Approval and Promulgation of Air Quality Implementation Plans; Indiana; Clean Air Interstate Rule, 72956-72963 [2010-29788]
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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 January 28, 2011.
IV. Statutory and Executive Order
Reviews
Under the Clean Air Act (CAA), the
Administrator is required to approve a
SIP submission that complies with the
provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k);
40 CFR 52.02(a). Thus, in reviewing SIP
submissions, EPA’s role is to approve
State choices, provided that they meet
the criteria of the CAA. Accordingly,
this action merely approves State law as
meeting Federal requirements and does
not impose additional requirements
beyond those imposed by State law. For
that reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
• Is certified as not having a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.);
• Does not contain any unfunded
mandate or significantly or uniquely
affect small governments, as described
in the Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4);
• Does not have Federalism
implications as specified in Executive
Order 13132 (64 FR 43255, August 10,
1999);
• Is not an economically significant
regulatory action based on health or
safety risks subject to Executive Order
13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action
subject to Executive Order 13211 (66 FR
28355, May 22, 2001);
• Is not subject to requirements of
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) because
application of those requirements would
be inconsistent with the 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).
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In addition, this rule does not have
Tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
costs on Tribal governments or preempt
Tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by January 28, 2011. 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,
Ozone, Reporting and recordkeeping
requirements, Volatile organic
compounds.
Dated: November 15, 2010.
Susan Hedman,
Regional Administrator, Region 5.
■
40 CFR part 52 is amended as follows:
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PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart KK—Ohio
2. Section 52.1885 is amended by
adding paragraph (ff)(11) to read as
follows:
§ 52.1885
Control strategy: Ozone.
*
*
*
*
*
(ff) * * *
(11) Approval—On July 6, 2010, the
Ohio Environmental Protection Agency
submitted a request to revise the
maintenance plan for the Ohio portion
of the Cincinnati-Hamilton, OH–KY–IN
8-hour ozone area. The submittal revises
2015 and 2020 NOX point source
emissions projections for Butler County.
*
*
*
*
*
[FR Doc. 2010–29784 Filed 11–26–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2009–0515; FRL–9232–3]
Approval and Promulgation of Air
Quality Implementation Plans; Indiana;
Clean Air Interstate Rule
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
EPA is taking direct final
action to approve a request submitted by
the Indiana Department of
Environmental Management (IDEM) on
June 29, 2009, to revise the Indiana
State Implementation Plan (SIP) under
the Clean Air Act (CAA). The State has
submitted amendments to the Indiana
Administrative Code (IAC), which
supplement Indiana’s Clean Air
Interstate Rule (CAIR), for which EPA
granted limited approval as an
abbreviated SIP on October 22, 2007.
The abbreviated SIP was to be
implemented in conjunction with a
Federal Implementation Plan (FIP) that
specified requirements for emissions
monitoring, permit provisions, and
other elements of CAIR programs. The
State’s June 29, 2009, submittal includes
elements that EPA deems necessary in
order for EPA to fully approve Indiana’s
CAIR SIP. This will allow a transition
from an abbreviated SIP with limited
approval to a full SIP with full approval
under which the various CAIR
implementation provisions would be
governed by State rules rather than FIP
SUMMARY:
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rules. This action results in the
withdrawal of the Indiana CAIR FIP
concerning sulfur dioxide (SO2),
nitrogen oxides (NOX) annual, and NOX
ozone season emissions.
DATES: This direct final will be effective
January 28, 2011, unless EPA receives
adverse comments by December 29,
2010. 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–2009–0515, by one of the
following methods:
1. https://www.regulations.gov: Follow
the on-line instructions for submitting
comments.
2. E-mail: mooney.john@epa.gov.
3. Fax: (312) 692–2551.
4. Mail: John M. Mooney, Chief,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
U.S. Environmental Protection Agency,
77 West Jackson Boulevard, Chicago,
Illinois 60604.
5. Hand Delivery: John M. Mooney,
Chief, Attainment Planning and
Maintenance Section, Air Programs
Branch (AR–18J), U.S. Environmental
Protection Agency, 77 West Jackson
Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted
during the Regional Office normal hours
of operation, and special arrangements
should be made for deliveries of boxed
information. The Regional Office official
hours of business are Monday through
Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to
Docket ID No. EPA–R05–OAR–2009–
0515. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
www.regulations.gov, including any
personal information provided, unless
the comment includes information
claimed to be Confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov your e-mail
address will be automatically captured
and included as part of the comment
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that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI 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 https://
www.regulations.gov or in hard copy at
the Environmental Protection Agency,
Region 5, Air and Radiation Division, 77
West Jackson Boulevard, Chicago,
Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding Federal holidays. We
recommend that you telephone Andy
Chang, Environmental Engineer, at (312)
886–0258 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT:
Andy Chang, Environmental Engineer,
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) 886–0258,
chang.andy@epa.gov.
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 action is EPA taking?
II. What is the regulatory history of CAIR and
CAIR FIPs?
III. What are the general requirements of
CAIR and CAIR FIPs?
IV. What are the types of CAIR SIP
submittals?
V. Analysis of Indiana’s CAIR SIP submittals
A. What is the history of the State’s
submittals?
B. State Budgets for Allowance Allocations
C. CAIR Cap-and-Trade Programs
D. Applicability Provisions
E. Individual Opt-in Units
F. Deficiencies in the State’s February 28,
2007, Submittal and the State’s
Subsequent Responses
G. Federal Definition of ‘‘Biomass’’ in
Reference to ‘‘Cogeneration Unit’’
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H. The State’s Complete CAIR Regulations
I. NOX Reduction Program for Specific
Source Categories—Applicability
J. Sunset Provision
VI. Final Action
VII. Statutory and Executive Order Reviews
I. What action is EPA taking?
In this rulemaking EPA is fully
approving Indiana’s CAIR SIP,
including the State’s June 29, 2009,
submittal. This will allow a transition
from an abbreviated SIP with limited
approval to a full SIP with full approval
under which the various CAIR
implementation provisions would be
governed by State rules rather than FIP
rules. This action causes the CAIR FIPs
concerning SO2, NOX annual, and NOX
ozone season emissions by Indiana
sources to be automatically withdrawn.
II. What is the regulatory history of
CAIR and CAIR FIPs?
EPA published CAIR on May 12, 2005
(70 FR 25162). In that rule, EPA
determined that 28 States and the
District of Columbia contribute
significantly to nonattainment and
interfere with maintenance of the
National Ambient Air Quality Standards
(NAAQS) for fine particles (PM2.5) and/
or 8-hour ozone in downwind States in
the eastern part of the country. As a
result, EPA required those upwind
States to revise their SIPs to include
control measures that reduce emissions
of SO2, which is a precursor to PM2.5
formation, and/or NOX, which is a
precursor to both ozone and PM2.5
formation. For jurisdictions that
contribute significantly to downwind
PM2.5 nonattainment, CAIR sets annual
State-wide emission reduction
requirements (i.e., budgets) for SO2 and
NOX. Similarly, for jurisdictions that
contribute significantly to 8-hour ozone
nonattainment, CAIR sets State-wide
emission budgets for NOX for the ozone
season (May 1st to September 30th).
Under CAIR, States may implement
these reduction requirements by
participating in the EPA-administered
cap-and-trade programs or by adopting
any other control measures.
CAIR establishes requirements that
must be included in SIPs to address the
requirements of section 110(a)(2)(D) of
the CAA with regard to interstate
transport for ozone and PM2.5. On April
25, 2005 (70 FR 21147), EPA made
national findings that the States had
failed to submit SIPs meeting the
requirements of section 110(a)(2)(D).
The SIPs were due in July 2000, 3 years
after the promulgation of the 8-hour
ozone and PM2.5 NAAQS. These
findings started a 2-year clock for EPA
to promulgate a FIP to address the
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requirements of section 110(a)(2)(D).
Under section 110(c)(1) of the CAA,
EPA may issue a FIP anytime after such
findings are made, and must do so
within two years unless EPA has
approved a SIP revision correcting the
deficiency before the FIP is
promulgated.
On April 28, 2006, EPA promulgated
FIPs for all States covered by CAIR to
ensure that the emissions reductions
required by CAIR would be achieved on
schedule. The CAIR FIPs required
electric generating units (EGUs) to
participate in the EPA-administered
CAIR SO2, NOX annual, and NOX ozone
season trading programs, as appropriate.
The CAIR FIP trading programs impose
essentially the same requirements as,
and are integrated with, the respective
CAIR SIP trading programs. The
integration of the FIP and SIP trading
programs was meant to create a single
trading program for each regulated
pollutant (SO2, NOX annual, and NOX
ozone season) in all States covered by
CAIR FIP or SIP trading programs for
that pollutant. Further, as provided in a
rule published by EPA on November 2,
2007 (72 FR 62338), a State’s CAIR FIP
is automatically withdrawn when EPA
approves a SIP revision as fully meeting
the requirements of CAIR. Where only
portions of the SIP revision are
approved, the corresponding portions of
the FIPs are automatically withdrawn
and the remaining portions of the FIP
stay in place. Finally, the CAIR FIPs
also allow States to submit abbreviated
SIP revisions that, if approved by EPA,
automatically replace or supplement
certain CAIR FIP provisions (e.g., the
methodology for allocating NOX
allowances to sources in the State),
while the CAIR FIP remains in place for
all other provisions. Therefore, because
Indiana only had an abbreviated CAIR
SIP in place prior to today’s rulemaking,
there were also elements of CAIR FIPs
in effect.
On October 19, 2007 (72 FR 59190),
EPA amended CAIR and CAIR FIPs to
clarify the definition of ‘‘cogeneration
unit’’ and, thus, the applicability of the
CAIR trading program to cogeneration
units.
EPA was sued by a number of parties
on various aspects of CAIR, and on July
11, 2008, the U.S. Court of Appeals for
the District of Columbia Circuit issued
its decision to vacate and remand both
CAIR and the associated CAIR FIPs in
their entirety. North Carolina v. EPA,
531 F.3d 836 (DC Cir. 2008). However,
in response to EPA’s petition for
rehearing, the Court issued an order
remanding CAIR to EPA without
vacating either CAIR or the CAIR FIPs.
