[Federal Register Volume 81, Number 165 (Thursday, August 25, 2016)]
[Rules and Regulations]
[Pages 58402-58405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20312]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2016-0169; FRL-9951-29-Region 5]


Air Plan Approval; Indiana; RACM Determination for Indiana 
Portion of the Cincinnati-Hamilton 1997 Annual PM2.5 Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is approving the 
reasonably available control measures (RACM) and reasonably available 
control technology (RACT) analysis that Indiana submitted as part of 
its attainment plan for the 1997 fine particulate matter 
(PM2.5) standard, in accordance with Indiana's request dated 
February 11, 2016. The RACM/RACT analysis addresses RACM and RACT for 
the Indiana portion of the Cincinnati-Hamilton nonattainment area for 
the 1997 PM2.5 standard. EPA is not acting on the portions 
of the State Implementation Plan (SIP) submission that are unrelated to 
RACM/RACT. Other portions of the attainment plan have either been 
addressed or will be addressed in future rulemaking actions.

DATES: This direct final rule will be effective October 24, 2016, 
unless EPA receives adverse comments by September 26, 2016. If adverse 
comments are received, EPA will publish a timely withdrawal of the 
direct final rule in the Federal Register informing the public that the 
rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2016-0169 at http://www.regulations.gov or via email to 
[email protected]. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Joseph Ko, Environmental Engineer, 
Attainment, Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-7947, [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. Background
II. What are EPA's actions?
III. What is EPA's analysis of the State's RACM submittal?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. Background

    On July 18, 1997, EPA promulgated the first national ambient air 
quality standards (NAAQS) for PM2.5. EPA promulgated an 
annual standard of 15 micrograms per cubic meter ([mu]g/m\3\) (based on 
a 3-year average of annual mean PM2.5 concentrations) and a 
24-hour standard of 65 [mu]g/m\3\ (based on a 3-year average of the 
98th percentile of 24-hour concentrations). See 62 FR 38652. On 
December 17, 2004, based on 2001-2003 monitoring data, EPA designated 
the Cincinnati-Hamilton OH-KY-IN area (the Cincinnati-Hamilton area) as 
nonattainment for the annual standard for fine particles, and these 
designations became effective on April 5, 2005. See 70 FR 944. On July 
3, 2008, Indiana requested that EPA redesignate as attainment its 
portion of the Cincinnati-Hamilton area, showing that existing 
permanent and enforceable controls would provide for timely attainment 
of the 1997 PM2.5 standard by the attainment deadline of 
April 5, 2010. On September 29, 2011, based on 2007-2009 monitoring 
data, EPA made a ``clean data determination'' and determination of 
attainment, indicating that the entire area was attaining the 1997 
PM2.5 NAAQS by its applicable attainment date. See 76 FR 
60373. The clean data determination suspended all further planning SIP 
revision requirements.
    As part of its action approving the redesignation of the Indiana 
and Ohio portions of the Cincinnati-Hamilton area to attainment, 
published on December 23, 2011, EPA found that the states of Ohio and 
Indiana had satisfied the remaining applicable requirements, including 
the requirement to submit an emission inventory in accordance with 
section 172(c)(3). See 76 FR 80253. The redesignation to attainment was 
based, in part, on EPA's longstanding interpretation that Subpart 1 
nonattainment planning requirements, including RACM, are not 
``applicable'' for purposes of Clean Air Act section 107(d)(3)(E)(ii) 
and (v) when an area is attaining the NAAQS and, therefore, need not be 
approved into the SIP before EPA can redesignate the area. See 76 FR 
80258.
    On July 14, 2015, the United States Court of Appeals for the Sixth 
Circuit (Sixth Circuit) issued an opinion in Sierra Club v. EPA, 793 
F.3d 656 (6th Cir. 2015), vacating EPA's redesignation of the Indiana 
and Ohio portions of the

[[Page 58403]]

