[Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)]
[Rules and Regulations]
[Pages 23713-23721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09883]



40 CFR Part 52

[EPA-R05-OAR-2011-0969; FRL-9926-81-Region 5]

Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Infrastructure SIP Requirements for the 2008 Ozone National 
Ambient Air Quality Standards (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.


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 
ozone 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 this final action was published on August 
19, 2013, and EPA received two comment letters during the comment 
period, which ended on September 18, 2013. The concerns raised in these 
letters, as well as EPA's responses, will be addressed in this final 

DATES: This final rule is effective on May 29, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2011-0969. 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 
in hard copy at the U.S. Environmental

[[Page 23714]]

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?
II. What is our response to comments received on the proposed 
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 ozone 

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 ozone 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 ozone 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 CAA Sections 110(a)(1) and (2)'' issued on September 13, 2013.

C. What is the scope of this rulemaking?

    EPA is acting upon Indiana's SIP submission that addresses the 
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for 
the 2008 ozone 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, EPA is not acting on section 110(a)(2)(D)(i)(I), 
interstate transport significant contribution and interference with 
maintenance, a portion of section 110(a)(2)(D)(i)(II) with respect to 
visibility, and 110(a)(2)(J) with respect to visibility. 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 

II. What is our response to comments received on the proposed 

    The public comment period for EPA's proposed actions with respect 
to Indiana's satisfaction of the infrastructure SIP requirements for 
the 2008 ozone NAAQS closed on September 18, 2013. EPA received two 
comment letters, which were from the Sierra Club and the state of 
Connecticut. A synopsis of the comments contained in these letters 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) that 
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

[[Page 23715]]

amended in 1990, and it must be interpreted in the context of not only 
that structure, but also of the historical evolution of that structure. 
In light of the revisions to section 110 since 1970 and the later-
promulgated and more specific planning requirements of the CAA, EPA 
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 
    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 CAA Sections 110(a)(1) and 110(a)(2),'' dated September 
13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual purpose of 
an infrastructure SIP submission is to assure that the air agency's SIP 
contains the necessary structural requirements for the new or revised 
NAAQS, whether by establishing that the SIP already contains the 
necessary provisions, by making a substantive SIP revision to update 
the SIP, or both. Overall, the infrastructure SIP submission process 
provides an opportunity . . . to review the basic structural 
requirements of the air agency's air quality management program in 
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p. 
    Comment 2: Sierra Club cites two excerpts from the legislative 
history of the CAA Amendments of 1970 asserting that 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: Sierra Club 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 40 CFR 51.112 
contains consolidated provisions that are focused on control strategy 
SIPs, and the infrastructure SIP is not such a plan.
    Comment 4: Sierra Club 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

[[Page 23716]]

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 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 
    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 that the SIP 
revision would not result in increased SO2 emissions and 
thus not 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 it claims support its 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 and demonstrate 
maintenance throughout the area. 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 sections 107 and 
110(a)(2)(A) of the CAA for the proposition that SIPs should assure

[[Page 23717]]

