Approval and Promulgation of Air Quality Implementation Plans; Indiana; Redesignation of the Indianapolis Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter, 41698-41703 [2013-16478]

Download as PDF 41698 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations This document provides early notification of our specific plans and actions for this program. Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT. Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department. Dated: July 8, 2013. Deborah S. Delisle, Assistant Secretary for Elementary and Secondary Education. [FR Doc. 2013–16668 Filed 7–10–13; 8:45 am] BILLING CODE 4000–01–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA–R05–OAR–2009–0839; FRL–9832–3] Approval and Promulgation of Air Quality Implementation Plans; Indiana; Redesignation of the Indianapolis Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: EPA is approving Indiana’s request to redesignate the Indianapolis, Indiana nonattainment area (Hamilton, Hendricks, Johnson, Marion, and Morgan Counties) to attainment for the 1997 annual National Ambient Air Quality Standard (NAAQS or standard) for fine particulate matter (PM2.5) because the request meets the statutory requirements for redesignation under the Clean Air Act (CAA). The Indiana rmajette on DSK2TPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 14:17 Jul 10, 2013 Jkt 229001 Department of Environmental Management (IDEM) submitted this request to EPA on October 20, 2009, and supplemented it on May 31, 2011, January 17, 2013, and March 18, 2013. EPA’s approval involves several related actions. EPA is making a determination that the Indianapolis area has attained the 1997 annual PM2.5 standard. EPA is approving, as a revision to the Indiana State Implementation Plan (SIP), the state’s plan for maintaining the 1997 annual PM2.5 NAAQS through 2025 in the area. EPA is approving the comprehensive emissions inventories submitted by IDEM for Nitrogen Oxides (NOX), Sulfur Dioxide (SO2), primary PM2.5, Volatile Organic Compounds (VOC), and ammonia as meeting the requirements of the CAA. Finally, EPA finds adequate and is approving Indiana’s NOX and PM2.5 Motor Vehicle Emission Budgets (MVEBs) for 2015 and 2025 for the Indianapolis area. DATES: This final rule is effective July 11, 2013. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA–R05–OAR–2009–0839. All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (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 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 Kathleen D’Agostino, Environmental Engineer, at (312) 886–1767 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Kathleen D’Agostino, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886–1767, dagostino.kathleen@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 is the background for the actions? PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 II. What actions is EPA taking? III. What is EPA’s response to comments? IV. Why is EPA taking these actions? V. Final Action VI. Statutory and Executive Order Reviews I. What is the background for the actions? On October 20, 2009, IDEM submitted its request to redesignate the Indianapolis, Indiana nonattainment area (Hamilton, Hendricks, Johnson, Marion, and Morgan Counties) to attainment for the 1997 annual PM2.5 NAAQS, and for EPA approval of the SIP revision containing an emissions inventory and a maintenance plan for the area. IDEM supplemented its submission on May 31, 2011, January 17, 2013, and March 18, 2013. On September 27, 2011, EPA published proposed (76 FR 59599) and direct final (76 FR 59512) rules making a determination that the Indianapolis area is attaining the 1997 annual PM2.5 standard and that the area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA subsequently received adverse comments on the direct final rule and withdrew it on November 27, 2011 (76 FR 70361). The proposal was not withdrawn. EPA published a supplemental proposal on April 8, 2013 (78 FR 20856). EPA received an adverse comment on the supplemental proposal. II. What actions is EPA taking? EPA is making a determination that the Indianapolis area has attained and continues to attain the 1997 annual PM2.5 standard, that the area has attained this standard by its applicable attainment date of April 5, 2010, and that the area meets the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA proposed this determination based on monitoring data showing attainment of the standard for the 2006–2008, 2007–2009, and 2008– 2010 time periods. Quality-assured, certified monitoring data for 2011 show that the area continues to attain the standard, with a 2009–2011 design value of 13.1 mg/m3 (see https:// www.epa.gov/pm/2012/ 20092011table.pdf). Monitoring data that are now available for 2012 have been certified and are consistent with continued attainment as well (see https://www.epa.gov/ttn/airs/airsaqs/). Because the area continues to attain the standard and meets all other requirements for redesignation under CAA section 107(d)(3)(E), EPA is approving the request from Indiana to change the legal designation of the Indianapolis area from nonattainment to E:\FR\FM\11JYR1.SGM 11JYR1 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations attainment for the 1997 annual PM2.5 NAAQS. EPA is taking several actions related to Indiana’s PM2.5 redesignation request, as discussed below. EPA is approving, pursuant to CAA section 175A, Indiana’s 1997 annual PM2.5 maintenance plan for the Indianapolis area as a revision to the Indiana SIP (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep the Indianapolis area in attainment of the 1997 annual PM2.5 NAAQS through 2025. EPA is approving, pursuant to CAA section 172(c)(3), both the 2006 emission inventories for primary PM2.5,1 NOX, and SO2,2 and the 2007/2008 emission inventories for VOC and ammonia. These emission inventories satisfy the requirement in section 172(c)(3) of the CAA for a comprehensive, current emission inventory. Finally, for transportation conformity purposes EPA finds adequate and is approving Indiana’s NOX and PM2.5 MVEBs for 2015 and 2025 for the Indianapolis area. III. What is EPA’s response to comments? rmajette on DSK2TPTVN1PROD with RULES EPA received adverse comments on the September 27, 2011, proposal from Robert Ukeiley, on behalf of both Midwest Environmental Defense Center Inc. and two citizens. Valley Watch joined these comments. EPA received an adverse comment on the April 8, 2013, supplemental proposal from Thomas Cmar of Earthjustice on behalf of Sierra Club. A summary of the comments received, and EPA’s responses, follow. Comment: The commenter contends that Indiana does not have an adequate prevention of significant deterioration (PSD) program. He further asserts that the PSD program is part of the SIP that an area being redesignated needs to have to ensure that the area will stay in attainment. As a result, the commenter takes the position that EPA cannot approve the redesignation request because Indiana does not have an adequate PM2.5 PSD program. The commenter bases his conclusion that Indiana’s PSD program is inadequate for PM2.5 on the fact that the program does not contain specific ‘‘significant 1 Fine particulates directly emitted by sources and not formed in a secondary manner through chemical reactions or other processes in the atmosphere. 2 NO and SO are precursors for fine particulates X 2 through chemical reactions and other related processes in the atmosphere. VerDate Mar<15>2010 14:17 Jul 10, 2013 Jkt 229001 emission rates’’ 3 for PM2.5 and its precursors, and that the program does not include PM2.5 increments. Response: On October 29, 2012, EPA approved revisions to Indiana’s PSD SIP. Specifically, EPA approved changes to 326 Indiana Administrative Code (IAC) 2–2–1(ss), ‘‘Regulated NSR pollutant,’’ that explicitly identify SO2 and NOX as precursors to PM2.5 that will be evaluated in NSR permit contexts. EPA also approved revisions to the definition of ‘‘Significant’’ at 326 IAC 2– 2–1(ww)(1)(F) to identify the significant emissions rates for primary PM2.5, and SO2 and NOX as its precursors, consistent with the 2008 NSR Rule. On July 12, 2012, IDEM submitted PM2.5 increments for approval into the Indiana SIP. EPA is currently in the process of taking action on this submission. While Indiana’s approved PSD SIP currently lacks PM2.5 increments, this does not prevent the program from addressing and helping to assure maintenance of the PM2.5 standard in accordance with CAA section 175A. A PSD increment is the maximum increase in concentration that is allowed to occur above a baseline concentration for a pollutant. Even in the absence of an approved PSD increment, Indiana’s PSD program prohibits air quality from deteriorating beyond the concentration allowed by the applicable NAAQS. See 326 IAC 2– 2–5(a)(1). Thus Indiana’s PSD program is adequate for purposes of assuring maintenance of the 1997 annual PM2.5 standard as required by section 175A. For the reasons explained above, EPA concludes that the features of the PSD program in Indiana’s SIP do not detract from the program’s adequacy for purposes of maintenance of the standard and redesignation of the area. It is, therefore, sufficient for the purposes of maintaining the 1997 annual PM2.5 NAAQS in the Indianapolis area. Comment: The commenter claims that there has not been a sufficient showing that recent decreases in PM2.5 concentrations reflected in monitoring data are due to enforceable and permanent emission reductions. Response: In accordance with longstanding practice and policy,4 Indiana calculated the change in emissions between 2002, one of the years used to designate the area as nonattainment, and 2008, one of the years the Indianapolis area monitored attainment of the annual PM2.5 standard. 3 ‘‘Significant’’ emissions rates are listed in 326 IAC 2–2–1(ww). 4 See September 4, 1992 memorandum from John Calcagni entitled ‘‘Procedures for Processing Requests to Redesignate Areas to Attainment,’’ (‘‘Calcagni Memorandum’’) at 4 and 8–9. PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 41699 See Tables 3, 4 and 5 at 76 FR 59518– 59519. Because PM2.5 concentrations in the Indianapolis area are impacted by the transport of sulfates and nitrates, local controls as well as controls implemented in upwind areas are relevant to the improvement in air quality in the Indianapolis area. The change in emissions in upwind areas over this time period can be found in Table 6 at 76 FR 59519. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of permanent and enforceable regulatory control measures that the Indianapolis area and upwind areas have implemented in recent years and will continue to implement in the future. Reductions in fine particle precursor emissions have occurred statewide and in upwind areas as a result of several Federal mobile source control measures including: Tier 2 Emission Standards for Vehicles and Gasoline Sulfur Standards, the Heavy-Duty Diesel Engine Rule, the Nonroad Diesel Rule, and Nonroad Large Spark-Ignition Engine and Recreational Engine Standards. See 76 FR 59517. The Tier 2 Emission Standards for Vehicles and the associated Gasoline Sulfur Standards were estimated to result in a 69 to 95 percent reduction in NOX emissions (depending on vehicle type) and a reduction in the sulfur content of gasoline to 30 parts per million (ppm).5 These Federal rules were phased in from 2004 to 2009. The Heavy-Duty Diesel Engine Rule reduced the highway diesel fuel sulfur content to 15 ppm, with the total program estimated to achieve a 90 percent reduction in primary PM2.5 emissions and a 95 percent reduction in NOX emissions. This rule took effect in 2007. The Nonroad Diesel Rule and the associated Gasoline Sulfur Standards are expected to reduce NOX and PM emissions from large nonroad diesel engines by over 90 percent and have reduced the sulfur content in nonroad diesel fuel by over 99 percent. The engine emission standards required by this rule are being phased in between 2008 and 2014. The Nonroad Large Spark-Ignition Engine and Recreational Engine Standards are being phased in from 2004 through 2012. Full implementation of these engine standards are projected to result in an overall 80 percent reduction in NOX emissions. 