[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Rules and Regulations]
[Pages 59899-59901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-24790]



40 CFR Part 52

[EPA-R05-OAR-2010-1024; FRL-9471-9]

Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Prevention of Significant Deterioration Greenhouse Gas 
Tailoring Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


SUMMARY: EPA is approving revisions to the Indiana State Implementation 
Plan (SIP), submitted by the Indiana Department of Environmental 
Management (IDEM) to EPA on July 7, 2011. The SIP revision modifies 
Indiana's Prevention of Significant Deterioration (PSD) program to 
establish appropriate emission thresholds for determining which new 
stationary sources and modification projects become subject to 
Indiana's PSD permitting requirements for their greenhouse gas (GHG) 
emissions. EPA proposed approval of these regulatory revisions on June 
17, 2011, and received no comments. This action affects major 
stationary sources in Indiana that have GHG emissions above the 
thresholds established in the PSD regulations.

DATES: This final rule is effective on October 28, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2010-1024. All documents in the docket are listed on 
the http://www.regulations.gov Web site. Although listed in the index, 
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 http://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 Federal holidays. We recommend that you telephone Sam 
Portanova, Environmental Engineer, at (312) 886-3189 before visiting 
the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Sam Portanova, Environmental Engineer, 
Air Permits Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 886-3189, [email protected].

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

I. What is the background for this action?
II. What comments did EPA receive?
III. What is the effect of this action?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What is the background for this action?

    EPA has recently undertaken a series of actions pertaining to the 
regulation of GHGs that, although for the most part distinct from one 
another, establish the overall framework for today's final action on 
the Indiana SIP. Four of these actions include, as they are commonly 
called, the ``Endangerment Finding'' and ``Cause or Contribute 
Finding,'' which EPA issued in a single final action,\1\ the ``Johnson 
Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,'' \3\ and 
the ``Tailoring Rule.'' \4\ Taken together and in conjunction with the 
Clean Air Act (CAA), these actions established regulatory requirements 
for GHGs emitted from new motor vehicles and new motor vehicle engines; 
determined that such regulations, when they took effect on January 2, 
2011, subjected GHGs emitted from stationary sources to PSD 
requirements; and limited the applicability of PSD requirements to GHG 
sources on a phased-in basis.

    \1\ ``Endangerment and Cause or Contribute Findings for 
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR 
66496 (December 15, 2009).
    \2\ ``Interpretation of Regulations that Determine Pollutants 
Covered by Clean Air Act Permitting Programs.'' 75 FR 17004 (April 
2, 2010).
    \3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and 
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324 
(May 7, 2010).
    \4\ ``Prevention of Significant Deterioration and Title V 
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3, 

    Recognizing that some states had approved SIP PSD programs that do 
apply PSD to GHGs, but that do so for sources that emit as little as 
100 or 250 tons per year of GHG, and that do not limit PSD 
applicability to GHGs to the higher thresholds in the Tailoring Rule, 
EPA published a final rule on December 30, 2010, narrowing its previous 
approval of PSD programs as applicable to GHG-emitting sources in SIPs 
for 24 states, including Indiana (PSD Narrowing Rule).\5\ In the PSD 
Narrowing Rule, EPA withdrew its approval of Indiana's SIP, among other 
SIPs, to the extent that SIP applies PSD permitting requirements to GHG 
emissions from sources emitting at levels below those set in the 
Tailoring Rule. Subsequently, Indiana's approved SIP provided the state 
with authority to regulate GHGs, but only at and above the Tailoring 
Rule thresholds; and Federally required new and modified sources to 
receive a PSD permit based on GHG emissions only if they emitted at or 
above the Tailoring Rule thresholds.

    \5\ ``Limitation of Approval of Prevention of Significant 
Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources 
in State Implementation Plans.'' 75 FR 82536 (December 30, 2010).