North Carolina v. EPA, 550 F.3d 1176
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(DC Cir. 2008). The Court thereby left
CAIR in place in order to ‘‘temporarily
preserve the environmental values
covered by CAIR’’ until EPA replaces it
with a rule consistent with the Court’s
opinion. Id. at 1178. The Court directed
EPA to ‘‘remedy CAIR’s flaws’’
consistent with its July 11, 2008,
opinion, but declined to impose a
schedule on EPA for completing that
action. Id.
III. What are the general requirements
of CAIR and CAIR FIPs?
CAIR, which establishes statewide
emission budgets for SO2 and NOX, is to
be implemented in two phases. The first
phase of NOX reductions starts in 2009
and continues through 2014, while the
first phase of SO2 reductions starts in
2010 and continues through 2014. The
second phase of reductions for both
NOX and SO2 starts in 2015 and
continues thereafter. CAIR requires
States to implement the budgets by
either: (1) Requiring EGUs to participate
in the EPA-administered cap-and-trade
programs; or (2) adopting other control
measures of the States’ choosing and
demonstrating that such control
measures will result in compliance with
the applicable State SO2 and NOX
budgets. The May 12, 2005, and April
28, 2006, CAIR provides model rules
that States must adopt (with certain
limited changes, if desired) if they want
to participate in the EPA-administered
trading programs. With two exceptions,
only States that choose to meet the
requirements of CAIR through methods
that exclusively regulate EGUs are
allowed to participate in the EPAadministered trading programs. One
exception is for States that adopt the
opt-in provisions of the model rules to
allow non-EGUs individually to opt into
the EPA-administered trading programs.
The other exception is for each State to
include all non-EGUs from its respective
NOX Budget Trading Program into its
respective CAIR NOX Ozone Season
Trading Program.
IV. What are the types of CAIR SIP
submittals?
States have the flexibility to choose
the type of control measures they will
use to meet the requirements of CAIR.
As EPA anticipated, most States have
chosen to meet the CAIR requirements
by selecting an option that requires
EGUs to participate in the EPAadministered CAIR cap-and-trade
programs. For such States, EPA has
provided two approaches for submitting
and obtaining approval for CAIR SIP
revisions. States may submit full SIP
revisions that adopt the model CAIR
cap-and-trade rules. If approved, these
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SIP revisions will fully replace the CAIR
FIPs. Alternatively, States may submit
abbreviated SIP revisions. These SIP
revisions will not replace the CAIR FIPs;
however, the CAIR FIPs provide that,
when approved, the provisions in these
abbreviated SIP revisions will be used
instead of or in conjunction with, as
appropriate, the corresponding
provisions of the CAIR FIPs (e.g., the
NOX allowance allocation
methodology).
A State submitting a full SIP revision
may either adopt regulations that are
substantively identical to the model
rules or incorporate by reference the
model rules. CAIR provides that States
may only make limited changes to the
model rules if the States want to
participate in the EPA-administered
trading programs. A full SIP revision
may change the model rules only by
altering their applicability and
allowance allocation provisions to:
1. Include all NOX Budget trading
sources that are not EGUs under CAIR
in the CAIR NOX Ozone Season Trading
Program;
2. Provide for State allocation of NOX
annual or ozone season allowances
using a methodology chosen by the
State;
3. Provide for State allocation of NOX
annual allowances from the compliance
supplement pool (CSP) using the State’s
choice of allowed, alternative
methodologies; or
4. Allow units that are not otherwise
CAIR units to opt individually into the
CAIR SO2, NOX Annual, or NOX Ozone
Season Trading Programs under the optin provisions in the model rules.
An approved CAIR SIP revision
addressing EGUs’ SO2, NOX annual, or
NOX ozone season emissions will
replace the CAIR FIP for that State for
the respective EGU emissions. As
discussed above, once EPA has
approved a CAIR SIP submission in full,
without any conditions, the CAIR FIP is
automatically withdrawn. See 72 FR
62338.
V. Analysis of Indiana’s CAIR SIP
submittals
A. What is the history of the State’s
submittals?
IDEM submitted the State’s rules to
address CAIR requirements on February
28, 2007, for incorporation into the SIP.
On September 20, 2007, Indiana
submitted a letter to EPA requesting that
EPA act only on a portion of the
February 28, 2007 submittal.
Consequently, on October 22, 2007 (72
FR 59480) EPA gave a limited approval
to portions of the February 28, 2007
submittal as an abbreviated SIP revision
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which addressed the applicability
provisions for the NOX ozone season
trading program and supporting
definitions and terms, the methodology
to be used to allocate annual and ozone
season NOX allowances and supporting
definitions and terms, the CSP
provisions for the NOX annual trading
program, and provisions for SO2 and
NOX opt-in units, all under the CAIR
FIP. EPA found several minor
deficiencies in the February 28, 2007,
submittal, as indentified in a technical
support document that accompanied the
October 22, 2007, limited approval. The
State’s June 29, 2009, submittal
sufficiently addresses these deficiencies.
On October 19, 2007, EPA revised the
definition of ‘‘cogeneration unit’’ (72 FR
59190). Particularly of note, the term
‘‘biomass’’ was added so that
cogeneration units could exclude
biomass energy input in efficiency
calculations. IDEM has made
corresponding and appropriate changes
that adopt the Federal definition of
‘‘cogeneration unit’’ and ‘‘biomass’’ in its
June 29, 2009, submittal. Indiana’s
budget and allowance allocation
methodologies for CAIR trading
programs were also included in the June
29, 2009, submittal. The amended rules
became effective State-wide on June 11,
2009, and an in-depth analysis of the
June 29, 2009, submittal follows below.
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B. State Budgets for Allowance
Allocations
In today’s action, EPA is reaffirming
its approval of Indiana’s SIP revision
adopting the budgets established for the
State (by EPA) in CAIR in its October
22, 2007 limited approval.
In North Carolina, the Court
determined, among other things, that
the State SO2 and NOX budgets
established in CAIR were arbitrary and
capricious.1 However, as discussed
above, the Court also decided to remand
CAIR but to leave the rule in place in
order to ‘‘temporarily preserve the
environmental values covered by CAIR’’
pending EPA’s development and
promulgation of a replacement rule that
‘‘remedies CAIR’s flaws.’’ North
Carolina, at 1178. EPA had indicated to
the Court that development and
promulgation of a replacement rule
would take about two years. Reply in
1 The Court also determined that the CAIR trading
programs were unlawful (id. at 906–8) and that the
treatment of title IV allowances in CAIR was
unlawful (id. at 921–23). For the same reason that
EPA is approving the provisions of Indiana’s SIP
revision that use the SO2 and NOX budgets set in
CAIR, EPA is also approving, as discussed below,
Indiana’s SIP revision to the extend the SIP revision
adopts the CAIR trading programs, including the
provisions addressing applicability, allowance
allocations, and the use of title IV allowances.
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Support of Petition for Rehearing or
Rehearing en Banc at 5 (filed Nov. 17,
2008 in North Carolina v. EPA, Case No.
05–1224, DC Cir.). On August 2, 2010
(75 FR 45210), EPA proposed FIPs to
Reduce Interstate Transport of Fine
Particulate Matter and Ozone to replace
CAIR; however, that rule is not yet final.
In the meantime, consistent with the
Court’s orders, EPA is implementing
CAIR by approving State SIP revisions
that are consistent with CAIR (such as
the provisions setting State SO2 and
NOX budgets for the CAIR trading
programs) in order to ‘‘temporarily
preserve’’ the environmental benefits
achievable under the CAIR trading
programs.
C. CAIR Cap-and-Trade Programs
The CAIR NOX annual and ozone
season model trading rules both largely
mirror the structure of the NOX Budget
model trading rule in 40 CFR Part 96,
subparts A through I. While the
provisions of the NOX annual and ozone
season model rules are similar, there are
some differences. For example, the NOX
annual model rule (but not the NOX
ozone season model rule) provides for a
CSP, which is discussed below and
under which allowances may be
awarded for early reductions of NOX
annual emissions. As a further example,
the NOX ozone season model rule
reflects the fact that the CAIR NOX
Ozone Season Trading Program replaces
the NOX Budget Trading Program after
the 2008 ozone season and is
coordinated with the NOX SIP Call
program. The NOX ozone season model
rule provides incentives for early
emissions reductions by allowing
banked, pre-2009 NOX Budget Trading
Program allowances to be used for
compliance in the CAIR NOX ozone
season trading program. In addition,
States have the option of continuing to
meet their NOX SIP Call requirements
by participating in the CAIR NOX Ozone
Season Trading Program and including
all their NOX Budget trading sources in
that program.
The provisions of the CAIR SO2
model rule are also similar to the
provisions of the NOX annual and ozone
season model rules. However, since
CAA title IV establishes an ongoing
Acid Rain cap-and-trade program for
SO2 and not for NOx, the model rule for
SO2 must additionally be coordinated
with the Acid Rain Program. The SO2
model rule uses the title IV allowances
for compliance, with each allowance
allocated for 2010–2014 authorizing
only 0.50 ton of emissions and each
allowance allocated for 2015 and
thereafter authorizing only 0.35 ton of
emissions. Banked title IV allowances
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allocated for years before 2010 can be
used at any time in the CAIR SO2 capand-trade program, with each such
allowance authorizing one ton of
emissions. Title IV allowances are to be
freely transferable among sources
covered by the Acid Rain Program and
sources covered by the CAIR SO2 capand-trade program.
EPA used the CAIR model trading
rules as the basis for the trading
programs in the CAIR FIPs. The CAIR
FIP trading rules are virtually identical
to the CAIR model trading rules, with
changes made to account for Federal
rather than State implementation. The
CAIR model SO2, NOX annual, and NOX
ozone season trading rules and the
respective CAIR FIP trading rules are
designed to work together as integrated
SO2, NOX annual, and NOX ozone
season trading programs.
In the SIP revision EPA is approving,
Indiana has chosen to implement its
CAIR budgets by requiring EGUs to
participate in EPA-administered capand-trade programs for SO2, NOX
annual, and NOX ozone season
emissions. Indiana has adopted State
rules for a full SIP revision that adopts,
with certain allowed changes discussed
below, the CAIR model cap-and-trade
rules for SO2, NOX annual, and NOX
ozone season emissions. Finally,
Indiana’s rules provide that non-EGUs
that were required to participate in the
NOX Budget Trading Program must
participate in the CAIR NOX Ozone
Season Trading Program.
