Approval and Promulgation of Air Quality Implementation Plans; Indiana; Infrastructure SIP Requirements for the 2008 Lead NAAQS, 62035-62042 [2014-24493]
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• 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.
B. Submission to Congress and the
Comptroller General
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).
C. Petitions for Judicial Review
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by December 15, 2014. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this action for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or action. This action, which
satisfies certain infrastructure
requirements of section 110(a)(2) of the
CAA for the 2008 ozone NAAQS for the
State of West Virginia, may not be
Name of non-regulatory
SIP revision
Applicable
geographic
area
*
*
Section 110(a)(2) Infrastructure Requirements for the 2010 1-Hour
Sulfur Dioxide NAAQS.
*
Statewide ...........
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
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[EPA–R05–OAR–2011–0888; FRL–9917–61–
Region 5]
Approval and Promulgation of Air
Quality Implementation Plans; Indiana;
Infrastructure SIP Requirements for
the 2008 Lead NAAQS
Environmental Protection
Agency (EPA).
ACTION: Final rule.
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List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Reporting and recordkeeping
requirements, Sulfur dioxide.
Dated: September 30, 2014.
William C. Early,
Acting Regional Administrator, Region III.
40 CFR part 52 is amended as follows:
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.
Subpart XX—West Virginia
2. In § 52.2520, the table in paragraph
(e) is amended by adding the entry for
Section 110(a)(2) Infrastructure
Requirements for the 2010 Sulfur
Dioxide NAAQS at the end of the table
to read as follows:
■
§ 52.2520
*
*
10/16/14 [Insert
Federal Register citation].
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Identification of plan.
*
*
(e) * * *
*
*
Additional explanation
*
*
*
This action addresses the following CAA elements:
110(a)(2)(A), (B), (C) (enforcement and minor new
source review), (D)(ii), (E)(i) and (iii), (F), (G), (H),
(J) (consultation, public notification, and visibility
protection), (K), (L), and (M).
The Environmental Protection
Agency (EPA) is taking final action to
approve elements of a state
implementation plan (SIP) submission
by Indiana regarding the infrastructure
requirements of sections 110(a)(1) and
(2) of the Clean Air Act (CAA) for the
2008 lead (Pb) national ambient air
quality standards (NAAQS). The
infrastructure requirements are designed
to ensure that the structural components
of each state’s air quality management
program are adequate to meet the state’s
responsibilities under the CAA. The
proposed rulemaking associated with
today’s final action was published on
August 19, 2013, and EPA received one
comment letter during the comment
period, which ended on September 18,
2013. The concerns raised in this letter,
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challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
EPA approval
date
SUMMARY:
[FR Doc. 2014–24658 Filed 10–15–14; 8:45 am]
AGENCY:
State
submittal
date
62035
as well as EPA’s responses, will be
addressed in this final action.
This final rule is effective on
November 17, 2014.
DATES:
EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2011–0888. All
documents in the docket are listed in
the www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., Confidential Business Information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly-available only in hard
copy. Publicly-available docket
materials are available either
electronically in www.regulations.gov or
ADDRESSES:
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Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations
in hard copy at the U.S. 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 Sarah Arra at (312) 886–
9401 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
U.S. Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–9401,
arra.sarah@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 of this SIP
submission?
A. What does this rulemaking address?
B. Why did the state make this SIP
submission?
C. What is the scope of this rulemaking?
II. What is our response to comments
received on the proposed rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of this SIP
submission?
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A. What does this rulemaking address?
This rulemaking addresses a
December 12, 2011, submission from the
Indiana Department of Environmental
Management (IDEM) intended to meet
the applicable infrastructure SIP
requirements for the 2008 Pb NAAQS.
B. Why did the state make this SIP
submission?
Under sections 110(a)(1) and (2) of the
CAA, states are required to submit
infrastructure SIPs to ensure that their
SIPs provide for implementation,
maintenance, and enforcement of the
NAAQS, including the 2008 Pb NAAQS.
These submissions must contain any
revisions needed for meeting the
applicable SIP requirements of section
110(a)(2), or certifications that their
existing SIPs for Pb already meet those
requirements.
EPA has highlighted this statutory
requirement in multiple guidance
documents, including the most recent
guidance document entitled ‘‘Guidance
on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act
Sections 110(a)(1) and (2)’’ issued on
September 13, 2013.
C. What is the scope of this rulemaking?
EPA is acting upon the SIP
submission Indiana that addresses the
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infrastructure requirements of CAA
sections 110(a)(1) and 110(a)(2) for the
2008 Pb NAAQS. The requirement for
states to make SIP submissions of this
type arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states
must make SIP submissions ‘‘within 3
years (or such shorter period as the
Administrator may prescribe) after the
promulgation of a national primary
ambient air quality standard (or any
revision thereof),’’ and these SIP
submissions are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
visibility protection requirements of
CAA section 169A, and nonattainment
new source review (NNSR) permit
program submissions to address the
permit requirements of CAA, title I, part
D.
This rulemaking will not cover three
substantive areas that are not integral to
acting on a state’s infrastructure SIP
submission: (i) existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction (‘‘SSM’’)at sources, that
may be contrary to the CAA and EPA’s
policies addressing such excess
emissions; (ii) existing provisions
related to ‘‘director’s variance’’ or
‘‘director’s discretion’’ that purport to
permit revisions to SIP approved
emissions limits with limited public
process or without requiring further
approval by EPA, that may be contrary
to the CAA (collectively referred to as
‘‘director’s discretion’’); and, (iii)
existing provisions for Prevention of
Significant Deterioration (PSD)
programs that may be inconsistent with
current requirements of EPA’s ‘‘Final
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NSR Improvement Rule,’’ 67 FR 80186
(December 31, 2002), as amended by 72
FR 32526 (June 13, 2007) (‘‘NSR
Reform’’). Instead, EPA has the
authority to address each one of these
substantive areas in separate
rulemaking. A detailed rationale,
history, and interpretation related to
infrastructure SIP requirements can be
found in our May 13, 2014, proposed
rule entitled, ‘‘Infrastructure SIP
Requirements for the 2008 Lead
NAAQS’’ in the section, ‘‘What is the
scope of this rulemaking?’’ (see 79 FR
27241 at 27242—27245).
In addition, on a portion of section
110(a)(2)(J)—visibility protection. EPA
is also not acting on section
110(a)(2)(I)—Nonattainment Area Plan
or Plan Revisions Under Part D, in its
entirety. The rationale for not acting on
elements of these requirements was
included in EPA’s August 19, 2013,
proposed rulemaking or discussed
below in today’s response to comments.
II. What is our response to comments
received on the proposed rulemaking?
The public comment period for EPA’s
proposed actions with respect to
Indiana’s satisfaction of the
infrastructure SIP requirements for the
2008 Pb NAAQS closed on September
18, 2013. EPA received one comment
letter, which was from the Sierra Club,
and a synopsis of the comments
contained in this letter and EPA’s
responses, are provided below.
Comment 1: The Sierra Club states
that on its face the CAA ‘‘requires I–SIPs
to be adequate to prevent violations of
the NAAQS.’’ In support, the
commenter quotes the language in
section 110(a)(1) which requires states
to adopt a plan for implementation,
maintenance, and enforcement of the
NAAQS and the language in section
110(a)(2)(A) which requires SIPs to
include enforceable emissions
limitations as may be necessary to meet
the requirements of the CAA and which
commenters claimed include the
maintenance plan requirement. Sierra
Club notes the CAA definition of
emission limit and reads these
provisions together to require
‘‘enforceable emission limitations on
source emissions sufficient to ensure
maintenance of the NAAQS.’’
Response 1: EPA disagrees that
section 110 must be interpreted in the
manner suggested by Sierra Club.
Section 110 is only one provision that
is part of the complex structure
governing implementation of the
NAAQS program under the CAA, as
amended in 1990, and it must be
interpreted in the context of not only
that structure, but also of the historical
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evolution of that structure. In light of
the revisions to section 110 since 1970
and the later-promulgated and more
specific planning requirements of the
CAA, EPA interprets the requirement in
section 110(a)(2)(A) that the plan
provide for ‘‘implementation,
maintenance and enforcement’’ to mean
that the infrastructure SIP must contain
enforceable emission limits that will aid
in attaining and/or maintaining the
NAAQS and that the state demonstrate
that it has the necessary tools to
implement and enforce a NAAQS, such
as adequate state personnel and an
enforcement program. With regard to
the requirement for emission
limitations, EPA has interpreted this to
mean that, for purposes of section 110,
the state may rely on measures already
in place to address the pollutant at issue
or any new control measures that the
state may choose to submit. As EPA
stated in ‘‘Guidance on Infrastructure
State Implementation Plan (SIP)
Elements under Clean Air Act Sections
110(a)(1) and 110(a)(2),’’ dated
September 13, 2013 (Infrastructure SIP
Guidance), ‘‘[t]he conceptual purpose of
an infrastructure SIP submission is to
assure that the air agency’s SIP contains
the necessary structural requirements
for the new or revised NAAQS, whether
by establishing that the SIP already
contains the necessary provisions, by
making a substantive SIP revision to
update the SIP, or both. Overall, the
infrastructure SIP submission process
provides an opportunity . . . to review
the basic structural requirements of the
air agency’s air quality management
program in light of each new or revised
NAAQS.’’ Infrastructure SIP Guidance
at p. 2.
