Indiana; Ohio; Disapproval of Interstate Transport Requirements for the 2008 Ozone NAAQS, 38957-38963 [2016-14103]
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Subpart B—Requests Initiated by the
Postal Service To Modify the Product
Lists
3. Revise the heading of subpart B to
read as set forth above.
■ 4. Revise § 3020.30 to read as follows:
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
■
§ 3020.30
General.
The Postal Service, by filing a request
with the Commission, may propose a
modification to the market dominant
product list or the competitive product
list. For purposes of this part,
modification shall be defined as adding
a product to a list, removing a product
from a list, or moving a product from
one list to the other list.
Subpart C—Requests Initiated by
Users of the Mail to Modify the Product
Lists
5. Revise the heading of subpart C to
read as set forth above.
■ 6. Revise § 3020.50 to read as follows:
■
§ 3020.50
General.
Users of the mail, by filing a request
with the Commission, may propose a
modification to the market dominant
product list or the competitive product
list. For purposes of this part,
modification shall be defined as adding
a product to a list, removing a product
from a list, or transferring a product
from one list to the other list.
Subpart D—Proposal of the
Commission to Modify the Product
Lists
7. Revise the heading of subpart D to
read as set forth above.
Subpart D—Proposal of the
Commission to Modify the Product
Lists
8. Revise § 3020.70 to read as follows:
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§ 3020.70
General.
The Commission, of its own initiative,
may propose a modification to the
market dominant product list or the
competitive product list. For purposes
of this part, modification shall be
defined as adding a product to a list,
removing a product from a list, or
transferring a product from one list to
the other list.
By the Commission.
Stacy L. Ruble,
Secretary.
[FR Doc. 2016–14171 Filed 6–14–16; 8:45 am]
BILLING CODE 7710–FW–P
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Indiana; Ohio; Disapproval of
Interstate Transport Requirements for
the 2008 Ozone NAAQS
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is disapproving elements
of State Implementation Plan (SIP)
submissions from Indiana and Ohio
regarding the infrastructure
requirements of section 110 of the Clean
Air Act (CAA) for the 2008 ozone
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
is adequate to meet the state’s
responsibilities under the CAA. This
action pertains specifically to
infrastructure requirements concerning
interstate transport provisions, for
which Ohio and Indiana made SIP
submissions that, among other things,
certified that their existing SIPs were
sufficient to meet the interstate
transport infrastructure SIP
requirements for the 2008 ozone
NAAQS.
SUMMARY:
This final rule is effective on July
15, 2016.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–R05–OAR–2011–0969. All
documents in the docket are listed on
the www.regulations.gov Web site.
Although listed in the index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either through
www.regulations.gov or please contact
the person identified in the ‘‘For Further
Information Contact’’ section for
additional availability information.
FOR FURTHER INFORMATION CONTACT:
Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance
Section, Air Programs Branch (AR–18J),
Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard,
DATES:
■
■
[EPA–R05–OAR–2011–0969; FRL–9947–71–
Region 5]
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38957
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?
II. What action did EPA propose on the SIP
submissions?
III. What is our response to comments
received on the proposed rulemaking?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews.
I. What is the background of these SIP
submissions?
This rulemaking addresses CAA
section 110(a)(2)(D)(i) requirements in
two infrastructure SIP submissions
addressing the applicable infrastructure
requirements with respect to the 2008
ozone NAAQS: A December 12, 2011,
submission from the Indiana
Department of Environmental
Management (IDEM), clarified in a May
24, 2012, letter; and a December 27,
2012, submission from the Ohio
Environmental Protection Agency (Ohio
EPA).
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
commonly refers to such state plans as
‘‘infrastructure SIPs.’’
This rulemaking takes action on three
CAA section 110(a)(2)(D)(i)
requirements of these submissions. In
particular, section 110(a)(2)(D)(i)(I)
requires SIPs to include provisions
prohibiting any source or other type of
emissions activity in one state from
contributing significantly to
nonattainment of the NAAQS (‘‘prong
one’’), or interfering with maintenance
of the NAAQS (‘‘prong two’’), by any
another state. Section 110(a)(2)(D)(i)(II)
requires that infrastructure SIPs include
provisions prohibiting any source or
other type of emissions activity in one
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state from interfering with measures
required to prevent significant
deterioration (PSD) of air quality
(‘‘prong three’’) and to protect visibility
(‘‘prong four’’) in another state. This
rulemaking addresses prongs one, two,
and four of this CAA section. The
majority of the other infrastructure
elements were approved in rulemakings
on April 29, 2015 (80 FR 23713) for
Indiana; and October 16, 2014 (79 FR
62019) for Ohio.
II. What action did EPA propose on the
SIP submissions?
The proposed rulemaking associated
with today’s final action was published
on March 16, 2016 (81 FR 14025).
In that action, EPA proposed to
disapprove the portions of Ohio’s
December 27, 2012 SIP submission
addressing prongs one, two, and four of
CAA section 110(a)(2)(D)(i). In
proposing to disapprove the SIP
submission as to prongs one and two,
EPA noted several deficiencies in Ohio’s
submission: (1) Ohio’s SIP submission
lacks any technical analysis evaluating
or demonstrating whether emissions in
each state impact air quality in other
states with respect to the 2008 ozone
NAAQS; (2) Ohio’s SIP does not
demonstrate how certain state programs
and rules provide sufficient controls on
emissions to address interstate transport
for the 2008 ozone NAAQS; (3) Ohio’s
submission relied on the state’s
implementation of the Clean Air
Interstate Rule (CAIR), which was not
designed to address interstate transport
with respect to the 2008 ozone standard
and which is no longer being
implemented; and (4) EPA recently
released technical data which
contradicts the state’s conclusion that
its SIP contained adequate provisions to
address interstate transport with respect
to the 2008 ozone NAAQS.
