[Federal Register Volume 77, Number 112 (Monday, June 11, 2012)]
[Rules and Regulations]
[Pages 34218-34221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-13955]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0080; FRL-9683-3]


Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Regional Haze

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is finalizing a limited approval of revisions to the 
Indiana State Implementation Plan (SIP) submitted by the Indiana 
Department of Environmental Management (IDEM) on January 14, 2011, and 
March 10, 2011, addressing regional haze for the first implementation 
period that ends 2018. This action is being taken in accordance with 
the requirements of the Clean Air Act (CAA) and EPA's rules for states 
to prevent and remedy future and existing anthropogenic impairment of 
visibility in mandatory Class I areas through a regional haze program. 
As part of this action, EPA is also approving limits for the Alcoa 
facility that EPA finds satisfy the requirements for best available 
retrofit technology (BART).

DATES: This final rule is effective on July 11, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2011-0080. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some

[[Page 34219]]

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 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 Charles Hatten, 
Environmental Engineer, at (312) 886-6031 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Charles Hatten, Environmental 
Engineer, Control Strategies Section, Air Programs Branch (AR-18J), 
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, 
Chicago, Illinois 60604, (312) 886-6031, [email protected].

SUPPLEMENTARY INFORMATION: This supplementary information section is 
arranged as follows:

I. Synopsis of Proposed Rule
II. Public Comments and EPA's Responses
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Synopsis of Proposed Rule

    Indiana submitted a plan to address regional haze on January 14, 
2011, and supplemented it on March 10, 2011. This plan was intended to 
address the requirements in CAA section 169A, and EPA's Regional Haze 
Rule as codified at 40 CFR 51.308. This rule was promulgated on July 1, 
1999 (64 FR 35713). Further significant provisions were promulgated on 
July 6, 2005, providing further guidance on provisions related to BART.
    EPA proposed a limited approval of Indiana's submittal on January 
26, 2012 (77 FR 3975). That action described the nature of the regional 
haze problem and the statutory and regulatory background for EPA's 
review of Indiana's regional haze plan. The proposal provided a lengthy 
delineation of the requirements that Indiana intended to meet, 
including requirements for mandating BART, consultation with other 
states in establishing goals representing reasonable further progress 
in mitigating anthropogenic visibility impairment, and adoption of 
limitations as necessary to implement a long term strategy (LTS) for 
reducing visibility impairment. Indiana's control strategy addresses 
the regional haze rule for the first implementation period that ends 
2018.
    Of particular interest were EPA's findings regarding BART. Using 
modeling performed by the Lake Michigan Air Directors Consortium 
(LADCO), Indiana identified one non-electric generating unit (non-EGU) 
source, Alcoa in Warrick County, as having sufficient impact to warrant 
being subject to a requirement representing BART.
    Indiana developed source-specific limits to mandate BART for Alcoa 
to comply with EPA's regional haze rule. These limits are adopted into 
regulation 326 of the Indiana Administrative Code (IAC), Article 26, 
Rule 2, of which include sulfur dioxide (SO2), nitrogen 
oxide (NOX), and particulate matter (PM) emission limits 
applicable to the Alcoa facility in Warrick County. In the proposed 
rulemaking, EPA proposed to conclude that the emission reductions from 
326 IAC 26-2 would suffice to address the BART requirement for non-
EGUs.

