[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Rules and Regulations]
[Pages 62035-62042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24493]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2011-0888; FRL-9917-61-Region 5]
Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Infrastructure SIP Requirements for the 2008 Lead NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve elements of a state implementation plan (SIP)
submission by Indiana regarding the infrastructure requirements of
sections 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 lead
(Pb) national ambient air quality standards (NAAQS). The infrastructure
requirements are designed to ensure that the structural components of
each state's air quality management program are adequate to meet the
state's responsibilities under the CAA. The proposed rulemaking
associated with today's final action was published on August 19, 2013,
and EPA received one comment letter during the comment period, which
ended on September 18, 2013. The concerns raised in this letter, as
well as EPA's responses, will be addressed in this final action.
DATES: This final rule is effective on November 17, 2014.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2011-0888. 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., Confidential Business
Information 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
[[Page 62036]]
in hard copy at the U.S. 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 Sarah Arra at (312) 886-9401 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-9401, [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 of this SIP submission?
A. What does this rulemaking address?
B. Why did the state make this SIP submission?
C. What is the scope of this rulemaking?
II. What is our response to comments received on the proposed
rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of this SIP submission?
A. What does this rulemaking address?
This rulemaking addresses a December 12, 2011, submission from the
Indiana Department of Environmental Management (IDEM) intended to meet
the applicable infrastructure SIP requirements for the 2008 Pb NAAQS.
B. Why did the state make this SIP submission?
Under sections 110(a)(1) and (2) of the CAA, states are required to
submit infrastructure SIPs to ensure that their SIPs provide for
implementation, maintenance, and enforcement of the NAAQS, including
the 2008 Pb NAAQS. These submissions must contain any revisions needed
for meeting the applicable SIP requirements of section 110(a)(2), or
certifications that their existing SIPs for Pb already meet those
requirements.
EPA has highlighted this statutory requirement in multiple guidance
documents, including the most recent guidance document entitled
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and (2)'' issued on September
13, 2013.
C. What is the scope of this rulemaking?
EPA is acting upon the SIP submission Indiana that addresses the
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for
the 2008 Pb NAAQS. The requirement for states to make SIP submissions
of this type arises out of CAA section 110(a)(1). Pursuant to section
110(a)(1), states must make SIP submissions ``within 3 years (or such
shorter period as the Administrator may prescribe) after the
promulgation of a national primary ambient air quality standard (or any
revision thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon EPA's taking any action other than promulgating a new
or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review (NNSR) permit program submissions to
address the permit requirements of CAA, title I, part D.
This rulemaking will not cover three substantive areas that are not
integral to acting on a state's infrastructure SIP submission: (i)
existing provisions related to excess emissions during periods of
start-up, shutdown, or malfunction (``SSM'')at sources, that may be
contrary to the CAA and EPA's policies addressing such excess
emissions; (ii) existing provisions related to ``director's variance''
or ``director's discretion'' that purport to permit revisions to SIP
approved emissions limits with limited public process or without
requiring further approval by EPA, that may be contrary to the CAA
(collectively referred to as ``director's discretion''); and, (iii)
existing provisions for Prevention of Significant Deterioration (PSD)
programs that may be inconsistent with current requirements of EPA's
``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as
amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, EPA
has the authority to address each one of these substantive areas in
separate rulemaking. A detailed rationale, history, and interpretation
related to infrastructure SIP requirements can be found in our May 13,
2014, proposed rule entitled, ``Infrastructure SIP Requirements for the
2008 Lead NAAQS'' in the section, ``What is the scope of this
rulemaking?'' (see 79 FR 27241 at 27242--27245).
In addition, on a portion of section 110(a)(2)(J)--visibility
protection. EPA is also not acting on section 110(a)(2)(I)--
Nonattainment Area Plan or Plan Revisions Under Part D, in its
entirety. The rationale for not acting on elements of these
requirements was included in EPA's August 19, 2013, proposed rulemaking
or discussed below in today's response to comments.