D. Applicability Provisions
In general, the CAIR model trading
rules apply to any stationary, fossil-fuelfired boiler or stationary, fossil-fuelfired combustion turbine serving at any
time, since the later of November 15,
1990, or the start-up of the unit’s
combustion chamber, a generator with
nameplate capacity of more than 25
megawatts producing electricity for sale.
States have the option of bringing in,
for the CAIR NOX Ozone Season
Trading Program only, those units in the
State’s NOX Budget Trading Program
that are not EGUs as defined under
CAIR. EPA advises States exercising this
option to add the applicability
provisions in the State’s NOX Budget
trading rule for non-EGUs to the
applicability provisions in 40 CFR
96.304 in order to include in the CAIR
NOX Ozone Season Trading Program all
units required to be in the State’s NOX
Budget Trading Program that are not
already included under 40 CFR 96.304.
Under this option, the CAIR NOX Ozone
Season Trading Program must cover all
large industrial boilers and combustion
turbines, as well as any small EGUs (i.e.,
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mstockstill on DSKB9S0YB1PROD with RULES
units serving a generator with a
nameplate capacity of 25 megawatts or
less) that the State previously required
to be in the NOX Budget Trading
Program. Indiana has chosen to expand
the applicability provisions of the CAIR
NOX Ozone Season Trading Program to
include all non-EGUs that were subject
to the State’s NOX Budget Trading
Program. Indiana’s February 28, 2007,
abbreviated SIP submittal did not
include (or modify) certain definitions
that are necessary in order to expand the
CAIR NOX Ozone applicability to all
NOX Budget Trading units. Indiana’s
June 29, 2009, submittal includes these
definitions and modifications. These
definitions are part of today’s approval
and are discussed in more detail under
Section H. (Deficiencies in the State’s
submittal and the State’s subsequent
responses).
E. Individual Opt-in Units
The opt-in provisions of the CAIR SIP
model trading rules allow certain nonEGUs (i.e., boilers, combustion turbines,
and other stationary fossil-fuel-fired
devices) that do not meet the
applicability criteria for a CAIR trading
program to participate voluntarily in
(i.e., opt into) the CAIR trading program.
A non-EGU may opt into one or more
of the CAIR trading programs. In order
to qualify to opt into a CAIR trading
program, a unit must vent all emissions
through a stack and be able to meet
monitoring, recordkeeping, and
recording requirements of 40 CFR part
75. The owners and operators seeking to
include such a unit in a CAIR trading
program must apply for a CAIR opt-in
permit. If the unit is issued a CAIR optin permit, the unit becomes a CAIR unit,
is allocated allowances, and must meet
the same allowance-holding and
emissions monitoring and reporting
requirements as other units subject to
the CAIR trading program. The opt-in
provisions provide for two
methodologies for allocating allowances
for opt-in units, one methodology that
applies to opt-in units in general and a
second methodology that allocates
allowances only to opt-in units that the
owners and operators intend to repower
before January 1, 2015.
States have several options
concerning the opt-in provisions. States
may adopt the CAIR opt-in provisions
entirely or may adopt them but exclude
one of the methodologies for allocating
allowances. States may also decline to
adopt the opt-in provisions at all.
Consistent with this flexibility,
Indiana has chosen to allow non-EGUs
meeting certain requirements to
participate in the CAIR NOX Annual
Trading Program, the CAIR NOX Ozone
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Season Trading Program, and the CAIR
SO2 Trading Program. EPA approved
Indiana’s earlier version of rules
authorizing these opt-ins (72 FR 59480).
The complete set of rules governing
CAIR NOX annual, CAIR SO2, and CAIR
NOX ozone season opt-in units in
Indiana are contained in 326 IAC 24–1–
12, 326 IAC 24–2–11, and 326 IAC 24–
3–12, respectively. Indiana’s June 29,
2009, submittal includes some
modifications to these parts. These
modifications are part of today’s
approval.
F. Deficiencies in the State’s February
28, 2007, Submittal and the State’s
Subsequent Responses
EPA found several deficiencies in
Indiana’s February 28, 2007, submittal
and communicated these deficiencies to
IDEM staff in August and September of
2007. The deficiencies and the State’s
subsequent responses to correct them
are discussed in detail below. All
responses to the deficiencies were
provided in the State’s June 29, 2009,
submittal.
EPA found that Indiana needed to
revise 326 IAC 24–3–1 in the following
manner:
‘‘Indiana needs to revise, in subsection (b),
‘CAIR NOX ozone season units as follows:’ to
read ‘CAIR NOX ozone season units under
subsection 1(a)(1) or (3)’ and revise, in
subsections (b)(1), (2), and (3), ‘under
subsection (a)’ to read ‘under subsection
(a)(1) or (3).’ ’’;
Indiana has made these changes
verbatim; therefore, these deficiencies
have been addressed and EPA
concludes that the revisions to 326 IAC
24–3–1 are approvable.
EPA also found that Indiana needed
to amend 326 IAC 24–3–2 by revising
the definitions of ‘‘commence
operation,’’ ‘‘fossil-fuel-fired,’’ and
‘‘unit.’’
IDEM addressed all of the deficiencies
that EPA identified regarding the terms
‘‘commence operation,’’ ‘‘fossil-fuelfired,’’ and ‘‘unit’’ at 326 IAC 24–3–2
(33), (44), and (80). EPA finds these
revisions approvable.
EPA found that Indiana needed to add
the definition of ‘‘electricity for firm sale
to the electric grid,’’ to read as follows:
‘‘Electricity for firm sale to the electric grid
means electricity for sale where the capacity
involved is intended to be available at all
times during the period covered by a
guaranteed commitment to deliver, even
under adverse conditions.’’
The State has added the following
definition at 326 IAC 24–3–2 (38):
‘‘ ‘Electricity for sale under a firm contract
to the electric grid’ means electricity for sale
where the capacity involved is intended to be
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Sfmt 4700
available at all times during the period
covered by the guaranteed commitment to
deliver, even under adverse conditions.’’
EPA asked IDEM for clarification
concerning the phrase ‘‘for sale under a
firm contract’’ as opposed to the model
language ‘‘for firm sale.’’ On September
25, 2009, IDEM responded that the
language originated in Indiana’s NOX
SIP Call; therefore, all sources subject to
the applicability of the NOX Budget
Trading Program would also be subject
to the applicability of the CAIR NOX
Ozone Season Trading Program.
Because there is no applicability gap for
affected sources, IDEM has addressed
this deficiency. EPA therefore finds that
the addition of the term ‘‘electricity for
sale under a firm contract to the electric
grid’’ to 326 IAC 24–3–2 is approvable.
EPA found that Indiana needed to
revise the definition of ‘‘large affected
unit’’ to add, after clause (B):
‘‘(C) For units other than cogeneration units
commencing operation: (i) Before January 1,
1997, a unit serving a generator during 1995
or 1996 that had a nameplate capacity greater
than twenty-five (25) megawatts and
produced electricity for sale under a firm
contract to the electric grid; (ii) on or after
January 1, 1997, and before January 1, 1999,
a unit serving a generator during 1997 or
1998 that had a nameplate capacity greater
than twenty-five (25) megawatts and
producing electricity for sale under a firm
contract to the electric grid; or (iii) on or after
January 1, 1999, a unit serving a generator at
any time that has a nameplate capacity
greater than twenty-five (25) megawatts and
produces electricity for sale. (D) For
cogeneration units commencing operation: (i)
Before January 1, 1997, a unit serving a
generator during 1995 or 1996 that had a
nameplate capacity greater than twenty-five
(25) megawatts and failing to qualify as an
unaffected unit for 1995 or 1996 under the
acid rain program; (ii) in 1997 or 1998, a unit
serving a generator during 1997 or 1998 with
a nameplate capacity greater than twenty-five
(25) megawatts and failing to qualify as an
unaffected unit for 1997 or 1998 under the
acid rain program; or (iii) on or after January
1, 1999, a unit serving at any time as a
generator with a nameplate capacity greater
than twenty-five (25) megawatts and failing
to qualify as an unaffected unit under the
acid rain program for any year.’’
IDEM has made all the appropriate
changes at 326 IAC 24–3–2 (51) with
minor wording changes, which include
the clarification of the phrase, ‘‘(C) For
units other than cogeneration units that
are not already subject to this rule under
section 1(a)(1) or 1(a)(3) of this rule
commencing operation * * *.’’ and a
phrase at the end of the rule that reads,
‘‘The term does not include a unit
subject to 326 IAC 10–3.’’ At 326 IAC
24–3–2 (51)(C)(iii), Indiana’s rule ends
with, ‘‘for sale under a firm contract to
the electric grid,’’ which differs from the
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model rule which ends with, ‘‘for sale.’’
EPA asked for clarification of the
phrase, ‘‘for sale under a firm contract to
the electric grid.’’ On September 25,
2009, IDEM stated that, although the
language differs slightly, all sources
subject to the NOX Budget Trading
Program would also be subject to the
CAIR NOX Ozone season Trading
Program. Because there is no
applicability gap for affected sources,
and because other revisions Indiana has
made serve to clarify the existing rule,
EPA finds that the revision of the term,
‘‘large affected unit’’ in 326 IAC 24–3–2
is approvable.
mstockstill on DSKB9S0YB1PROD with RULES
G. Federal Definition of ‘‘Biomass’’ in
Reference to ‘‘Cogeneration Unit’’
EPA changed the definition of
‘‘cogeneration unit’’ as it applies to
CAIR, CAIR FIPs, and the CAIR model
cap-and-trade rules in 72 FR 59190.
Specifically, EPA revised the
calculation methodology for the
efficiency standard in the cogeneration
unit definition to exclude energy input
from biomass. At 326 IAC 24–1–2 (8),
326 IAC 24–2–2 (8), and 326 IAC 24–3–
2 (8), Indiana has made this change
verbatim. EPA finds the addition of the
term ‘‘biomass’’ to the SIP approvable.
H. The State’s Complete CAIR
Regulations
As discussed previously, EPA granted
a limited approval to Indiana’s
abbreviated SIP on October 22, 2007.