Cincinnati-Hamilton area to attainment for the 1997 PM2.5 
NAAQS on the basis that EPA had not approved subpart 1 RACM for the 
area into the SIP.\1\ The Court concluded that ``a State seeking 
redesignation `shall provide for the implementation' of RACM/RACT, even 
if those measures are not strictly necessary to demonstrate attainment 
with the PM2.5 NAAQS. . . . If a State has not done so, EPA 
cannot `fully approve[]' the area's SIP, and redesignation to 
attainment status is improper.'' Sierra Club, 793 F.3d at 670.
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    \1\ The Court issued its initial decision in the case on March 
18, 2015, and subsequently issued an amended opinion on July 14 
after appeals for rehearing en banc and panel rehearing had been 
filed. The amended opinion revised some of the legal aspects of the 
Court's analysis of the relevant statutory provisions (section 
107(d)(3)(E)(ii) and section 172(c)(1)) but the overall holding of 
the opinion was unaltered. On March 28, 2016, the Supreme Court 
denied a petition for certiorari from Ohio requesting review of the 
Sixth Circuit's decision.
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    EPA is adhering to the Court's precedent within the jurisdiction of 
the Sixth Circuit, which does not include Indiana. Regardless, on 
February 11, 2016, Indiana requested that EPA act on the RACM/RACT 
analysis for its portion of the Cincinnati-Hamilton area from the 
earlier attainment plan SIP revision in order to eliminate any 
potential concern regarding the effect of the Sixth Circuit decision.

II. What are EPA's actions?

    EPA is approving Indiana's requested SIP submission as providing 
for all reasonably available control measures, including reasonably 
available control technology, in accordance with the requirements of 
sections 172(c)(1) and 189(a)(1)(C). More detail on EPA's rationale is 
provided below.

III. What is EPA's analysis of the State's RACM submittal?

a. Subpart 1 and Subpart 4 RACM Requirements

    RACM is required under both Subpart 1 and Subpart 4 of Part D of 
Title I of the CAA. See CAA section 172(c)(1) and section 189(a)(1)(C). 
Section 172(c)(1) requires that each attainment plan ``provide for the 
implementation of all reasonably available control measures as 
expeditiously as practicable (including such reductions in emissions 
from the existing sources in the area as may be obtained through the 
adoption, at a minimum, of reasonably available control technology), 
and shall provide for attainment of the national primary ambient air 
quality standards.'' Similar language in section 189(a)(1)(C) requires 
RACM for PM2.5 plans. EPA's current implementation guidance 
interprets RACM, including RACT, under section 172(c)(1) as measures 
that are both reasonably available and necessary to demonstrate 
attainment as expeditiously as practicable in the nonattainment area. 
See 40 CFR 51.1010(a).\2\ A state must adopt, as RACM, measures that 
are reasonably available considering technical and economic feasibility 
if, considered collectively, they would advance the attainment date by 
one year or more. See 40 CFR 51.1010(b). EPA has also proposed 
implementation policy that applies a similar interpretation to RACM as 
required under section 189(a)(1)(C).
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    \2\ Subpart 1 RACM requirements at 40 CFR 51.1010 were not at 
issue in the D.C. Circuit's remand of the PM2.5 
implementation rule in the January 2013 Natural Resources Defense 
Council v. EPA decision and are therefore not subject to the Court's 
remand. Cf. NRDC v. EPA, 571 F.3d 1245, 1252-53 (D.C. Cir. 2009) 
(upholding a substantially similar interpretation of Subpart 1 RACM 
in the context of ozone implementation regulations).
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    The PM2.5 Implementation Rule (72 FR 20586) requires 
that the Subpart 1 RACM portion of the attainment plan SIP revision 
include the list of potential measures that a state considered and 
additional information sufficient to show that the state has met all 
requirements for the determination of what constitutes RACM in a 
specific nonattainment area. See 40 CFR 51.1010(a). Any measures that 
are necessary to meet these requirements that are not already either 
federally promulgated, part of the SIP, or otherwise creditable in SIPs 
must be submitted in enforceable form as part of a state's attainment 
plan SIP revision for the area. As discussed above, a clean data 
determination suspends the requirement for a PM2.5 
nonattainment area to submit an attainment plan SIP revision, including 
RACM, so long as the area continues to attain the PM2.5 
NAAQS. See 40 CFR 51.1004(c).