II. Public Comments and EPA's Responses

    The publication of EPA's proposed rule on January 26, 2012 (77 FR 
3975) initiated a 30-day public comment period that ended on February 
27, 2012. During the public comment period on the proposed rulemaking 
on the Indiana regional haze plan we received comments from the United 
States Forest Service (FS) and the United States National Park Service 
(NPS). These comments and EPA's responses are addressed in detail 
below.
    Comment #1: FS continues to disagree with the alternative BART 
scenario for the Alcoa facility. FS believes that emission reductions 
that could be used for reasonable progress purposes should not be 
creditable for alternative measures/BART purposes. FS further comments 
that requiring emission controls for Boilers 2 and 3, which are subject 
to BART, would be more appropriate for reasonable progress purposes 
instead of taking credit for emission reductions from Boiler 1, which 
is not subject to BART.
    Response #1: As stated in 40 CFR 51.308(e)(2)(iv), the pertinent 
requirement is that the emission reductions of the alternative measure 
be ``surplus to reductions resulting from measures adopted to meet 
requirements of the CAA as of the baseline date of the SIP.'' This 
point is explained in the preamble of the BART guidelines. 70 FR 39143. 
Therefore, EPA finds the reductions at Boiler 1 to be a creditable part 
of Indiana's alternative BART limits in lieu of full BART control of 
boilers 2 and 3 and the potlines.
    The BART guidelines state that ``(2) The EPA does not believe that 
anything in the CAA or relevant case law prohibits a State from 
considering emissions reductions required to meet other CAA 
requirements when determining whether source by source BART controls 
are necessary to make reasonable progress.'' This rule further states, 
``(3) * * * in lieu of BART programs be based on emissions reductions 
`surplus to reductions resulting from measures adopted to meet 
requirements as of the baseline date of the SIP.' The baseline date for 
regional haze SIPs is 2002 * * *'' 70 FR 39143.
    Comment #2: For the Alcoa facility, FS comments that there is no 
technical reason that the controls for Boilers 2 and 3 cannot achieve 
92 percent or greater efficiency with wet Flue Gas Desulfurization 
(FGD) to meet BART.
    Response #2: EPA agrees with FS that wet FGD emission control 
technology commonly achieves a 92 percent or higher emission reduction. 
Alcoa used the 92 percent reduction level for the BART analysis for 
Boilers 2 and 3. However, Indiana is applying flexibility authorized in 
the regional haze rule to require less control of Boilers 2 and 3 than 
the control equipment can achieve, requiring 90 percent control of 
these Boilers, while requiring additional, compensating control of 
Boiler 1, which still results in an overall improvement in visibility.
    Comment #3: FS comments that the increase in the sulfur content of 
coke for the BART-subject potlines (2-6), actually 
results in increased SO2 emissions with no control 
technology or alternative to offset the increase. The FS accepts that 
low sulfur coke may not be available after 2013, but asserts that if 
increased emissions from the facility occur, then Alcoa should look for 
an alternative to either control emissions from the potlines or offset 
those emissions if control technologies are too expensive.
    Response #3: The FS comment appears to reflect a misunderstanding 
of the situation. Indiana's plan describes a BART determination that 
reflects an increase in sulfur content of coke used in the potlines, 
but Indiana's submittal does not actually increase the SO2 
emission limits that apply to these units. EPA did not agree with 
Indiana's rationale for determining BART to reflect an increase in 
potline emissions, but EPA's proposed, and now final, approval of 
Indiana's BART determination for the potlines is based on the fact that 
the actual SO2 limits in

[[Page 34220]]

Indiana's plan do not allow the SO2 emissions increase that 
the FS asserts to be allowed by Indiana's plan.
    Comment #4: FS comments that ``Indiana continues to disagree with 
the need for a factor analysis of additional NOX control 
technologies.'' FS notes Indiana's comparison of its proposed BART 
limits against new source performance standards (NSPS) limits, but 
finds that this comparison does not address BART requirements in lieu 
of conducting a full analysis of all feasible control technologies.
    Response #4: Alcoa in fact did conduct a five factor BART analysis, 
as required by the Indiana BART rule and the BART guidelines. Alcoa 
identified low NOX burners (LNB), LNB combined with over-
fire air, selective catalytic reduction (SCR) and selective non-
catalytic reduction (SNCR) systems as feasible technologies to control 
NOX from boilers. Alcoa concluded that SCR and SNCR were not 
cost effective. Indiana reached the same conclusions regarding these 
controls, and EPA agrees. Indiana set limits that are significantly 
tighter than the NSPS, and notes the state did not conduct a complete 
and adequate analysis of BART for the Alcoa facility.
    Comment #5: NPS believes that EPA should apply its economic 
incentive policy to Indiana's regional haze SIP in accordance with 
policy stated in a letter to Wisconsin regarding Wisconsin's regional 
haze SIP. NPS provides what it considers to be quotes from EPA's letter 
that advise Wisconsin not to take credit for various reductions that 
are or will be required by other regulatory requirements.
    Response #5: EPA's letter to Wisconsin does not include the 
statements that NPS attributes to EPA. EPA finds the reductions that 
Indiana takes credit for to be fully creditable. The primary 
applicability of the economic incentive policy to the Wisconsin plan 
related to the question of whether the baseline emissions of a 
subsequently shutdown boiler should be included in determining a limit 
on the combined emissions of multiple boilers. This situation does not 
apply in Indiana, and so the actual comments in EPA's letter to 
Wisconsin are not germane to Indiana.