5 Most gasoline sold in Indiana prior to January 2006 had a sulfur content of about 500 ppm. E:\FR\FM\11JYR1.SGM 11JYR1 rmajette on DSK2TPTVN1PROD with RULES 41700 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations For all of the engine standards described above, some of the expected emissions reductions occurred during the 2008–2010 attainment period; however, additional reductions will continue to occur throughout the maintenance period as the fleet of older engines turns over. It should be noted, though, that the reduction in fuel sulfur content yielded an immediate reduction in sulfate particle emissions from all engines using the low-sulfur fuel. On October 27, 1998 (63 FR 57356), EPA issued a SIP call under CAA section 110(k)(5), commonly referred to as the NOX SIP Call. This rule required the District of Columbia and 22 states to reduce emissions of NOX in order to comply with CAA section 110(a)(2)(D)(i)(I)—the ‘‘good neighbor’’ provision of the CAA. Affected states were required to comply with Phase I of the SIP Call beginning in 2004, and Phase II beginning in 2007. Overall, sources covered by the NOX SIP Call reduced NOX emissions 62 percent between 2000 (prior to implementation of the NOX SIP call) and 2008. Emission reductions requirements from the NOX SIP Call still exist. Most states that were subject to the NOX SIP Call, including Indiana, are now complying with those requirements through participation in the Clean Air Interstate Rule (CAIR) ozone-season NOX trading program. However, while EPA has acknowledged that participation in the CAIR ozoneseason NOX trading program is one acceptable way for states to meet their NOX SIP Call obligations, the NOX SIP Call obligations exist independent of CAIR and are independently permanent and enforceable. On May 12, 2005, EPA published CAIR, which requires significant reductions in emissions of SO2 and NOX from electric generating units to limit the interstate transport of these pollutants and the ozone and fine particulate matter they form in the atmosphere. See 76 FR 70093. The D.C. Circuit initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). In response to the Court’s decision, EPA issued the Cross-State Air Pollution Rule (CSAPR) to address interstate transport of NOX and SO2 in the eastern United States. See 76 FR 48208 (August 8, 2011). On December 30, 2011, the D.C. Circuit issued an order addressing the status of CSAPR and CAIR in response to motions filed by numerous parties seeking a stay of CSAPR pending judicial review. In that order, the Court VerDate Mar<15>2010 14:17 Jul 10, 2013 Jkt 229001 stayed CSAPR pending resolution of the petitions for review of that rule in EME Homer City Generation, L.P. v. EPA (No. 11–1302 and consolidated cases). The Court also indicated that EPA was expected to continue to administering CAIR. On August 21, 2012, the D.C. Circuit issued the decision in EME Homer City, to vacate and remand CSAPR and ordered EPA to continue administering CAIR ‘‘pending . . . development of a valid replacement.’’ EME Homer City at 38.6 To the extent that attainment is due to emission reductions associated with CAIR, as explained in greater detail in the subsequent comment response, EPA is determining that those reductions are sufficiently permanent and enforceable for purposes of CAA sections 107(d)(3)(E)(iii) and 175A. As directed by the D.C. Circuit, CAIR remains in place and enforceable until EPA promulgates a valid replacement rule to substitute for CAIR. Indiana’s SIP revision lists CAIR as a control measure that was adopted by the State in 2006 and required compliance by January 1, 2009. CAIR was thus in place and getting emission reductions when Indianapolis began monitoring attainment of the 1997 annual PM2.5 standard during the 2006–2008 time period. The quality-assured, certified monitoring data continues to show the area in attainment of the 1997 PM2.5 standard through 2011. Comment: The commenter urges EPA not to rely upon future emissions reductions from CAIR as permanent and enforceable for purposes of approving the Indianapolis redesignation and maintenance plan. The commenter argues that reliance on CAIR would be arbitrary, capricious, and contrary to law, because of the D.C. Circuit’s decision in North Carolina v. EPA, which found CAIR to be legally defective and remanded the rule to EPA. Thus, the commenter argues that CAIR is temporary. The commenter notes that EPA’s decision to rely on CAIR reductions as sufficiently permanent and enforceable for the purposes of the Indianapolis redesignation is a change in EPA’s position, and, contrary to EPA’s assertion, that decision is in tension with the D.C. Circuit’s order to replace CAIR as expeditiously as practicable in EME Homer City Generation, LLP v. EPA, 696 F.3d 7 (D.C. Cir. 2012). 6 On June 24, 2013, the Supreme Court granted certiorari and agreed to review the D.C. Circuit’s decision in EME Homer City. The Supreme Court’s grant of certiorari, by itself, does not alter the status of CAIR or CSAPR. At this time, CAIR remains in place. PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 Furthermore, the commenter states that EPA has not provided ‘‘a specific analysis of the extent to which redesignation of the Indianapolis area to attainment and Indiana’s plan for maintaining that attainment status depend upon future emission reductions from CAIR.’’ The commenter argues that without such an analysis it is impossible to evaluate whether CAIR’s sunsetting and replacement by a different rule would have an impact on the attainment status of Indianapolis. The commenter points out that a replacement rule may require a different distribution of reductions than CAIR, and states that the agency’s ‘‘implied promise’’ that a future replacement rule will be comparable to CAIR ‘‘does not withstand scrutiny in the absence of an area-specific analysis.’’ The commenter urges the agency to act quickly to promulgate a new rule to replace CAIR if it wants to rely on emission reductions in this context for purposes of redesignation. Response: EPA disagrees with the commenter that it is arbitrary, capricious, or contrary to law to approve the Indianapolis redesignation because CAIR cannot be relied upon in this context. Section 107(d)(3)(E) of the CAA sets out the requirements for redesignation, and states in relevant part that the Administrator must ‘‘determine[] that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable implementation plan and applicable Federal air pollutant control regulations and other permanent and enforceable reductions.’’ 42 U.S.C. 7407(d)(3)(E)(iii). EPA recognizes that the D.C. Circuit’s instruction in both North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008), and EME Homer City Generation L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), that CAIR must be replaced necessarily means that CAIR will at some point cease to be in effect. However, EPA disagrees that the Court’s instruction in those two cases forecloses the Agency and states from relying on CAIR for purposes such as redesignating an area from nonattainment to attainment. Subsection (iii) of section 107(d)(3)(E) is a backwards looking requirement; it requires that the attainment air quality in the area is ‘‘due to’’ permanent and enforceable emissions reductions. The purpose of this requirement is to ensure that in redesignating areas from nonattainment to attainment, EPA does not rely on ephemeral, temporarily improved air quality that results from circumstances such as temporary shutdowns of plants or reduced E:\FR\FM\11JYR1.SGM 11JYR1 rmajette on DSK2TPTVN1PROD with RULES Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations emission rates because of slowed production. See ‘‘Procedures for Processing Requests to Redesignate Areas to Attainment,’’ Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (Calcagni memorandum) at 4. The structure of section 107(d)(3)(E)(iii) indicates that the CAA generally considers reductions resulting from SIPs and Federal regulations as permanent and enforceable. It references ‘‘other’’ reductions that are comparable to measures adopted into SIPs or Federally adopted regulations and can therefore also qualify as permanent and enforceable reductions, indicating that, in general, SIP reductions and reductions from Federal regulations are the types of reductions that the CAA views in the first instance as having the requisite permanence and enforceability for purposes of redesignation. EPA acknowledges that prior to the EME Homer City decision, it did not rely solely on CAIR to meet section 107(d)(3)(E)(iii)’s requirements, but rather the combination of CAIR being in place through the time period of the area coming into attainment, with CSAPR achieving similar or greater emission reductions in the area in 2012 and beyond. See, e.g., Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Kentucky; Redesignation of the Kentucky Portion of the Cincinnati-Hamilton 1997 Annual Fine Particulate Matter Nonattainment Area to Attainment, 76 FR 65458, 65460 (Oct. 21, 2011); Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans, 77 FR 33642, 33645 (June 7, 2012). It is not unreasonable or arbitrary for the agency to reassess its position about whether the reductions of CAIR alone can be considered sufficiently permanent and enforceable for purposes of redesignation, in light of the D.C. Circuit’s vacatur of CSAPR in EME Homer City and related decision that EPA should continue administering CAIR. Contrary to the commenters’ assertions, EPA’s decision to rely on CAIR for purposes of redesignating the Indianapolis area is not in tension with the Court’s instruction in EME Homer City to act expeditiously on remand. EME Homer City, 696 F.3d at 38 n.35. The D.C. Circuit in EME Homer City held that ‘‘a SIP logically cannot be deemed to lack a ‘‘required submission’’ VerDate Mar<15>2010 14:17 Jul 10, 2013 Jkt 229001 before EPA quantifies the good neighbor obligation.’’ Id. at 32. Under this holding states have no obligation to submit ‘‘good neighbor’’ SIPs until EPA has quantified their ‘‘good neighbor’’ obligations and EPA may not promulgate a FIP to address such obligations until the Agency first quantifies the state’s obligations, and provides the state an opportunity to submit a plan consistent with that defined obligation. 696 F.3d at 28–37. The EME Homer City decision thus significantly lengthens the time it will take to get in place regulations to replace the remanded CAIR. Under the EME Homer City decision SIP provisions to replace CAIR could not go into effect until EPA has undertaken analysis and rulemaking to define states’ obligations in accordance with the other statutory requirements identified by the EME Homer City court, provided states adequate time to develop implementation plans consistent with the defined obligations, and EPA has reviewed and approved the SIP submissions in notice-and-comment rulemakings. Similarly, no FIP to replace CAIR could go into effect unless EPA found a state failed to submit a SIP within the time given to develop such implementation plans or disapproved such a SIP submittal. It is not unreasonable for EPA to determine that in light of these circumstances, CAIR will be in place for a significant amount of time. The commenter suggests that EPA may not redesignate Indianapolis until it has completed all of the steps required by EME Homer City to promulgate a replacement rule. EPA disagrees. As noted in the April 8, 2013, supplemental proposal (78 FR 20856), EPA believes that relying on CAIR emission reductions in order to redesignate the Indianapolis area, which has been attaining the NAAQS for many years and continues to maintain the standard, is precisely the type of ‘‘reliance interest’’ that the D.C. Circuit was concerned about in ordering the agency to continue administering CAIR. EME Homer City, 696 F.3d at 38. EPA also disagrees that it must conduct the type of specific analysis requested by the commenter in order to approve Indianapolis’ maintenance plan under section 175A. Section 175A requires states to submit a maintenance plan that provides for the maintenance of the NAAQS for the relevant air pollutant for ten years following redesignation. 