In proposing to disapprove the Ohio
SIP submission as to prong four, EPA
explained that there are two ways in
which a state may satisfy its visibility
transport obligations: (1) A fully
approved regional haze SIP, or (2) a
demonstration that emissions within its
jurisdiction do not interfere with other
air agencies’ plans to protect visibility.
Ohio’s SIP submission relied on the
State’s regional haze SIP to satisfy its
visibility transport requirements under
CAA section 110(a)(2)(i)(II). However,
Ohio does not have a fully approved
regional haze SIP in place because its
obligations are satisfied in part by EPA’s
Cross-State Air Pollution Rule (CSAPR)
based regional haze Federal
Implementation Plan (FIP). Ohio also
did not provide an alternate
demonstration that its emissions would
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not interfere with plans to protect
visibility in other states.
EPA also proposed to disapprove the
portions of Indiana’s December 12, 2011
SIP submission addressing prongs one,
two, and four of CAA section
110(a)(2)(D)(i). In proposing to
disapprove the SIP submission as to
prongs one and two, EPA noted several
deficiencies in Ohio’s submission: (1)
Indiana’s SIP submission lacks any
technical analysis evaluating or
demonstrating whether emissions in
each state impact air quality in other
states with respect to the 2008 ozone
NAAQS; (2) Indiana’s SIP submission
relied on the state’s participation on the
CSAPR trading program, which was not
designed to address interstate transport
with respect to the 2008 ozone standard;
(3) the state failed to cite any other rules
currently being implemented by the
state that are part of Indiana’s approved
SIP or that are being submitted as part
of the state’s SIP submission to address
interstate transport for the 2008 ozone
NAAQS; and (4) EPA recently released
technical data which contradicts the
state’s conclusion that its SIP contained
adequate provisions to address
interstate transport with respect to the
2008 ozone NAAQS.
In proposing to disapprove the
Indiana SIP submission as to prong four,
EPA noted that Indiana’s SIP
submission relies on its regional haze
SIP to satisfy the state’s visibility
transport obligations. However, Indiana
does not have a fully approved regional
haze SIP in place because its obligations
are satisfied in part by EPA’s CSAPRbased regional haze FIP. Indiana also
did not provide an alternate
demonstration that its emissions would
not interfere with plans to protect
visibility in other states.
III. What is our response to comments
received on the proposed rulemaking?
EPA received four comments during
the comment period, which ended on
April 15, 2016. A synopsis of the
comments contained in these letters and
EPA’s responses, are provided below.
A. Comments on the Ohio Disapproval
for Prongs One and Two
Comment 1: Ohio EPA commented
that the proposed disapproval focuses
on the state’s duty to make a SIP
submission addressing CAA section
110(a)(2)(D), but contends that EPA has
historically taken the lead in addressing
transported emissions, citing several
prior EPA rulemakings including the
Oxides of Nitrogen (NOX) SIP Call,
CAIR, and CSAPR. The state noted that
meeting the bar that EPA has set with
these rulemakings would be ‘‘extremely
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resource intensive and require
unprecedented multi-state
collaboration,’’ and is therefore best
suited for EPA. Ohio EPA alleged that
EPA’s actions to develop these
regulations are too late for the states to
incorporate into their SIPs.
The state further commented that EPA
has provided insufficient guidance to
states addressing the requirements of
section 110(a)(2)(D) in their SIPs, and
guidance that is provided is often illtimed. Ohio EPA gave the example of
guidance for the 2006 fine particulate
matter (PM2.5) NAAQS that was released
on September 25, 2009, four days after
SIPs addressing this standard were due,
which stated that the states could not
rely on the CAIR. The state also noted
that for the 2008 ozone standard, SIP
submissions were due on March 12,
2011, and EPA guidance issued two
years later on September 13, 2013 did
not address section 110(a)(2)(D)(i)(I).
The state also commented that under
cooperative federalism, EPA should not
only set standards, but provided the
necessary information and technical
assistance for the state to fulfil their
CAA obligations. Ohio EPA commented
that the proposal did not acknowledge
the continued efforts to meet EPA
requirements on a timely basis and
alleged that they were being punished
with a disapproval because of a consent
decree in which they were not a party.
The state contends that EPA engages in
secretive ‘‘sue and settle’’ arrangements
where EPA agrees to issue disapprovals
that commit the states to actions or
timeframes that are unreasonable. The
state also contends that EPA must
disapprove Ohio’s SIP submission in
order to impose a FIP. The state
proposed that a better course of action
under cooperative federalism would
have been for EPA to have provided the
necessary information and allowed the
state the necessary time to submit an
approvable SIP.
Response 1: While EPA issued several
previous Federal rulemakings
addressing interstate transport
obligations in eastern states with respect
to ozone and fine particulate matter, the
Supreme Court confirmed that the states
have the first obligation to prepare and
submit state plans that prohibit the
appropriate levels of emissions that
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS in other
states. In EPA v. EME Homer City
Generation, L.P., the Supreme Court
clearly held that ‘‘nothing in the statute
places EPA under an obligation to
provide specific metrics to States before
they undertake to fulfill their good
neighbor obligations.’’ 134 S. Ct. 1584,
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1601 (2014).1 While EPA has taken a
different approach in some prior
rulemakings by providing states with an
opportunity to submit a SIP after EPA
quantified the states’ budgets (e.g., the
NOX SIP Call and CAIR), the statute
does not require such an approach.