This action was a result of the State’s
request on September 20, 2007, that
EPA act on a portion of its February 28,
2007, submittal. Consequently, EPA
approved an abbreviated SIP revision
for Indiana which addressed the
applicability provisions for the NOX
ozone season trading programs and
supporting definitions of terms, the
methodology to be used to allocate NOX
annual and ozone season NOX
allowances and supporting definitions
of terms, the CSP provisions for the NOX
annual trading program, and provisions
for SO2 and NOX opt-in units, all under
the CAIR FIP.
The State’s June 29, 2009, submittal
was intended to satisfy requirements
that would allow us to approve
Indiana’s CAIR regulations so as to
transition from an abbreviated SIP with
limited approval to a full SIP with full
approval. Indiana addressed the
deficiencies that EPA found with its
existing CAIR regulations and also
adopted the Federal definition of
‘‘biomass’’ as it pertains to ‘‘cogeneration
unit.’’
However, it was not clear in the June
29, 2009, submittal that IDEM was
requesting full approval of the CAIR
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rules contained in 326 IAC 24–1, 326
IAC 24–2, and 326 IAC 24–3. On
December 9, 2009, IDEM sent a letter to
EPA clarifying that such was its intent.
Therefore, inasmuch as the State has
cured the identified deficiencies and as
such is the State’s intent, we are
approving Indiana’s CAIR regulations in
their entirety for incorporation into the
SIP.
72961
NOX SIP Call requirements will now be
met through the implementation of
CAIR.
VI. Final Action
EPA is approving revisions to
Indiana’s CAIR, which the State
submitted on June 29, 2009. The rules
supplement the State’s original CAIR,
for which EPA promulgated limited
approval on October 22, 2007 (72 FR
I. NOX Reduction Program for Specific
59480). The State has corrected
Source Categories—Applicability
deficiencies in its original CAIR
On February 28, 2007, Indiana also
submittal, and has made appropriate
submitted minor revisions to 326 IAC
revisions that align State and Federal
10–3, ‘‘NOX Reduction Program for
definitions for ‘‘cogeneration unit’’ and
Specific Source Categories.’’ Namely, the ‘‘biomass,’’ as contained in 72 FR 59190.
revisions pertain to the ‘‘Applicability’’
In addition, EPA is approving into the
portion of this rule. The revisions refer
Indiana SIP the remainder of Indiana’s
to 326 IAC 24 and 326 IAC 24–3. The
CAIR regulations upon which we did
reference to 326 IAC 24–3 clarifies that
not previously act. EPA is also
326 IAC 10–3–1 applies to any other
approving the applicability provisions
blast furnace gas fired boilers with a
of Indiana’s NOX Reduction Program for
heat input greater than 250,000,000 Btu
Specific Source Categories, as well as
per hour that is not subject to 326 IAC
the sunset provision from Indiana’s NOX
10–4 or 326 IAC 24–3. As this revision
Budget Trading Program. Lastly, EPA is
ensures that all applicable sources are
approving minor wording, formatting,
covered, EPA finds it approvable. The
and typographical changes contained in
reference to 326 IAC 24 clarifies that the the State’s submittal; since these
monitoring, recordkeeping, and
changes serve to clarify the existing
reporting requirements under section 4
rules or to correct minor errors, EPA
and 5 of 326 IAC 10–3–1 does not apply finds them approvable. With this
to a unit that opts into the NOX Budget
approval, Indiana has transitioned from
Trading Program under 326 IAC 10–4 or an abbreviated CAIR SIP with limited
326 IAC 24. As the State’s CAIR has its
approval to a full SIP with full approval.
own set of monitoring, recordkeeping,
After the effective date of this direct
and reporting requirements, EPA finds
final rule, Indiana will no longer be
this revision to be approvable.
subject to elements of CAIR FIPs. This
action causes the CAIR FIPs with regard
J. Sunset Provision
to sulfur dioxide (SO2), NOX annual,
EPA did not act on 326 IAC 10–4–16,
and NOX ozone season emissions by
‘‘Sunset,’’ when Indiana submitted the
Indiana sources to be automatically
rule as part of its original CAIR package
withdrawn.
on February 28, 2007. We are approving
Specifically, EPA is approving the
this rule into the Indiana SIP today, and
following rules, which were submitted
it reads:
on June 29, 2009: 326 IAC 24–1–2, 326
‘‘Sec. 16. (a) Sections 1 through 15 of this
IAC 24–1–7, 326 IAC 24–1–8, 326 IAC
rule shall not apply to any control period in
24–1–9, 326 IAC 24–1–12, 326 IAC 24–
2009 or thereafter. The 2009 NOX allowances
2–2, 326 IAC 24–2–7, IAC 24–2–8, IAC
allocated under section 9 of this rule remain
24–2–11, IAC 24–3–1, IAC 24–3–2, IAC
in effect for purposes of the Clean Air
24–3–7, IAC 24–3–8, IAC 24–3–9, IAC
Interstate Rule (CAIR) NOX ozone season
trading program in 326 IAC 24–3.
24–3–12. The rules became effective
(b) By December 31, 2008, the department
State-wide on June 11, 2009.
shall allocate any remaining allowances for
EPA is also approving the remainder
the years 2004 through 2008 in the EGU or
of the State’s CAIR regulations, which
large affected unit new unit set-aside or the
were submitted on February 28, 2007.
energy efficiency and renewable energy setThese rules include: 326 IAC 24–1–1,
aside to the relevant existing NOX budget
326 IAC 24–1–3, 326 IAC 24–1–4, 326
units on a pro rata basis. The allowances
from the energy efficiency and renewable
IAC 24–1–5, 326 IAC 24–1–6, 326 IAC
energy set-aside shall be allocated to existing 24–1–10, 326 IAC 24–1–11, 326 IAC 24–
large affected units.’’
2–1, 326 IAC 24–2–3, 326 IAC 24–2–4,
326 IAC 24–2–5, 326 IAC 24–2–6, 326
Approval of the termination of the
NOX Budget Trading Program provision IAC 24–2–9, 326 IAC 24–2–10, 326 IAC
24–3–3, 326 IAC 24–3–4, 326 IAC 24–
ensures that there are no conflicts
3–5, 326 IAC 24–3–6, 326 IAC 24–3–10,
between allocations made under the
and 326 IAC 24–3–11. These rules
NOX Budget Trading Program and
became effective State-wide on February
allocations made under the CAIR NOX
25, 2007.
Ozone Season Trading Program. The
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mstockstill on DSKB9S0YB1PROD with RULES
As previously mentioned, EPA is
further approving revisions submitted
on February 28, 2007, pertaining to the
State’s Nitrogen Oxide Reduction
Program for Specific Source Categories,
Applicability provisions as contained in
326 IAC 10–3–1. This revision was
effective State-wide on February 25,
2007. Lastly, EPA is approving the
sunset provision in their NOX Budget
Trading Program; this specific provision
is contained in 326 IAC 10–4–16. This
rule was submitted on February 28,
2007, and became effective State-wide
on February 25, 2007.
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 January 28, 2011 without
further notice unless we receive relevant
adverse written comments by December
29, 2010. 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. The EPA
will not institute a second comment
period; therefore, any parties interested
in commenting on this action should do
so at this time. If we do not receive any
comments, this action will be effective
January 28, 2011.
VII. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions,
EPA’s role is to approve State choices,
provided that they meet the criteria of
the CAA. Accordingly, this action
merely approves State law as meeting
Federal requirements and does not
impose additional requirements beyond
those imposed by State law. For that
reason, this action:
• Is not a ‘‘significant regulatory
action’’ subject to review by the Office
of Management and Budget under
Executive Order 12866 (58 FR 51735,
October 4, 1993);
• Does not impose an information
collection burden under the provisions
of the Paperwork Reduction Act (44
U.S.C. 3501 et seq.);
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16:19 Nov 26, 2010
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• 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, this rule does not have
Tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because the SIP is
not approved to apply in Indian country
located in the State, and EPA notes that
it will not impose substantial direct
costs on Tribal governments or preempt
Tribal law.
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this action and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by January 28, 2011. Filing a
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Fmt 4700
Sfmt 4700
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, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides.
Dated: November 15, 2010.
Susan Hedman,
Regional Administrator, Region 5.
■
40 CFR part 52 is amended as follows:
PART 52—[AMENDED]
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
Subpart P—Indiana
§ 52.35
[Amended]
2. Section 52.35 is amended by:
a. In paragraph (d)(1), by adding, after
the word ‘‘are:’’, the words ‘‘Indiana,
and’’; and
■ b. In paragraph (d)(2), by adding, after
the words ‘‘chapter, are:’’, the words
‘‘Indiana, and’’.
■
■
§ 52.36
[Amended]
3. Section 52.36 is amended in
paragraph (c) by adding, after the word
‘‘are:’’, the words ‘‘Indiana, and’’.
■ 4. In § 52.770, the table in paragraph
(c) is amended by:
■
a. Revising the entries for Article 10,
sections 10–3 and 10–4.
■ b. Revising the entries for Article 24,
sections 24–1, 24–2 and 24–3.
■ The revisions read as follows:
■
§ 52.770
*
Identification of plan.
*
*
(c) * * *
E:\FR\FM\29NOR1.SGM
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*
*
72963
Federal Register / Vol. 75, No. 228 / Monday, November 29, 2010 / Rules and Regulations
EPA-APPROVED INDIANA REGULATIONS
Indiana
citation
Indiana effective date
Title
*
*
*
EPA approval date
*
*
Notes
*
*
Article 10. Nitrogen Oxides Rules
*
10–3 .........
*
*
Nitrogen Oxide Reduction Program for
Specific Source Categories.
Nitrogen Oxides Budget Trading Program ..
10–4 .........
*
*
*
*
02/25/2007
02/25/2007
*
*
11/29/2010, [Insert page number where the
document begins].
11/29/2010, [Insert page number where the
document begins].
*
*
*
Sec. 1.
Sec. 16.
*
*
Article 24. Trading Programs: Nitrogen Oxides (NOX) and Sulfur Dioxide (SO2)
*
*
24–1 .........
*
*
Clean Air Interstate Rule Nitrogen Oxides
Annual Trading Program.