Comment 2: Sierra Club also cites two
excerpts from the legislative history of
the CAA Amendments of 1970 claiming
they support an interpretation that SIP
revisions under CAA section 110 must
include emissions limitations sufficient
to show maintenance of the NAAQS in
all areas of Indiana. Sierra Club also
contends that the legislative history of
the CAA supports the interpretation that
infrastructure SIPs under section
110(a)(2) must include enforceable
emission limitations, citing the Senate
Committee Report and the subsequent
Senate Conference Report
accompanying the 1970 CAA.
Response 2: The CAA, as enacted in
1970, including its legislative history,
cannot be interpreted in isolation from
the later amendments that refined that
structure and deleted relevant language
from section 110 concerning
demonstrating attainment. In any event,
the two excerpts of legislative history
the commenter cites merely provide that
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states should include enforceable
emission limits in their SIPs; they do
not mention or otherwise address
whether states are required to include
maintenance plans for all areas of the
state as part of the infrastructure SIP.
Comment 3: The commenter cites to
40 CFR 51.112(a), providing that each
plan must ‘‘demonstrate that the
measures, rules, and regulations
contained in it are adequate to provide
for the timely attainment and
maintenance of the [NAAQS].’’ The
commenter asserts that this regulation
requires all SIPs to include emissions
limits necessary to ensure attainment of
the NAAQS. The commenter states that
‘‘[a]lthough these regulations were
developed before the Clean Air Act
separated Infrastructure SIPs from
nonattainment SIPs—a process that
began with the 1977 amendments and
was completed by the 1990
amendments—the regulations apply to
I–SIPs.’’ The commenter relies on a
statement in the preamble to the 1986
action restructuring and consolidating
provisions in part 51, in which EPA
stated that ‘‘[i]t is beyond the scope of
th[is] rulemaking to address the
provisions of Part D of the Act. . . .’’ 51
FR 40656 (November 7, 1986).
Response 3: The commenter’s reliance
on 40 CFR 51.112 to support its
argument that infrastructure SIPs must
contain emission limits ‘‘adequate to
prohibit NAAQS violations’’ and
adequate or sufficient to ensure the
maintenance of the NAAQS is not
supported. As an initial matter, EPA
notes and the commenter recognizes
this regulatory provision was initially
promulgated and ‘‘restructured and
consolidated’’ prior to the CAA
Amendments of 1990, in which
Congress removed all references to
‘‘attainment’’ in section 110(a)(2)(A). In
addition, it is clear on its face that 40
CFR 51.112 applies to plans specifically
designed to attain the NAAQS. EPA
interprets these provisions to apply
when states are developing ‘‘control
strategy’’ SIPs such as the detailed
attainment and maintenance plans
required under other provisions of the
CAA, as amended in 1977 and again in
1990, such as section 175A and 182.
The commenter suggests that these
provisions must apply to section 110
SIPs because in the preamble to EPA’s
action ‘‘restructuring and consolidating’’
provisions in part 51, EPA stated that
the new attainment demonstration
provisions in the 1977 Amendments to
the CAA were ‘‘beyond the scope’’ of
the rulemaking. It is important to note,
however, that EPA’s action in 1986 was
not to establish new substantive
planning requirements, but rather to
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62037
consolidate and restructure provisions
that had previously been promulgated.
EPA noted that it had already issued
guidance addressing the new ‘‘Part D’’
attainment planning obligations. Also,
as to maintenance regulations, EPA
expressly stated that it was not making
any revisions other than to re-number
those provisions. Id. at 40657.
Although EPA was explicit that it was
not establishing requirements
interpreting the provisions of new ‘‘part
D’’ of the CAA, it is clear that the
regulations being restructured and
consolidated were intended to address
control strategy plans. In the preamble,
EPA clearly stated that 40 CFR 51.112
was replacing 40 CFR 51.13 (‘‘Control
strategy: SOX and PM (portion)’’), 51.14
(‘‘Control strategy: CO, HC, OX and NO2
(portion)’’), 51.80 (‘‘Demonstration of
attainment: Pb (portion)’’), and 51.82
(‘‘Air quality data (portion)’’). Id. at
40660. Thus, the present-day 51.112
contains consolidated provisions that
are focused on control strategy SIPs, and
the infrastructure SIP is not such a plan.
Comment 4: The commenter
references two prior EPA rulemaking
actions where EPA disapproved or
proposed to disapprove SIPs, and
claimed they were actions in which EPA
relied on section 110(a)(2)(A) and 40
CFR 51.112 to reject infrastructure SIPs.
The commenter first points to a 2006
partial approval and partial disapproval
of revisions to Missouri’s existing plan
addressing the sulfur dioxide (SO2)
NAAQS. In that action, EPA cited
section 110(a)(2)(A) as a basis for
disapproving a revision to the State plan
on the basis that the State failed to
demonstrate the SIP was sufficient to
ensure maintenance of the SO2 NAAQS
after revision of an emission limit and
cited to 40 CFR 51.112 as requiring that
a plan demonstrates the rules in a SIP
are adequate to attain the NAAQS.
Second, commenter cites a 2013
proposed disapproval of a revision to
the SO2 SIP for Indiana, where the
revision removed an emission limit that
applied to a specific emissions source at
a facility in the State. EPA relied on 40
CFR 51.112(a) in proposing to reject the
revision, stating that the State had not
demonstrated that the emission limit
was ‘‘redundant, unnecessary, or that its
removal would not result in or allow an
increase in actual SO2 emissions.’’ EPA
further stated in that proposed
disapproval that the State had not
demonstrated that removal of the limit
would not ‘‘affect the validity of the
emission rates used in the existing
attainment demonstration.’’
Response 4: EPA does not agree that
the two prior actions referenced by the
commenter establish how EPA reviews
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Federal Register / Vol. 79, No. 200 / Thursday, October 16, 2014 / Rules and Regulations
infrastructure SIPs. It is clear from both
the final Missouri rule and the now final
Indiana rule that EPA was not reviewing
initial infrastructure SIP submissions
under section 110 of the CAA, but rather
reviewing revisions that would make an
already approved SIP designed to
demonstrate attainment of the NAAQS
less stringent. EPA’s partial approval
and partial disapproval of revisions to
restrictions on emissions of sulfur
compounds for the Missouri SIP
addressed a control strategy SIP and not
an infrastructure SIP (71 FR 12623). The
Indiana action provides even less
support for the commenter’s position
(78 FR 78720). The review in that rule
was of a completely different
requirement than the 110(a)(2)(A) SIP.
Rather, in that case, the State had an
approved SO2 attainment plan and was
seeking to remove from the SIP,
provisions relied on as part of the
modeled attainment demonstration.
EPA determined that the State had
failed to demonstrate under section
110(l) of the CAA why the SIP revision
would not result in increased SO2
emissions and thus interfere with
attainment of the NAAQS. Nothing in
that rulemaking addresses the necessary
content of the initial infrastructure SIP
for a new or revised NAAQS. Rather, it
is simply applying the clear statutory
requirement that a state must
demonstrate why a revision to an
approved attainment plan will not
interfere with attainment of the NAAQS.
Comment 5: Sierra Club discusses
several cases applying to the CAA
which Sierra Club claims support their
contention that courts have been clear
that section 110(a)(2)(A) requires
enforceable emissions limits in
infrastructure SIPs to prevent violations
of the NAAQS. Sierra Club first cites to
language in Train v. NRDC, 421 U.S. 60,
78 (1975), addressing the requirement
for ‘‘emission limitations’’ and stating
that emission limitations ‘‘are specific
rules to which operators of pollution
sources are subject, and which if
enforced should result in ambient air
which meet the national standards.’’
Sierra Club also cites to Pennsylvania
Dept. of Envtl. Resources v. EPA, 932
F.2d 269, 272 (3d Cir. 1991) for the
proposition that the CAA directs EPA to
withhold approval of a SIP where it
does not ensure maintenance of the
NAAQS and Mision Industrial, Inc. v.
EPA, 547 F.2d 123, 129 (1st Cir. 1976),
which quoted section 110(a)(2)(B) of the
CAA of 1970. The commenter contends
that the 1990 Amendments do not alter
how courts have interpreted the
requirements of section 110, quoting
Alaska Dept. of Envtl. Conservation v.
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EPA, 540 U.S. 461, 470 (2004) which in
turn quoted section 110(a)(2)(A) of the
CAA and also stated that ‘‘SIPs must
include certain measures Congress
specified’’ to ensure attainment of the
NAAQS. The commenter also quotes
several additional opinions in this vein.
Mont. Sulphur & Chem. Co. v. EPA, 666
F.3d 1174, 1180 (9th Cir. 2012) (‘‘The
Clean Air Act directs states to develop
implementation plans—SIPs—that
‘assure’ attainment and maintenance of
[NAAQS] through enforceable emissions
limitations’’); Hall v. EPA 273 F.3d
1146, 1153 (9th Cir. 2001) (‘‘Each State
must submit a [SIP] that specif[ies] the
manner in which [NAAQS] will be
achieved and maintained within each
air quality control region in the State’’).
The commenter also cites Mich. Dept. of
Envtl. Quality v. Browner, 230 F.3d 181
(6th Cir. 2000) for the proposition that
EPA may not approve a SIP revision that
does not demonstrate how the rules
would not interfere with attainment and
maintenance of the NAAQS.
Response 5: None of the cases the
commenter cites supports the
commenter’s contention that section
110(a)(2)(A) requires that infrastructure
SIPs include detailed plans providing
for attainment and maintenance of the
NAAQS in all areas of the state, nor do
they shed light on how section
110(a)(2)(A) may reasonably be
interpreted. With the exception of
Train, 421 U.S. 60, none of the cases the
commenter cites concerned the
interpretation of CAA section
110(a)(2)(A) (or section 110(a)(2)(B) of
the pre-1990 Act). Rather, in the context
of a challenge to an EPA action,
revisions to a SIP that were required and
approved as meeting other provisions of
the CAA or in the context of an
enforcement action, the court references
section 110(a)(2)(A) (or section
110(a)(2)(B) of the pre-1990 CAA) in the
background section of its decision.