While EPA did not provide specific
guidance regarding how states could
satisfy their statutory obligation with
respect to CAA section 110(a)(2)(D)(i)(I)
with respect to the 2008 ozone NAAQS,
EPA did provide information to assist
states with developing or
supplementing their SIP submissions.
On January 22, 2015, EPA issued a
memorandum providing preliminary
modeling information regarding
potential downwind air quality
problems and levels of upwind state
contributions. See Memorandum from
Stephen D. Page to Regional Air
Division Directors, Regions 1–10,
‘‘Information on the Interstate Transport
‘Good Neighbor’ Provision for the 2008
Ozone [NAAQS] under [CAA] Section
110(a)(2)(D)(i)(I)’’ (Jan. 22, 2015). As
noted at proposal, EPA also provided
updated modeling and contribution
information in its August 4, 2015 Notice
of Data Availability. 80 FR 46271. While
Ohio’s December 27, 2012 SIP was
submitted prior to this information
being provided, the state did not
attempt to revise or supplement its SIP
submission to address this information.
Moreover, EPA does not agree that the
states needed formal guidance to
understand that it was inappropriate to
rely on CAIR for purposes of satisfying
the state’s interstate transport
obligations with respect to the 2008
ozone NAAQS. As noted earlier, CAIR
was designed to address interstate
transport with respect to the 1997 ozone
NAAQS, not the more stringent 2008
ozone NAAQS, and in any event the
rule is no longer being implemented by
the states or EPA. More importantly, in
North Carolina v. EPA, the D.C. Circuit
held that CAIR was ‘‘fundamentally
flawed,’’ 531 F.3d 896, 929 (D.C. Cir.
2008), in part because CAIR did not
satisfy the statutory requirement to
‘‘achieve[] something measurable
towards the goal of prohibiting sources
‘within the State’ from contributing to
nonattainment or interfering with
maintenance in ‘any other State.’ ’’ Id. at
908. Accordingly, the D.C. Circuit held
1 ‘‘Nothing in the Act differentiates the Good
Neighbor Provision from the several other matters
a State must address in its SIP. Rather, the statute
speaks without reservation: Once a NAAQS has
been issued, a State ‘shall’ propose a SIP within
three years, § 7410(a)(1), and that SIP ‘shall’
include, among other components, provisions
adequate to satisfy the Good Neighbor Provision,
§ 7410(a)(2).’’ EPA v. EME Homer City Generation,
L.P., 134 S. Ct. at 1600.
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in EME Homer City Generation, L.P. v.
EPA, ‘‘when our decision in North
Carolina deemed CAIR to be an invalid
effort to implement the requirements of
the good neighbor provision, that ruling
meant that the initial approval of the
CAIR SIPs was in error at the time it was
done.’’ 795 F.3d 118, 133 (2015). For
these reasons, EPA cannot now approve
an interstate transport SIP addressing
any NAAQS based on the state’s
participation in CAIR.
Finally, EPA disagrees that either the
litigation regarding EPA’s deadline to
act on Ohio’s SIP submission or EPA’s
proposed action to update CSAPR to
address the 2008 ozone standard
(CSAPR Update) have dictated the
substance of EPA’s action on Ohio’s SIP
with respect to prongs one and two.
CAA section 110(k)(2) requires EPA to
act on a state’s SIP submission within
one year after the submission is
determined to be complete. Therefore,
EPA’s statutory obligation to act on
Ohio’s December 27, 2012 SIP
submission was overdue. While EPA
did enter into a consent decree with
litigants in Sierra Club v. McCarthy, No.
4:14-cv-5091–YGR (N.D. Cal.), which
raised claims regarding EPA’s alleged
failure to fulfill its mandatory duty to
take action on Ohio’s SIP under CAA
section 110(k)(2), that agreement
governs only the timetable on which
EPA must act on the state’s SIP
submissions under CAA section
110(k)(2) and not the substance of EPA’s
action. As described earlier, EPA has
evaluated Ohio’s SIP submission on its
merits and found that it is deficient for
purposes of addressing the state’s
obligation pursuant to CAA section
110(a)(2)(D)(i)(I).
Comment 2: A commenter cited
comments that were submitted on the
docket for the CSAPR Update
rulemaking because the modeling used
to support that rule is also being used
in the disapproval Ohio’s interstate
transport SIP. The commenter stated
that ‘‘the comments detail legal
problems and technical flaws with the
modeling’’ and asserted that EPA should
not have acted on Ohio’s SIP
submission until the CSAPR Update
was finalized and EPA had responded to
the comments. The commenter
disagreed with the need for EPA to take
action on the submission at this time
and stated that EPA should have issued
a SIP call or asked the state for a
supplemental submission instead of
disapproving the December 27, 2012 SIP
submission which was ‘‘in accordance
with what was required at the time’’.
The commenter noted that EPA’s
analysis was completed three years after
the state’s submission.
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38959
Response 2: EPA disagrees with the
commenter’s conclusion that EPA is
disapproving Ohio’s SIP submission
addressing prongs one and two based
primarily on the modeling conducted to
support the proposed CSAPR Update
rulemaking. As noted earlier, states bear
the primary responsibility to
demonstrate that their plans contain
adequate provisions to address the
statutory interstate transport provisions,
specifically to demonstrate that the plan
properly prohibits emissions that will
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS in
downwind states. As described in the
proposal and earlier in this notice, EPA
has identified several ways in which
Ohio’s SIP submission fails to fulfill this
obligation. In particular, EPA is
disapproving Ohio’s submission for its
reliance on CAIR, which is legally
invalid, and the lack of state rules
identified in its submission that are
sufficient to prohibit emissions that
significantly contribute to
nonattainment or interfere with
maintenance of the standard in other
states.