*
02/25/2007
06/11/2009
24–2 .........
Clean Air Interstate Rule (CAIR) Sulfur Dioxide Trading Program.
02/25/2007
06/11/2009
24–3 .........
Clean Air Interstate Rule (CAIR) NOX
Ozone Season Trading Program.
02/25/2007
06/11/2009
*
*
§ 52.789
■
*
*
[Removed]
5. Section 52.789 is removed.
§ 52.790
■
*
[Removed]
6. Section 52.790 is removed.
[FR Doc. 2010–29788 Filed 11–26–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2010–0594; FRL–9231–9]
mstockstill on DSKB9S0YB1PROD with RULES
Approval and Promulgation of Air
Quality Implementation Plans;
Maryland; Control of Volatile Organic
Compound Emissions From Industrial
Solvent Cleaning Operations;
Withdrawal of Direct Final Rule
Environmental Protection
Agency (EPA).
ACTION: Withdrawal of direct final rule.
AGENCY:
Due to an adverse comment,
EPA is withdrawing the direct final rule
to approve revisions to Maryland’s State
SUMMARY:
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18:15 Nov 26, 2010
Jkt 223001
11/29/2010, [Insert page
document begins].
11/29/2010, [Insert page
document begins].
11/29/2010, [Insert page
document begins].
11/29/2010, [Insert page
document begins].
11/29/2010, [Insert page
document begins].
11/29/2010, [Insert page
document begins].
Implementation Plan (SIP). This SIP
revision consists of an addition to
Maryland’s Volatile Organic
Compounds from Specific Processes
Regulation. Maryland Department of the
Environment (MDE) adopted standards
for industrial solvent cleaning
operations that satisfy the reasonably
available control technology (RACT)
requirements for sources of volatile
organic compounds (VOCs) covered by
control techniques guidelines (CTG). In
the direct final rule published on
September 29, 2010 (75 FR 59973), we
stated that if we received any adverse
comments by October 29, 2010, the rule
would be withdrawn and would not
take effect. EPA received an adverse
comment within the comment period.
EPA will address the comment received
in a subsequent final action based upon
the proposed action also published on
September 29, 2010 (75 FR 60013). EPA
will not institute a second comment
period on this action.
DATES: The direct final rule published at
75 FR 59973, September 29, 2010, is
withdrawn as of November 29, 2010.
ADDRESSES: EPA has established docket
number EPA–R03–OAR–2010–0594 for
PO 00000
Frm 00029
Fmt 4700
*
Sfmt 4700
number where the
number where the
number where the
number where the
number where the
number where the
*
Sec. 1, 3, 4, 5, 6, 10,
11.
Sec. 2, 7, 8, 9, 12.
Sec. 1, 3, 4, 5, 6, 9,
10.
Sec. 2, 7, 8, 11.
Sec. 3, 4, 5, 6, 10,
11.
Sec. 1, 2, 7, 8, 9, 12.
this action. The index to the docket is
available electronically at https://
www.regulations.gov and in hard copy
at Air Protection Division, U.S.
Environmental Protection Agency,
Region III, 1650 Arch Street,
Philadelphia, Pennsylvania 19103.
FOR FURTHER INFORMATION CONTACT:
Jacqueline Lewis, (215) 814–2037, or by
e-mail at lewis.jacqueline@epa.gov.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Ozone, Reporting and
recordkeeping requirements, Volatile
organic compounds.
Dated: November 16, 2010.
W.C. Early,
Acting, Regional Administrator, Region III.
Accordingly, the amendment to the
table in 40 CFR 52.1070(c), published
on September 29, 2010 (75 FR 59973) on
page 59975 is withdrawn as of
November 29, 2010.
■
[FR Doc. 2010–29815 Filed 11–26–10; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\29NOR1.SGM
29NOR1
]]>Agencies
[Federal Register Volume 75, Number 228 (Monday, November 29, 2010)]
[Rules and Regulations]
[Pages 72956-72963]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-29788]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2009-0515; FRL-9232-3]
Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Clean Air Interstate Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to approve a request
submitted by the Indiana Department of Environmental Management (IDEM)
on June 29, 2009, to revise the Indiana State Implementation Plan (SIP)
under the Clean Air Act (CAA). The State has submitted amendments to
the Indiana Administrative Code (IAC), which supplement Indiana's Clean
Air Interstate Rule (CAIR), for which EPA granted limited approval as
an abbreviated SIP on October 22, 2007. The abbreviated SIP was to be
implemented in conjunction with a Federal Implementation Plan (FIP)
that specified requirements for emissions monitoring, permit
provisions, and other elements of CAIR programs. The State's June 29,
2009, submittal includes elements that EPA deems necessary in order for
EPA to fully approve Indiana's CAIR SIP. This will allow a transition
from an abbreviated SIP with limited approval to a full SIP with full
approval under which the various CAIR implementation provisions would
be governed by State rules rather than FIP
[[Page 72957]]
rules. This action results in the withdrawal of the Indiana CAIR FIP
concerning sulfur dioxide (SO2), nitrogen oxides
(NOX) annual, and NOX ozone season emissions.
DATES: This direct final will be effective January 28, 2011, unless EPA
receives adverse comments by December 29, 2010. 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-2009-0515, by one of the following methods:
1. https://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: mooney.john@epa.gov.
3. Fax: (312) 692-2551.
4. Mail: John M. Mooney, Chief, Attainment Planning and Maintenance
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
5. Hand Delivery: John M. Mooney, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
Such deliveries are only accepted during the Regional Office normal
hours of operation, and special arrangements should be made for
deliveries of boxed information. The Regional Office official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2009-0515. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
https://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through https://www.regulations.gov or e-mail. The https://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through https://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses.
Docket: All documents in the docket are listed in the https://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI 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 https://www.regulations.gov or in hard copy at the Environmental
Protection Agency, Region 5, Air and Radiation Division, 77 West
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal
holidays. We recommend that you telephone Andy Chang, Environmental
Engineer, at (312) 886-0258 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Andy Chang, Environmental Engineer,
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) 886-0258, chang.andy@epa.gov.
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 action is EPA taking?
II. What is the regulatory history of CAIR and CAIR FIPs?
III. What are the general requirements of CAIR and CAIR FIPs?
IV. What are the types of CAIR SIP submittals?
V. Analysis of Indiana's CAIR SIP submittals
A. What is the history of the State's submittals?
B. State Budgets for Allowance Allocations
C. CAIR Cap-and-Trade Programs
D. Applicability Provisions
E. Individual Opt-in Units
F. Deficiencies in the State's February 28, 2007, Submittal and
the State's Subsequent Responses
G. Federal Definition of ``Biomass'' in Reference to
``Cogeneration Unit''
H. The State's Complete CAIR Regulations
I. NOX Reduction Program for Specific Source
Categories--Applicability
J. Sunset Provision
VI. Final Action
VII. Statutory and Executive Order Reviews
I. What action is EPA taking?
In this rulemaking EPA is fully approving Indiana's CAIR SIP,
including the State's June 29, 2009, submittal. This will allow a
transition from an abbreviated SIP with limited approval to a full SIP
with full approval under which the various CAIR implementation
provisions would be governed by State rules rather than FIP rules. This
action causes the CAIR FIPs concerning SO2, NOX
annual, and NOX ozone season emissions by Indiana sources to
be automatically withdrawn.
II. What is the regulatory history of CAIR and CAIR FIPs?
EPA published CAIR on May 12, 2005 (70 FR 25162). In that rule, EPA
determined that 28 States and the District of Columbia contribute
significantly to nonattainment and interfere with maintenance of the
National Ambient Air Quality Standards (NAAQS) for fine particles
(PM2.5) and/or 8-hour ozone in downwind States in the
eastern part of the country. As a result, EPA required those upwind
States to revise their SIPs to include control measures that reduce
emissions of SO2, which is a precursor to PM2.5
formation, and/or NOX, which is a precursor to both ozone
and PM2.5 formation. For jurisdictions that contribute
significantly to downwind PM2.5 nonattainment, CAIR sets
annual State-wide emission reduction requirements (i.e., budgets) for
SO2 and NOX. Similarly, for jurisdictions that
contribute significantly to 8-hour ozone nonattainment, CAIR sets
State-wide emission budgets for NOX for the ozone season
(May 1st to September 30th). Under CAIR, States may implement these
reduction requirements by participating in the EPA-administered cap-
and-trade programs or by adopting any other control measures.
CAIR establishes requirements that must be included in SIPs to
address the requirements of section 110(a)(2)(D) of the CAA with regard
to interstate transport for ozone and PM2.5. On April 25,
2005 (70 FR 21147), EPA made national findings that the States had
failed to submit SIPs meeting the requirements of section 110(a)(2)(D).
The SIPs were due in July 2000, 3 years after the promulgation of the
8-hour ozone and PM2.5 NAAQS. These findings started a 2-
year clock for EPA to promulgate a FIP to address the
[[Page 72958]]
requirements of section 110(a)(2)(D). Under section 110(c)(1) of the
CAA, EPA may issue a FIP anytime after such findings are made, and must
do so within two years unless EPA has approved a SIP revision
correcting the deficiency before the FIP is promulgated.
On April 28, 2006, EPA promulgated FIPs for all States covered by
CAIR to ensure that the emissions reductions required by CAIR would be
achieved on schedule. The CAIR FIPs required electric generating units
(EGUs) to participate in the EPA-administered CAIR SO2,
NOX annual, and NOX ozone season trading
programs, as appropriate. The CAIR FIP trading programs impose
essentially the same requirements as, and are integrated with, the
respective CAIR SIP trading programs. The integration of the FIP and
SIP trading programs was meant to create a single trading program for
each regulated pollutant (SO2, NOX annual, and
NOX ozone season) in all States covered by CAIR FIP or SIP
trading programs for that pollutant. Further, as provided in a rule
published by EPA on November 2, 2007 (72 FR 62338), a State's CAIR FIP
is automatically withdrawn when EPA approves a SIP revision as fully
meeting the requirements of CAIR. Where only portions of the SIP
revision are approved, the corresponding portions of the FIPs are
automatically withdrawn and the remaining portions of the FIP stay in
place. Finally, the CAIR FIPs also allow States to submit abbreviated
SIP revisions that, if approved by EPA, automatically replace or
supplement certain CAIR FIP provisions (e.g., the methodology for
allocating NOX allowances to sources in the State), while
the CAIR FIP remains in place for all other provisions. Therefore,
because Indiana only had an abbreviated CAIR SIP in place prior to
today's rulemaking, there were also elements of CAIR FIPs in effect.