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 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: Sierra Club contends that EPA cannot approve the section 
110(a)(2)(A) portion of Indiana's 2008 ozone infrastructure SIP 
revision because an infrastructure SIP should include enforceable 
emission limits to prevent NAAQS violations in areas not designated 
nonattainment. Specifically, Sierra Club cited air monitoring reports 
for Clark, Floyd, and LaPorte Counties indicating violations of the 
NAAQS based on 2010-2012 and 2011-2013 design values and air quality 
monitoring reports for Greene County indicating violations based on 
data from 2010-2012. The commenter alleges that these violations 
demonstrate that the infrastructure SIP fails to ensure that air 
pollution levels meet or are below the level of the NAAQS and thus the 
infrastructure SIP must be disapproved. Sierra Club noted that the 
violation of the NAAQS based on data from 2010-2012 had been known for 
over four months, and that Indiana failed to strengthen its 
infrastructure SIP and address the violations by enacting enforceable 
    Furthermore, the commenter suggests that the state adopt specific 
controls that they contend are cost-effective for reducing NOx, a 
precursor to ozone.
    Response 6: We disagree with the commenter that infrastructure SIPs 
must include detailed attainment and maintenance plans for all areas of 
the state and must be disapproved if air quality data that became 
available late in the process or after the SIP was due and submitted 
changes the status of areas within the state. We believe that section 
110(a)(2)(A) is reasonably interpreted to require states to submit SIPs 
that reflect the first step in their planning for attaining and 
maintaining a new or revised NAAQS and that they contain enforceable 
control measures and a demonstration that the state has the available 
tools and authority to develop and implement plans to attain and 
maintain the NAAQS.
    The suggestion that the infrastructure SIP must include measures 
addressing violations of the standard that did not occur until shortly 
before or even after the SIP was due and submitted cannot be supported. 
The CAA provides states with three years to develop infrastructure SIPs 
and states cannot reasonably be expected to address the annual change 
in an area's design value for each year over that period. Moreover, the 
CAA recognizes and has provisions to address changes in air quality 
over time, such as an area slipping from attainment to nonattainment or 
changing from nonattainment to attainment. These include provisions 
providing for redesignation in section 107(d) and provisions in section 
110(k)(5) allowing EPA to call on the state to revise its SIP, as 
    We do not believe that section 110(a)(2)(A) requires detailed 
planning SIPs demonstrating either attainment or maintenance for 
specific geographic areas of the state. The infrastructure SIP is 
triggered by promulgation of the NAAQS, not designation. Moreover, 
infrastructure SIPs are due three years following promulgation of the 
NAAQS and designations are not due until two years (or in some cases 
three years) following promulgation of the NAAQS. Thus, during a 
significant portion of the period that the state has available for 
developing the infrastructure SIP, it does not know what the 
designation will be for individual areas of the state.\1\ In light of 
the structure of the CAA, EPA's long-standing position regarding 
infrastructure SIPs is that they are general planning SIPs to ensure 
that the state has adequate resources and authority to implement a 
NAAQS in general throughout the state and not detailed attainment and 
maintenance plans for each individual area of the state.

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

    Our interpretation that infrastructure SIPs are more general 
planning SIPs is consistent with the statute as understood in light of 
its history and structure. When Congress enacted the CAA in 1970, it 
did not include provisions requiring states and the EPA to label areas 
as attainment or nonattainment. Rather, states were required to include 
all areas of the state in ``air quality control regions'' (AQCRs) and 
section 110 set forth the core substantive planning provisions for 
these AQCRs. At that time, Congress anticipated that states would be 
able to address air pollution quickly pursuant to the very general 
planning provisions in section 110 and could bring all areas into 
compliance with the NAAQS within five years. Moreover, at that time, 
section 110(a)(2)(A)(i) specified that the section 110 plan provide for 
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the 
plan must include ``emission limitations, schedules, and timetables for 
compliance with such limitations, and such other measures as may be 
necessary to insure attainment and maintenance [of the NAAQS].''
    In 1977, Congress recognized that the existing structure was not 
sufficient and many areas were still violating the NAAQS. At that time, 
Congress for the first time added provisions requiring states and EPA 
to identify whether areas of the state were violating the NAAQS (i.e., 
were nonattainment) or were meeting the NAAQS (i.e., were attainment) 
and established specific planning requirements in section 172 for areas 
not meeting the NAAQS.
    In 1990, many areas still had air quality not meeting the NAAQS and 
Congress again amended the CAA and added yet another layer of more 
prescriptive planning requirements for each of the NAAQS, with the 
primary provisions for ozone in section 182. At that same time, 
Congress modified section 110 to remove references to the section 110 
SIP providing for attainment, including removing pre-existing section 
110(a)(2)(A) in its entirety and renumbering subparagraph (B) as 
section 110(a)(2)(A).
    Additionally, Congress replaced the clause ``as may be necessary to 
insure attainment and maintenance [of the NAAQS]'' with ``as may be 
necessary or appropriate to meet the applicable

[[Page 23718]]