While EPA cited the modeling
conducted for the CSAPR Update as
additional evidence that Ohio may
significantly contribute to
nonattainment or interfere with
maintenance of the 2008 ozone NAAQS
in downwind states, we did not propose
to make a specific finding of
contribution or to quantify any specific
emissions reduction obligation. Rather,
the evaluation of whether emissions
from Ohio significantly contribute to
nonattainment or interfere with
maintenance of the 2008 ozone NAAQS
downwind, and if so what reductions
are necessary to address that
contribution, is being conducted in the
context of the CSAPR Update
rulemaking. Accordingly, EPA will
consider timely-submitted comments
regarding EPA’s air quality modeling
and various associated legal and policy
decisions in finalizing that rulemaking.
Moreover, it is inappropriate for the
commenter to merely cite to or attach
comments prepared for another
rulemaking without identifying which
portions of those comments are
pertinent to this action. Without further
explanation, EPA has no obligation to
address comments prepared for the
purpose of the CSAPR Update in the
context of this rulemaking.
EPA notes that the technical data
discussed at proposal with respect to
Ohio’s potential contribution to
downwind air quality problems is
consistent with modeling previously
conducted for trading programs
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addressing interstate ozone transport
such as CAIR (70 FR 25162), CSAPR (76
FR 48208), and the NOx SIP Call (63 FR
57356) showing that Ohio is frequently
linked to downwind receptors. The
modeling conducted to support the
proposed CSAPR Update is the most
recent technical information available to
the Agency which still shows such
linkages. Even absent this modeling
data, Ohio’s SIP submission is
inadequate to address prongs one and
two of CAA section 110(a)(2)(D)(i)(I)
with respect to the 2008 ozone NAAQS.
Comment 3: Ohio EPA also attached
comments that were submitted for the
proposal to update CSAPR to address
the 2008 ozone NAAQS because, the
state explained, the modeling is also
being used to disapprove Ohio’s SIP as
to prongs one and two. The state
commented that the attached comments
point out ‘‘significant errors and
concerns in U.S. EPA’s analyses
regarding the [Notice of Data
Availability] and transport updates’’ and
that ‘‘it is ill-timed and erroneous for
U.S. EPA to use these analyses as
evidence that Ohio has not addressed its
transport obligations.’’
Response 3: While EPA cited the
modeling conducted for the CSAPR
Update as additional evidence that Ohio
may significantly contribute to
nonattainment or interfere with
maintenance of the 2008 ozone NAAQS
in downwind states, we did not propose
to make a specific finding of
contribution or to quantify any specific
emissions reduction obligation. Rather,
the evaluation of whether emissions
from Ohio significantly contribute to
nonattainment or interfere with
maintenance of the 2008 ozone NAAQS
downwind, and if so what reductions
are necessary to address that
contribution, is being conducted in the
context of the CSAPR Update
rulemaking. Accordingly, EPA will
consider timely-submitted comments
regarding EPA’s air quality modeling
and various associated legal and policy
decisions in finalizing that rulemaking.
Moreover, it is inappropriate for the
commenter to merely cite to or attach
comments prepared for another
rulemaking without identifying which
portions of those comments are
pertinent to this action. Without further
explanation, EPA has no obligation to
address comments prepared for the
purpose of the CSAPR Update in the
context of this rulemaking.
B. Comments on the Indiana
Disapproval for Prongs One and Two
Comment 4: The commenter gave a
summary of the regulatory history of
CSAPR and the overlapping timeline of
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the IDEM submission. The commenter
alleged that ‘‘EPA was uncertain about
the scope of the air transport law, and
therefore cannot be certain about its
proposed disapproval of the Indiana
infrastructure SIP.’’
Response 4: In evaluating Indiana’s
SIP submission with respect to prongs
one and two of the interstate transport
provisions of the statute, EPA has
identified several clear deficiencies in
the state’s analysis. In particular, EPA
noted that the state relied on
participation in CSAPR, which does not
address interstate transport with respect
to the 2008 ozone NAAQS, and failed to
otherwise provide any technical
analysis to support its conclusion that
the state had satisfied its statutory
obligation. The commenter has
identified no legal uncertainty
underlying these bases for EPA’s
disapproval of Indiana’s SIP.
Comment 5: The commenter cites to
a comment from Connecticut on an
older rulemaking in which Connecticut
requests further reductions of upwind
emissions to address nonattainment
concerns in Connecticut. The
commenter gave an overview of the
Reasonably Available Control
Technology (RACT) plan developed by
Connecticut looking at feasible local
controls to address air quality in the
nonattainment area including
Connecticut. The commenter concluded
that because there are further local
controls available to address the
nonattainment area, and any attempt to
impose reduction obligations on
upwind states such as Indiana without
addressing these controls first would
result in over-control by the upwind
states.
Response 5: This action is not
determining what, if any, emission
reductions sources in Indiana may need
to achieve in order to address the state’s
interstate transport obligation with
respect to the 2008 ozone NAAQS.
Instead, EPA is evaluating the state’s
interstate transport SIP to determine
whether the current submission satisfies
the statutory obligations at CAA section
110(a)(2)(D)(i)(I). As noted earlier,
Indiana’s SIP contains several
deficiencies that justify EPA’s decision
to finalize disapproval as to prongs one
and two transport, as Indiana has failed
to provide an adequate technical
analysis demonstrating that the state’s
current SIP contains sufficient
provisions to properly address interstate
transport with respect to the 2008 ozone
NAAQS. Moreover, besides
Connecticut, EPA’s most recent
technical analysis shows that emissions
from Indiana contribute to projected air
quality problems in Wisconsin,
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Kentucky, Maryland, Michigan, New
Jersey, New York, Ohio, and
Pennsylvania.