On October 19, 2007 (72 FR 59190), EPA amended CAIR and CAIR FIPs
to clarify the definition of ``cogeneration unit'' and, thus, the
applicability of the CAIR trading program to cogeneration units.
EPA was sued by a number of parties on various aspects of CAIR, and
on July 11, 2008, the U.S. Court of Appeals for the District of
Columbia Circuit issued its decision to vacate and remand both CAIR and
the associated CAIR FIPs in their entirety. North Carolina v. EPA, 531
F.3d 836 (DC Cir. 2008). However, in response to EPA's petition for
rehearing, the Court issued an order remanding CAIR to EPA without
vacating either CAIR or the CAIR FIPs. North Carolina v. EPA, 550 F.3d
1176 (DC Cir. 2008). The Court thereby left CAIR in place in order to
``temporarily preserve the environmental values covered by CAIR'' until
EPA replaces it with a rule consistent with the Court's opinion. Id. at
1178. The Court directed EPA to ``remedy CAIR's flaws'' consistent with
its July 11, 2008, opinion, but declined to impose a schedule on EPA
for completing that action. Id.
III. What are the general requirements of CAIR and CAIR FIPs?
CAIR, which establishes statewide emission budgets for
SO2 and NOX, is to be implemented in two phases.
The first phase of NOX reductions starts in 2009 and
continues through 2014, while the first phase of SO2
reductions starts in 2010 and continues through 2014. The second phase
of reductions for both NOX and SO2 starts in 2015
and continues thereafter. CAIR requires States to implement the budgets
by either: (1) Requiring EGUs to participate in the EPA-administered
cap-and-trade programs; or (2) adopting other control measures of the
States' choosing and demonstrating that such control measures will
result in compliance with the applicable State SO2 and
NOX budgets. The May 12, 2005, and April 28, 2006, CAIR
provides model rules that States must adopt (with certain limited
changes, if desired) if they want to participate in the EPA-
administered trading programs. With two exceptions, only States that
choose to meet the requirements of CAIR through methods that
exclusively regulate EGUs are allowed to participate in the EPA-
administered trading programs. One exception is for States that adopt
the opt-in provisions of the model rules to allow non-EGUs individually
to opt into the EPA-administered trading programs. The other exception
is for each State to include all non-EGUs from its respective
NOX Budget Trading Program into its respective CAIR
NOX Ozone Season Trading Program.
IV. What are the types of CAIR SIP submittals?
States have the flexibility to choose the type of control measures
they will use to meet the requirements of CAIR. As EPA anticipated,
most States have chosen to meet the CAIR requirements by selecting an
option that requires EGUs to participate in the EPA-administered CAIR
cap-and-trade programs. For such States, EPA has provided two
approaches for submitting and obtaining approval for CAIR SIP
revisions. States may submit full SIP revisions that adopt the model
CAIR cap-and-trade rules. If approved, these SIP revisions will fully
replace the CAIR FIPs. Alternatively, States may submit abbreviated SIP
revisions. These SIP revisions will not replace the CAIR FIPs; however,
the CAIR FIPs provide that, when approved, the provisions in these
abbreviated SIP revisions will be used instead of or in conjunction
with, as appropriate, the corresponding provisions of the CAIR FIPs
(e.g., the NOX allowance allocation methodology).
A State submitting a full SIP revision may either adopt regulations
that are substantively identical to the model rules or incorporate by
reference the model rules. CAIR provides that States may only make
limited changes to the model rules if the States want to participate in
the EPA-administered trading programs. A full SIP revision may change
the model rules only by altering their applicability and allowance
allocation provisions to:
1. Include all NOX Budget trading sources that are not
EGUs under CAIR in the CAIR NOX Ozone Season Trading
Program;
2. Provide for State allocation of NOX annual or ozone
season allowances using a methodology chosen by the State;
3. Provide for State allocation of NOX annual allowances
from the compliance supplement pool (CSP) using the State's choice of
allowed, alternative methodologies; or
4. Allow units that are not otherwise CAIR units to opt
individually into the CAIR SO2, NOX Annual, or
NOX Ozone Season Trading Programs under the opt-in
provisions in the model rules.
An approved CAIR SIP revision addressing EGUs' SO2,
NOX annual, or NOX ozone season emissions will
replace the CAIR FIP for that State for the respective EGU emissions.
As discussed above, once EPA has approved a CAIR SIP submission in
full, without any conditions, the CAIR FIP is automatically withdrawn.
See 72 FR 62338.
V. Analysis of Indiana's CAIR SIP submittals
A. What is the history of the State's submittals?
IDEM submitted the State's rules to address CAIR requirements on
February 28, 2007, for incorporation into the SIP. On September 20,
2007, Indiana submitted a letter to EPA requesting that EPA act only on
a portion of the February 28, 2007 submittal. Consequently, on October
22, 2007 (72 FR 59480) EPA gave a limited approval to portions of the
February 28, 2007 submittal as an abbreviated SIP revision
[[Page 72959]]
which addressed the applicability provisions for the NOX
ozone season trading program and supporting definitions and terms, the
methodology to be used to allocate annual and ozone season
NOX allowances and supporting definitions and terms, the CSP
provisions for the NOX annual trading program, and
provisions for SO2 and NOX opt-in units, all
under the CAIR FIP. EPA found several minor deficiencies in the
February 28, 2007, submittal, as indentified in a technical support
document that accompanied the October 22, 2007, limited approval. The
State's June 29, 2009, submittal sufficiently addresses these
deficiencies.
On October 19, 2007, EPA revised the definition of ``cogeneration
unit'' (72 FR 59190). Particularly of note, the term ``biomass'' was
added so that cogeneration units could exclude biomass energy input in
efficiency calculations. IDEM has made corresponding and appropriate
changes that adopt the Federal definition of ``cogeneration unit'' and
``biomass'' in its June 29, 2009, submittal. Indiana's budget and
allowance allocation methodologies for CAIR trading programs were also
included in the June 29, 2009, submittal. The amended rules became
effective State-wide on June 11, 2009, and an in-depth analysis of the
June 29, 2009, submittal follows below.
B. State Budgets for Allowance Allocations
In today's action, EPA is reaffirming its approval of Indiana's SIP
revision adopting the budgets established for the State (by EPA) in
CAIR in its October 22, 2007 limited approval.
In North Carolina, the Court determined, among other things, that
the State SO2 and NOX budgets established in CAIR
were arbitrary and capricious.\1\ However, as discussed above, the
Court also decided to remand CAIR but to leave the rule in place in
order to ``temporarily preserve the environmental values covered by
CAIR'' pending EPA's development and promulgation of a replacement rule
that ``remedies CAIR's flaws.'' North Carolina, at 1178. EPA had
indicated to the Court that development and promulgation of a
replacement rule would take about two years. Reply in Support of
Petition for Rehearing or Rehearing en Banc at 5 (filed Nov. 17, 2008
in North Carolina v. EPA, Case No. 05-1224, DC Cir.). On August 2, 2010
(75 FR 45210), EPA proposed FIPs to Reduce Interstate Transport of Fine
Particulate Matter and Ozone to replace CAIR; however, that rule is not
yet final. In the meantime, consistent with the Court's orders, EPA is
implementing CAIR by approving State SIP revisions that are consistent
with CAIR (such as the provisions setting State SO2 and
NOX budgets for the CAIR trading programs) in order to
``temporarily preserve'' the environmental benefits achievable under
the CAIR trading programs.
---------------------------------------------------------------------------
\1\ The Court also determined that the CAIR trading programs
were unlawful (id. at 906-8) and that the treatment of title IV
allowances in CAIR was unlawful (id. at 921-23). For the same reason
that EPA is approving the provisions of Indiana's SIP revision that
use the SO2 and NOX budgets set in CAIR, EPA
is also approving, as discussed below, Indiana's SIP revision to the
extend the SIP revision adopts the CAIR trading programs, including
the provisions addressing applicability, allowance allocations, and
the use of title IV allowances.
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C. CAIR Cap-and-Trade Programs
The CAIR NOX annual and ozone season model trading rules
both largely mirror the structure of the NOX Budget model
trading rule in 40 CFR Part 96, subparts A through I. While the
provisions of the NOX annual and ozone season model rules
are similar, there are some differences. For example, the
NOX annual model rule (but not the NOX ozone
season model rule) provides for a CSP, which is discussed below and
under which allowances may be awarded for early reductions of
NOX annual emissions. As a further example, the
NOX ozone season model rule reflects the fact that the CAIR
NOX Ozone Season Trading Program replaces the NOX
Budget Trading Program after the 2008 ozone season and is coordinated
with the NOX SIP Call program. The NOX ozone
season model rule provides incentives for early emissions reductions by
allowing banked, pre-2009 NOX Budget Trading Program
allowances to be used for compliance in the CAIR NOX ozone
season trading program. In addition, States have the option of
continuing to meet their NOX SIP Call requirements by
participating in the CAIR NOX Ozone Season Trading Program
and including all their NOX Budget trading sources in that
program.
The provisions of the CAIR SO2 model rule are also
similar to the provisions of the NOX annual and ozone season
model rules. However, since CAA title IV establishes an ongoing Acid
Rain cap-and-trade program for SO2 and not for NOx, the
model rule for SO2 must additionally be coordinated with the
Acid Rain Program. The SO2 model rule uses the title IV
allowances for compliance, with each allowance allocated for 2010-2014
authorizing only 0.50 ton of emissions and each allowance allocated for
2015 and thereafter authorizing only 0.35 ton of emissions. Banked
title IV allowances allocated for years before 2010 can be used at any
time in the CAIR SO2 cap-and-trade program, with each such
allowance authorizing one ton of emissions. Title IV allowances are to
be freely transferable among sources covered by the Acid Rain Program
and sources covered by the CAIR SO2 cap-and-trade program.