In Train, a case that was decided
almost 40 years ago, the Court was
addressing a state revision to an
attainment plan submission made
pursuant to section 110 of the CAA, the
sole statutory provision at that time
regulating such submissions. The issue
in that case concerned whether changes
to requirements that would occur before
attainment was required were variances
that should be addressed pursuant to
the provision governing SIP revisions or
were ‘‘postponements’’ that must be
addressed under section 110(f) of the
CAA of 1970, which contained
prescriptive criteria. The court
concluded that EPA reasonably
interpreted section 110(f) not to restrict
a state’s choice of the mix of control
measures needed to attain the NAAQS
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and that revisions to SIPs that would
not impact attainment of the NAAQS by
the attainment date were not subject to
the limits of section 110(f). Thus the
issue was not whether a section 110 SIP
needs to provide for attainment or
whether emissions limits are needed as
part of the SIP; rather the issue was
which statutory provision governed
when the state wanted to revise the
emission limits in its SIP if such
revision would not impact attainment or
maintenance of the NAAQS. To the
extent the holding in the case has any
bearing on how section 110(a)(2)(A)
might be interpreted, it is important to
realize that in 1975, when the opinion
was issued, section 110(a)(2)(B) (the
predecessor to section 110(a)(2)(A))
expressly referenced the requirement to
attain the NAAQS, a reference that was
removed in 1990.
The decision in Pennsylvania Dept. of
Envtl. Resources was also decided based
on the pre-1990 provision of the CAA.
At issue was whether EPA properly
rejected a revision to an approved plan
where the inventories relied on by the
state for the updated submission had
gaps. The court quoted section
110(a)(2)(B) of the pre-1990 CAA in
support of EPA’s disapproval, but did
not provide any interpretation of that
provision. Yet, even if the court had
interpreted that provision, EPA notes
that it was modified by Congress in
1990; thus, this decision has little
bearing on the issue here.
At issue in Mision Industrial, 547
F.2d 123, was the definition of
‘‘emissions limitation’’ not whether
section 110 requires the state to
demonstrate how all areas of the state
will attain and maintain the NAAQS as
part of their infrastructure SIPs. The
language from the opinion the
commenter quotes does not interpret but
rather merely describes section
110(a)(2)(A). The commenters do not
raise any concerns about whether the
measures relied on by the state in the
infrastructure SIP are ‘‘emissions
limitations’’ and the decision in this
case has no bearing here. In Mont.
Sulphur & Chem. Co., 666 F.3d 1174,
the court was reviewing a Federal
implementation plan that EPA
promulgated after a long history of the
state failing to submit an adequate state
implementation plan. The court cited
generally to section 107 and 110(a)(2)(A)
of the CAA for the proposition that SIPs
should assure attainment and
maintenance of NAAQS through
emission limitations but this language
was not part of the court’s holding in
the case. The commenter suggests that
Alaska Dept. of Envtl. Conservation, 540
U.S. 461, stands for the proposition that
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the 1990 CAA Amendments do not alter
how courts interpret section 110. This
claim is inaccurate. Rather, the court
quoted section 110(a)(2)(A), which, as
noted previously, differs from the pre1990 version of that provision and the
court makes no mention of the changed
language. Furthermore, the commenter
also quotes the court’s statement that
‘‘SIPs must include certain measures
Congress specified’’ but that statement
specifically referenced the requirement
in section 110(a)(2)(C), which requires
an enforcement program and a program
for the regulation of the modification
and construction of new sources.
Notably, at issue in that case was the
state’s ‘‘new source’’ permitting
program, not its infrastructure SIP.
Two of the cases the commenter cites,
Mich. Dept. of Envtl. Quality, 230 F.3d
181, and Hall, 273 F.3d 1146, interpret
CAA section 110(l), the provision
governing ‘‘revisions’’ to plans, and not
the initial plan submission requirement
under section 110(a)(2) for a new or
revised NAAQS, such as the
infrastructure SIP at issue in this
instance. In those cases, the courts cited
to section 110(a)(2)(A) solely for the
purpose of providing a brief background
of the CAA.
Comment 6: The commenter asserted
that Indiana’s infrastructure SIP fails to
meet the requirements of section
110(a)(2)(A) and section 110(a)(2)(E)
because IC 13–14–8–8 contains
provisions that would allow the board
to grant variances to rules when the
rules would impose ‘‘undue hardships
or burden.’’ The commenter noted that
EPA had cited IC 13–14–8 as one of
IDEM’s mechanisms for satisfying the
requirements of section 110(a)(2)(A) and
section 110(a)(2)(E), but contended that
the variance provisions in IC 13–14–8–
8 are too broad and vague to ensure that
emission limits and controls are
properly enforced, or to ensure that
adequate legal authority is provided to
carry out Indiana’s SIP. Therefore, EPA
cannot approve IC 13–14–8 to meet any
requirements of section 110.
Response 6: EPA disagrees the
commenter’s claim that Indiana’s
infrastructure SIP fails to meet the
requirements of section 110(a)(2)(A) and
section 110(a)(2)(E). As an initial matter,
IC 13–14–8–8 is not a regulation that
has been approved into the SIP. Thus,
any variance granted by the state
pursuant to this provision would not
modify the requirements of the SIP.
Furthermore, for a variance from the
state to be approved into the SIP, a
demonstration must be made under
CAA section 110(l) showing that the
revision does not interfere with any
requirements of the act including
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attainment or maintenance of a NAAQS.
We disagree that the existence of this
provision as solely a matter of State law
means that the State does not have
adequate authority to carry out the
implementation plan.
Comment 7: The commenter asserted
that EPA must disapprove Indiana’s
infrastructure SIP because it does not
address the visibility provisions under
section 110(a)(2)(D)(i)(II). The
commenter noted that EPA’s basis for
proposing approval for the visibility
protection provisions of section
110(a)(2)(D)(i)(II) was contingent upon
EPA’s claim that Indiana has an
approved regional haze SIP. The
commenter contended that Indiana’s
regional haze SIP was only partially
approved and no action has been taken
on issues addressing the Best Available
Retrofit Technology requirements for
EGUs. Therefore, the commenter
believes that EPA must disapprove the
visibility protection requirements found
in section 110(a)(2)(D)(i)(II) for Indiana’s
infrastructure SIP.
Response 7: Section 110(a)(2)(D)(i)(II)
of the CAA requires that states have a
SIP, or submit a SIP revision, containing
provisions ‘‘prohibiting any source or
other type of emission activity within
the state from emitting any air pollutant
in amounts which will . . . interfere
with measures required to be included
in the applicable implementation plan
for any other State under part C [of the
CAA] to protect visibility.’’ States were
required to submit a SIP by December
2007 with measures to address regional
haze—visibility impairment that is
caused by the emissions of air
pollutants from numerous sources
located over a wide geographic area.
Under the regional haze program, each
State with a Class I area must submit a
SIP with reasonable progress goals for
each such area that provides for an
improvement in visibility for the most
impaired days and ensures no
degradation of the best days.
Because of the often significant
impacts on visibility from the interstate
transport of pollutants, we interpret the
‘‘good neighbor’’ provisions of section
110 of the CAA described above as
requiring states to include in their SIPs
measures to prohibit emissions that
would interfere with the reasonable
progress goals set to protect Class I areas
in other states. This is consistent with
the requirements in the regional haze
program which explicitly require each
State to address its share of the emission
reductions needed to meet the
reasonable progress goals for
surrounding Class I areas. 64 FR 35714,
35735 (July 1, 1999). States working
together through a regional planning
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62039
process are required to address an
agreed upon share of their contribution
to visibility impairment in the Class I
areas of their neighbors. 40 CFR
51.308(d)(3)(ii). Indiana worked through
a regional planning organization, the
Midwest Regional Planning
Organization (Midwest RPO), and
consulted directly with other states to
develop strategies to address regional
haze in the Class I areas potentially
affected by emissions from Indiana.
The commenter is correct that EPA
issued a limited disapproval of
Indiana’s regional haze SIP, but our
limited disapproval was based on
Indiana’s reliance on the Clean Air
Interstate Rule (CAIR) to satisfy certain
requirements for controlling emissions
of SO2 and NOX from EGUs. EPA
disagrees, however, with the commenter
that because Indiana’s regional haze SIP
did not fully meet certain requirements
for controlling emissions of SO2 and
NOX, EPA must disapprove its
infrastructure SIP for Pb.
Pb generally has an insignificant
impact on visibility. According to the
Memorandum from Mark Schmidt,
Office of Air Quality Planning and
Standards (OAQPS), when evaluating
the extent that Pb could impact
visibility, Pb-related visibility impacts
were found to be insignificant (e.g., less
than 0.10%) (‘‘Ambient Pb’s
Contribution to Class 1 Area Visibility
Impairment,’’ June 17, 2011). There is
no evidence in Indiana’s regional haze
SIP to indicate that emissions of Pb from
sources in the state were anticipated to
cause or contribute to visibility
impairment in any Class I area. In
addition, nothing in the Indiana
regional haze SIP indicates that any
state assumed (or requested) that
Indiana would be making reductions in
emission of Pb to improve visibility. As
such, the reasonable progress goals for
the Class I areas in nearby states do not
reflect any assumptions regarding Pb
emissions from Indiana. Given this, we
conclude that the Indiana SIP contains
adequate measures to ensure that
emissions of Pb from sources in the
State will not interfere with the
reasonable progress goals of nearby
Class I areas.