42 U.S.C. 7505a(a). In the April 8, 2013, supplemental proposal, EPA provided projected emissions of direct PM2.5, SO2, NOX, VOCs and ammonia in the Indianapolis area for PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 41701 the relevant maintenance period. See 78 FR 20864, tbls. 1–4. Under its existing suite of control measures, including CAIR, Indianapolis is attaining the 1997 PM2.5 NAAQS. Over the maintenance period, emissions for each pollutant and precursor are expected to further decrease in the Indianapolis area. EPA therefore does not believe that an ‘‘areaspecific analysis’’ as requested by the commenter is necessary or appropriate in order to redesignate the Indianapolis area. The anticipation that CAIR may be replaced during the maintenance period by another rule requiring upwind sources to reduce emissions does not require EPA to disapprove the redesignation request for Indianapolis currently before it. EPA’s longstanding interpretation of section 107(d)(3)(E) in the Calcagni Memorandum contemplates that some reductions required by existing control measures may be replaced in the future by other measures. Specifically, it states that ‘‘the State will be expected to maintain its implemented control strategy despite redesignation to attainment, unless such measures are shown to be unnecessary for maintenance or are replaced with measures that achieve equivalent reductions.’’ Calcagni Memorandum at 10. As noted in the supplemental proposal, upon promulgation of the replacement rule for CSAPR and CAIR, EPA will review existing SIPs as appropriate, including maintenance plans, to identify whether discrepancies in emission reductions from the control measures will pose a threat to the maintenance of the NAAQS for that pollutant. Therefore, the commenter’s concern that a future replacement rule might not require the same reductions as CAIR is not a bar to approving Indiana’s redesignation request today. The commenter’s statement that ‘‘if EPA wants to rely on emissions reductions for a CAIR replacement rule to support the redesignation of areas such as Indianapolis and their maintenance plans, then EPA should move without delay to develop and promulgate a legally defensible rule to replace CAIR’’ misstates EPA’s position. EPA is not relying on emissions reductions from a CAIR replacement rule in approving the maintenance plan for Indianapolis. Rather, EPA is relying on CAIR, which is currently in place and will remain in place for a significant period of time, in approving the maintenance plan. EPA further notes that any rule promulgated to replace CAIR with respect to PM2.5 will need to ensure that the ‘‘good neighbor’’ provisions have been E:\FR\FM\11JYR1.SGM 11JYR1 41702 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations IV. Why is EPA taking these actions? EPA has determined that the Indianapolis area has attained and continues to attain the 1997 annual PM2.5 NAAQS and that the area has attained this standard by its applicable attainment date of April 5, 2010. EPA has also determined that all other criteria have been met for the redesignation of the Indianapolis area from nonattainment to attainment of the 1997 annual PM2.5 NAAQS and for approval of Indiana’s maintenance plan for the area. See CAA sections 107(d)(3)(E) and 175A. The detailed rationale for EPA’s findings and actions is set forth in the proposed and direct final rulemakings of September 27, 2011 (76 FR 59599 and 76 FR 59512), in the supplemental proposed rulemaking of April 8, 2013 (78 FR 20856) and in this final rulemaking. rulemaking actions may become effective less than 30 days after publication if the rule ‘‘grants or recognizes an exemption or relieves a restriction,’’ and section 553(d)(3) which allows an effective date less than 30 days after publication ‘‘as otherwise provided by the agency for good cause found and published with the rule.’’ The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today’s rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today’s rule relieves the State of planning requirements for this 8-hour ozone nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these actions to become effective on the date of publication of these actions. V. Final Action EPA is making a determination that the Indianapolis area has attained the 1997 annual PM2.5 standard by its attainment date and that the area continues to attain the standard. EPA is determining that the area has met the requirements for redesignation under section 107(d)(3)(E) and 175A of the CAA. EPA is thus approving the request from Indiana to change the legal designation of the Indianapolis area from nonattainment to attainment for the 1997 annual PM2.5 NAAQS. EPA is also approving Indiana’s PM2.5 maintenance plan for the Indianapolis area as a revision to the Indiana SIP because the plan meets the requirements of section 175A of the CAA. EPA is approving 2006 emissions inventories for primary PM2.5, NOX, and SO2, and 2007/2008 emission inventories for VOC and ammonia as satisfying the requirement in section 172(c)(3) of the CAA for a comprehensive, current emission inventory. Finally, EPA finds adequate and is approving 2015 and 2025 primary PM2.5 and NOX MVEBs for the Indianapolis area. These MVEBs will be used in future transportation conformity analyses for the area. In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for these actions to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that VI. Statutory and Executive Order Reviews Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, 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, these actions merely do not impose additional requirements beyond those imposed by state law and the CAA. For that reason, these actions: • Are not ‘‘significant regulatory actions’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993); • Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Are 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.); rmajette on DSK2TPTVN1PROD with RULES satisfied with regard to the 1997 annual PM2.5 NAAQS. VerDate Mar<15>2010 14:17 Jul 10, 2013 Jkt 229001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 • Do 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); • Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); • Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001); • Are 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 • Do 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 a determinations of attainment is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands. 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. These actions are not ‘‘major rules’’ 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 September 9, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these actions for the E:\FR\FM\11JYR1.SGM 11JYR1 41703 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 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. These actions may not be challenged later in proceedings to enforce their requirements. (See section 307(b)(2).) List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: June 26, 2013. Susan Hedman, Regional Administrator, Region 5. 40 CFR Parts 52 and 81 are amended as follows: (w) * * * (2) Indiana’s 2006 NOX, primary PM2.5, and SO2 emissions inventories and 2007/2008 VOC and ammonia emission inventories, as submitted on October 20, 2009 and supplemented on May 31, 2011 and March 18, 2013, satisfy the emission inventory requirements of section 172(c)(3) of the Clean Air Act for the Indianapolis area. * * * * * PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. 2. Section 52.776 is amended by adding paragraphs (v)(2) and (w)(2) to read as follows: ■ § 52.776 matter. Control strategy: Particulate * * * * * (v) * * * (2) The Indianapolis area (Hamilton, Hendricks, Johnson, Marion and Morgan Counties), as submitted on October 20, 2009, and supplemented on May 31, 2011, January 17, 2013, and March 18, 2013. The maintenance plan establishes 2015 motor vehicle emissions budgets for the Indianapolis area of 853.76 tpy for primary PM2.5 and 25,314.49 tpy for NOX and 2025 motor vehicle emissions budgets of 460.18 tpy for primary PM2.5 and 13,368.60 tpy for NOX. PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES 3. The authority citation for part 81 continues to read as follows: ■ Authority: 42 U.S.C. 7401 et seq. 4. Section 81.315 is amended by revising the entry for Indianapolis, IN in the table entitled ‘‘Indiana PM2.5 (Annual NAAQS)’’ to read as follows: ■ § 81.315 * Indiana. * * * * INDIANA PM2.5 (ANNUAL NAAQS) Designation a Designated area Date 1 * * * * * Indianapolis, IN: Hamilton County ................................................................................................................................................ Hendricks County .............................................................................................................................................. Johnson County ................................................................................................................................................. Marion County ................................................................................................................................................... Morgan County .................................................................................................................................................. * * * * * * * 7/11/2013 7/11/2013 7/11/2013 7/11/2013 7/11/2013 * Type Attainment. Attainment. Attainment. Attainment. Attainment. * a Includes 1 This * * Indian Country located in each county or area, except as otherwise specified. date is 90 days after January 5, 2005, unless otherwise noted. * * * [FR Doc. 2013–16478 Filed 7–10–13; 8:45 am] ENVIRONMENTAL PROTECTION AGENCY BILLING CODE 6560–50–P 40 CFR Part 80 [EPA–HQ–OAR–2011–0542; FRL–9822–7] rmajette on DSK2TPTVN1PROD with RULES RIN 2060–AR85 Regulation of Fuels and Fuel Additives: Additional Qualifying Renewable Fuel Pathways Under the Renewable Fuel Standard Program; Final Rule Approving Renewable Fuel Pathways for Giant Reed (Arundo Donax) and Napier Grass (Pennisetum Purpureum) Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: This final rule approves pathways for production of renewable SUMMARY: VerDate Mar<15>2010 14:17 Jul 10, 2013 Jkt 229001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 fuel from giant reed (Arundo donax) and napier grass (Pennisetum purpureum) as feedstocks. These pathways are for cellulosic biofuel, for purposes of the Renewable Fuel Standard Program (RFS), under Clean Air Act (CAA) as amended by the Energy Independence and Security Act of 2007 (EISA). EPA has determined that renewable fuel made from napier grass and giant reed meet the greenhouse gas (GHG) reduction requirements for cellulosic biofuel under the requirements of the RFS program. In response to comments on the proposal concerning the potential for these crops to behave as invasive species, EPA is adopting additional registration, recordkeeping, and reporting requirements that were developed to address the potential for GHG emissions related to these concerns. Approval of E:\FR\FM\11JYR1.SGM 11JYR1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 78, Number 133 (Thursday, July 11, 2013)]
[Rules and Regulations]
[Pages 41698-41703]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16478]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2009-0839; FRL-9832-3]

Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Redesignation of the Indianapolis Area to Attainment of the
1997 Annual Standard for Fine Particulate Matter

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving Indiana's request to redesignate the
Indianapolis, Indiana nonattainment area (Hamilton, Hendricks, Johnson,
Marion, and Morgan Counties) to attainment for the 1997 annual National
Ambient Air Quality Standard (NAAQS or standard) for fine particulate
matter (PM2.5) because the request meets the statutory
requirements for redesignation under the Clean Air Act (CAA). The
Indiana Department of Environmental Management (IDEM) submitted this
request to EPA on October 20, 2009, and supplemented it on May 31,
2011, January 17, 2013, and March 18, 2013. EPA's approval involves
several related actions. EPA is making a determination that the
Indianapolis area has attained the 1997 annual PM2.5
standard. EPA is approving, as a revision to the Indiana State
Implementation Plan (SIP), the state's plan for maintaining the 1997
annual PM2.5 NAAQS through 2025 in the area. EPA is
approving the comprehensive emissions inventories submitted by IDEM for
Nitrogen Oxides (NOX), Sulfur Dioxide (SO2),
primary PM2.5, Volatile Organic Compounds (VOC), and ammonia
as meeting the requirements of the CAA. Finally, EPA finds adequate and
is approving Indiana's NOX and PM2.5 Motor
Vehicle Emission Budgets (MVEBs) for 2015 and 2025 for the Indianapolis
area.