Comment 6: A commenter alleged that
‘‘EPA propose[d] disapproval, and its
disagreement with IDEM’s submission,
rests in great part on the modeling and
technical data that was used to support
the CSAPR Update’’ and that a contrary
view suggests ‘‘that there is no basis to
conclude that Indiana would be
expected to significantly contribute to
the nonattainment of or interfere with
the maintenance of the 2008 ozone
NAAQS in 2017.’’
The following comments pertain to
modeling conducted to support the
proposed CSAPR Update and EPA’s
application of the modeling data in the
proposed rule. The commenter first
noted that a study prepared by Alpine
Geophysics looked at ozone
concentrations during a more recent
time period. The comment alleged that
the concentrations from this study were
more appropriate because they reflected
recent controls, economic factors, recent
regulatory programs, and more
consistent precipitation and
temperature ranges. The commenter
stated that using this data set resulted in
all projected air quality problems (both
nonattainment and maintenance
receptors) being resolved in 2017 with
the exception of those in Fairfield,
Connecticut. The commenter notes that
the proposed rulemaking does not find
Indiana to be a significant contributor to
the Fairfield, Connecticut monitor.
The commenter also cited what they
believe are legal and policy issues with
the proposed CSAPR Update. The
commenter alleged that EPA’s reliance
on modeled maximum design value for
determining whether a state interferes
with maintenance of the NAAQS
downwind is inconsistent with the
Supreme Court’s 2014 decision, the D.C.
Circuit’s 2015 decision in the EME
Homer City litigation, the CAA. The
commenter contends that this
interpretation of that statutory
obligation would result in unnecessary
over-control. The commenter also
alleged that EPA’s approach to
addressing maintenance concerns is
applied differently in transport than it is
in the context of redesignations.
The commenter contends, based on
the Alpine Geophysics report, that EPA
inappropriately used grids in its
modeling platform that include
overwater receptors as well as land
receptors, and further inappropriately
selected to represent the monitor the
highest concentration in the grid from
an over the water location.
The commenter further alleged that
EPA using the latest version of the
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Integrated Planning Model would show
great emissions reductions already in
place therefore lowering projected
concentrations in downwind states. The
commenter also commented that that
model did not include controls such as
a Pennsylvania RACT rule and mobile
source controls in the New England area
that are needed to reduce concentrations
at the Connecticut monitor. The
commenter contended that EPA did not
properly account for international
emissions, and doing so would lead to
the conclusion that Indiana is not
contributing to the Connecticut monitor.
The commenter concluded that using
the alternate analysis by Alpine
Geophysical eliminates attainment and
maintenance issues at all the monitors
except Connecticut and for the reasons
summarized above, Indiana does not
significantly contribute to that monitor.
Response 6: EPA disagrees with the
commenter’s conclusion that EPA is
disapproving Indiana’s SIP submission
addressing prongs one and two based
primarily on the modeling conducted to
support the proposed CSAPR Update
rulemaking. As noted earlier, states bear
the primary responsibility to
demonstrate that their plans contain
adequate provisions to address the
statutory interstate transport provisions,
specifically to demonstrate that the plan
properly prohibits emissions that will
significantly contribute to
nonattainment or interfere with
maintenance of the NAAQS in
downwind states. As described in the
proposal and earlier in this notice, EPA
has identified several ways in which
Indiana’s SIP submission fails to fulfill
this obligation. In particular, EPA is
disapproving Indiana’s submission for
its reliance on CSAPR, which does not
currently address the 2008 ozone
standard, and the submission’s lack of
identified state rules that are sufficient
to prohibit emissions that significantly
contribute to nonattainment or interfere
with maintenance of the standard in
other states.
While EPA cited the modeling
conducted for the CSAPR Update as
additional evidence that Indiana may
significantly contribute to
nonattainment or interfere with
maintenance of the 2008 ozone NAAQS
in downwind states, we did not propose
to make a specific finding of
contribution or to quantify any specific
emissions reduction obligation. Rather,
the evaluation of whether emissions
from Indiana significantly contribute to
nonattainment or interfere with
maintenance of the 2008 ozone NAAQS
downwind, and if so what reductions
are necessary to address that
contribution, is being conducted in the
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context of the CSAPR Update
rulemaking. Accordingly, EPA will
consider comments timely submitted to
the Agency regarding EPA’s air quality
modeling and various associated legal
and policy decisions in finalizing that
rulemaking. While EPA appreciates the
information provided by the commenter
regarding EPA’s identification of
downwind air quality problems and
Indiana’s potential contribution to those
areas, these data do not undermine
EPA’s primary bases for disapproving
Indiana’s SIP with respect to prongs one
and two of CAA section
110(a)(2)(D)(i)(I).
EPA notes that the technical data
discussed at proposal with respect to
Indiana’s potential contribution to
downwind air quality problems is
consistent with modeling previously
conducted for trading programs
addressing interstate ozone transport
such as CAIR (70 FR 25162), CSAPR (76
FR 48208), and the NOX SIP Call (63 FR
57356) showing that Indiana is
frequently linked to downwind
receptors. The modeling conducted to
support the proposed CSAPR Update is
the most recent technical information
available to the Agency which still
shows such linkages. Even absent these
modeling data, Indiana’s SIP submission
is inadequate to address prongs one and
two of CAA section 110(a)(2)(D)(i)(I)
with respect to the 2008 ozone NAAQS.