Comment 8: The commenter asserted
that EPA must disapprove Indiana’s
infrastructure SIP because it does not
address the visibility protection
provisions, as described above, for
section 110(a)(2)(J). The commenter
contended that EPA did not provide a
rationale for why the visibility
provisions in section 110(a)(2)(J) are not
applicable to the 2008 Pb and 2008
ozone NAAQS.
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Response 8: The visibility provisions
in section 110(a)(2)(J) are not applicable
to the 2008 Pb NAAQS for the following
reason. Under 40 CFR part 51 subpart P,
implementing the visibility
requirements of CAA title I, part C,
states are subject to requirements for
RAVI, new source review for possible
impacts on air quality related values in
Class I areas, and regional haze
planning. Specific requirements
stemming from these CAA sections are
codified at 40 CFR 55 part 51, subpart
P. However, when the EPA establishes
or revises a NAAQS, these requirements
under part C do not change. The EPA
believes that there are no new visibility
protection requirements under part C as
a result of a revised NAAQS. Therefore,
there are no newly applicable visibility
protection obligations pursuant to
Element J after the promulgation of a
new or revised NAAQS.
Comment 9: The commenter asserted
that EPA must clarify two repealed
regulations that were cited in the
proposed rulemaking. Specifically, the
commenter observed that EPA cited 326
IAC 11–5 as helping Indiana satisfy the
requirements of section 110(a)(2)(G)
‘‘Emergency Powers’’ and IC 13–4–8
which was cited to satisfy section
110(a)(2)(H), ‘‘Future SIP Revisions.’’
Response 9: EPA did not intend to
engender any confusion with these
citations. The commenter is correct in
noting that 326 IAC 11–5 has been
repealed. That rule was of little
relevance to section 110(a)(2)(G) and
was incorrectly cited; the correct
citation that was provided by IDEM is
SIP-approved IAC 1–5, ‘‘Alert Levels.’’
In a similar manner, IDEM provided IC
13–14–8 as helping to meet the
requirements under section 110(a)(2)(H),
but EPA incorrectly cited IC 13–4–8.
Comment 10: The commenter asserted
that EPA must disapprove portions of
Indiana’s infrastructure SIP for the 2008
Pb NAAQS addressing certain PM2.5
requirements under section 110(a)(2)(C).
In particular, the commenter objected
that Indiana has not codified the
increments for areas designated Class I
or Class III for PM2.5. The commenter
noted that while Indiana does not have
Class I or Class III areas, the increments
for Class I and Class III areas are still a
requirement to satisfy section
110(a)(2)(C). The commenter contends it
is insufficient for EPA to ‘‘hope’’ that
the state will adopt the increments if
areas in the state are later redesignated
to Class I or Class III, and therefore EPA
must disapprove this section of
Indiana’s infrastructure SIP.
Response 10: EPA disagrees with the
commenter’s view that Indiana’s
infrastructure SIP related to section
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110(a)(2)(C) must be disapproved
because the state has not codified the
PM2.5 increments for Class I and Class
III areas as provided at 40 CFR 52.166(c)
and 40 CFR 52.21(c). As explained in
the August 19, 2013 proposed approval,
Indiana does not currently have any
areas designated Class I or Class III for
PM2.5. Accordingly, EPA does not
consider the PM2.5 increments for Class
I and Class III areas to be necessary for
the implementation of PSD permitting
in Indiana at this time. In the event that
areas in Indiana are one day classified
as Class I or Class III, EPA expects IDEM
to adopt these increments and submit
them for incorporation into the SIP (see
78 FR 50360 at 50364). Section 40 CFR
51.166(g)(1) and 52.21(g)(1) specify that
if a state seeks to have an area
reclassified to either Class I or Class III,
it must submit such a request as a
revision to its SIP for approval by the
EPA Administrator. Thus, no areas in
Indiana can be reclassified to Class I or
Class III without EPA approval, and the
process of evaluating such a request for
approval requires a notice-and-comment
rulemaking process. The EPA and other
interested parties can evaluate the
adequacy of Indiana’s PSD regulations
as they apply to the proposed
reclassified area at that time and, if
necessary, initiate a process to cure any
identified deficiency. However, at this
time, EPA does not believe there to be
an applicability gap for the PM2.5
increments as they apply in the state of
Indiana.
III. What action is EPA taking?
For the reasons discussed in our
August 19, 2013, proposed rulemaking
and in the above responses to public
comments, EPA is taking final action to
approve, as proposed, Indiana’s
infrastructure SIPs for the 2008 Pb
NAAQS. In EPA’s August 19, 2013,
proposed rulemaking for these
infrastructure SIPs, we also proposed to
approve Indiana’s satisfaction of the
state board requirements contained in
section 128 of the CAA, as well as
certain PSD requirements obligated by
EPA’s October 20, 2010, final rule on
the ‘‘Prevention of Significant
Deterioration (PSD) for Particulate
Matter Less Than 2.5 Micrometers
(PM2.5)—Increments, Significant Impact
Levels (SILs) and Significant Monitoring
Concentration (SMC)’’ (2010 NSR Rule).
The final approvals for each of the
above requirements were published in
the Federal Register on December 24,
2013 (see 78 FR 77599, state board
requirements), July 2, 2014 (see 79 FR
37646, 2010 NSR Rule requirements)
and August 11, 2013 (see 79 FR 46709,
2010 NSR Rule requirements,
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continued). EPA also proposed
rulemaking on the 2008 ozone NAAQS
and will be taking final action in a
separate rulemaking. In today’s
rulemaking, we are taking final action
on only the infrastructure SIP
requirements for the 2008 Pb NAAQS.
Our final actions by element of section
110(a)(2) and NAAQS, are contained in
the table below.
Element
2008 Pb
NAAQS
(A): Emission limits and other
control measures ..................
(B): Ambient air quality monitoring and data system .........
(C)1: Enforcement of SIP
measures ..............................
(C)2: PSD Provisions for Pb
and ozone .............................
(C)3: PM2.5 precursors and
PM2.5/PM10 condensables for
PSD .......................................
(C)4: PM2.5 increments for PSD
(C)5: GHG permitting thresholds in PSD regulations ........
(D)1: Contribute to nonattainment/interfere with maintenance of NAAQS ..................
(D)2: PSD .................................
(D)3: Visibility Protection ..........
(D)4: Interstate Pollution Abatement ......................................
(D)5: International Pollution
Abatement .............................
(E)1: Adequate resources ........
(E)2: State boards ....................
(F): Stationary source monitoring system .........................
(G): Emergency power .............
(H): Future SIP revisions ..........
(I): Nonattainment area plan or
plan revisions under part D ..
(J)1: Consultation with government officials .........................
(J)2: Public notification .............
(J)3: PSD ..................................
(J)4: Visibility protection (Regional Haze) ..........................
(K): Air quality modeling and
data .......................................
(L): Permitting fees ...................
(M): Consultation and participation by affected local entities
A
A
A
A
A
A
A
A
**
A
A
A
A
A
A
A
A
NA
A
A
**
+
A
A
A
In the table above, the key is as
follows:
A .........
NA ......
D .........
+ .........
** ........
Approve.
No Action/Separate Rulemaking.
Disapprove.
Not relevant in these actions.
Previously discussed in element
(C).
IV. Statutory and Executive Order
Reviews
Under the CAA, the Administrator is
required to approve a SIP submission
that complies with the provisions of the
CAA and applicable Federal regulations.
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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).
This rule is not approved to apply on
any Indian reservation land or in any
other area where EPA or an Indian tribe
has demonstrated that a tribe has
jurisdiction. In those areas of Indian
country, the rule does not have tribal
implications as specified by Executive
Order 13175 (65 FR 67249, November 9,
2000), nor will it 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 Clean
Air Act, petitions for judicial review of
this action must be filed in the United
States Court of Appeals for the
appropriate circuit by December 15,
2014. Filing a petition for
reconsideration by the Administrator of
this final rule does not affect the finality
of this action for the purposes of judicial
review nor does it extend the time
within which a petition for judicial
review may be filed, and shall not
postpone the effectiveness of such rule
or action. This action may not be
challenged later in proceedings to
enforce its requirements. (See section
307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Lead, Reporting and recordkeeping
requirements.
Dated: September 30, 2014.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
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. Amend § 52.770, paragraph (e) table
by adding an entry in alphabetical order
for ‘‘Section 110(a)(2) Infrastructure
Requirements for the 2008 Lead
NAAQS’’ to read as follows:
■
§ 52.770
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Title
Indiana date
*
*
Section 110(a)(2) Infrastructure Requirements for the 2008 Lead NAAQS.
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12/12/2011
EPA approval
*
10/16/2014, [INSERT
FEDERAL REGISTER
CITATION].
*
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*
*
*
This action addresses the following CAA elements:
110(a)(2)(A), (B), (C), (D)(i)(I), (D)(i)(II), (D)(ii), (E),
(F), (G), (H), (J), (K), (L), and (M).
*
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[FR Doc. 2014–24493 Filed 10–15–14; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2011–0969; EPA–R05–
OAR–2012–0991; EPA–R05–OAR–2013–
0435; FRL–9917–60–Region 5]
Approval and Promulgation of Air
Quality Implementation Plans; Illinois;
Infrastructure SIP Requirements for
the 2008 Ozone, 2010 NO2, and 2010
SO2 NAAQS
AGENCY:
Environmental Protection
Agency.