III. What action is EPA taking?

    EPA is finalizing the limited approval of Indiana's regional haze 
plan submitted by IDEM on January 11, 2011, and March 10, 2011, 
addressing regional haze for the first implementation period. The 
revisions seek to address CAA and regional haze rule requirements for 
states to remedy any existing anthropogenic and prevent future 
impairment of visibility at Class I areas.
    Indiana's plan satisfies a number of elements of the regional haze 
requirements. Most notably, EPA concludes that Indiana has satisfied 
the requirements for BART in 40 CFR 51.308(e) for non-EGUs and for PM 
from EGUs. Indiana's plan identifies the Class I areas that the state's 
emissions affect. Indiana demonstrates that the state has consulted 
with other states as appropriate in establishing reasonable progress 
goals and identifying the reductions need in Indiana to meet those 
goals. For these reasons, and for the SIP strengthening effect of 
Indiana's plan, EPA is granting limited approval of Indiana's plan.
    In conjunction with the above actions, EPA is approving regulation 
326 IAC 26-2 for incorporation into the state implementation plan. 
These limits on Alcoa's emissions of SO2, NOX, 
and PM are state enforceable and, with this SIP approval, are now 
Federally enforceable. It should be noted that rule 326 IAC 26-2 
contains an erroneous citation, citing limits in 326 IAC 7-4-10(a)(4) 
rather than 326 IAC 7-4-10(a)(3). EPA nevertheless approves the rule 
for several reasons: (1) The pertinent limits are already an approved 
part of Indiana's SIP and are therefore already enforceable; (2) the 
State's intent is clear; and (3) Indiana intends to correct this 
reference.

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive 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 Clean Air Act; 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. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by August 10, 2012. 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

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for judicial review may be filed, and shall not postpone the 
effectiveness of such rule or action. This action may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: May 29, 2012.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart P--Indiana

0
2. Section 52.770 is amended by adding a new entry at the end of the 
table in paragraph (c) for ``Article 26. Regional Haze'' and by adding 
a new entry in alphabetical order in the table in paragraph (e) for 
``Regional Haze Plan'' to read as follows:


Sec.  52.770  Identification of plan.

* * * * *
    (c) * * *

                                                            EPA-Approved Indiana Regulations
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                                                               Indiana
         Indiana citation                  Subject         effective date             EPA approval date                            Notes
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                                                                      * * * * * * *
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                                                                Article 26. Regional Haze
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                                             Rule 2. Best Available Retrofit Technology Emission Limitations
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26-2-1............................  Applicability........       3/09/2011  6/11/2012, [Insert page number where    .....................................
                                                                            the document begins].
26-2-2............................  Alcoa emission              3/09/2011  6/11/2012, [Insert page number where    .....................................
                                     limitations and                        the document begins].
                                     compliance methods.
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* * * * *
    (e) * * *

                                           EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
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                 Title                         Indiana date                       EPA approval                                Explanation
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                                                                      * * * * * * *
Regional Haze Plan....................  01/14/2011 and 03/10/2011  6/11/2012, [Insert page number where the    .........................................
                                                                    document begins].
 
                                                                      * * * * * * *
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[FR Doc. 2012-13955 Filed 6-8-12; 8:45 am]
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