b. RACM Based Upon Attainment of the NAAQS

    EPA is approving the portion of Indiana's July 3, 2008, requested 
attainment plan SIP revision that addresses Subpart 1 RACM for the 
State's portion of the Cincinnati-Hamilton area on the basis that it is 
attaining the 1997 Annual PM2.5 NAAQS and, therefore, no 
additional emission reduction measures beyond the existing measures in 
the SIP are necessary to demonstrate attainment or would advance the 
area's attainment by one year or more. As noted above, EPA determined 
that the area met the standard by the April 5, 2010 attainment date. 
See 76 FR 60373. Indiana's submission therefore meets the requirements 
of section 172(c)(1) pursuant to 40 CFR 51.1010. Given the similarity 
of requirements under Subpart 4, the submission also meets the RACT/
RACM requirements of section 189(a)(1)(C).

c. RACM Based Upon the State's Control Evaluation

    Additionally, the portion of Indiana's July 3, 2008 requested 
attainment plan SIP revision that addresses Subpart 1 RACM for the 
State's portion of the Cincinnati-Hamilton area is approvable on the 
basis that the requested SIP revision demonstrates that no additional 
reasonably available controls would have advanced the attainment date 
projected therein.
    Indiana determined that existing measures and measures planned for 
implementation by 2009 would result in the Cincinnati-Hamilton area 
attaining the 1997 PM2.5 NAAQS by the attainment deadline of 
April 5, 2010. Air quality modeling conducted by Lake Michigan Air 
Directors Consortium (LADCO) indicated that the area would attain the 
annual NAAQS in 2009 based upon projected emissions reductions from 
sources within the area after 2005 (the base year of the nonattainment 
emissions inventory). As discussed in Chapter 6.0 of the July 3, 2008 
SIP submission, the State considered the following existing federally 
enforceable measures in projecting the emissions inventory used for the 
2009 modeling: Tier 2 vehicle standards; heavy-duty gasoline and diesel 
highway vehicle standards; large non-road diesel engine standards; non-
road spark-ignition engines and recreational engines standards; 
nitrogen oxides (NOX) SIP call; and the Clean Air Interstate 
Rule (CAIR). Indiana adopted the NOX SIP Call in 2001, and 
beginning in 2004, this rule accounted for a reduction of approximately 
31% of total NOX emissions in Indiana compared to previous 
uncontrolled years. Indiana adopted a state rule in response to CAIR in 
2006 which included an annual and seasonal NOX trading 
program, and an annual SO2 trading program.
    In addition to the federally enforceable measures mentioned above, 
Indiana also considered further Federal and statewide control measures 
that, once implemented, would further reduce emissions, but that were 
not included in the modeling demonstration. The Portable Fuel Container 
(Gas Can) Controls, and the Small Non-Road Engine Rules were considered 
as additional Federal controls that would reduce emissions. The Gas Can 
Controls Rule was issued on February 26, 2007 (71 FR 15830), and

[[Page 58404]]

