[Federal Register Volume 84, Number 173 (Friday, September 6, 2019)]
[Rules and Regulations]
[Pages 46889-46892]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19189]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2017-0700; FRL-9999-33-Region 5]


Air Plan Approval; Indiana; Regional Haze Plan and Prong 4 
(Visibility) for the 2006 and 2012 PM2.5, 2010 NO2, 2010 SO2, and 2008 
Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking action 
under the Clean Air Act (CAA) on Indiana's November 27, 2017 State 
Implementation Plan (SIP) submittal addressing regional haze. This 
action is based on EPA's previous determination that a state's 
implementation of the Cross-State Air Pollution Rule (CSAPR) program 
continues to meet the criteria of the Regional Haze Rule (RHR) to 
qualify as an alternative to the application of Best Available Retrofit 
Technology (BART). EPA is taking several related actions. First, EPA is 
approving the portion of Indiana's November 27, 2017 SIP submittal 
seeking to change reliance from the Clean Air Interstate Rule (CAIR) to 
CSAPR for certain regional haze requirements. EPA is also converting 
EPA's limited approval/limited disapproval of Indiana's regional haze 
SIP to a full approval and withdrawing the Federal Implementation Plan 
(FIP) provisions that address the limited disapproval. Finally, EPA is 
approving the visibility prong (``prong 4'') of Indiana's 
infrastructure SIP submittals for the 2006 24-hour and 2012 annual fine 
particulate matter (PM2.5), 2010 nitrogen dioxide 
(NO2), and 2010 sulfur dioxide (SO2) National 
Ambient Air Quality Standards (NAAQS) and converting EPA's disapproval 
of the visibility portion of Indiana's infrastructure SIP submittal for 
the 2008 ozone NAAQS to an approval.

DATES: This final rule is effective October 7, 2019.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2017-0700. All documents in the docket are listed in 
the http://www.regulations.gov website. 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, is not 
placed on the internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either through 
http://www.regulations.gov or at the EPA Region 5 office (please 
contact the person identified in the FOR FURTHER INFORMATION CONTACT 
section for availability information).

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental 
Scientist, Attainment Planning and Maintenance Section, Air Programs 
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West 
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-1767, 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.


[[Page 46890]]


I. Background
II. What comments did EPA receive on the proposed rule?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. Background

    On May 22, 2019 (84 FR 23504), EPA proposed to approve Indiana's 
November 27, 2017 SIP revision, including full approval of Indiana's 
Regional Haze SIP, the removal of the Regional Haze FIP, and the 
approval of prong 4 elements. The specific details of Indiana's 
November 27, 2017 SIP revision and the rationale for EPA's approval are 
discussed in the notice of proposed rulemaking and will not be restated 
here.
    Indiana submitted infrastructure SIPs for the following NAAQS: 2006 
24-hour PM2.5 (October 20, 2009, June 25, 2012, July 12, 
2012, and May 22, 2013); 2012 annual PM2.5 (December 10, 
2016); 2010 NO2 (January 15, 2013); 2010 SO2 (May 
22, 2013); and 2008 ozone (December 12, 2011), which relied on the 
State having a fully approved regional haze SIP to satisfy its prong 4 
requirements. However, EPA had not fully approved Indiana's regional 
haze SIP, as the Agency issued a limited disapproval of the State's 
original regional haze plan on June 7, 2012 (77 FR 33642), due to the 
plan's reliance on CAIR. EPA finalized a limited approval of Indiana's 
regional haze SIP on June 11, 2012 (77 FR 34218), as meeting the 
remaining applicable regional haze requirements set forth in the CAA 
and the RHR.
    In the June 7, 2012 limited disapproval action, EPA also amended 
the RHR to provide that participation by a state's electric generating 
units (EGUs) in a CSAPR trading program for a given pollutant--either a 
CSAPR Federal trading program implemented through a CSAPR FIP or an 
integrated CSAPR state trading program implemented through an approved 
CSAPR SIP revision--qualifies as a BART alternative for those EGUs for 
that pollutant. On September 29, 2017 (82 FR 45481), EPA published a 
final rule affirming the continued validity of the Agency's 2012 
determination that participation in CSAPR meets the RHR's criteria for 
an alternative to the application of source specific BART. On November 
27, 2017, to correct the deficiencies in its regional haze SIP and 
obtain approval of the portions of the aforementioned infrastructure 
SIPs that rely on the regional haze SIP, Indiana submitted a SIP 
revision to replace reliance on CAIR with reliance on CSAPR.
    In this final action, EPA is approving Indiana's November 27, 2017 
regional haze SIP revision and converting EPA's previous limited 
approval/limited disapproval of Indiana's regional haze SIP to a full 
approval. Specifically, EPA finds that Indiana's November 27, 2017, SIP 
revision satisfies the SO2 and NOX BART 
requirements of the RHR for the BART-eligible sources in Indiana 
subject to the CSAPR annual NOX, annual SO2, and 
ozone season NOX trading programs.\1\ For reasons more fully 
explained in the proposal, and consistent with EPA's 2013 guidance on 
the prong 4 element of infrastructure SIPs,\2\ with this approval of 
Indiana's regional haze SIP revision, the State's regional haze SIP is 
now fully approved and, therefore, provides the measures needed to 
ensure that its emissions do not interfere with any other state's 
efforts to protect visibility. Therefore, EPA is also approving the 
prong 4 portion of Indiana's 2006 24-hour PM2.5 submissions, 
2012 annual PM2.5 submission, 2010 SO2 
submission, and 2010 NO2 submission, as well as converting 
EPA's disapproval of the prong 4 portion of Indiana's 2008 ozone 
infrastructure submission (see 81 FR 53309), to an approval.
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    \1\ On December 17, 2018 (83 FR 64472), EPA approved Indiana's 
regulations requiring large Indiana EGUs to participate in new CSAPR 
state trading programs for annual NOX, annual 
SO2, and ozone season NOX emissions integrated 
with the CSAPR Federal trading programs and replaced the 
corresponding FIP requirements. Indiana's State trading program 
rules, 326 IAC 24-5 (Nitrogen Oxides (NOX) Annual Trading 
Program), 326 IAC 24-6 (Nitrogen Oxides (NOX) Ozone 
Season Group 2 Trading Program), and 326 IAC 24-7 (Sulfur Dioxide 
(SO2) Group 1 Trading Program), are codified into the SIP 
at 40 CFR 52.770(c).
    \2\ September 13, 2013 memorandum from Stephen D. Page titled 
``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).''
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II. What comments did EPA receive on the proposed rule?