requirements of this chapter.'' Thus, the CAA has significantly evolved 
in the more than 40 years since it was originally enacted. While at one 
time section 110 did provide the only detailed SIP planning provisions 
for states and specified that such plans must provide for attainment of 
the NAAQS, under the structure of the current CAA, section 110 is only 
the initial stepping-stone in the planning process for a specific 
NAAQS. And, more detailed, later-enacted provisions govern the 
substantive planning process, including planning for attainment of the 
    For all of the above reasons, we disagree with the commenter that 
EPA must disapprove an infrastructure SIP revision if there are 
monitored violations of the standard in the state and the section 
110(a)(2)(A) revision does not have detailed plans for demonstrating 
how the state will bring that area into attainment. Rather, EPA 
believes that the proper inquiry at this juncture is whether the state 
has met the basic structural SIP requirements appropriate when EPA is 
acting upon the submittal.
    Moreover, Indiana's SIP contains existing emission reduction 
measures that control emissions of VOCs and NOX found in 326 
IAC 8 and 326 IAC 10, respectively. Indiana's SIP revision reflects 
several provisions that have the ability to reduce ground level ozone 
and its precursors. The Indiana SIP relies on measures and programs 
used to implement previous ozone NAAQS. Because there is no substantive 
difference between the previous ozone NAAQS and the more recent ozone 
NAAQS, other than the level of the standard, the provisions relied on 
by Indiana will provide benefits for the new NAAQS; in other words, the 
measures reduce overall ground-level ozone and its precursors and are 
not limited to reducing ozone levels to meet one specific NAAQS. 
Further, in approving Indiana's infrastructure SIP revision, EPA is 
affirming that Indiana has sufficient authority to take the types of 
actions required by the CAA in order to bring such areas back into 
    Comment 7: Sierra Club 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 7: 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 8: Sierra Club 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 8: The commenter is correct that EPA issued a limited 
disapproval of Indiana's regional haze SIP. 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 also issued a limited 
approval of the remaining portion of the regional haze plan. However, 
in response to this comment, EPA is not taking final action today on 
the portion of Indiana's infrastructure SIP addressing the requirements 
of section 110(a)(2)(D)(i)(II) with respect to visibility.
    Comment 9: Sierra Club 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.
    Response 9: The visibility requirements in part C of the CAA that 
are referenced in section 110(a)(2)(J) are not affected by the 
establishment or revision of a NAAQS. As a result, there are no 
``applicable'' visibility protection obligations associated with the 
promulgation of a new or revised NAAQS. Because there are no applicable 
requirements, states are not required to address section 110(a)(2)(J) 
in their infrastructure SIP.
    Comment 10: Sierra Club stated that EPA cannot approve Indiana's 
infrastructure SIP, specifically the infrastructure element under 
section 110(a)(2)(A), for the 2008 ozone NAAQS because the state has 
not incorporated this NAAQS into the SIP. Instead, the commenter noted 
that the SIP at the time of proposed rulemaking, specifically at 326 
Indiana Administrative Code (IAC) 1-3-4(b)(4)(B), contained the older 
8-hour ozone NAAQS promulgated in 1997.
    Response 10: In a rulemaking published on December 18, 2014 (79 FR 
75527), EPA approved revisions to Indiana's SIP incorporating the 2008 
ozone NAAQS.
    Comment 11: Sierra Club 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 11: 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 
    Comment 12: Sierra Club asserted that EPA must disapprove portions 
of Indiana's infrastructure SIP for the 2008 ozone NAAQS addressing 
certain PM2.5 requirements under section 110(a)(2)(C). In 
particular, the commenter objected to the fact that Indiana has not 
codified the

[[Page 23719]]