ACTION: Final rule.
The Environmental Protection
Agency (EPA) is taking final action to
approve some elements and disapprove
other elements of a state
implementation plan (SIP) submission
from Illinois regarding the infrastructure
requirements of section 110 of the Clean
Air Act (CAA) for the 2008 ozone, 2010
nitrogen dioxide (NO2), and 2010 sulfur
dioxide (SO2) National Ambient Air
Quality Standards (NAAQS). The
infrastructure requirements are designed
to ensure that the structural components
of each state’s air quality management
program are adequate to meet the state’s
responsibilities under the CAA. Illinois
already administers Federally
promulgated regulations that address
the disapprovals described in this
rulemaking. Therefore, the state will not
be obligated to submit any new or
additional regulations as a result of this
final disapproval. The proposed
rulemaking associated with this final
action was published on July 14, 2014,
and EPA received one comment letter
during the comment period, which
ended on August 13, 2014. The
concerns raised in this letter, as well as
EPA’s responses, will be addressed in
this final action.
DATES: This final rule is effective on
November 17, 2014.
ADDRESSES: EPA has established dockets
for this action under Docket ID No.
EPA–R05–OAR–2011–0969 (2008 ozone
infrastructure SIP elements), Docket ID
No. EPA–R05–OAR–2012–0991 (2010
NO2 infrastructure SIP elements), and
Docket ID No. EPA–R05–OAR–2013–
0435 (2010 SO2 infrastructure SIP
elements). All documents in the docket
are listed in the www.regulations.gov
index. Although listed in the index,
some information is not publicly
available, e.g., Confidential Business
Information or other information whose
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SUMMARY:
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disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publiclyavailable only in hard copy. Publiclyavailable docket materials are available
either electronically in
www.regulations.gov or in hard copy at
the U.S. 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 Sarah Arra at (312) 886–
9401 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT:
Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
U.S. Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886–9401,
arra.sarah@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 of these SIP
submissions?
A. What state SIP submissions does this
rulemaking address?
B. Why did the state make these SIP
submissions?
C. What is the scope of this rulemaking?
II. What is our response to comments
received on the proposed rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of these SIP
submissions?
A. What state SIP submissions does this
rulemaking address?
This rulemaking addresses a
December 31, 2012, submission and a
June 11, 2014, clarification from the
Illinois Environmental Protection
Agency (Illinois EPA) intended to
address all applicable infrastructure
requirements for the 2008 ozone, 2010
NO2, and 2010 SO2 NAAQS.
B. Why did the state make these SIP
submissions?
Under sections 110(a)(1) and (2) of the
CAA, states are required to submit
infrastructure SIPs to ensure that their
SIPs provide for implementation,
maintenance, and enforcement of the
NAAQS, including the 2008 ozone,
2010 NO2, and 2010 SO2 NAAQS. These
submissions must contain any revisions
needed for meeting the applicable SIP
requirements of section 110(a)(2), or
certifications that their existing SIPs for
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Sfmt 4700
the NAAQS already meet those
requirements.
EPA has highlighted this statutory
requirement in multiple guidance
documents, including the most recent
guidance document entitled ‘‘Guidance
on Infrastructure State Implementation
Plan (SIP) Elements under Clean Air Act
Sections 110(a)(1) and (2)’’ issued on
September 13, 2013.
C. What is the scope of this rulemaking?
EPA is acting upon the SIP
submission from Illinois that address
the infrastructure requirements of CAA
sections 110(a)(1) and 110(a)(2) for the
2008 ozone, 2010 NO2, and 2010 SO2
NAAQS. The requirement for states to
make a SIP submission of this type
arises out of CAA section 110(a)(1).
Pursuant to section 110(a)(1), states
must make SIP submissions ‘‘within 3
years (or such shorter period as the
Administrator may prescribe) after the
promulgation of a national primary
ambient air quality standard (or any
revision thereof),’’ and these SIP
submissions are to provide for the
‘‘implementation, maintenance, and
enforcement’’ of such NAAQS. The
statute directly imposes on states the
duty to make these SIP submissions,
and the requirement to make the
submissions is not conditioned upon
EPA’s taking any action other than
promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of
specific elements that ‘‘[e]ach such
plan’’ submission must address.
EPA has historically referred to these
SIP submissions made for the purpose
of satisfying the requirements of CAA
sections 110(a)(1) and 110(a)(2) as
‘‘infrastructure SIP’’ submissions.
Although the term ‘‘infrastructure SIP’’
does not appear in the CAA, EPA uses
the term to distinguish this particular
type of SIP submission from
submissions that are intended to satisfy
other SIP requirements under the CAA,
such as ‘‘nonattainment SIP’’ or
‘‘attainment plan SIP’’ submissions to
address the nonattainment planning
requirements of part D of title I of the
CAA, ‘‘regional haze SIP’’ submissions
required by EPA rule to address the
visibility protection requirements of
CAA section 169A, and nonattainment
new source review (NNSR) permit
program submissions to address the
permit requirements of CAA, title I, part
D.
This rulemaking will not cover three
substantive areas that are not integral to
acting on a state’s infrastructure SIP
submission: (i) existing provisions
related to excess emissions during
periods of start-up, shutdown, or
malfunction (‘‘SSM’’)at sources, that
E:\FR\FM\16OCR1.SGM
16OCR1
]]>Agencies
[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Rules and Regulations]
[Pages 62035-62042]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-24493]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2011-0888; FRL-9917-61-Region 5]
Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Infrastructure SIP Requirements for the 2008 Lead NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to approve elements of a state implementation plan (SIP)
submission by Indiana regarding the infrastructure requirements of
sections 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 lead
(Pb) national ambient air quality standards (NAAQS). The infrastructure
requirements are designed to ensure that the structural components of
each state's air quality management program are adequate to meet the
state's responsibilities under the CAA. The proposed rulemaking
associated with today's final action was published on August 19, 2013,
and EPA received one comment letter during the comment period, which
ended on September 18, 2013. The concerns raised in this letter, as
well as EPA's responses, will be addressed in this final action.
DATES: This final rule is effective on November 17, 2014.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2011-0888. All documents in the docket are listed in
the www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, will be
publicly-available only in hard copy. Publicly-available docket
materials are available either electronically in www.regulations.gov or
[[Page 62036]]
in hard copy at the U.S. 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 Sarah Arra at (312) 886-9401 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-9401, arra.sarah@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 of this SIP submission?
A. What does this rulemaking address?
B. Why did the state make this SIP submission?
C. What is the scope of this rulemaking?
II. What is our response to comments received on the proposed
rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews
I. What is the background of this SIP submission?
A. What does this rulemaking address?
This rulemaking addresses a December 12, 2011, submission from the
Indiana Department of Environmental Management (IDEM) intended to meet
the applicable infrastructure SIP requirements for the 2008 Pb NAAQS.
B. Why did the state make this SIP submission?
Under sections 110(a)(1) and (2) of the CAA, states are required to
submit infrastructure SIPs to ensure that their SIPs provide for
implementation, maintenance, and enforcement of the NAAQS, including
the 2008 Pb NAAQS. These submissions must contain any revisions needed
for meeting the applicable SIP requirements of section 110(a)(2), or
certifications that their existing SIPs for Pb already meet those
requirements.
EPA has highlighted this statutory requirement in multiple guidance
documents, including the most recent guidance document entitled
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and (2)'' issued on September
13, 2013.
C. What is the scope of this rulemaking?
EPA is acting upon the SIP submission Indiana that addresses the
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for
the 2008 Pb NAAQS. The requirement for states to make SIP submissions
of this type arises out of CAA section 110(a)(1). Pursuant to section
110(a)(1), states must make SIP submissions ``within 3 years (or such
shorter period as the Administrator may prescribe) after the
promulgation of a national primary ambient air quality standard (or any
revision thereof),'' and these SIP submissions are to provide for the
``implementation, maintenance, and enforcement'' of such NAAQS. The
statute directly imposes on states the duty to make these SIP
submissions, and the requirement to make the submissions is not
conditioned upon EPA's taking any action other than promulgating a new
or revised NAAQS. Section 110(a)(2) includes a list of specific
elements that ``[e]ach such plan'' submission must address.
EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of CAA sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Although the term
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to
distinguish this particular type of SIP submission from submissions
that are intended to satisfy other SIP requirements under the CAA, such
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to
address the nonattainment planning requirements of part D of title I of
the CAA, ``regional haze SIP'' submissions required by EPA rule to
address the visibility protection requirements of CAA section 169A, and
nonattainment new source review (NNSR) permit program submissions to
address the permit requirements of CAA, title I, part D.
This rulemaking will not cover three substantive areas that are not
integral to acting on a state's infrastructure SIP submission: (i)
existing provisions related to excess emissions during periods of
start-up, shutdown, or malfunction (``SSM'')at sources, that may be
contrary to the CAA and EPA's policies addressing such excess
emissions; (ii) existing provisions related to ``director's variance''
or ``director's discretion'' that purport to permit revisions to SIP
approved emissions limits with limited public process or without
requiring further approval by EPA, that may be contrary to the CAA
(collectively referred to as ``director's discretion''); and, (iii)
existing provisions for Prevention of Significant Deterioration (PSD)
programs that may be inconsistent with current requirements of EPA's
``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as
amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, EPA
has the authority to address each one of these substantive areas in
separate rulemaking. A detailed rationale, history, and interpretation
related to infrastructure SIP requirements can be found in our May 13,
2014, proposed rule entitled, ``Infrastructure SIP Requirements for the
2008 Lead NAAQS'' in the section, ``What is the scope of this
rulemaking?'' (see 79 FR 27241 at 27242--27245).