    EPA provided a 30-day comment period for the May 22, 2019, proposed 
rule. During the comment period, we received one anonymous comment 
objecting to the proposed action. The adverse comment is summarized and 
addressed below.
    Comment: EPA can't support finalizing action on infrastructure 
elements that are based on a FIP. CAA section 110(a)(2)(D) states that 
SIPs shall ``contain adequate provisions . . . .'' This language means 
that the requirements under section 110(a)(2)(D) must be contained in 
the SIP and can't be met by a FIP. EPA should disapprove Indiana's 
infrastructure SIP.
    Response: The commenter's premise is incorrect in that the State of 
Indiana is meeting its prong 4 obligations through a fully approved 
regional haze SIP, not a FIP. The prong 4 infrastructure SIP element 
addressed in this action is contained in Section 110(a)(2)(D)(i)(II), 
which requires a state's implementation plan to contain provisions 
prohibiting sources in that state from emitting pollutants in amounts 
that interfere with any other state's efforts to protect visibility 
under part C of the CAA. EPA issued guidance on infrastructure SIPs in 
a September 13, 2013 memorandum from Stephen D. Page, titled, 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and 110(a)(2)'' (2013 Guidance). 
The 2013 Guidance lays out how a state's infrastructure SIP may satisfy 
prong 4. EPA explained that one way a state may satisfy prong 4 is via 
confirmation that the state has a fully approved regional haze SIP.
    EPA's RHR, codified at 40 CFR 51.308 and 51.309, specifically 
requires that a state participating in a regional planning process 
include all measures needed to achieve its apportionment of emission 
reduction obligations agreed upon through that process. A fully 
approved regional haze SIP will ensure that emissions from sources 
under an air agency's jurisdiction are not interfering with measures 
required to be included in other air agencies' plans to protect 
visibility. The RHR further specifies that participation by a state's 
EGUs in a CSAPR trading program for a given pollutant--either a CSAPR 
Federal trading program implemented through a CSAPR FIP or an 
integrated CSAPR state trading program implemented through an approved 
CSAPR SIP revision--qualifies as a BART alternative for those EGUs for 
that pollutant. See 40 CFR 51.308(e)(4). Therefore, consistent with the 
RHR and the 2013 Guidance, a state's regional haze SIP can be fully 
approved if a state is meeting the BART requirement through the 
implementation of a CSAPR FIP. In this case, Indiana has replaced its 
former reliance on CAIR with a new SIP that relies on CSAPR to meet 
certain outstanding regional haze requirements. EPA is approving that 
SIP in this action and is withdrawing the FIP it had previously 
promulgated for Indiana to provide for reliance on CSAPR (see 77 FR 
33654). Whether a state is subject to a CSAPR FIP or has replaced that 
FIP with a SIP to satisfy its obligations under prongs 1 and 2 of 
section 110(a)(2)(D)(i)(I) (together generally known as the ``good 
neighbor provision'') is not relevant to the question at hand regarding 
prong 4 obligations. Indiana has appropriately adjusted its regional 
haze SIP to rely on CSAPR to meet certain regional haze

[[Page 46891]]

obligations, and this is what allows EPA to fully approve the State's 
regional haze SIP. Having a fully approved regional haze SIP, as 
recognized in the 2013 Guidance, allows EPA to conclude that the 
State's prong 4 obligations are therefore also met.
    Regardless, contrary to commenter's assertion, the State has in 
fact also already replaced its CSAPR FIP with a CSAPR SIP. On December 
17, 2018, EPA approved Indiana's State CSAPR trading program 
regulations for annual NOX, annual SO2, and ozone 
season NOX emissions to replace EPA's Federal CSAPR trading 
program regulations for these emissions from Indiana units (83 FR 
64472). We found that Indiana's trading program is integrated with and 
is substantively identical to the Federal trading program. Therefore, 
EPA's full approval of Indiana's regional haze SIP, which provides the 
basis of EPA's approval of Indiana's prong 4 elements, relies on the 
State's integrated CSAPR state trading program, not a FIP as commenter 
asserts.