C. Comments on Both the Indiana and
Ohio Disapprovals for Prongs One and
Two
Comment 7: The Connecticut
Department of Energy and
Environmental Protection (DEEP) is
supportive of the proposed disapprovals
of Indiana and Ohio’s SIP submissions
addressing the prongs one and two
transport obligations. DEEP encouraged
EPA to finalize the disapproval quickly
and propose and finalize a full transport
remedy rather than waiting to couple
the action with the 2015 ozone NAAQS.
DEEP also encourages EPA to ‘‘describe
the implications of the disapproval with
respect to each state’s good neighbor SIP
obligations and the proposed partial
remedy provided by the [CSAPR]
Update,’’ and DEEP supports action by
Indiana and Ohio towards resolving
outstanding SIP obligations.
Response 7: EPA is supportive of any
actions taken by the states to resolve
transport obligations. EPA will address
further obligations for Ohio and Indiana
in the final CSAPR Update rule.
submission stated that the visibility
portion should be approved, because
reliance on CAIR as better than Best
Available Retrofit Technology (BART)
for electric generating units (EGUs) was
consistent with CAA requirements at
the time of both submissions. One
commenter also stated that since CAIR
is better than BART has been replaced
with CSAPR is better than BART in the
form a FIP, the requirements have been
fully addressed, and this transport
prong should be fully approved. The
other commenter asserts that if EPA
decides to finalize the disapproval, EPA
should clarify that no further action is
needed because of the FIP in place
showing that for Ohio EGUs, CSAPR
meets the BART requirements for
regional haze. Ohio EPA also disagreed
with EPA’s proposed disapproval of
prong four, because there is a FIP in
place that satisfies Ohio’s obligations.
Response 8: Indiana and Ohio cannot
rely on CAIR to satisfy their regional
haze obligations, and by extension their
prong four obligations, because neither
the states nor EPA are currently
implementing this program. Neither
state has submitted an approvable
regional haze SIP to replace its current
reliance on CAIR; thus, both States have
regional haze FIPs in place. However, as
stated above, states cannot rely on FIPs
to satisfy their prong four obligations.
This is consistent with our approach for
transport provisions and federally
implemented PSD programs. EPA is not
promulgating FIPs to address the states’
prong four deficiencies in this action.
IV. What action is EPA taking?
EPA is disapproving a portion of
Indiana’s December 12, 2011
submission and Ohio’s December 27,
2012 submission seeking to address the
required infrastructure element under
CAA section 110(a)(2)(D)(i) for the 2008
ozone NAAQS, specifically prongs one,
two, and four. This disapproval triggers
an obligation under CAA section 110(c)
for EPA to promulgate a FIP no later
than two years from the effective date of
this disapproval, if EPA has not
approved a SIP revision or revisions
addressing the deficiencies identified in
this action. This action is not tied to
attainment planning requirements and
therefore does not start any sanction
clocks.
D. Comments on Both the Indiana and
Ohio Disapprovals for Prong Four
Comment 8: Both commenters on
Indiana’s submission and Ohio’s
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V. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action and was therefore not
submitted to the Office of Management
and Budget (OMB) for review.
B. Paperwork Reduction Act (PRA)
This rule does not impose an
information collection burden under the
provisions of the PRA.
C. Regulatory Flexibility Act (RFA)
The Administrator certifies that this
rule will not have a significant
economic impact on a substantial
number of small entities under the RFA.
In making this determination, the
impact of concern is any significant
adverse economic impact on small
entities. An agency may certify that a
rule will not have a significant
economic impact on a substantial
number of small entities if the rule
relieves regulatory burden, has no net
burden or otherwise has a positive
economic effect on the small entities
subject to the rule. This action merely
proposes to disapprove state law as not
meeting Federal requirements and
imposes no additional requirements
beyond those imposed by state law.
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain any
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local or
tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action does not have tribal
implications as specified in Executive
Order 13175. It will not have substantial
direct effects on tribal governments.
Thus, Executive Order 13175 does not
apply to this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
This action is not subject to Executive
Order 13045 because it is not
economically significant as defined in
Executive Order 12866, and because
EPA does not believe the environmental
health or safety risks addressed by this
action present a disproportionate risk to
children because it proposes to
disapprove a state rule.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution or Use
This action is not subject to Executive
Order 13211, because it is not a
significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act (NTTAA)
This rulemaking does not involve
technical standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
EPA believes the human health or
environmental risk addressed by this
action will not have potential
disproportionately high and adverse
human health or environmental effects
on minority, low-income or indigenous
populations.
Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
Under section 307(b)(1) of the CAA,
petitions for judicial review of this
action must be filed in the United States
Court of Appeals for the appropriate
circuit by August 15, 2016. Filing a
petition for reconsideration by the
Administrator of this final rule does not
affect the finality of this rule 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,
Ozone.
Dated: June 3, 2016.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
1. The authority citation for part 52
continues to read as follows:
■
Authority: 42 U.S.C. 7401 et seq.
2. In § 52.770 the table in paragraph
(e) is amended by revising the entry for
‘‘Section 110(a)(2) Infrastructure
Requirements for the 2008 Ozone
NAAQS’’. The amended text reads as
follows:
■
§ 52.770
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS
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Title
Indiana date
*
*
Section 110(a)(2) Infrastructure Requirements for the 2008 ozone NAAQS.
*
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12/12/2011
EPA approval
*
6/15/2016, [insert Federal
Register citation].