II. What is our response to comments received on the proposed
rulemaking?
The public comment period for EPA's proposed actions with respect
to Indiana's satisfaction of the infrastructure SIP requirements for
the 2008 Pb NAAQS closed on September 18, 2013. EPA received one
comment letter, which was from the Sierra Club, and a synopsis of the
comments contained in this letter and EPA's responses, are provided
below.
Comment 1: The Sierra Club 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)
which requires SIPs to include enforceable emissions limitations as may
be necessary to meet the requirements of the CAA and which commenters
claimed include the maintenance plan requirement. Sierra Club notes the
CAA definition of emission limit and reads these provisions together to
require ``enforceable emission limitations on source emissions
sufficient to ensure maintenance of the NAAQS.''
Response 1: EPA disagrees that section 110 must be interpreted in
the manner suggested by Sierra Club. Section 110 is only one provision
that is part of the complex 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
[[Page 62037]]
evolution of that structure. In light of the revisions to section 110
since 1970 and the later-promulgated and more specific planning
requirements of the CAA, EPA interprets the requirement in section
110(a)(2)(A) that the plan provide for ``implementation, maintenance
and enforcement'' to mean that the infrastructure SIP must contain
enforceable emission limits that will aid in attaining and/or
maintaining the NAAQS and that the state demonstrate that it has the
necessary tools to implement and enforce a NAAQS, such as adequate
state personnel and an enforcement program. With regard to the
requirement for emission limitations, EPA has interpreted this to mean
that, for purposes of section 110, the state may rely on measures
already in place to address the pollutant at issue or any new control
measures that the state may choose to submit. As EPA stated in
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated September
13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual purpose of
an infrastructure SIP submission is to assure that the air agency's SIP
contains the necessary structural requirements for the new or revised
NAAQS, whether by establishing that the SIP already contains the
necessary provisions, by making a substantive SIP revision to update
the SIP, or both. Overall, the infrastructure SIP submission process
provides an opportunity . . . to review the basic structural
requirements of the air agency's air quality management program in
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p.
2.
Comment 2: Sierra Club also cites two excerpts from the legislative
history of the CAA Amendments of 1970 claiming they support an
interpretation that SIP revisions under CAA section 110 must include
emissions limitations sufficient to show maintenance of the NAAQS in
all areas of Indiana. Sierra Club also contends that the legislative
history of the CAA supports the interpretation that infrastructure SIPs
under section 110(a)(2) must include enforceable emission limitations,
citing the Senate Committee Report and the subsequent Senate Conference
Report accompanying the 1970 CAA.
Response 2: The CAA, as enacted in 1970, including its legislative
history, cannot be interpreted in isolation from the later amendments
that refined that structure and deleted relevant language from section
110 concerning demonstrating attainment. In any event, the two excerpts
of legislative history the commenter cites merely provide that states
should include enforceable emission limits in their SIPs; 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.
Comment 3: The commenter cites to 40 CFR 51.112(a), providing that
each 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 3: 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). In
addition, 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 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 PM (portion)''), 51.14 (``Control strategy: CO, HC,
OX and NO2 (portion)''), 51.80 (``Demonstration of
attainment: Pb (portion)''), and 51.82 (``Air quality data
(portion)''). Id. at 40660. Thus, the present-day 51.112 contains
consolidated provisions that are focused on control strategy SIPs, and
the infrastructure SIP is not such a plan.