EPA used the CAIR model trading rules as the basis for the trading
programs in the CAIR FIPs. The CAIR FIP trading rules are virtually
identical to the CAIR model trading rules, with changes made to account
for Federal rather than State implementation. The CAIR model
SO2, NOX annual, and NOX ozone season
trading rules and the respective CAIR FIP trading rules are designed to
work together as integrated SO2, NOX annual, and
NOX ozone season trading programs.
In the SIP revision EPA is approving, Indiana has chosen to
implement its CAIR budgets by requiring EGUs to participate in EPA-
administered cap-and-trade programs for SO2, NOX
annual, and NOX ozone season emissions. Indiana has adopted
State rules for a full SIP revision that adopts, with certain allowed
changes discussed below, the CAIR model cap-and-trade rules for
SO2, NOX annual, and NOX ozone season
emissions. Finally, Indiana's rules provide that non-EGUs that were
required to participate in the NOX Budget Trading Program
must participate in the CAIR NOX Ozone Season Trading
Program.
D. Applicability Provisions
In general, the CAIR model trading rules apply to any stationary,
fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion
turbine serving at any time, since the later of November 15, 1990, or
the start-up of the unit's combustion chamber, a generator with
nameplate capacity of more than 25 megawatts producing electricity for
sale.
States have the option of bringing in, for the CAIR NOX
Ozone Season Trading Program only, those units in the State's
NOX Budget Trading Program that are not EGUs as defined
under CAIR. EPA advises States exercising this option to add the
applicability provisions in the State's NOX Budget trading
rule for non-EGUs to the applicability provisions in 40 CFR 96.304 in
order to include in the CAIR NOX Ozone Season Trading
Program all units required to be in the State's NOX Budget
Trading Program that are not already included under 40 CFR 96.304.
Under this option, the CAIR NOX Ozone Season Trading Program
must cover all large industrial boilers and combustion turbines, as
well as any small EGUs (i.e.,
[[Page 72960]]
units serving a generator with a nameplate capacity of 25 megawatts or
less) that the State previously required to be in the NOX
Budget Trading Program. Indiana has chosen to expand the applicability
provisions of the CAIR NOX Ozone Season Trading Program to
include all non-EGUs that were subject to the State's NOX
Budget Trading Program. Indiana's February 28, 2007, abbreviated SIP
submittal did not include (or modify) certain definitions that are
necessary in order to expand the CAIR NOX Ozone
applicability to all NOX Budget Trading units. Indiana's
June 29, 2009, submittal includes these definitions and modifications.
These definitions are part of today's approval and are discussed in
more detail under Section H. (Deficiencies in the State's submittal and
the State's subsequent responses).
E. Individual Opt-in Units
The opt-in provisions of the CAIR SIP model trading rules allow
certain non-EGUs (i.e., boilers, combustion turbines, and other
stationary fossil-fuel-fired devices) that do not meet the
applicability criteria for a CAIR trading program to participate
voluntarily in (i.e., opt into) the CAIR trading program. A non-EGU may
opt into one or more of the CAIR trading programs. In order to qualify
to opt into a CAIR trading program, a unit must vent all emissions
through a stack and be able to meet monitoring, recordkeeping, and
recording requirements of 40 CFR part 75. The owners and operators
seeking to include such a unit in a CAIR trading program must apply for
a CAIR opt-in permit. If the unit is issued a CAIR opt-in permit, the
unit becomes a CAIR unit, is allocated allowances, and must meet the
same allowance-holding and emissions monitoring and reporting
requirements as other units subject to the CAIR trading program. The
opt-in provisions provide for two methodologies for allocating
allowances for opt-in units, one methodology that applies to opt-in
units in general and a second methodology that allocates allowances
only to opt-in units that the owners and operators intend to repower
before January 1, 2015.
States have several options concerning the opt-in provisions.
States may adopt the CAIR opt-in provisions entirely or may adopt them
but exclude one of the methodologies for allocating allowances. States
may also decline to adopt the opt-in provisions at all.
Consistent with this flexibility, Indiana has chosen to allow non-
EGUs meeting certain requirements to participate in the CAIR
NOX Annual Trading Program, the CAIR NOX Ozone
Season Trading Program, and the CAIR SO2 Trading Program.
EPA approved Indiana's earlier version of rules authorizing these opt-
ins (72 FR 59480). The complete set of rules governing CAIR
NOX annual, CAIR SO2, and CAIR NOX
ozone season opt-in units in Indiana are contained in 326 IAC 24-1-12,
326 IAC 24-2-11, and 326 IAC 24-3-12, respectively. Indiana's June 29,
2009, submittal includes some modifications to these parts. These
modifications are part of today's approval.
F. Deficiencies in the State's February 28, 2007, Submittal and the
State's Subsequent Responses
EPA found several deficiencies in Indiana's February 28, 2007,
submittal and communicated these deficiencies to IDEM staff in August
and September of 2007. The deficiencies and the State's subsequent
responses to correct them are discussed in detail below. All responses
to the deficiencies were provided in the State's June 29, 2009,
submittal.
EPA found that Indiana needed to revise 326 IAC 24-3-1 in the
following manner:
``Indiana needs to revise, in subsection (b), `CAIR
NOX ozone season units as follows:' to read `CAIR
NOX ozone season units under subsection 1(a)(1) or (3)'
and revise, in subsections (b)(1), (2), and (3), `under subsection
(a)' to read `under subsection (a)(1) or (3).' '';
Indiana has made these changes verbatim; therefore, these
deficiencies have been addressed and EPA concludes that the revisions
to 326 IAC 24-3-1 are approvable.
EPA also found that Indiana needed to amend 326 IAC 24-3-2 by
revising the definitions of ``commence operation,'' ``fossil-fuel-
fired,'' and ``unit.''
IDEM addressed all of the deficiencies that EPA identified
regarding the terms ``commence operation,'' ``fossil-fuel-fired,'' and
``unit'' at 326 IAC 24-3-2 (33), (44), and (80). EPA finds these
revisions approvable.
EPA found that Indiana needed to add the definition of
``electricity for firm sale to the electric grid,'' to read as follows:
``Electricity for firm sale to the electric grid means
electricity for sale where the capacity involved is intended to be
available at all times during the period covered by a guaranteed
commitment to deliver, even under adverse conditions.''
The State has added the following definition at 326 IAC 24-3-2
(38):
`` `Electricity for sale under a firm contract to the electric
grid' means electricity for sale where the capacity involved is
intended to be available at all times during the period covered by
the guaranteed commitment to deliver, even under adverse
conditions.''
EPA asked IDEM for clarification concerning the phrase ``for sale
under a firm contract'' as opposed to the model language ``for firm
sale.'' On September 25, 2009, IDEM responded that the language
originated in Indiana's NOX SIP Call; therefore, all sources
subject to the applicability of the NOX Budget Trading
Program would also be subject to the applicability of the CAIR
NOX Ozone Season Trading Program. Because there is no
applicability gap for affected sources, IDEM has addressed this
deficiency. EPA therefore finds that the addition of the term
``electricity for sale under a firm contract to the electric grid'' to
326 IAC 24-3-2 is approvable.
EPA found that Indiana needed to revise the definition of ``large
affected unit'' to add, after clause (B):
``(C) For units other than cogeneration units commencing
operation: (i) Before January 1, 1997, a unit serving a generator
during 1995 or 1996 that had a nameplate capacity greater than
twenty-five (25) megawatts and produced electricity for sale under a
firm contract to the electric grid; (ii) on or after January 1,
1997, and before January 1, 1999, a unit serving a generator during
1997 or 1998 that had a nameplate capacity greater than twenty-five
(25) megawatts and producing electricity for sale under a firm
contract to the electric grid; or (iii) on or after January 1, 1999,
a unit serving a generator at any time that has a nameplate capacity
greater than twenty-five (25) megawatts and produces electricity for
sale. (D) For cogeneration units commencing operation: (i) Before
January 1, 1997, a unit serving a generator during 1995 or 1996 that
had a nameplate capacity greater than twenty-five (25) megawatts and
failing to qualify as an unaffected unit for 1995 or 1996 under the
acid rain program; (ii) in 1997 or 1998, a unit serving a generator
during 1997 or 1998 with a nameplate capacity greater than twenty-
five (25) megawatts and failing to qualify as an unaffected unit for
1997 or 1998 under the acid rain program; or (iii) on or after
January 1, 1999, a unit serving at any time as a generator with a
nameplate capacity greater than twenty-five (25) megawatts and
failing to qualify as an unaffected unit under the acid rain program
for any year.''
IDEM has made all the appropriate changes at 326 IAC 24-3-2 (51)
with minor wording changes, which include the clarification of the
phrase, ``(C) For units other than cogeneration units that are not
already subject to this rule under section 1(a)(1) or 1(a)(3) of this
rule commencing operation * * *.'' and a phrase at the end of the rule
that reads, ``The term does not include a unit subject to 326 IAC 10-
3.'' At 326 IAC 24-3-2 (51)(C)(iii), Indiana's rule ends with, ``for
sale under a firm contract to the electric grid,'' which differs from
the
[[Page 72961]]
model rule which ends with, ``for sale.'' EPA asked for clarification
of the phrase, ``for sale under a firm contract to the electric grid.''
On September 25, 2009, IDEM stated that, although the language differs
slightly, all sources subject to the NOX Budget Trading
Program would also be subject to the CAIR NOX Ozone season
Trading Program. Because there is no applicability gap for affected
sources, and because other revisions Indiana has made serve to clarify
the existing rule, EPA finds that the revision of the term, ``large
affected unit'' in 326 IAC 24-3-2 is approvable.
G. Federal Definition of ``Biomass'' in Reference to ``Cogeneration
Unit''
EPA changed the definition of ``cogeneration unit'' as it applies
to CAIR, CAIR FIPs, and the CAIR model cap-and-trade rules in 72 FR
59190. Specifically, EPA revised the calculation methodology for the
efficiency standard in the cogeneration unit definition to exclude
energy input from biomass. At 326 IAC 24-1-2 (8), 326 IAC 24-2-2 (8),
and 326 IAC 24-3-2 (8), Indiana has made this change verbatim. EPA
finds the addition of the term ``biomass'' to the SIP approvable.