*
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Explanation
*
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*
*
*
This action addresses the following CAA elements:
110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K),
(L), and (M).
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Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations
3. In § 52.1870 the table in paragraph
(e) is amended by revising the entry for
‘‘Section 110(a)(2) infrastructure
■
§ 52.1870
requirements for the 2008 Ozone
NAAQS’’. The amended text reads as
follows:
*
Identification of plan.
*
*
(e) * * *
*
*
EPA-APPROVED OHIO NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Applicable geographical or non-attainment area
Title
*
*
Section 110(a)(2) infrastructure
requirements for the 2008
ozone NAAQS.
*
*
Statewide ..................
*
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR PART 52
[EPA–R02–OAR–2016–0316; FRL–9947–77–
Region 2]
Finding of Failure To Submit a State
Implementation Plan; New Jersey;
Interstate Transport Requirements for
2008 8-Hour National Ambient Air
Quality Standards for Ozone
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking final action
finding that New Jersey has failed to
submit an infrastructure State
Implementation Plan (SIP) revision to
satisfy certain interstate transport
requirements of the Clean Air Act (CAA)
with respect to the 2008 8-hour ozone
national ambient air quality standard
(NAAQS). Specifically, these
requirements pertain to the obligation to
prohibit emissions which significantly
contribute to nonattainment, or interfere
with maintenance, of the 2008 8-hour
ozone NAAQS in other states. This
finding of failure to submit establishes
a 2-year deadline for the EPA to
promulgate a Federal Implementation
Plan (FIP) to address the interstate
transport SIP requirements pertaining to
the state’s significant contribution to
nonattainment and interference with
maintenance of the 2008 ozone NAAQS
in other states unless, prior to the EPA
promulgating a FIP, the state submits,
and the EPA approves, a SIP that meets
these requirements.
DATES: This rule is effective on July 15,
2016.
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*
6/15/2016, [insert
Federal Register
citation].
*
The EPA has established a
docket for this action under Docket ID
No. EPA–R02–OAR–2016–0316. All
documents in the docket are listed on
the www.regulations.gov Web site.
FOR FURTHER INFORMATION CONTACT:
Kenneth Fradkin, Environmental
Protection Agency, 290 Broadway, 25th
Floor, New York, NY 10007–1866, (212)
637–3702, or by email at
Fradkin.Kenneth@epa.gov.
SUPPLEMENTARY INFORMATION: Section
553 of the Administrative Procedures
Act, 5 United States Code (U.S.C.)
553(b)(3)(B), provides that, when an
agency for good cause finds that notice
and public procedure are impracticable,
unnecessary or contrary to the public
interest, the agency may issue a rule
without providing notice and an
opportunity for public comment. The
EPA has determined that there is good
cause for making this rule final without
prior proposal and opportunity for
comment because no significant EPA
judgment is involved in making a
finding of failure to submit SIPs, or
elements of SIPs, required by the CAA,
where states have made no submittals,
or incomplete submittals, to meet the
requirement by the statutory date. Thus,
notice and public procedure are
unnecessary. The EPA finds that this
constitutes good cause under 5 U.S.C.
553(b)(3)(B).
Table of Contents
I. Background
II. Final Action
III. Statutory and Executive Order Reviews
I. Background
Section 110(a) of the CAA imposes an
obligation upon states to submit SIPs
that provide for the implementation,
maintenance and enforcement of a new
or revised NAAQS within 3 years
following the promulgation of that
NAAQS. Section 110(a)(2) lists specific
requirements that states must meet in
these SIP submissions, as applicable.
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Comments
*
*
Addresses the following CAA elements:
110(a)(2) (A) to (H) and (J) to (M).
*
ADDRESSES:
BILLING CODE 6560–50–P
SUMMARY:
EPA approval
*
12/27/2012
*
[FR Doc. 2016–14103 Filed 6–14–16; 8:45 am]
VerDate Sep<11>2014
State date
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*
*
The EPA refers to this type of SIP
submission as the ‘‘infrastructure’’ SIP
because the SIP ensures that states can
implement, maintain and enforce the air
standards. Within these requirements,
section 110(a)(2)(D)(i) contains
requirements to address interstate
transport of NAAQS pollutants. A SIP
revision submitted for this sub-section
is referred to as an ‘‘interstate transport
SIP.’’ In turn, section 110(a)(2)(D)(i)(I)
requires that such a plan contain
adequate provisions to prohibit
emissions from the state that will
contribute significantly to
nonattainment of the NAAQS in any
other state (‘‘prong 1’’) or interfere with
maintenance of the NAAQS in any other
state (‘‘prong 2’’). Interstate transport
prongs 1 and 2, also called the ‘‘good
neighbor’’ provisions, are the
requirements relevant to this findings
notice.
Pursuant to CAA section 110(k)(1)(B),
the EPA must determine no later than 6
months after the date by which a state
is required to submit a SIP whether a
state has made a submission that meets
the minimum completeness criteria
established in CAA section 110(k)(1)(A).