it was expected to significantly reduce volatile organic compounds 
(VOC) emissions. The Small Non-Road Engine Rule was proposed on April 
17, 2007, and it was expected to result in a 70% reduction in 
hydrocarbon and NOX emissions and a 20% reduction in carbon 
monoxide from new engines' exhaust, as well as a 70% reduction in 
evaporative emissions. The following Indiana statewide VOC controls 
rules were considered: Consumer and Commercial Products Rule (326 IAC 
8), Architectural and Industrial Maintenance Coatings Rule (326 IAC 8-
14), Automobile Refinishing Operations Rule (326 IAC 8-10), and Stage I 
Vapor Recovery Rule (326 IAC 8-4).
    In Indiana's RACM analysis, which appears in chapter 7.0 of the 
July 3, 2008, SIP submission, the State discusses its evaluation of 
sources of PM2.5 and its precursors within the Indiana 
portion of the Cincinnati-Hamilton area and its determination that 
these sources were meeting Subpart 1 RACM levels of emissions control. 
As discussed above, a state must show that all Subpart 1 RACM 
(including RACT for stationary sources) necessary to demonstrate 
attainment as expeditiously as practicable have been adopted and must 
consider the cumulative impact of implementing available measures to 
determine whether a particular emission reduction measure or set of 
measures is required to be adopted as RACM. Potential measures that are 
reasonably available considering technical and economic feasibility 
must be adopted as RACM if, considered collectively, they would advance 
the attainment date by one year or more.
    Based on the emissions inventory and other information, the State 
identified the categories of sources that should be evaluated for 
controls. These categories include permitted stationary sources; 
gasoline dispensing facilities; on-road mobile sources; non-road and 
stationary internal combustion engines; open burning; and home heating 
with wood.
    Indiana, in conjunction with LADCO, conducted attainment test 
modeling that showed that the Indiana portion of the Cincinnati-
Hamilton area would attain the current annual PM2.5 NAAQS by 
2009, one year before the attainment date deadline of 2010. Indiana 
evaluated candidate control measures for feasibility, cost 
effectiveness, and the ability to implement them in the set time frame. 
No additional measures were needed to demonstrate attainment in an 
expeditious fashion, since the conducted attainment test modeling 
showed that the area would attain the fine particles NAAQS by 2009. 
Indiana's attainment demonstration was validated by quality assured 
monitoring data at the end of 2009. Therefore, EPA is approving the 
existing measures as meeting the requirements of RACM/RACT. See 72 FR 
20586.
    In addition to Indiana's modeling demonstration of expeditious 
attainment and confirmatory monitoring data, the primary source for 
both direct PM2.5 and its precursor emissions for Indiana's 
portion of the Cincinnati-Hamilton area (Tanners Creek power plant 
owned by American Electric Power) was permanently retired on June 1, 
2015. As a result of its retirement, direct PM2.5 and 
PM2.5 precursor emissions in the Indiana portion of the area 
have decreased significantly, further improving air quality, above and 
beyond what Indiana demonstrated as necessary to maintain attainment.
    EPA has reviewed the State's RACM/RACT analysis and discussion in 
Indiana's attainment plan SIP revision, and agrees with the State's 
conclusion that no other reasonably available measures were available 
or necessary to attain or advance attainment of the standard.

IV. What action is EPA taking?

    EPA is approving the RACM/RACT portion of Indiana's Cincinnati-
Hamilton area attainment plan SIP revision as providing adequate RACM/
RACT consistent with the provisions of 40 CFR 51.1010(b), because 
Indiana has demonstrated that no further control measures would advance 
the attainment date in the area.
    We are publishing this action without prior proposal because we 
view this as a noncontroversial amendment and anticipate no adverse 
comments. However, in the proposed rules section of this Federal 
Register publication, we are publishing a separate document that will 
serve as the proposal to approve the state plan if relevant adverse 
written comments are filed. This rule will be effective October 24, 
2016 without further notice unless we receive relevant adverse written 
comments by September 26, 2016. If we receive such comments, we will 
withdraw this action before the effective date by publishing a 
subsequent document that will withdraw the final action. All public 
comments received will then be addressed in a subsequent final rule 
based on the proposed action. EPA will not institute a second comment 
period. Any parties interested in commenting on this action should do 
so at this time. Please note that if EPA receives adverse comment on an 
amendment, paragraph, or section of this rule and if that provision may 
be severed from the remainder of the rule, EPA may adopt as final those 
provisions of the rule that are not the subject of an adverse comment. 
If we do not receive any comments, this action will be effective 
October 24, 2016.

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     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

[[Page 58405]]

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. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by October 24, 2016. 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. Parties with objections to this direct final rule are 
encouraged to file a comment in response to the parallel notice of 
proposed rulemaking for this action published in the proposed rules 
section of today's Federal Register, rather than file an immediate 
petition for judicial review of this direct final rule, so that EPA can 
withdraw this direct final rule and address the comment in the proposed 
rulemaking. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: August 9, 2016.
Robert A. Kaplan,
Acting 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. Section 52.776 is amended by adding paragraph (y) to read as 
follows:


Sec.  52.776  Control strategy: Particulate matter.

* * * * *
    (y) Approval-By submittal dated July 3, 2008, Indiana demonstrated 
satisfaction of the requirements for reasonably available control 
measures for its portion of the Cincinnati-Hamilton OH-KY-IN area.

[FR Doc. 2016-20312 Filed 8-24-16; 8:45 am]
 BILLING CODE 6560-50-P