In addition, on a portion of section 110(a)(2)(J)--visibility
protection. EPA is also not acting on section 110(a)(2)(I)--
Nonattainment Area Plan or Plan Revisions Under Part D, in its
entirety. The rationale for not acting on elements of these
requirements was included in EPA's August 19, 2013, proposed rulemaking
or discussed below in today's response to comments.
II. What is our response to comments received on the proposed
rulemaking?
The public comment period for EPA's proposed actions with respect
to Indiana's satisfaction of the infrastructure SIP requirements for
the 2008 Pb NAAQS closed on September 18, 2013. EPA received one
comment letter, which was from the Sierra Club, and a synopsis of the
comments contained in this letter and EPA's responses, are provided
below.
Comment 1: The Sierra Club states that on its face the CAA
``requires I-SIPs to be adequate to prevent violations of the NAAQS.''
In support, the commenter quotes the language in section 110(a)(1)
which requires states to adopt a plan for implementation, maintenance,
and enforcement of the NAAQS and the language in section 110(a)(2)(A)
which requires SIPs to include enforceable emissions limitations as may
be necessary to meet the requirements of the CAA and which commenters
claimed include the maintenance plan requirement. Sierra Club notes the
CAA definition of emission limit and reads these provisions together to
require ``enforceable emission limitations on source emissions
sufficient to ensure maintenance of the NAAQS.''
Response 1: EPA disagrees that section 110 must be interpreted in
the manner suggested by Sierra Club. Section 110 is only one provision
that is part of the complex structure governing implementation of the
NAAQS program under the CAA, as amended in 1990, and it must be
interpreted in the context of not only that structure, but also of the
historical
[[Page 62037]]
evolution of that structure. In light of the revisions to section 110
since 1970 and the later-promulgated and more specific planning
requirements of the CAA, EPA interprets the requirement in section
110(a)(2)(A) that the plan provide for ``implementation, maintenance
and enforcement'' to mean that the infrastructure SIP must contain
enforceable emission limits that will aid in attaining and/or
maintaining the NAAQS and that the state demonstrate that it has the
necessary tools to implement and enforce a NAAQS, such as adequate
state personnel and an enforcement program. With regard to the
requirement for emission limitations, EPA has interpreted this to mean
that, for purposes of section 110, the state may rely on measures
already in place to address the pollutant at issue or any new control
measures that the state may choose to submit. As EPA stated in
``Guidance on Infrastructure State Implementation Plan (SIP) Elements
under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated September
13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual purpose of
an infrastructure SIP submission is to assure that the air agency's SIP
contains the necessary structural requirements for the new or revised
NAAQS, whether by establishing that the SIP already contains the
necessary provisions, by making a substantive SIP revision to update
the SIP, or both. Overall, the infrastructure SIP submission process
provides an opportunity . . . to review the basic structural
requirements of the air agency's air quality management program in
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p.
2.
Comment 2: Sierra Club also cites two excerpts from the legislative
history of the CAA Amendments of 1970 claiming they support an
interpretation that SIP revisions under CAA section 110 must include
emissions limitations sufficient to show maintenance of the NAAQS in
all areas of Indiana. Sierra Club also contends that the legislative
history of the CAA supports the interpretation that infrastructure SIPs
under section 110(a)(2) must include enforceable emission limitations,
citing the Senate Committee Report and the subsequent Senate Conference
Report accompanying the 1970 CAA.
Response 2: The CAA, as enacted in 1970, including its legislative
history, cannot be interpreted in isolation from the later amendments
that refined that structure and deleted relevant language from section
110 concerning demonstrating attainment. In any event, the two excerpts
of legislative history the commenter cites merely provide that states
should include enforceable emission limits in their SIPs; they do not
mention or otherwise address whether states are required to include
maintenance plans for all areas of the state as part of the
infrastructure SIP.
Comment 3: The commenter cites to 40 CFR 51.112(a), providing that
each plan must ``demonstrate that the measures, rules, and regulations
contained in it are adequate to provide for the timely attainment and
maintenance of the [NAAQS].'' The commenter asserts that this
regulation requires all SIPs to include emissions limits necessary to
ensure attainment of the NAAQS. The commenter states that ``[a]lthough
these regulations were developed before the Clean Air Act separated
Infrastructure SIPs from nonattainment SIPs--a process that began with
the 1977 amendments and was completed by the 1990 amendments--the
regulations apply to I-SIPs.'' The commenter relies on a statement in
the preamble to the 1986 action restructuring and consolidating
provisions in part 51, in which EPA stated that ``[i]t is beyond the
scope of th[is] rulemaking to address the provisions of Part D of the
Act. . . .'' 51 FR 40656 (November 7, 1986).
Response 3: The commenter's reliance on 40 CFR 51.112 to support
its argument that infrastructure SIPs must contain emission limits
``adequate to prohibit NAAQS violations'' and adequate or sufficient to
ensure the maintenance of the NAAQS is not supported. As an initial
matter, EPA notes and the commenter recognizes this regulatory
provision was initially promulgated and ``restructured and
consolidated'' prior to the CAA Amendments of 1990, in which Congress
removed all references to ``attainment'' in section 110(a)(2)(A). In
addition, it is clear on its face that 40 CFR 51.112 applies to plans
specifically designed to attain the NAAQS. EPA interprets these
provisions to apply when states are developing ``control strategy''
SIPs such as the detailed attainment and maintenance plans required
under other provisions of the CAA, as amended in 1977 and again in
1990, such as section 175A and 182. The commenter suggests that these
provisions must apply to section 110 SIPs because in the preamble to
EPA's action ``restructuring and consolidating'' provisions in part 51,
EPA stated that the new attainment demonstration provisions in the 1977
Amendments to the CAA were ``beyond the scope'' of the rulemaking. It
is important to note, however, that EPA's action in 1986 was not to
establish new substantive planning requirements, but rather to
consolidate and restructure provisions that had previously been
promulgated. EPA noted that it had already issued guidance addressing
the new ``Part D'' attainment planning obligations. Also, as to
maintenance regulations, EPA expressly stated that it was not making
any revisions other than to re-number those provisions. Id. at 40657.
Although EPA was explicit that it was not establishing requirements
interpreting the provisions of new ``part D'' of the CAA, it is clear
that the regulations being restructured and consolidated were intended
to address control strategy plans. In the preamble, EPA clearly stated
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy:
SOX and PM (portion)''), 51.14 (``Control strategy: CO, HC,
OX and NO2 (portion)''), 51.80 (``Demonstration of
attainment: Pb (portion)''), and 51.82 (``Air quality data
(portion)''). Id. at 40660. Thus, the present-day 51.112 contains
consolidated provisions that are focused on control strategy SIPs, and
the infrastructure SIP is not such a plan.
Comment 4: The commenter references two prior EPA rulemaking
actions where EPA disapproved or proposed to disapprove SIPs, and
claimed they were actions in which EPA relied on section 110(a)(2)(A)
and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first
points to a 2006 partial approval and partial disapproval of revisions
to Missouri's existing plan addressing the sulfur dioxide
(SO2) NAAQS. In that action, EPA cited section 110(a)(2)(A)
as a basis for disapproving a revision to the State plan on the basis
that the State failed to demonstrate the SIP was sufficient to ensure
maintenance of the SO2 NAAQS after revision of an emission
limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates
the rules in a SIP are adequate to attain the NAAQS. Second, commenter
cites a 2013 proposed disapproval of a revision to the SO2
SIP for Indiana, where the revision removed an emission limit that
applied to a specific emissions source at a facility in the State. EPA
relied on 40 CFR 51.112(a) in proposing to reject the revision, stating
that the State had not demonstrated that the emission limit was
``redundant, unnecessary, or that its removal would not result in or
allow an increase in actual SO2 emissions.'' EPA further
stated in that proposed disapproval that the State had not demonstrated
that removal of the limit would not ``affect the validity of the
emission rates used in the existing attainment demonstration.''
Response 4: EPA does not agree that the two prior actions
referenced by the commenter establish how EPA reviews
[[Page 62038]]
infrastructure SIPs. It is clear from both the final Missouri rule and
the now final Indiana rule that EPA was not reviewing initial
infrastructure SIP submissions under section 110 of the CAA, but rather
reviewing revisions that would make an already approved SIP designed to
demonstrate attainment of the NAAQS less stringent. EPA's partial
approval and partial disapproval of revisions to restrictions on
emissions of sulfur compounds for the Missouri SIP addressed a control
strategy SIP and not an infrastructure SIP (71 FR 12623). The Indiana
action provides even less support for the commenter's position (78 FR
78720). The review in that rule was of a completely different
requirement than the 110(a)(2)(A) SIP. Rather, in that case, the State
had an approved SO2 attainment plan and was seeking to
remove from the SIP, provisions relied on as part of the modeled
attainment demonstration. EPA determined that the State had failed to
demonstrate under section 110(l) of the CAA why the SIP revision would
not result in increased SO2 emissions and thus interfere
with attainment of the NAAQS. Nothing in that rulemaking addresses the
necessary content of the initial infrastructure SIP for a new or
revised NAAQS. Rather, it is simply applying the clear statutory
requirement that a state must demonstrate why a revision to an approved
attainment plan will not interfere with attainment of the NAAQS.