Comment 4: The commenter references two prior EPA rulemaking
actions where EPA disapproved or proposed to disapprove SIPs, and
claimed they were actions in which EPA relied on section 110(a)(2)(A)
and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first
points to a 2006 partial approval and partial disapproval of revisions
to Missouri's existing plan addressing the sulfur dioxide
(SO2) NAAQS. In that action, EPA cited section 110(a)(2)(A)
as a basis for disapproving a revision to the State plan on the basis
that the State failed to demonstrate the SIP was sufficient to ensure
maintenance of the SO2 NAAQS after revision of an emission
limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates
the rules in a SIP are adequate to attain the NAAQS. Second, commenter
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 4: EPA does not agree that the two prior actions
referenced by the commenter establish how EPA reviews
[[Page 62038]]
infrastructure SIPs. It is clear from both the final Missouri rule and
the now final Indiana rule that EPA was not reviewing initial
infrastructure SIP submissions under section 110 of the CAA, but rather
reviewing revisions that would make an already approved SIP designed to
demonstrate attainment of the NAAQS less stringent. EPA's partial
approval and partial disapproval of revisions to restrictions on
emissions of sulfur compounds for the Missouri SIP addressed a control
strategy SIP and not an infrastructure SIP (71 FR 12623). The Indiana
action provides even less support for the commenter's position (78 FR
78720). 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 determined 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 5: Sierra Club discusses several cases applying to the CAA
which Sierra Club claims support their contention that courts have been
clear that section 110(a)(2)(A) requires enforceable emissions limits
in infrastructure SIPs to prevent violations of the NAAQS. Sierra Club
first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975),
addressing the requirement for ``emission limitations'' and stating
that emission limitations ``are specific rules to which operators of
pollution sources are subject, and which if 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, quoting Alaska Dept. of
Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn
quoted section 110(a)(2)(A) of the CAA and also stated that ``SIPs must
include certain measures Congress specified'' to ensure attainment of
the NAAQS. The commenter also quotes several additional opinions in
this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th
Cir. 2012) (``The Clean Air Act directs states to develop
implementation plans--SIPs--that `assure' attainment and maintenance of
[NAAQS] through enforceable emissions limitations''); Hall v. EPA 273
F.3d 1146, 1153 (9th Cir. 2001) (``Each State must submit a [SIP] that
specif[ies] the manner in which [NAAQS] will be achieved and maintained
within each air quality control region in the State''). The commenter
also cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th
Cir. 2000) for the proposition that EPA may not approve a SIP revision
that does not demonstrate how the rules would not interfere with
attainment and maintenance of the NAAQS.
Response 5: None of the cases the commenter cites supports the
commenter's contention that section 110(a)(2)(A) requires that
infrastructure SIPs include detailed plans providing for attainment and
maintenance of the NAAQS in all areas of the state, nor do they shed
light on how section 110(a)(2)(A) may reasonably be interpreted. With
the exception of Train, 421 U.S. 60, none of the cases the commenter
cites concerned the interpretation of CAA section 110(a)(2)(A) (or
section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a
challenge to an EPA action, 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 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, a case that was decided almost 40 years ago, the Court
was addressing a state revision to an attainment plan submission made
pursuant to section 110 of the CAA, the sole statutory provision at
that time regulating such submissions. The issue in that case concerned
whether changes to requirements that would occur before attainment was
required were variances that should be addressed pursuant to the
provision governing SIP revisions or were ``postponements'' that must
be addressed under section 110(f) of the CAA of 1970, which contained
prescriptive criteria. The court concluded that EPA reasonably
interpreted section 110(f) not to restrict a state's choice of the mix
of control measures needed to attain the NAAQS and that revisions to
SIPs that would not impact attainment of the NAAQS by the attainment
date were not subject to the limits of section 110(f). Thus the issue
was not whether a section 110 SIP needs to provide for attainment or
whether emissions limits are needed as part of the SIP; rather the
issue was which statutory provision governed when the state wanted to
revise the emission limits in its SIP if such revision would not impact
attainment or maintenance of the NAAQS. To the extent the holding in
the case has any bearing on how section 110(a)(2)(A) might be
interpreted, it is important to realize that in 1975, when the opinion
was issued, section 110(a)(2)(B) (the predecessor to section
110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS,
a reference that was removed in 1990.
