the affected engines. In addition, because the
compliance plan will be included in Federally enforceable permits, EPA
has the authority to enforce the applicable provisions.
VI. What action is EPA taking today?
EPA is proposing to approve the Phase II NOX rules
submitted by the State. We are taking this action because we have
determined that the rules satisfy the requirements of the CAA and the
Phase II Rule. The State has shown, through its budget demonstration,
that it can achieve the Phase II budget increment through source
compliance with the State's rules affecting IC engines and the State's
permitting program. Meeting the Phase II budget increment and the Phase
I increment means the State will meet its total overall ozone season
NOX budget and bring about reductions in ozone
concentrations in the State and downwind from Indiana. EPA is also
proposing to approve other changes to Indiana's NOX SIP.
These other changes are minor clerical corrections and changes in
definitions to conform to the changes made by EPA in the NOX
Phase II Rule. Citizens who wish to comment on this proposed approval
of the Indiana plan are encouraged to do so within the timeframe noted
in the front of this action.
VI. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, September 30, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget.
Paperwork Reduction Act
This proposed rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
This proposed action merely proposes to approve state law as
meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law. Accordingly, the Administrator
certifies that this proposed rule will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.).
Unfunded Mandates Reform Act
Because this rule proposes to approve pre-existing requirements
under state law and does not impose any additional enforceable duty
beyond that required by state law, it 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).
Executive Order 13132: Federalism
This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely proposes to approve a state rule
implementing a Federal standard, and does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
Executive Order 13175: Consultation and Coordination With Indian Tribal
This proposed rule also does not have tribal implications because
it will not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This proposed rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it proposes approval of
a State rule implementing a Federal standard.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant regulatory action,'' this
action is also not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001).
National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use
technical standards that are developed or adopted by voluntary
consensus to carry out policy objectives, so long as such standards are
not inconsistent with applicable law or otherwise impractical. In
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Absent a prior
existing requirement for the state to use voluntary consensus
standards, EPA has no authority to disapprove a SIP submission for
failure to use such standards, and it would thus be inconsistent with
applicable law for EPA to use voluntary consensus standards in place of
a program submission that otherwise satisfies the provisions of the
CAA. Therefore, the
requirements of section 12(d) of the NTTAA do not apply.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements.
Dated: May 18, 2007.
Acting Regional Administrator, Region 5.
[FR Doc. E7-10317 Filed 5-29-07; 8:45 am]
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