Comment 5: Sierra Club discusses several cases applying to the CAA
which Sierra Club claims support their contention that courts have been
clear that section 110(a)(2)(A) requires enforceable emissions limits
in infrastructure SIPs to prevent violations of the NAAQS. Sierra Club
first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975),
addressing the requirement for ``emission limitations'' and stating
that emission limitations ``are specific rules to which operators of
pollution sources are subject, and which if enforced should result in
ambient air which meet the national standards.'' Sierra Club also cites
to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d
Cir. 1991) for the proposition that the CAA directs EPA to withhold
approval of a SIP where it does not ensure maintenance of the NAAQS and
Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976),
which quoted section 110(a)(2)(B) of the CAA of 1970. The commenter
contends that the 1990 Amendments do not alter how courts have
interpreted the requirements of section 110, quoting Alaska Dept. of
Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn
quoted section 110(a)(2)(A) of the CAA and also stated that ``SIPs must
include certain measures Congress specified'' to ensure attainment of
the NAAQS. The commenter also quotes several additional opinions in
this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th
Cir. 2012) (``The Clean Air Act directs states to develop
implementation plans--SIPs--that `assure' attainment and maintenance of
[NAAQS] through enforceable emissions limitations''); Hall v. EPA 273
F.3d 1146, 1153 (9th Cir. 2001) (``Each State must submit a [SIP] that
specif[ies] the manner in which [NAAQS] will be achieved and maintained
within each air quality control region in the State''). The commenter
also cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th
Cir. 2000) for the proposition that EPA may not approve a SIP revision
that does not demonstrate how the rules would not interfere with
attainment and maintenance of the NAAQS.
Response 5: None of the cases the commenter cites supports the
commenter's contention that section 110(a)(2)(A) requires that
infrastructure SIPs include detailed plans providing for attainment and
maintenance of the NAAQS in all areas of the state, nor do they shed
light on how section 110(a)(2)(A) may reasonably be interpreted. With
the exception of Train, 421 U.S. 60, none of the cases the commenter
cites concerned the interpretation of CAA section 110(a)(2)(A) (or
section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a
challenge to an EPA action, revisions to a SIP that were required and
approved as meeting other provisions of the CAA or in the context of an
enforcement action, the court references section 110(a)(2)(A) (or
section 110(a)(2)(B) of the pre-1990 CAA) in the background section of
its decision.
In Train, a case that was decided almost 40 years ago, the Court
was addressing a state revision to an attainment plan submission made
pursuant to section 110 of the CAA, the sole statutory provision at
that time regulating such submissions. The issue in that case concerned
whether changes to requirements that would occur before attainment was
required were variances that should be addressed pursuant to the
provision governing SIP revisions or were ``postponements'' that must
be addressed under section 110(f) of the CAA of 1970, which contained
prescriptive criteria. The court concluded that EPA reasonably
interpreted section 110(f) not to restrict a state's choice of the mix
of control measures needed to attain the NAAQS and that revisions to
SIPs that would not impact attainment of the NAAQS by the attainment
date were not subject to the limits of section 110(f). Thus the issue
was not whether a section 110 SIP needs to provide for attainment or
whether emissions limits are needed as part of the SIP; rather the
issue was which statutory provision governed when the state wanted to
revise the emission limits in its SIP if such revision would not impact
attainment or maintenance of the NAAQS. To the extent the holding in
the case has any bearing on how section 110(a)(2)(A) might be
interpreted, it is important to realize that in 1975, when the opinion
was issued, section 110(a)(2)(B) (the predecessor to section
110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS,
a reference that was removed in 1990.
The decision in Pennsylvania Dept. of Envtl. Resources was also
decided based on the pre-1990 provision of the CAA. At issue was
whether EPA properly rejected a revision to an approved plan where the
inventories relied on by the state for the updated submission had gaps.
The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of
EPA's disapproval, but did not provide any interpretation of that
provision. Yet, even if the court had interpreted that provision, EPA
notes that it was modified by Congress in 1990; thus, this decision has
little bearing on the issue here.
At issue in Mision Industrial, 547 F.2d 123, was the definition of
``emissions limitation'' not whether section 110 requires the state to
demonstrate how all areas of the state will attain and maintain the
NAAQS as part of their infrastructure SIPs. The language from the
opinion the commenter quotes does not interpret but rather merely
describes section 110(a)(2)(A). The commenters do not raise any
concerns about whether the measures relied on by the state in the
infrastructure SIP are ``emissions limitations'' and the decision in
this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 F.3d
1174, the court was reviewing a Federal implementation plan that EPA
promulgated after a long history of the state failing to submit an
adequate state implementation plan. The court cited generally to
section 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs
should assure attainment and maintenance of NAAQS through emission
limitations but this language was not part of the court's holding in
the case. The commenter suggests that Alaska Dept. of Envtl.
Conservation, 540 U.S. 461, stands for the proposition that
[[Page 62039]]
the 1990 CAA Amendments do not alter how courts interpret section 110.
This claim is inaccurate. Rather, the court quoted section
110(a)(2)(A), which, as noted previously, differs from the pre-1990
version of that provision and the court makes no mention of the changed
language. Furthermore, the commenter also quotes the court's statement
that ``SIPs must include certain measures Congress specified'' but that
statement specifically referenced the requirement in section
110(a)(2)(C), which requires an enforcement program and a program for
the regulation of the modification and construction of new sources.
Notably, at issue in that case was the state's ``new source''
permitting program, not its infrastructure SIP.
Two of the cases the commenter cites, Mich. Dept. of Envtl.
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section
110(l), the provision governing ``revisions'' to plans, and not the
initial plan submission requirement under section 110(a)(2) for a new
or revised NAAQS, such as the infrastructure SIP at issue in this
instance. In those cases, the courts cited to section 110(a)(2)(A)
solely for the purpose of providing a brief background of the CAA.
Comment 6: The commenter asserted that Indiana's infrastructure SIP
fails to meet the requirements of section 110(a)(2)(A) and section
110(a)(2)(E) because IC 13-14-8-8 contains provisions that would allow
the board to grant variances to rules when the rules would impose
``undue hardships or burden.'' The commenter noted that EPA had cited
IC 13-14-8 as one of IDEM's mechanisms for satisfying the requirements
of section 110(a)(2)(A) and section 110(a)(2)(E), but contended that
the variance provisions in IC 13-14-8-8 are too broad and vague to
ensure that emission limits and controls are properly enforced, or to
ensure that adequate legal authority is provided to carry out Indiana's
SIP. Therefore, EPA cannot approve IC 13-14-8 to meet any requirements
of section 110.
Response 6: EPA disagrees the commenter's claim that Indiana's
infrastructure SIP fails to meet the requirements of section
110(a)(2)(A) and section 110(a)(2)(E). As an initial matter, IC 13-14-
8-8 is not a regulation that has been approved into the SIP. Thus, any
variance granted by the state pursuant to this provision would not
modify the requirements of the SIP. Furthermore, for a variance from
the state to be approved into the SIP, a demonstration must be made
under CAA section 110(l) showing that the revision does not interfere
with any requirements of the act including attainment or maintenance of
a NAAQS. We disagree that the existence of this provision as solely a
matter of State law means that the State does not have adequate
authority to carry out the implementation plan.
Comment 7: The commenter asserted that EPA must disapprove
Indiana's infrastructure SIP because it does not address the visibility
provisions under section 110(a)(2)(D)(i)(II). The commenter noted that
EPA's basis for proposing approval for the visibility protection
provisions of section 110(a)(2)(D)(i)(II) was contingent upon EPA's
claim that Indiana has an approved regional haze SIP. The commenter
contended that Indiana's regional haze SIP was only partially approved
and no action has been taken on issues addressing the Best Available
Retrofit Technology requirements for EGUs. Therefore, the commenter
believes that EPA must disapprove the visibility protection
requirements found in section 110(a)(2)(D)(i)(II) for Indiana's
infrastructure SIP.
Response 7: Section 110(a)(2)(D)(i)(II) of the CAA requires that
states have a SIP, or submit a SIP revision, containing provisions
``prohibiting any source or other type of emission activity within the
state from emitting any air pollutant in amounts which will . . .
interfere with measures required to be included in the applicable
implementation plan for any other State under part C [of the CAA] to
protect visibility.'' States were required to submit a SIP by December
2007 with measures to address regional haze--visibility impairment that
is caused by the emissions of air pollutants from numerous sources
located over a wide geographic area. Under the regional haze program,
each State with a Class I area must submit a SIP with reasonable
progress goals for each such area that provides for an improvement in
visibility for the most impaired days and ensures no degradation of the
best days.
Because of the often significant impacts on visibility from the
interstate transport of pollutants, we interpret the ``good neighbor''
provisions of section 110 of the CAA described above as requiring
states to include in their SIPs measures to prohibit emissions that
would interfere with the reasonable progress goals set to protect Class
I areas in other states. This is consistent with the requirements in
the regional haze program which explicitly require each State to
address its share of the emission reductions needed to meet the
reasonable progress goals for surrounding Class I areas. 64 FR 35714,
35735 (July 1, 1999). States working together through a regional
planning process are required to address an agreed upon share of their
contribution to visibility impairment in the Class I areas of their
neighbors. 40 CFR 51.308(d)(3)(ii). Indiana worked through a regional
planning organization, the Midwest Regional Planning Organization
(Midwest RPO), and consulted directly with other states to develop
strategies to address regional haze in the Class I areas potentially
affected by emissions from Indiana.
The commenter is correct that EPA issued a limited disapproval of
Indiana's regional haze SIP, but our limited disapproval was based on
Indiana's reliance on the Clean Air Interstate Rule (CAIR) to satisfy
certain requirements for controlling emissions of SO2 and
NOX from EGUs. EPA disagrees, however, with the commenter
that because Indiana's regional haze SIP did not fully meet certain
requirements for controlling emissions of SO2 and
NOX, EPA must disapprove its infrastructure SIP for Pb.