The decision in Pennsylvania Dept. of Envtl. Resources was also
decided based on the pre-1990 provision of the CAA. At issue was
whether EPA properly rejected a revision to an approved plan where the
inventories relied on by the state for the updated submission had gaps.
The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of
EPA's disapproval, but did not provide any interpretation of that
provision. Yet, even if the court had interpreted that provision, EPA
notes that it was modified by Congress in 1990; thus, this decision has
little bearing on the issue here.
At issue in Mision Industrial, 547 F.2d 123, was the definition of
``emissions limitation'' not whether section 110 requires the state to
demonstrate how all areas of the state will attain and maintain the
NAAQS as part of their infrastructure SIPs. The language from the
opinion the commenter quotes does not interpret but rather merely
describes section 110(a)(2)(A). The commenters do 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. In Mont. Sulphur & Chem. Co., 666 F.3d
1174, the court was reviewing a Federal implementation plan that EPA
promulgated after a long history of the state failing to submit an
adequate state implementation plan. The 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 suggests that Alaska Dept. of Envtl.
Conservation, 540 U.S. 461, stands for the proposition that
[[Page 62039]]
the 1990 CAA Amendments do not alter how courts interpret section 110.
This claim is inaccurate. Rather, the court quoted section
110(a)(2)(A), which, as noted previously, differs from the pre-1990
version of that provision and the court makes no mention of the changed
language. Furthermore, the commenter also quotes the court's statement
that ``SIPs must include certain measures Congress specified'' but that
statement specifically referenced the requirement in section
110(a)(2)(C), which requires an enforcement program and a program for
the regulation of the modification and construction of new sources.
Notably, at issue in that case was the state's ``new source''
permitting program, not its infrastructure SIP.
Two of the cases the commenter cites, Mich. Dept. of Envtl.
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section
110(l), the provision governing ``revisions'' to plans, and not the
initial plan submission requirement under section 110(a)(2) for a new
or revised NAAQS, such as the infrastructure SIP at issue in this
instance. In those cases, the courts cited to section 110(a)(2)(A)
solely for the purpose of providing a brief background of the CAA.
Comment 6: The commenter asserted that Indiana's infrastructure SIP
fails to meet the requirements of section 110(a)(2)(A) and section
110(a)(2)(E) because IC 13-14-8-8 contains provisions that would allow
the board to grant variances to rules when the rules would impose
``undue hardships or burden.'' The commenter noted that EPA had cited
IC 13-14-8 as one of IDEM's mechanisms for satisfying the requirements
of section 110(a)(2)(A) and section 110(a)(2)(E), but contended that
the variance provisions in IC 13-14-8-8 are too broad and vague to
ensure that emission limits and controls are properly enforced, or to
ensure that adequate legal authority is provided to carry out Indiana's
SIP. Therefore, EPA cannot approve IC 13-14-8 to meet any requirements
of section 110.
Response 6: EPA disagrees the commenter's claim that Indiana's
infrastructure SIP fails to meet the requirements of section
110(a)(2)(A) and section 110(a)(2)(E). As an initial matter, IC 13-14-
8-8 is not a regulation that has been approved into the SIP. Thus, any
variance granted by the state pursuant to this provision would not
modify the requirements of the SIP. Furthermore, for a variance from
the state to be approved into the SIP, a demonstration must be made
under CAA section 110(l) showing that the revision does not interfere
with any requirements of the act including attainment or maintenance of
a NAAQS. We disagree that the existence of this provision as solely a
matter of State law means that the State does not have adequate
authority to carry out the implementation plan.