DATES: This final rule is effective July 11, 2013.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2009-0839. All documents in the docket are listed in
the www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (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 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
Kathleen D'Agostino, Environmental Engineer, at (312) 886-1767 before
visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, Environmental
Engineer, Attainment Planning and Maintenance Section, Air Programs
Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West
Jackson Boulevard, Chicago, Illinois 60604, (312) 886-1767,
dagostino.kathleen@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 is the background for the actions?
II. What actions is EPA taking?
III. What is EPA's response to comments?
IV. Why is EPA taking these actions?
V. Final Action
VI. Statutory and Executive Order Reviews

I. What is the background for the actions?

On October 20, 2009, IDEM submitted its request to redesignate the
Indianapolis, Indiana nonattainment area (Hamilton, Hendricks, Johnson,
Marion, and Morgan Counties) to attainment for the 1997 annual
PM2.5 NAAQS, and for EPA approval of the SIP revision
containing an emissions inventory and a maintenance plan for the area.
IDEM supplemented its submission on May 31, 2011, January 17, 2013, and
March 18, 2013. On September 27, 2011, EPA published proposed (76 FR
59599) and direct final (76 FR 59512) rules making a determination that
the Indianapolis area is attaining the 1997 annual PM2.5
standard and that the area has met the requirements for redesignation
under section 107(d)(3)(E) of the CAA. EPA subsequently received
adverse comments on the direct final rule and withdrew it on November
27, 2011 (76 FR 70361). The proposal was not withdrawn. EPA published a
supplemental proposal on April 8, 2013 (78 FR 20856). EPA received an
adverse comment on the supplemental proposal.

II. What actions is EPA taking?

EPA is making a determination that the Indianapolis area has
attained and continues to attain the 1997 annual PM2.5
standard, that the area has attained this standard by its applicable
attainment date of April 5, 2010, and that the area meets the
requirements for redesignation under section 107(d)(3)(E) of the CAA.
EPA proposed this determination based on monitoring data showing
attainment of the standard for the 2006-2008, 2007-2009, and 2008-2010
time periods. Quality-assured, certified monitoring data for 2011 show
that the area continues to attain the standard, with a 2009-2011 design
value of 13.1 [mu]g/m\3\ (see https://www.epa.gov/pm/2012/20092011table.pdf). Monitoring data that are now available for 2012
have been certified and are consistent with continued attainment as
well (see https://www.epa.gov/ttn/airs/airsaqs/).
Because the area continues to attain the standard and meets all
other requirements for redesignation under CAA section 107(d)(3)(E),
EPA is approving the request from Indiana to change the legal
designation of the Indianapolis area from nonattainment to

[[Page 41699]]

attainment for the 1997 annual PM2.5 NAAQS.
EPA is taking several actions related to Indiana's PM2.5
redesignation request, as discussed below.
EPA is approving, pursuant to CAA section 175A, Indiana's 1997
annual PM2.5 maintenance plan for the Indianapolis area as a
revision to the Indiana SIP (such approval being one of the CAA
criteria for redesignation to attainment status). The maintenance plan
is designed to keep the Indianapolis area in attainment of the 1997
annual PM2.5 NAAQS through 2025.
EPA is approving, pursuant to CAA section 172(c)(3), both the 2006
emission inventories for primary PM2.5,\1\ NOX,
and SO2,\2\ and the 2007/2008 emission inventories for VOC
and ammonia. These emission inventories satisfy the requirement in
section 172(c)(3) of the CAA for a comprehensive, current emission
inventory.
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\1\ Fine particulates directly emitted by sources and not formed
in a secondary manner through chemical reactions or other processes
in the atmosphere.
\2\ NOX and SO2 are precursors for fine
particulates through chemical reactions and other related processes
in the atmosphere.
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Finally, for transportation conformity purposes EPA finds adequate
and is approving Indiana's NOX and PM2.5 MVEBs
for 2015 and 2025 for the Indianapolis area.