Pb generally has an insignificant impact on visibility. According
to the Memorandum from Mark Schmidt, Office of Air Quality Planning and
Standards (OAQPS), when evaluating the extent that Pb could impact
visibility, Pb-related visibility impacts were found to be
insignificant (e.g., less than 0.10%) (``Ambient Pb's Contribution to
Class 1 Area Visibility Impairment,'' June 17, 2011). There is no
evidence in Indiana's regional haze SIP to indicate that emissions of
Pb from sources in the state were anticipated to cause or contribute to
visibility impairment in any Class I area. In addition, nothing in the
Indiana regional haze SIP indicates that any state assumed (or
requested) that Indiana would be making reductions in emission of Pb to
improve visibility. As such, the reasonable progress goals for the
Class I areas in nearby states do not reflect any assumptions regarding
Pb emissions from Indiana. Given this, we conclude that the Indiana SIP
contains adequate measures to ensure that emissions of Pb from sources
in the State will not interfere with the reasonable progress goals of
nearby Class I areas.
Comment 8: The commenter asserted that EPA must disapprove
Indiana's infrastructure SIP because it does not address the visibility
protection provisions, as described above, for section 110(a)(2)(J).
The commenter contended that EPA did not provide a rationale for why
the visibility provisions in section 110(a)(2)(J) are not applicable to
the 2008 Pb and 2008 ozone NAAQS.
[[Page 62040]]
Response 8: The visibility provisions in section 110(a)(2)(J) are
not applicable to the 2008 Pb NAAQS for the following reason. Under 40
CFR part 51 subpart P, implementing the visibility requirements of CAA
title I, part C, states are subject to requirements for RAVI, new
source review for possible impacts on air quality related values in
Class I areas, and regional haze planning. Specific requirements
stemming from these CAA sections are codified at 40 CFR 55 part 51,
subpart P. However, when the EPA establishes or revises a NAAQS, these
requirements under part C do not change. The EPA believes that there
are no new visibility protection requirements under part C as a result
of a revised NAAQS. Therefore, there are no newly applicable visibility
protection obligations pursuant to Element J after the promulgation of
a new or revised NAAQS.
Comment 9: The commenter asserted that EPA must clarify two
repealed regulations that were cited in the proposed rulemaking.
Specifically, the commenter observed that EPA cited 326 IAC 11-5 as
helping Indiana satisfy the requirements of section 110(a)(2)(G)
``Emergency Powers'' and IC 13-4-8 which was cited to satisfy section
110(a)(2)(H), ``Future SIP Revisions.''
Response 9: EPA did not intend to engender any confusion with these
citations. The commenter is correct in noting that 326 IAC 11-5 has
been repealed. That rule was of little relevance to section
110(a)(2)(G) and was incorrectly cited; the correct citation that was
provided by IDEM is SIP-approved IAC 1-5, ``Alert Levels.'' In a
similar manner, IDEM provided IC 13-14-8 as helping to meet the
requirements under section 110(a)(2)(H), but EPA incorrectly cited IC
13-4-8.
Comment 10: The commenter asserted that EPA must disapprove
portions of Indiana's infrastructure SIP for the 2008 Pb NAAQS
addressing certain PM2.5 requirements under section
110(a)(2)(C). In particular, the commenter objected that Indiana has
not codified the increments for areas designated Class I or Class III
for PM2.5. The commenter noted that while Indiana does not
have Class I or Class III areas, the increments for Class I and Class
III areas are still a requirement to satisfy section 110(a)(2)(C). The
commenter contends it is insufficient for EPA to ``hope'' that the
state will adopt the increments if areas in the state are later
redesignated to Class I or Class III, and therefore EPA must disapprove
this section of Indiana's infrastructure SIP.
Response 10: EPA disagrees with the commenter's view that Indiana's
infrastructure SIP related to section 110(a)(2)(C) must be disapproved
because the state has not codified the PM2.5 increments for
Class I and Class III areas as provided at 40 CFR 52.166(c) and 40 CFR
52.21(c). As explained in the August 19, 2013 proposed approval,
Indiana does not currently have any areas designated Class I or Class
III for PM2.5. Accordingly, EPA does not consider the
PM2.5 increments for Class I and Class III areas to be
necessary for the implementation of PSD permitting in Indiana at this
time. In the event that areas in Indiana are one day classified as
Class I or Class III, EPA expects IDEM to adopt these increments and
submit them for incorporation into the SIP (see 78 FR 50360 at 50364).
Section 40 CFR 51.166(g)(1) and 52.21(g)(1) specify that if a state
seeks to have an area reclassified to either Class I or Class III, it
must submit such a request as a revision to its SIP for approval by the
EPA Administrator. Thus, no areas in Indiana can be reclassified to
Class I or Class III without EPA approval, and the process of
evaluating such a request for approval requires a notice-and-comment
rulemaking process. The EPA and other interested parties can evaluate
the adequacy of Indiana's PSD regulations as they apply to the proposed
reclassified area at that time and, if necessary, initiate a process to
cure any identified deficiency. However, at this time, EPA does not
believe there to be an applicability gap for the PM2.5
increments as they apply in the state of Indiana.
III. What action is EPA taking?
For the reasons discussed in our August 19, 2013, proposed
rulemaking and in the above responses to public comments, EPA is taking
final action to approve, as proposed, Indiana's infrastructure SIPs for
the 2008 Pb NAAQS. In EPA's August 19, 2013, proposed rulemaking for
these infrastructure SIPs, we also proposed to approve Indiana's
satisfaction of the state board requirements contained in section 128
of the CAA, as well as certain PSD requirements obligated by EPA's
October 20, 2010, final rule on the ``Prevention of Significant
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers
(PM2.5)--Increments, Significant Impact Levels (SILs) and
Significant Monitoring Concentration (SMC)'' (2010 NSR Rule). The final
approvals for each of the above requirements were published in the
Federal Register on December 24, 2013 (see 78 FR 77599, state board
requirements), July 2, 2014 (see 79 FR 37646, 2010 NSR Rule
requirements) and August 11, 2013 (see 79 FR 46709, 2010 NSR Rule
requirements, continued). EPA also proposed rulemaking on the 2008
ozone NAAQS and will be taking final action in a separate rulemaking.
In today's rulemaking, we are taking final action on only the
infrastructure SIP requirements for the 2008 Pb NAAQS. Our final
actions by element of section 110(a)(2) and NAAQS, are contained in the
table below.
------------------------------------------------------------------------
2008 Pb
Element NAAQS
------------------------------------------------------------------------
(A): Emission limits and other control measures............ A
(B): Ambient air quality monitoring and data system........ A
(C)1: Enforcement of SIP measures.......................... A
(C)2: PSD Provisions for Pb and ozone...................... A
(C)3: PM2.5 precursors and PM2.5/PM10 condensables for PSD. A
(C)4: PM2.5 increments for PSD............................. A
(C)5: GHG permitting thresholds in PSD regulations......... A
(D)1: Contribute to nonattainment/interfere with A
maintenance of NAAQS......................................
(D)2: PSD.................................................. **
(D)3: Visibility Protection................................ A
(D)4: Interstate Pollution Abatement....................... A
(D)5: International Pollution Abatement.................... A
(E)1: Adequate resources................................... A
(E)2: State boards......................................... A
(F): Stationary source monitoring system................... A
(G): Emergency power....................................... A
(H): Future SIP revisions.................................. A
(I): Nonattainment area plan or plan revisions under part D NA
(J)1: Consultation with government officials............... A
(J)2: Public notification.................................. A
(J)3: PSD.................................................. **
(J)4: Visibility protection (Regional Haze)................ +
(K): Air quality modeling and data......................... A
(L): Permitting fees....................................... A
(M): Consultation and participation by affected local A
entities..................................................
------------------------------------------------------------------------
In the table above, the key is as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
A............................. Approve.
NA............................ No Action/Separate Rulemaking.
D............................. Disapprove.
+............................. Not relevant in these actions.
**............................ Previously discussed in element (C).
------------------------------------------------------------------------
IV. Statutory and Executive Order Reviews
Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations.
[[Page 62041]]
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).
This rule is not approved to apply on any Indian reservation land
or in any other area where EPA or an Indian tribe has demonstrated that
a tribe has jurisdiction. In those areas of Indian country, the rule
does not have tribal implications as specified by Executive Order 13175
(65 FR 67249, November 9, 2000), nor will it 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 Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by December 15, 2014. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this action for the purposes of
judicial review nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to enforce its requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Lead, Reporting and
recordkeeping requirements.
Dated: September 30, 2014.
Susan Hedman,
Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Amend Sec. 52.770, paragraph (e) table by adding an entry in
alphabetical order for ``Section 110(a)(2) Infrastructure Requirements
for the 2008 Lead NAAQS'' to read as follows:
Sec. 52.770 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Title Indiana date EPA approval Explanation
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Infrastructure 12/12/2011 10/16/2014, [INSERT This action addresses the
Requirements for the 2008 Lead NAAQS. FEDERAL REGISTER following CAA elements:
CITATION]. 110(a)(2)(A), (B), (C),
(D)(i)(I), (D)(i)(II),
(D)(ii), (E), (F), (G), (H),
(J), (K), (L), and (M).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 62042]]
[FR Doc. 2014-24493 Filed 10-15-14; 8:45 am]
BILLING CODE 6560-50-P