Comment 7: The commenter asserted that EPA must disapprove
Indiana's infrastructure SIP because it does not address the visibility
provisions under section 110(a)(2)(D)(i)(II). The commenter noted that
EPA's basis for proposing approval for the visibility protection
provisions of section 110(a)(2)(D)(i)(II) was contingent upon EPA's
claim that Indiana has an approved regional haze SIP. The commenter
contended that Indiana's regional haze SIP was only partially approved
and no action has been taken on issues addressing the Best Available
Retrofit Technology requirements for EGUs. Therefore, the commenter
believes that EPA must disapprove the visibility protection
requirements found in section 110(a)(2)(D)(i)(II) for Indiana's
infrastructure SIP.
Response 7: Section 110(a)(2)(D)(i)(II) of the CAA requires that
states have a SIP, or submit a SIP revision, containing provisions
``prohibiting any source or other type of emission activity within the
state from emitting any air pollutant in amounts which will . . .
interfere with measures required to be included in the applicable
implementation plan for any other State under part C [of the CAA] to
protect visibility.'' States were required to submit a SIP by December
2007 with measures to address regional haze--visibility impairment that
is caused by the emissions of air pollutants from numerous sources
located over a wide geographic area. Under the regional haze program,
each State with a Class I area must submit a SIP with reasonable
progress goals for each such area that provides for an improvement in
visibility for the most impaired days and ensures no degradation of the
best days.
Because of the often significant impacts on visibility from the
interstate transport of pollutants, we interpret the ``good neighbor''
provisions of section 110 of the CAA described above 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. This is consistent with the requirements in
the regional haze program which explicitly require each State to
address its share of the emission reductions needed to meet the
reasonable progress goals for surrounding Class I areas. 64 FR 35714,
35735 (July 1, 1999). States working together through a regional
planning process are required to address an agreed upon share of their
contribution to visibility impairment in the Class I areas of their
neighbors. 40 CFR 51.308(d)(3)(ii). Indiana worked through a regional
planning organization, the Midwest Regional Planning Organization
(Midwest RPO), and consulted directly with other states to develop
strategies to address regional haze in the Class I areas potentially
affected by emissions from Indiana.
The commenter is correct that EPA issued a limited disapproval of
Indiana's regional haze SIP, but our limited disapproval was based on
Indiana's reliance on the Clean Air Interstate Rule (CAIR) to satisfy
certain requirements for controlling emissions of SO2 and
NOX from EGUs. EPA disagrees, however, with the commenter
that because Indiana's regional haze SIP did not fully meet certain
requirements for controlling emissions of SO2 and
NOX, EPA must disapprove its infrastructure SIP for Pb.
Pb generally has an insignificant impact on visibility. According
to the Memorandum from Mark Schmidt, Office of Air Quality Planning and
Standards (OAQPS), when evaluating the extent that Pb could impact
visibility, Pb-related visibility impacts were found to be
insignificant (e.g., less than 0.10%) (``Ambient Pb's Contribution to
Class 1 Area Visibility Impairment,'' June 17, 2011). There is no
evidence in Indiana's regional haze SIP to indicate that emissions of
Pb from sources in the state were anticipated to cause or contribute to
visibility impairment in any Class I area. In addition, nothing in the
Indiana regional haze SIP indicates that any state assumed (or
requested) that Indiana would be making reductions in emission of Pb to
improve visibility. As such, the reasonable progress goals for the
Class I areas in nearby states do not reflect any assumptions regarding
Pb emissions from Indiana. Given this, we conclude that the Indiana SIP
contains adequate measures to ensure that emissions of Pb from sources
in the State will not interfere with the reasonable progress goals of
nearby Class I areas.
Comment 8: The commenter asserted that EPA must disapprove
Indiana's infrastructure SIP because it does not address the visibility
protection provisions, as described above, for section 110(a)(2)(J).
The commenter contended that EPA did not provide a rationale for why
the visibility provisions in section 110(a)(2)(J) are not applicable to
the 2008 Pb and 2008 ozone NAAQS.