increments for areas designated as 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 12: 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). 
Federal regulations at 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.
    Comment 13: The State of Connecticut asserts that its ability to 
attain the 2008 ozone NAAQS is substantially compromised by the 
transport of pollution from upwind states. Specifically, modeling 
conducted by both the Ozone Transport Commission and EPA as part of the 
Cross-State Air Pollution Rule (CSAPR) shows emissions from Indiana 
contributing to the nonattainment problem in Connecticut. The State of 
Connecticut states that it has done its share to reduce in-state 
emissions, and EPA should ensure that each upwind state addresses 
contribution to another downwind state's nonattainment. With regard to 
the ``good neighbor provision'' in Section 1109(a)(1) of the CAA, 
Connecticut characterizes Indiana's 2008 ozone submission as relying on 
state regulations which implement the Clean Air Interstate Rule and 
CSAPR, and that such programs were intended by EPA to address the 1997 
ozone NAAQS and not the more stringent 2008 standard. Connecticut 
asserts EPA should therefore disapprove the Indiana submission. 
Connecticut also states that, under section 110(a)(2), Indiana was 
required to submit a complete SIP that demonstrated compliance with the 
good neighbor provision of section 110(a)(2)(D)(i)(I). Connecticut 
further suggests that the CAA does not give EPA discretion to take no 
action on the submitted good neighbor provisions on the grounds of 
taking a separate action. Instead, it asserts that the only action 
available to EPA is to determine the approvability of the good neighbor 
provision of Indiana's 2008 ozone NAAQS infrastructure SIP submission, 
or promulgate a FIP under section 110(c)(1) within two years.
    Response 13: As explained in the notice of proposed rulemaking 
(NPR), this action does not address, for the 2008 ozone NAAQS, the good 
neighbor provision in section 110(a)(2)(D)(i)(I), which prohibits 
emissions that significantly contribute to nonattainment or interfere 
with maintenance of the NAAQS in another state. Thus, to the extent the 
comment relates to the substance or approvability of the good neighbor 
provision in Indiana's 2008 ozone infrastructure SIP submission, the 
comment is not relevant to the present rulemaking. As stated herein and 
in the NPR, EPA will take later, separate action to address section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.
    EPA disagrees with the commenter's argument that EPA cannot approve 
a SIP without the good neighbor provision. Section 110(k)(3) of the CAA 
authorizes EPA to approve a plan in full, disapprove it in full, or 
approve it in part and disapprove it in part, depending on the extent 
to which such plan meets the requirements of the CAA. This authority to 
approve the states' SIP revisions in separable parts was included in 
the 1990 Amendments to the CAA to overrule a decision in the Court of 
Appeals for the Ninth Circuit holding that EPA could not approve 
individual measures in a plan submission without either approving or 
disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 
U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of 
Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).
    The Agency interprets its authority under section 110(k)(3) as 
affording it the discretion to approve or conditionally approve 
individual elements of Indiana's infrastructure submission for the 2008 
ozone NAAQS, separate and apart from any action with respect to the 
requirements of section 110(a)(2)(D)(i)(I) with respect to that NAAQS. 
EPA views discrete infrastructure SIP requirements, such as the 
requirements of 110(a)(2)(D)(i)(I), as severable from the other 
infrastructure elements, and interprets section 110(k)(3) as allowing 
EPA to act on individual severable measures in a plan submission. In 
short, EPA has discretion under section 110(k) to act upon the various 
individual elements of the state's infrastructure SIP submission, 
separately or together, as appropriate. The commenter raises no 
compelling legal or environmental rationale for an alternate 
    EPA notes, however, that it is working with state partners to 
assess next steps to address air pollution that crosses state 
boundaries and will later take a separate action to address section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. EPA's approval of the 
Indiana infrastructure SIP submission for the 2008 ozone NAAQS for the 
portions described in the NPR is, therefore, appropriate.

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 Indiana's infrastructure SIP for the 2008 ozone 
NAAQS as proposed with the exception of not taking final action on 
section 110(a)(2)(D)(i)(II) with respect to visibility. In EPA's August 
19, 2013, proposed rulemaking for these infrastructure SIPs, EPA 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), Significant Monitoring Concentration (SMC)'' 
(2010 NSR Rule), and the infrastructure requirements for the 2008 lead 
NAAQS. 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

[[Page 23720]]

requirements), July 2, 2014 (see 79 FR 37646, 2010 NSR Rule 
requirements), August 11, 2013 (see 78 FR 46709, 2010 NSR Rule 
requirements, continued), and October 16, 2014 (see 79 FR 62035, 2008 
Lead Infrastructure requirements). In today's rulemaking, we are taking 
final action on only the infrastructure SIP requirements for the 2008 
ozone NAAQS. Our final actions by element of section 110(a)(2) and 
NAAQS, are contained in the table below.

                                                            2008 Ozone
                        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..............................................               A
(D)1: Contribute to nonattainment/interfere with                     NA
 maintenance of NAAQS..................................
(D)2: PSD..............................................               A
(D)3: Visibility Protection............................              NA
(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                 NA
 part D................................................
(J)1: Consultation with government officials...........               A
(J)2: Public notification..............................               A
(J)3: PSD..............................................               A
(J)4: Visibility protection (Regional Haze)............              NA
(K): Air quality modeling and data.....................               A
(L): Permitting fees...................................               A
(M): Consultation and participation by affected local                 A

    In the table above, the key is as follows:

A......................................  Approve.
NA.....................................  No Action/Separate Rulemaking.

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 Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
     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, the SIP 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 and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
    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 June 29, 2015. 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).)

[[Page 23721]]

List of Subjects in 40 CFR Part 52

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

    Dated: April 16, 2015.
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.

2. In Sec.  52.770, the table in paragraph (e) is amended by adding an 
entry in alphabetical order for ``Section 110(a)(2) Infrastructure 
Requirements for the 2008 Ozone 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   4/29/2015, [insert        This action addresses the
 Requirements for the 2008 Ozone NAAQS.                   Federal Register          following CAA elements:
                                                          citation].                110(a)(2)(A), (B), (C),
                                                                                    (D)(i)(II) except
                                                                                    visibility, (D)(ii), (E),
                                                                                    (F), (G), (H), (J) except
                                                                                    visibility, (K), (L), and
                                                  * * * * * * *

[FR Doc. 2015-09883 Filed 4-28-15; 8:45 am]