    On December 3, 2010, in response to the Tailoring Rule and earlier 
GHG-related EPA rules, IDEM submitted a draft revision to EPA for 
parallel processing approval into the Indiana SIP to establish 
appropriate emission thresholds for determining which new

[[Page 59900]]

or modified stationary sources become subject to PSD permitting 
requirements for GHG emissions. Subsequently, on June 17, 2011, EPA 
published a proposed approval of this parallel processing SIP 
submittal. See 76 FR 35380. Specifically, EPA proposed to approve 
revisions to 326 IAC 2-2-1 and 326 IAC 2-2-4 of Indiana's PSD rules to 
add GHG permitting requirements. Detailed background information and 
EPA's rationale for the proposed approval are provided in EPA's June 
17, 2011, Federal Register action.
    EPA's June 17, 2011, proposed approval was contingent upon Indiana 
providing a final SIP revision that was substantively the same as the 
December 3, 2010, submittal for parallel processing. Indiana provided 
its final SIP submittal on July 7, 2011, which included rules adopted 
final by IDEM on March 16, 2011. There were no differences between the 
December 3, 2010, draft SIP revision, and the July 7, 2011, final SIP 

II. What comments did EPA receive?

    The public comment period on the proposed approval of Indiana's SIP 
revision ended on July 18, 2011. EPA did not receive any comments on 
the proposed approval of this SIP revision.

III. What is the effect of this action?

    Final approval of Indiana's July 7, 2011, SIP revision incorporates 
changes to 326 IAC 2-2-1 and 326 IAC 2-2-4 of the state's rules to 
establish the GHG emission thresholds for PSD applicability set forth 
in EPA's Tailoring Rule, confirming that smaller GHG sources emitting 
less than these thresholds will not be subject to PSD permitting 
requirements under the approved Indiana SIP. EPA has determined that 
the SIP revision approved by today's action is consistent with EPA's 
regulations, including the Tailoring Rule. Furthermore, EPA has 
determined that this SIP revision is consistent with section 110 of the 
CAA. Pursuant to section 110 of the CAA, EPA approves this revision 
into Indiana's SIP.
    As result of today's action approving Indiana's incorporation of 
the appropriate GHG permitting thresholds into its SIP, paragraph (k) 
in 40 CFR 52.773, as included in EPA's PSD Narrowing Rule, is no longer 
necessary.\6\ Thus, today's action also amends 40 CFR 52.773 to remove 
this unnecessary regulatory language.

    \6\ 40 CFR 52.773(k) codifies EPA's limiting its approval of 
Indiana's PSD SIP to not cover the applicability of PSD to GHG-
emitting sources below the Tailoring Rule thresholds.

IV. What action is EPA taking?

    EPA is approving the revisions to 326 IAC 2-2-1 and 326 IAC 2-2-4 
of Indiana's PSD regulations which were submitted by IDEM on July 7, 
2011. These revisions establish appropriate emissions thresholds for 
determining PSD applicability with respect to new or modified GHG-
emitting stationary sources in accordance with EPA's June 3, 2010, 
Tailoring Rule.
    With this approval, EPA also amends 40 CFR 52.773 to remove 
paragraph (k).

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because the SIP is not approved to apply in Indian country located in 
the state, and EPA notes that it will not impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 28, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, and Reporting and recordkeeping 

    Dated: September 15, 2011.
Susan Hedman,
Regional Administrator, Region 5.
    40 CFR part 52 is amended as follows:


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

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

[[Page 59901]]

Subpart P--Indiana

2. In Sec.  52.770 the table in paragraph (c) is amended by revising 
the entries for ``2-2-1'' and ``2-2-4'' to read as follows:

Sec.  52.770  Identification of plan.

* * * * *
    (c) * * *

                                                            EPA-Approved Indiana Regulations
         Indiana citation                  Subject         effective date             EPA approval date                            Notes
                                                                      * * * * * * *
2-2-1.............................  Definitions..........      03/16/2011  9/28/2011, [Insert page number where    .....................................
                                                                            the document begins].
                                                                      * * * * * * *
2-2-4.............................  Air quality analysis;      03/16/2011  9/28/2011, [Insert page number where    .....................................
                                     requirements.                          the document begins].
                                                                      * * * * * * *

* * * * *

3. In Sec.  52.773, paragraph (k) is removed.
[FR Doc. 2011-24790 Filed 9-27-11; 8:45 am]