H. The State's Complete CAIR Regulations
As discussed previously, EPA granted a limited approval to
Indiana's abbreviated SIP on October 22, 2007. This action was a result
of the State's request on September 20, 2007, that EPA act on a portion
of its February 28, 2007, submittal. Consequently, EPA approved an
abbreviated SIP revision for Indiana which addressed the applicability
provisions for the NOX ozone season trading programs and
supporting definitions of terms, the methodology to be used to allocate
NOX annual and ozone season NOX allowances and
supporting definitions of terms, the CSP provisions for the
NOX annual trading program, and provisions for
SO2 and NOX opt-in units, all under the CAIR FIP.
The State's June 29, 2009, submittal was intended to satisfy
requirements that would allow us to approve Indiana's CAIR regulations
so as to transition from an abbreviated SIP with limited approval to a
full SIP with full approval. Indiana addressed the deficiencies that
EPA found with its existing CAIR regulations and also adopted the
Federal definition of ``biomass'' as it pertains to ``cogeneration
unit.''
However, it was not clear in the June 29, 2009, submittal that IDEM
was requesting full approval of the CAIR rules contained in 326 IAC 24-
1, 326 IAC 24-2, and 326 IAC 24-3. On December 9, 2009, IDEM sent a
letter to EPA clarifying that such was its intent. Therefore, inasmuch
as the State has cured the identified deficiencies and as such is the
State's intent, we are approving Indiana's CAIR regulations in their
entirety for incorporation into the SIP.
I. NOX Reduction Program for Specific Source Categories--
Applicability
On February 28, 2007, Indiana also submitted minor revisions to 326
IAC 10-3, ``NOX Reduction Program for Specific Source
Categories.'' Namely, the revisions pertain to the ``Applicability''
portion of this rule. The revisions refer to 326 IAC 24 and 326 IAC 24-
3. The reference to 326 IAC 24-3 clarifies that 326 IAC 10-3-1 applies
to any other blast furnace gas fired boilers with a heat input greater
than 250,000,000 Btu per hour that is not subject to 326 IAC 10-4 or
326 IAC 24-3. As this revision ensures that all applicable sources are
covered, EPA finds it approvable. The reference to 326 IAC 24 clarifies
that the monitoring, recordkeeping, and reporting requirements under
section 4 and 5 of 326 IAC 10-3-1 does not apply to a unit that opts
into the NOX Budget Trading Program under 326 IAC 10-4 or
326 IAC 24. As the State's CAIR has its own set of monitoring,
recordkeeping, and reporting requirements, EPA finds this revision to
be approvable.
J. Sunset Provision
EPA did not act on 326 IAC 10-4-16, ``Sunset,'' when Indiana
submitted the rule as part of its original CAIR package on February 28,
2007. We are approving this rule into the Indiana SIP today, and it
reads:
``Sec. 16. (a) Sections 1 through 15 of this rule shall not
apply to any control period in 2009 or thereafter. The 2009
NOX allowances allocated under section 9 of this rule
remain in effect for purposes of the Clean Air Interstate Rule
(CAIR) NOX ozone season trading program in 326 IAC 24-3.
(b) By December 31, 2008, the department shall allocate any
remaining allowances for the years 2004 through 2008 in the EGU or
large affected unit new unit set-aside or the energy efficiency and
renewable energy set-aside to the relevant existing NOX
budget units on a pro rata basis. The allowances from the energy
efficiency and renewable energy set-aside shall be allocated to
existing large affected units.''
Approval of the termination of the NOX Budget Trading
Program provision ensures that there are no conflicts between
allocations made under the NOX Budget Trading Program and
allocations made under the CAIR NOX Ozone Season Trading
Program. The NOX SIP Call requirements will now be met
through the implementation of CAIR.
VI. Final Action
EPA is approving revisions to Indiana's CAIR, which the State
submitted on June 29, 2009. The rules supplement the State's original
CAIR, for which EPA promulgated limited approval on October 22, 2007
(72 FR 59480). The State has corrected deficiencies in its original
CAIR submittal, and has made appropriate revisions that align State and
Federal definitions for ``cogeneration unit'' and ``biomass,'' as
contained in 72 FR 59190. In addition, EPA is approving into the
Indiana SIP the remainder of Indiana's CAIR regulations upon which we
did not previously act. EPA is also approving the applicability
provisions of Indiana's NOX Reduction Program for Specific
Source Categories, as well as the sunset provision from Indiana's
NOX Budget Trading Program. Lastly, EPA is approving minor
wording, formatting, and typographical changes contained in the State's
submittal; since these changes serve to clarify the existing rules or
to correct minor errors, EPA finds them approvable. With this approval,
Indiana has transitioned from an abbreviated CAIR SIP with limited
approval to a full SIP with full approval. After the effective date of
this direct final rule, Indiana will no longer be subject to elements
of CAIR FIPs. This action causes the CAIR FIPs with regard to sulfur
dioxide (SO2), NOX annual, and NOX
ozone season emissions by Indiana sources to be automatically
withdrawn.
Specifically, EPA is approving the following rules, which were
submitted on June 29, 2009: 326 IAC 24-1-2, 326 IAC 24-1-7, 326 IAC 24-
1-8, 326 IAC 24-1-9, 326 IAC 24-1-12, 326 IAC 24-2-2, 326 IAC 24-2-7,
IAC 24-2-8, IAC 24-2-11, IAC 24-3-1, IAC 24-3-2, IAC 24-3-7, IAC 24-3-
8, IAC 24-3-9, IAC 24-3-12. The rules became effective State-wide on
June 11, 2009.
EPA is also approving the remainder of the State's CAIR
regulations, which were submitted on February 28, 2007. These rules
include: 326 IAC 24-1-1, 326 IAC 24-1-3, 326 IAC 24-1-4, 326 IAC 24-1-
5, 326 IAC 24-1-6, 326 IAC 24-1-10, 326 IAC 24-1-11, 326 IAC 24-2-1,
326 IAC 24-2-3, 326 IAC 24-2-4, 326 IAC 24-2-5, 326 IAC 24-2-6, 326 IAC
24-2-9, 326 IAC 24-2-10, 326 IAC 24-3-3, 326 IAC 24-3-4, 326 IAC 24-3-
5, 326 IAC 24-3-6, 326 IAC 24-3-10, and 326 IAC 24-3-11. These rules
became effective State-wide on February 25, 2007.
[[Page 72962]]
As previously mentioned, EPA is further approving revisions
submitted on February 28, 2007, pertaining to the State's Nitrogen
Oxide Reduction Program for Specific Source Categories, Applicability
provisions as contained in 326 IAC 10-3-1. This revision was effective
State-wide on February 25, 2007. Lastly, EPA is approving the sunset
provision in their NOX Budget Trading Program; this specific
provision is contained in 326 IAC 10-4-16. This rule was submitted on
February 28, 2007, and became effective State-wide on February 25,
2007.
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 January 28,
2011 without further notice unless we receive relevant adverse written
comments by December 29, 2010. 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. The EPA will not institute a second
comment period; therefore, any parties interested in commenting on this
action should do so at this time. If we do not receive any comments,
this action will be effective January 28, 2011.
VII. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve State choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves State law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by State
law. For that reason, this action:
Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the 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, this rule does not have Tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the State, and EPA notes that it will not impose substantial direct
costs on Tribal governments or preempt Tribal law.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this action and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by January 28, 2011. 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, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
oxides.
Dated: November 15, 2010.
Susan Hedman,
Regional Administrator, Region 5.
0
40 CFR part 52 is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart P--Indiana
Sec. 52.35 [Amended]
0
2. Section 52.35 is amended by:
0
a. In paragraph (d)(1), by adding, after the word ``are:'', the words
``Indiana, and''; and
0
b. In paragraph (d)(2), by adding, after the words ``chapter, are:'',
the words ``Indiana, and''.
Sec. 52.36 [Amended]
0
3. Section 52.36 is amended in paragraph (c) by adding, after the word
``are:'', the words ``Indiana, and''.
0
4. In Sec. 52.770, the table in paragraph (c) is amended by:
0
a. Revising the entries for Article 10, sections 10-3 and 10-4.
0
b. Revising the entries for Article 24, sections 24-1, 24-2 and 24-3.
0
The revisions read as follows:
Sec. 52.770 Identification of plan.
* * * * *
(c) * * *
[[Page 72963]]
EPA-Approved Indiana Regulations
----------------------------------------------------------------------------------------------------------------
Indiana
Indiana citation Title effective date EPA approval date Notes
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Article 10. Nitrogen Oxides Rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
10-3................. Nitrogen Oxide 02/25/2007 11/29/2010, [Insert Sec. 1.
Reduction Program for page number where the
Specific Source document begins].
Categories.
10-4................. Nitrogen Oxides Budget 02/25/2007 11/29/2010, [Insert Sec. 16.
Trading Program. page number where the
document begins].
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Article 24. Trading Programs: Nitrogen Oxides (NOX) and Sulfur Dioxide (SO2)
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
24-1................. Clean Air Interstate 02/25/2007 11/29/2010, [Insert Sec. 1, 3, 4, 5, 6, 10,
Rule Nitrogen Oxides page number where the 11.
Annual Trading Program. document begins].
06/11/2009 11/29/2010, [Insert Sec. 2, 7, 8, 9, 12.
page number where the
document begins].
24-2................. Clean Air Interstate 02/25/2007 11/29/2010, [Insert Sec. 1, 3, 4, 5, 6, 9,
Rule (CAIR) Sulfur page number where the 10.
Dioxide Trading document begins].
Program.
06/11/2009 11/29/2010, [Insert Sec. 2, 7, 8, 11.
page number where the
document begins].
24-3................. Clean Air Interstate 02/25/2007 11/29/2010, [Insert Sec. 3, 4, 5, 6, 10,
Rule (CAIR) NOX Ozone page number where the 11.
Season Trading Program. document begins].
06/11/2009 11/29/2010, [Insert Sec. 1, 2, 7, 8, 9, 12.
page number where the
document begins].
----------------------------------------------------------------------------------------------------------------
* * * * *
Sec. 52.789 [Removed]
0
5. Section 52.789 is removed.
Sec. 52.790 [Removed]
0
6. Section 52.790 is removed.
[FR Doc. 2010-29788 Filed 11-26-10; 8:45 am]
BILLING CODE 6560-50-P