III. What is EPA's response to comments?

EPA received adverse comments on the September 27, 2011, proposal
from Robert Ukeiley, on behalf of both Midwest Environmental Defense
Center Inc. and two citizens. Valley Watch joined these comments. EPA
received an adverse comment on the April 8, 2013, supplemental proposal
from Thomas Cmar of Earthjustice on behalf of Sierra Club. A summary of
the comments received, and EPA's responses, follow.
Comment: The commenter contends that Indiana does not have an
adequate prevention of significant deterioration (PSD) program. He
further asserts that the PSD program is part of the SIP that an area
being redesignated needs to have to ensure that the area will stay in
attainment. As a result, the commenter takes the position that EPA
cannot approve the redesignation request because Indiana does not have
an adequate PM2.5 PSD program. The commenter bases his
conclusion that Indiana's PSD program is inadequate for
PM2.5 on the fact that the program does not contain specific
``significant emission rates'' \3\ for PM2.5 and its
precursors, and that the program does not include PM2.5
increments.
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\3\ ``Significant'' emissions rates are listed in 326 IAC 2-2-
1(ww).
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Response: On October 29, 2012, EPA approved revisions to Indiana's
PSD SIP. Specifically, EPA approved changes to 326 Indiana
Administrative Code (IAC) 2-2-1(ss), ``Regulated NSR pollutant,'' that
explicitly identify SO2 and NOX as precursors to
PM2.5 that will be evaluated in NSR permit contexts. EPA
also approved revisions to the definition of ``Significant'' at 326 IAC
2-2-1(ww)(1)(F) to identify the significant emissions rates for primary
PM2.5, and SO2 and NOX as its
precursors, consistent with the 2008 NSR Rule.
On July 12, 2012, IDEM submitted PM2.5 increments for
approval into the Indiana SIP. EPA is currently in the process of
taking action on this submission. While Indiana's approved PSD SIP
currently lacks PM2.5 increments, this does not prevent the
program from addressing and helping to assure maintenance of the
PM2.5 standard in accordance with CAA section 175A. A PSD
increment is the maximum increase in concentration that is allowed to
occur above a baseline concentration for a pollutant. Even in the
absence of an approved PSD increment, Indiana's PSD program prohibits
air quality from deteriorating beyond the concentration allowed by the
applicable NAAQS. See 326 IAC 2-2-5(a)(1). Thus Indiana's PSD program
is adequate for purposes of assuring maintenance of the 1997 annual
PM2.5 standard as required by section 175A.
For the reasons explained above, EPA concludes that the features of
the PSD program in Indiana's SIP do not detract from the program's
adequacy for purposes of maintenance of the standard and redesignation
of the area. It is, therefore, sufficient for the purposes of
maintaining the 1997 annual PM2.5 NAAQS in the Indianapolis
area.
Comment: The commenter claims that there has not been a sufficient
showing that recent decreases in PM2.5 concentrations
reflected in monitoring data are due to enforceable and permanent
emission reductions.
Response: In accordance with longstanding practice and policy,\4\
Indiana calculated the change in emissions between 2002, one of the
years used to designate the area as nonattainment, and 2008, one of the
years the Indianapolis area monitored attainment of the annual
PM2.5 standard. See Tables 3, 4 and 5 at 76 FR 59518-59519.
Because PM2.5 concentrations in the Indianapolis area are
impacted by the transport of sulfates and nitrates, local controls as
well as controls implemented in upwind areas are relevant to the
improvement in air quality in the Indianapolis area. The change in
emissions in upwind areas over this time period can be found in Table 6
at 76 FR 59519. The reduction in emissions and the corresponding
improvement in air quality over this time period can be attributed to a
number of permanent and enforceable regulatory control measures that
the Indianapolis area and upwind areas have implemented in recent years
and will continue to implement in the future.
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\4\ See September 4, 1992 memorandum from John Calcagni entitled
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' (``Calcagni Memorandum'') at 4 and 8-9.
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Reductions in fine particle precursor emissions have occurred
statewide and in upwind areas as a result of several Federal mobile
source control measures including: Tier 2 Emission Standards for
Vehicles and Gasoline Sulfur Standards, the Heavy-Duty Diesel Engine
Rule, the Nonroad Diesel Rule, and Nonroad Large Spark-Ignition Engine
and Recreational Engine Standards. See 76 FR 59517.
The Tier 2 Emission Standards for Vehicles and the associated
Gasoline Sulfur Standards were estimated to result in a 69 to 95
percent reduction in NOX emissions (depending on vehicle
type) and a reduction in the sulfur content of gasoline to 30 parts per
million (ppm).\5\ These Federal rules were phased in from 2004 to 2009.
---------------------------------------------------------------------------

\5\ Most gasoline sold in Indiana prior to January 2006 had a
sulfur content of about 500 ppm.
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The Heavy-Duty Diesel Engine Rule reduced the highway diesel fuel
sulfur content to 15 ppm, with the total program estimated to achieve a
90 percent reduction in primary PM2.5 emissions and a 95
percent reduction in NOX emissions. This rule took effect in
2007.
The Nonroad Diesel Rule and the associated Gasoline Sulfur
Standards are expected to reduce NOX and PM emissions from
large nonroad diesel engines by over 90 percent and have reduced the
sulfur content in nonroad diesel fuel by over 99 percent. The engine
emission standards required by this rule are being phased in between
2008 and 2014.
The Nonroad Large Spark-Ignition Engine and Recreational Engine
Standards are being phased in from 2004 through 2012. Full
implementation of these engine standards are projected to result in an
overall 80 percent reduction in NOX emissions.

[[Page 41700]]

For all of the engine standards described above, some of the
expected emissions reductions occurred during the 2008-2010 attainment
period; however, additional reductions will continue to occur
throughout the maintenance period as the fleet of older engines turns
over. It should be noted, though, that the reduction in fuel sulfur
content yielded an immediate reduction in sulfate particle emissions
from all engines using the low-sulfur fuel.
On October 27, 1998 (63 FR 57356), EPA issued a SIP call under CAA
section 110(k)(5), commonly referred to as the NOX SIP Call.
This rule required the District of Columbia and 22 states to reduce
emissions of NOX in order to comply with CAA section
110(a)(2)(D)(i)(I)--the ``good neighbor'' provision of the CAA.
Affected states were required to comply with Phase I of the SIP Call
beginning in 2004, and Phase II beginning in 2007. Overall, sources
covered by the NOX SIP Call reduced NOX emissions
62 percent between 2000 (prior to implementation of the NOX
SIP call) and 2008. Emission reductions requirements from the
NOX SIP Call still exist. Most states that were subject to
the NOX SIP Call, including Indiana, are now complying with
those requirements through participation in the Clean Air Interstate
Rule (CAIR) ozone-season NOX trading program. However, while
EPA has acknowledged that participation in the CAIR ozone-season
NOX trading program is one acceptable way for states to meet
their NOX SIP Call obligations, the NOX SIP Call
obligations exist independent of CAIR and are independently permanent
and enforceable.
On May 12, 2005, EPA published CAIR, which requires significant
reductions in emissions of SO2 and NOX from
electric generating units to limit the interstate transport of these
pollutants and the ozone and fine particulate matter they form in the
atmosphere. See 76 FR 70093. The D.C. Circuit initially vacated CAIR,
North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately
remanded the rule to EPA without vacatur to preserve the environmental
benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178
(D.C. Cir. 2008). In response to the Court's decision, EPA issued the
Cross-State Air Pollution Rule (CSAPR) to address interstate transport
of NOX and SO2 in the eastern United States. See
76 FR 48208 (August 8, 2011).
On December 30, 2011, the D.C. Circuit issued an order addressing
the status of CSAPR and CAIR in response to motions filed by numerous
parties seeking a stay of CSAPR pending judicial review. In that order,
the Court stayed CSAPR pending resolution of the petitions for review
of that rule in EME Homer City Generation, L.P. v. EPA (No. 11-1302 and
consolidated cases). The Court also indicated that EPA was expected to
continue to administering CAIR.
On August 21, 2012, the D.C. Circuit issued the decision in EME
Homer City, to vacate and remand CSAPR and ordered EPA to continue
administering CAIR ``pending . . . development of a valid
replacement.'' EME Homer City at 38.\6\ To the extent that attainment
is due to emission reductions associated with CAIR, as explained in
greater detail in the subsequent comment response, EPA is determining
that those reductions are sufficiently permanent and enforceable for
purposes of CAA sections 107(d)(3)(E)(iii) and 175A.
---------------------------------------------------------------------------

\6\ On June 24, 2013, the Supreme Court granted certiorari and
agreed to review the D.C. Circuit's decision in EME Homer City. The
Supreme Court's grant of certiorari, by itself, does not alter the
status of CAIR or CSAPR. At this time, CAIR remains in place.
---------------------------------------------------------------------------