[[Page 62040]]
Response 8: The visibility provisions in section 110(a)(2)(J) are
not applicable to the 2008 Pb NAAQS for the following reason. Under 40
CFR part 51 subpart P, implementing the visibility requirements of CAA
title I, part C, states are subject to requirements for RAVI, new
source review for possible impacts on air quality related values in
Class I areas, and regional haze planning. Specific requirements
stemming from these CAA sections are codified at 40 CFR 55 part 51,
subpart P. However, when the EPA establishes or revises a NAAQS, these
requirements under part C do not change. The EPA believes that there
are no new visibility protection requirements under part C as a result
of a revised NAAQS. Therefore, there are no newly applicable visibility
protection obligations pursuant to Element J after the promulgation of
a new or revised NAAQS.
Comment 9: The commenter asserted that EPA must clarify two
repealed regulations that were cited in the proposed rulemaking.
Specifically, the commenter observed that EPA cited 326 IAC 11-5 as
helping Indiana satisfy the requirements of section 110(a)(2)(G)
``Emergency Powers'' and IC 13-4-8 which was cited to satisfy section
110(a)(2)(H), ``Future SIP Revisions.''
Response 9: EPA did not intend to engender any confusion with these
citations. The commenter is correct in noting that 326 IAC 11-5 has
been repealed. That rule was of little relevance to section
110(a)(2)(G) and was incorrectly cited; the correct citation that was
provided by IDEM is SIP-approved IAC 1-5, ``Alert Levels.'' In a
similar manner, IDEM provided IC 13-14-8 as helping to meet the
requirements under section 110(a)(2)(H), but EPA incorrectly cited IC
13-4-8.
Comment 10: The commenter asserted that EPA must disapprove
portions of Indiana's infrastructure SIP for the 2008 Pb NAAQS
addressing certain PM2.5 requirements under section
110(a)(2)(C). In particular, the commenter objected that Indiana has
not codified the increments for areas designated Class I or Class III
for PM2.5. The commenter noted that while Indiana does not
have Class I or Class III areas, the increments for Class I and Class
III areas are still a requirement to satisfy section 110(a)(2)(C). The
commenter contends it is insufficient for EPA to ``hope'' that the
state will adopt the increments if areas in the state are later
redesignated to Class I or Class III, and therefore EPA must disapprove
this section of Indiana's infrastructure SIP.
Response 10: EPA disagrees with the commenter's view that Indiana's
infrastructure SIP related to section 110(a)(2)(C) must be disapproved
because the state has not codified the PM2.5 increments for
Class I and Class III areas as provided at 40 CFR 52.166(c) and 40 CFR
52.21(c). As explained in the August 19, 2013 proposed approval,
Indiana does not currently have any areas designated Class I or Class
III for PM2.5. Accordingly, EPA does not consider the
PM2.5 increments for Class I and Class III areas to be
necessary for the implementation of PSD permitting in Indiana at this
time. In the event that areas in Indiana are one day classified as
Class I or Class III, EPA expects IDEM to adopt these increments and
submit them for incorporation into the SIP (see 78 FR 50360 at 50364).
Section 40 CFR 51.166(g)(1) and 52.21(g)(1) specify that if a state
seeks to have an area reclassified to either Class I or Class III, it
must submit such a request as a revision to its SIP for approval by the
EPA Administrator. Thus, no areas in Indiana can be reclassified to
Class I or Class III without EPA approval, and the process of
evaluating such a request for approval requires a notice-and-comment
rulemaking process. The EPA and other interested parties can evaluate
the adequacy of Indiana's PSD regulations as they apply to the proposed
reclassified area at that time and, if necessary, initiate a process to
cure any identified deficiency. However, at this time, EPA does not
believe there to be an applicability gap for the PM2.5
increments as they apply in the state of Indiana.