III. What action is EPA taking?

    EPA is taking the following actions: (1) Approving the portion of 
Indiana's November 27, 2017 SIP submittal seeking to change from 
reliance on CAIR to reliance on CSAPR for certain regional haze 
requirements; (2) converting EPA's limited approval/limited disapproval 
of Indiana's January 14, 2011 and March 10, 2011 regional haze SIP to a 
full approval; (3) withdrawing the FIP provisions that address the 
limited disapproval; (4) approving the visibility prong of Indiana's 
infrastructure SIP submittals for the 2012 and 2006 PM2.5, 
2010 NO2, and 2010 SO2 NAAQS; and (5) converting 
EPA's disapproval of the visibility portion of Indiana's infrastructure 
SIP submittal for the 2008 ozone NAAQS to an approval.

IV. Statutory and Executive Order Reviews

A. Executive Orders 12866 and 13563: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is an Executive Order 13771 regulatory action because 
this action is not significant under Executive Order 12866.

C. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. This 
action will not impose any requirements on small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. This action does not impose additional requirements 
beyond those imposed by state law. Accordingly, no additional costs to 
State, local, or tribal governments, or to the private sector, will 
result from this action.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175. It will not have substantial direct effects on 
tribal governments. There are no Indian reservation lands in Indiana. 
Thus, Executive Order 13175 does not apply to this rule.

H. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it does not concern an environmental 
health risk or safety risk.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards. Therefore, 
the EPA is not considering the use of any voluntary consensus 
standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations, and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

L. Determination Under Section 307(d)

    Pursuant to CAA section 307(d)(1)(B), this action is subject to the 
requirements of CAA section 307(d), as it revises a FIP under CAA 
section 110(c).

M. Congressional Review Act

    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).

N. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 5, 2019. 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

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shall not postpone the effectiveness of such rule or action. This 
action may not be challenged later in proceedings to enforce its 
requirements. See CAA 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, Regional haze, Reporting and recordkeeping requirements, Sulfur 
oxides, Visibility, Volatile organic compounds.

    Dated: August 28, 2019.
Andrew R. Wheeler,
EPA Administrator.

    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. In Sec.  52.770, the table in paragraph (e) is amended by revising 
the entries for ``Regional Haze Plan,'' ``Section 110(a)(2) 
Infrastructure Requirements for the 2006 24-Hour PM2.5 
NAAQS,'' ``Section 110(a)(2) Infrastructure Requirements for the 2008 
8-Hour Ozone NAAQS,'' ``Section 110(a)(2) Infrastructure Requirements 
for the 2010 NO2 NAAQS,'' ``Section 110(a)(2) Infrastructure 
Requirements for the 2010 SO2 NAAQS,'' and ``Section 
110(a)(2)(D) Infrastructure Requirements for the 2012 PM2.5 
NAAQS'' to read as follows:


Sec.  52.770  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
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                Title                        Indiana date             EPA approval             Explanation
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                                                  * * * * * * *
Regional Haze Plan...................  11/27/2017.............  9/6/2019, [Insert        Full Approval.
                                                                 Federal Register
                                                                 citation].
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure       10/20/2009, 6/25/2012,   9/6/2019, [Insert        Full Approval.
 Requirements for the 2006 24-Hour      7/12/2012, 5/22/2013,    Federal Register
 PM2.5 NAAQS.                           and 11/27/2017.          citation].
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure       12/12/2011 and 11/27/    9/6/2019, [Insert        Full Approval.
 Requirements for the 2008 8-Hour       2017.                    Federal Register
 Ozone NAAQS.                                                    citation].
Section 110(a)(2) Infrastructure       1/15/2013 and 11/27/     9/6/2019, [Insert        Full Approval.
 Requirements for the 2010 NO2 NAAQS.   2017.                    Federal Register
                                                                 citation].
Section 110(a)(2) Infrastructure       5/22/2013 and 11/27/     9/6/2019, [Insert        All elements have been
 Requirements for the 2010 SO2 NAAQS.   2017.                    Federal Register         addressed except:
                                                                 citation].               110(a)(2)(D)(i)(I).
Section 110(a)(2)(D) Infrastructure    6/10/2016 and 11/27/     9/6/2019, [Insert        All elements have been
 Requirements for the 2012 PM2.5        2017.                    Federal Register         addressed except:
 NAAQS.                                                          citation].               110(a)(2)(D)(i)(I).
 
                                                  * * * * * * *
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[FR Doc. 2019-19189 Filed 9-5-19; 8:45 am]
 BILLING CODE 6560-50-P