As directed by the D.C. Circuit, CAIR remains in place and
enforceable until EPA promulgates a valid replacement rule to
substitute for CAIR. Indiana's SIP revision lists CAIR as a control
measure that was adopted by the State in 2006 and required compliance
by January 1, 2009. CAIR was thus in place and getting emission
reductions when Indianapolis began monitoring attainment of the 1997
annual PM2.5 standard during the 2006-2008 time period. The
quality-assured, certified monitoring data continues to show the area
in attainment of the 1997 PM2.5 standard through 2011.
Comment: The commenter urges EPA not to rely upon future emissions
reductions from CAIR as permanent and enforceable for purposes of
approving the Indianapolis redesignation and maintenance plan. The
commenter argues that reliance on CAIR would be arbitrary, capricious,
and contrary to law, because of the D.C. Circuit's decision in North
Carolina v. EPA, which found CAIR to be legally defective and remanded
the rule to EPA. Thus, the commenter argues that CAIR is temporary. The
commenter notes that EPA's decision to rely on CAIR reductions as
sufficiently permanent and enforceable for the purposes of the
Indianapolis redesignation is a change in EPA's position, and, contrary
to EPA's assertion, that decision is in tension with the D.C. Circuit's
order to replace CAIR as expeditiously as practicable in EME Homer City
Generation, LLP v. EPA, 696 F.3d 7 (D.C. Cir. 2012).
Furthermore, the commenter states that EPA has not provided ``a
specific analysis of the extent to which redesignation of the
Indianapolis area to attainment and Indiana's plan for maintaining that
attainment status depend upon future emission reductions from CAIR.''
The commenter argues that without such an analysis it is impossible to
evaluate whether CAIR's sunsetting and replacement by a different rule
would have an impact on the attainment status of Indianapolis. The
commenter points out that a replacement rule may require a different
distribution of reductions than CAIR, and states that the agency's
``implied promise'' that a future replacement rule will be comparable
to CAIR ``does not withstand scrutiny in the absence of an area-
specific analysis.'' The commenter urges the agency to act quickly to
promulgate a new rule to replace CAIR if it wants to rely on emission
reductions in this context for purposes of redesignation.
Response: EPA disagrees with the commenter that it is arbitrary,
capricious, or contrary to law to approve the Indianapolis
redesignation because CAIR cannot be relied upon in this context.
Section 107(d)(3)(E) of the CAA sets out the requirements for
redesignation, and states in relevant part that the Administrator must
``determine[] that the improvement in air quality is due to permanent
and enforceable reductions in emissions resulting from implementation
of the applicable implementation plan and applicable Federal air
pollutant control regulations and other permanent and enforceable
reductions.'' 42 U.S.C. 7407(d)(3)(E)(iii).
EPA recognizes that the D.C. Circuit's instruction in both North
Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008), and EME Homer
City Generation L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), that CAIR
must be replaced necessarily means that CAIR will at some point cease
to be in effect. However, EPA disagrees that the Court's instruction in
those two cases forecloses the Agency and states from relying on CAIR
for purposes such as redesignating an area from nonattainment to
attainment. Subsection (iii) of section 107(d)(3)(E) is a backwards
looking requirement; it requires that the attainment air quality in the
area is ``due to'' permanent and enforceable emissions reductions. The
purpose of this requirement is to ensure that in redesignating areas
from nonattainment to attainment, EPA does not rely on ephemeral,
temporarily improved air quality that results from circumstances such
as temporary shutdowns of plants or reduced

[[Page 41701]]

emission rates because of slowed production. See ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992 (Calcagni memorandum) at 4. The structure of section
107(d)(3)(E)(iii) indicates that the CAA generally considers reductions
resulting from SIPs and Federal regulations as permanent and
enforceable. It references ``other'' reductions that are comparable to
measures adopted into SIPs or Federally adopted regulations and can
therefore also qualify as permanent and enforceable reductions,
indicating that, in general, SIP reductions and reductions from Federal
regulations are the types of reductions that the CAA views in the first
instance as having the requisite permanence and enforceability for
purposes of redesignation.
EPA acknowledges that prior to the EME Homer City decision, it did
not rely solely on CAIR to meet section 107(d)(3)(E)(iii)'s
requirements, but rather the combination of CAIR being in place through
the time period of the area coming into attainment, with CSAPR
achieving similar or greater emission reductions in the area in 2012
and beyond. See, e.g., Approval and Promulgation of Implementation
Plans and Designation of Areas for Air Quality Planning Purposes;
Kentucky; Redesignation of the Kentucky Portion of the Cincinnati-
Hamilton 1997 Annual Fine Particulate Matter Nonattainment Area to
Attainment, 76 FR 65458, 65460 (Oct. 21, 2011); Regional Haze:
Revisions to Provisions Governing Alternatives to Source-Specific Best
Available Retrofit Technology (BART) Determinations, Limited SIP
Disapprovals, and Federal Implementation Plans, 77 FR 33642, 33645
(June 7, 2012). It is not unreasonable or arbitrary for the agency to
reassess its position about whether the reductions of CAIR alone can be
considered sufficiently permanent and enforceable for purposes of
redesignation, in light of the D.C. Circuit's vacatur of CSAPR in EME
Homer City and related decision that EPA should continue administering
CAIR.
Contrary to the commenters' assertions, EPA's decision to rely on
CAIR for purposes of redesignating the Indianapolis area is not in
tension with the Court's instruction in EME Homer City to act
expeditiously on remand. EME Homer City, 696 F.3d at 38 n.35. The D.C.
Circuit in EME Homer City held that ``a SIP logically cannot be deemed
to lack a ``required submission'' before EPA quantifies the good
neighbor obligation.'' Id. at 32. Under this holding states have no
obligation to submit ``good neighbor'' SIPs until EPA has quantified
their ``good neighbor'' obligations and EPA may not promulgate a FIP to
address such obligations until the Agency first quantifies the state's
obligations, and provides the state an opportunity to submit a plan
consistent with that defined obligation. 696 F.3d at 28-37. The EME
Homer City decision thus significantly lengthens the time it will take
to get in place regulations to replace the remanded CAIR. Under the EME
Homer City decision SIP provisions to replace CAIR could not go into
effect until EPA has undertaken analysis and rulemaking to define
states' obligations in accordance with the other statutory requirements
identified by the EME Homer City court, provided states adequate time
to develop implementation plans consistent with the defined
obligations, and EPA has reviewed and approved the SIP submissions in
notice-and-comment rulemakings. Similarly, no FIP to replace CAIR could
go into effect unless EPA found a state failed to submit a SIP within
the time given to develop such implementation plans or disapproved such
a SIP submittal. It is not unreasonable for EPA to determine that in
light of these circumstances, CAIR will be in place for a significant
amount of time. The commenter suggests that EPA may not redesignate
Indianapolis until it has completed all of the steps required by EME
Homer City to promulgate a replacement rule. EPA disagrees. As noted in
the April 8, 2013, supplemental proposal (78 FR 20856), EPA believes
that relying on CAIR emission reductions in order to redesignate the
Indianapolis area, which has been attaining the NAAQS for many years
and continues to maintain the standard, is precisely the type of
``reliance interest'' that the D.C. Circuit was concerned about in
ordering the agency to continue administering CAIR. EME Homer City, 696
F.3d at 38.
EPA also disagrees that it must conduct the type of specific
analysis requested by the commenter in order to approve Indianapolis'
maintenance plan under section 175A. Section 175A requires states to
submit a maintenance plan that provides for the maintenance of the
NAAQS for the relevant air pollutant for ten years following
redesignation. 42 U.S.C. 7505a(a). In the April 8, 2013, supplemental
proposal, EPA provided projected emissions of direct PM2.5,
SO2, NOX, VOCs and ammonia in the Indianapolis
area for the relevant maintenance period. See 78 FR 20864, tbls. 1-4.
Under its existing suite of control measures, including CAIR,
Indianapolis is attaining the 1997 PM2.5 NAAQS. Over the
maintenance period, emissions for each pollutant and precursor are
expected to further decrease in the Indianapolis area. EPA therefore
does not believe that an ``area-specific analysis'' as requested by the
commenter is necessary or appropriate in order to redesignate the
Indianapolis area.
The anticipation that CAIR may be replaced during the maintenance
period by another rule requiring upwind sources to reduce emissions
does not require EPA to disapprove the redesignation request for
Indianapolis currently before it. EPA's longstanding interpretation of
section 107(d)(3)(E) in the Calcagni Memorandum contemplates that some
reductions required by existing control measures may be replaced in the
future by other measures. Specifically, it states that ``the State will
be expected to maintain its implemented control strategy despite
redesignation to attainment, unless such measures are shown to be
unnecessary for maintenance or are replaced with measures that achieve
equivalent reductions.'' Calcagni Memorandum at 10. As noted in the
supplemental proposal, upon promulgation of the replacement rule for
CSAPR and CAIR, EPA will review existing SIPs as appropriate, including
maintenance plans, to identify whether discrepancies in emission
reductions from the control measures will pose a threat to the
maintenance of the NAAQS for that pollutant. Therefore, the commenter's
concern that a future replacement rule might not require the same
reductions as CAIR is not a bar to approving Indiana's redesignation
request today. The commenter's statement that ``if EPA wants to rely on
emissions reductions for a CAIR replacement rule to support the
redesignation of areas such as Indianapolis and their maintenance
plans, then EPA should move without delay to develop and promulgate a
legally defensible rule to replace CAIR'' misstates EPA's position. EPA
is not relying on emissions reductions from a CAIR replacement rule in
approving the maintenance plan for Indianapolis. Rather, EPA is relying
on CAIR, which is currently in place and will remain in place for a
significant period of time, in approving the maintenance plan. EPA
further notes that any rule promulgated to replace CAIR with respect to
PM2.5 will need to ensure that the ``good neighbor''
provisions have been