III. What action is EPA taking?
For the reasons discussed in our August 19, 2013, proposed
rulemaking and in the above responses to public comments, EPA is taking
final action to approve, as proposed, Indiana's infrastructure SIPs for
the 2008 Pb NAAQS. In EPA's August 19, 2013, proposed rulemaking for
these infrastructure SIPs, we also proposed to approve Indiana's
satisfaction of the state board requirements contained in section 128
of the CAA, as well as certain PSD requirements obligated by EPA's
October 20, 2010, final rule on the ``Prevention of Significant
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC)'' (2010 NSR Rule). The final
approvals for each of the above requirements were published in the
Federal Register on December 24, 2013 (see 78 FR 77599, state board
requirements), July 2, 2014 (see 79 FR 37646, 2010 NSR Rule
requirements) and August 11, 2013 (see 79 FR 46709, 2010 NSR Rule
requirements, continued). EPA also proposed rulemaking on the 2008
ozone NAAQS and will be taking final action in a separate rulemaking.
In today's rulemaking, we are taking final action on only the
infrastructure SIP requirements for the 2008 Pb NAAQS. Our final
actions by element of section 110(a)(2) and NAAQS, are contained in the
table below.
------------------------------------------------------------------------
2008 Pb
Element NAAQS
------------------------------------------------------------------------
(A): Emission limits and other control measures............ A
(B): Ambient air quality monitoring and data system........ A
(C)1: Enforcement of SIP measures.......................... A
(C)2: PSD Provisions for Pb and ozone...................... A
(C)3: PM2.5 precursors and PM2.5/PM10 condensables for PSD. A
(C)4: PM2.5 increments for PSD............................. A
(C)5: GHG permitting thresholds in PSD regulations......... A
(D)1: Contribute to nonattainment/interfere with A
maintenance of NAAQS......................................
(D)2: PSD.................................................. **
(D)3: Visibility Protection................................ A
(D)4: Interstate Pollution Abatement....................... A
(D)5: International Pollution Abatement.................... A
(E)1: Adequate resources................................... A
(E)2: State boards......................................... A
(F): Stationary source monitoring system................... A
(G): Emergency power....................................... A
(H): Future SIP revisions.................................. A
(I): Nonattainment area plan or plan revisions under part D NA
(J)1: Consultation with government officials............... A
(J)2: Public notification.................................. A
(J)3: PSD.................................................. **
(J)4: Visibility protection (Regional Haze)................ +
(K): Air quality modeling and data......................... A
(L): Permitting fees....................................... A
(M): Consultation and participation by affected local A
entities..................................................
------------------------------------------------------------------------
In the table above, the key is as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
A............................. Approve.
NA............................ No Action/Separate Rulemaking.
D............................. Disapprove.
+............................. Not relevant in these actions.
**............................ Previously discussed in element (C).
------------------------------------------------------------------------
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.
[[Page 62041]]
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).
This rule is not approved to apply on any Indian reservation land
or in any other area where EPA or an Indian tribe has demonstrated that
a tribe has jurisdiction. In those areas of Indian country, the rule
does not have tribal implications as specified by Executive Order 13175
(65 FR 67249, November 9, 2000), nor will it 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 15, 2014. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action 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, Lead, Reporting and
recordkeeping requirements.
Dated: September 30, 2014.
Susan Hedman,
Regional Administrator, Region 5.
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.
0
2. Amend Sec. 52.770, paragraph (e) table by adding an entry in
alphabetical order for ``Section 110(a)(2) Infrastructure Requirements
for the 2008 Lead NAAQS'' to read as follows:
Sec. 52.770 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Title Indiana date EPA approval Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Infrastructure 12/12/2011 10/16/2014, [INSERT This action addresses the
Requirements for the 2008 Lead NAAQS. FEDERAL REGISTER following CAA elements:
CITATION]. 110(a)(2)(A), (B), (C),
(D)(i)(I), (D)(i)(II),
(D)(ii), (E), (F), (G), (H),
(J), (K), (L), and (M).
* * * * * * *
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[[Page 62042]]
[FR Doc. 2014-24493 Filed 10-15-14; 8:45 am]
BILLING CODE 6560-50-P