[[Page 41702]]

satisfied with regard to the 1997 annual PM2.5 NAAQS.

IV. Why is EPA taking these actions?

EPA has determined that the Indianapolis area has attained and
continues to attain the 1997 annual PM2.5 NAAQS and that the
area has attained this standard by its applicable attainment date of
April 5, 2010. EPA has also determined that all other criteria have
been met for the redesignation of the Indianapolis area from
nonattainment to attainment of the 1997 annual PM2.5 NAAQS
and for approval of Indiana's maintenance plan for the area. See CAA
sections 107(d)(3)(E) and 175A. The detailed rationale for EPA's
findings and actions is set forth in the proposed and direct final
rulemakings of September 27, 2011 (76 FR 59599 and 76 FR 59512), in the
supplemental proposed rulemaking of April 8, 2013 (78 FR 20856) and in
this final rulemaking.

V. Final Action

EPA is making a determination that the Indianapolis area has
attained the 1997 annual PM2.5 standard by its attainment
date and that the area continues to attain the standard. EPA is
determining that the area has met the requirements for redesignation
under section 107(d)(3)(E) and 175A of the CAA. EPA is thus approving
the request from Indiana to change the legal designation of the
Indianapolis area from nonattainment to attainment for the 1997 annual
PM2.5 NAAQS. EPA is also approving Indiana's
PM2.5 maintenance plan for the Indianapolis area as a
revision to the Indiana SIP because the plan meets the requirements of
section 175A of the CAA. EPA is approving 2006 emissions inventories
for primary PM2.5, NOX, and SO2, and
2007/2008 emission inventories for VOC and ammonia as satisfying the
requirement in section 172(c)(3) of the CAA for a comprehensive,
current emission inventory. Finally, EPA finds adequate and is
approving 2015 and 2025 primary PM2.5 and NOX
MVEBs for the Indianapolis area. These MVEBs will be used in future
transportation conformity analyses for the area.
In accordance with 5 U.S.C. 553(d), EPA finds there is good cause
for these actions to become effective immediately upon publication.
This is because a delayed effective date is unnecessary due to the
nature of a redesignation to attainment, which relieves the area from
certain CAA requirements that would otherwise apply to it. The
immediate effective date for this action is authorized under both 5
U.S.C. 553(d)(1), which provides that rulemaking actions may become
effective less than 30 days after publication if the rule ``grants or
recognizes an exemption or relieves a restriction,'' and section
553(d)(3) which allows an effective date less than 30 days after
publication ``as otherwise provided by the agency for good cause found
and published with the rule.'' The purpose of the 30-day waiting period
prescribed in section 553(d) is to give affected parties a reasonable
time to adjust their behavior and prepare before the final rule takes
effect. Today's rule, however, does not create any new regulatory
requirements such that affected parties would need time to prepare
before the rule takes effect. Rather, today's rule relieves the State
of planning requirements for this 8-hour ozone nonattainment area. For
these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these
actions to become effective on the date of publication of these
actions.

VI. Statutory and Executive Order Reviews

Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by state law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, 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, these actions merely do not impose additional requirements
beyond those imposed by state law and the CAA. For that reason, these
actions:
Are not ``significant regulatory actions'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are 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.);
Do 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);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are 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
Do 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 a determinations of attainment is an action that affects the
status of a geographical area and does not impose any new regulatory
requirements on tribes, impact any existing sources of air pollution on
tribal lands, nor impair the maintenance of ozone national ambient air
quality standards in tribal lands.
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. These actions are not ``major rules'' 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 September 9, 2013. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of these actions for the

[[Page 41703]]

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. These actions may not be
challenged later in proceedings to enforce their requirements. (See
section 307(b)(2).)

List of Subjects

40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter.

40 CFR Part 81

Environmental protection, Air pollution control, National parks,
Wilderness areas.

Dated: June 26, 2013.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR Parts 52 and 81 are amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

0
2. Section 52.776 is amended by adding paragraphs (v)(2) and (w)(2) to
read as follows:

Sec. 52.776 Control strategy: Particulate matter.

* * * * *
(v) * * *
(2) The Indianapolis area (Hamilton, Hendricks, Johnson, Marion and
Morgan Counties), as submitted on October 20, 2009, and supplemented on
May 31, 2011, January 17, 2013, and March 18, 2013. The maintenance
plan establishes 2015 motor vehicle emissions budgets for the
Indianapolis area of 853.76 tpy for primary PM2.5 and
25,314.49 tpy for NOX and 2025 motor vehicle emissions
budgets of 460.18 tpy for primary PM2.5 and 13,368.60 tpy
for NOX.
(w) * * *
(2) Indiana's 2006 NOX, primary PM2.5, and
SO2 emissions inventories and 2007/2008 VOC and ammonia
emission inventories, as submitted on October 20, 2009 and supplemented
on May 31, 2011 and March 18, 2013, satisfy the emission inventory
requirements of section 172(c)(3) of the Clean Air Act for the
Indianapolis area.
* * * * *

PART 81--DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

0
3. The authority citation for part 81 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

0
4. Section 81.315 is amended by revising the entry for Indianapolis, IN
in the table entitled ``Indiana PM2.5 (Annual NAAQS)'' to
read as follows:

Sec. 81.315 Indiana.

* * * * *

Indiana PM2.5 (Annual NAAQS)
------------------------------------------------------------------------
Designation \a\
Designated area --------------------------------------
Date \1\ Type
------------------------------------------------------------------------

* * * * * * *
Indianapolis, IN:
Hamilton County.............. 7/11/2013 Attainment.
Hendricks County............. 7/11/2013 Attainment.
Johnson County............... 7/11/2013 Attainment.
Marion County................ 7/11/2013 Attainment.
Morgan County................ 7/11/2013 Attainment.

* * * * * * *
------------------------------------------------------------------------
\a\ Includes Indian Country located in each county or area, except as
otherwise specified.
\1\ This date is 90 days after January 5, 2005, unless otherwise noted.

* * * * *
[FR Doc. 2013-16478 Filed 7-10-13; 8:45 am]
BILLING CODE 6560-50-P

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