The EPA refers to the determination that
a state has not submitted a SIP
submission that meets the minimum
completeness criteria as a ‘‘finding of
failure to submit.’’ If the EPA finds a
state has failed to submit a SIP to meet
its statutory obligation to address
110(a)(2)(D)(i)(I), pursuant to section
110(c)(1) the EPA has not only the
authority, but the obligation, to
promulgate a FIP within 2 years to
address the CAA requirement. This
finding therefore starts a 2-year clock for
promulgation by the EPA of a FIP, in
accordance with CAA section 110(c)(1),
unless prior to such promulgation the
state submits, and the EPA approves, a
submittal from the state to meet the
requirements of CAA section
110(a)(2)(D)(i)(I). The EPA notes this
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]]>Agencies
[Federal Register Volume 81, Number 115 (Wednesday, June 15, 2016)]
[Rules and Regulations]
[Pages 38957-38963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14103]
=======================================================================
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2011-0969; FRL-9947-71-Region 5]
Indiana; Ohio; Disapproval of Interstate Transport Requirements
for the 2008 Ozone NAAQS
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is disapproving
elements of State Implementation Plan (SIP) submissions from Indiana
and Ohio regarding the infrastructure requirements of section 110 of
the Clean Air Act (CAA) for the 2008 ozone 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 is adequate to meet the state's responsibilities
under the CAA. This action pertains specifically to infrastructure
requirements concerning interstate transport provisions, for which Ohio
and Indiana made SIP submissions that, among other things, certified
that their existing SIPs were sufficient to meet the interstate
transport infrastructure SIP requirements for the 2008 ozone NAAQS.
DATES: This final rule is effective on July 15, 2016.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2011-0969. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
through www.regulations.gov or please contact the person identified in
the ``For Further Information Contact'' section for additional
availability information.
FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist,
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-9401, 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?
II. What action did EPA propose on the SIP submissions?
III. What is our response to comments received on the proposed
rulemaking?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews.
I. What is the background of these SIP submissions?
This rulemaking addresses CAA section 110(a)(2)(D)(i) requirements
in two infrastructure SIP submissions addressing the applicable
infrastructure requirements with respect to the 2008 ozone NAAQS: A
December 12, 2011, submission from the Indiana Department of
Environmental Management (IDEM), clarified in a May 24, 2012, letter;
and a December 27, 2012, submission from the Ohio Environmental
Protection Agency (Ohio EPA).
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
commonly refers to such state plans as ``infrastructure SIPs.''
This rulemaking takes action on three CAA section 110(a)(2)(D)(i)
requirements of these submissions. In particular, section
110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any
source or other type of emissions activity in one state from
contributing significantly to nonattainment of the NAAQS (``prong
one''), or interfering with maintenance of the NAAQS (``prong two''),
by any another state. Section 110(a)(2)(D)(i)(II) requires that
infrastructure SIPs include provisions prohibiting any source or other
type of emissions activity in one
[[Page 38958]]
state from interfering with measures required to prevent significant
deterioration (PSD) of air quality (``prong three'') and to protect
visibility (``prong four'') in another state. This rulemaking addresses
prongs one, two, and four of this CAA section. The majority of the
other infrastructure elements were approved in rulemakings on April 29,
2015 (80 FR 23713) for Indiana; and October 16, 2014 (79 FR 62019) for
Ohio.
II. What action did EPA propose on the SIP submissions?
The proposed rulemaking associated with today's final action was
published on March 16, 2016 (81 FR 14025).
In that action, EPA proposed to disapprove the portions of Ohio's
December 27, 2012 SIP submission addressing prongs one, two, and four
of CAA section 110(a)(2)(D)(i). In proposing to disapprove the SIP
submission as to prongs one and two, EPA noted several deficiencies in
Ohio's submission: (1) Ohio's SIP submission lacks any technical
analysis evaluating or demonstrating whether emissions in each state
impact air quality in other states with respect to the 2008 ozone
NAAQS; (2) Ohio's SIP does not demonstrate how certain state programs
and rules provide sufficient controls on emissions to address
interstate transport for the 2008 ozone NAAQS; (3) Ohio's submission
relied on the state's implementation of the Clean Air Interstate Rule
(CAIR), which was not designed to address interstate transport with
respect to the 2008 ozone standard and which is no longer being
implemented; and (4) EPA recently released technical data which
contradicts the state's conclusion that its SIP contained adequate
provisions to address interstate transport with respect to the 2008
ozone NAAQS.
In proposing to disapprove the Ohio SIP submission as to prong
four, EPA explained that there are two ways in which a state may
satisfy its visibility transport obligations: (1) A fully approved
regional haze SIP, or (2) a demonstration that emissions within its
jurisdiction do not interfere with other air agencies' plans to protect
visibility. Ohio's SIP submission relied on the State's regional haze
SIP to satisfy its visibility transport requirements under CAA section
110(a)(2)(i)(II). However, Ohio does not have a fully approved regional
haze SIP in place because its obligations are satisfied in part by
EPA's Cross-State Air Pollution Rule (CSAPR) based regional haze
Federal Implementation Plan (FIP). Ohio also did not provide an
alternate demonstration that its emissions would not interfere with
plans to protect visibility in other states.
EPA also proposed to disapprove the portions of Indiana's December
12, 2011 SIP submission addressing prongs one, two, and four of CAA
section 110(a)(2)(D)(i). In proposing to disapprove the SIP submission
as to prongs one and two, EPA noted several deficiencies in Ohio's
submission: (1) Indiana's SIP submission lacks any technical analysis
evaluating or demonstrating whether emissions in each state impact air
quality in other states with respect to the 2008 ozone NAAQS; (2)
Indiana's SIP submission relied on the state's participation on the
CSAPR trading program, which was not designed to address interstate
transport with respect to the 2008 ozone standard; (3) the state failed
to cite any other rules currently being implemented by the state that
are part of Indiana's approved SIP or that are being submitted as part
of the state's SIP submission to address interstate transport for the
2008 ozone NAAQS; and (4) EPA recently released technical data which
contradicts the state's conclusion that its SIP contained adequate
provisions to address interstate transport with respect to the 2008
ozone NAAQS.
In proposing to disapprove the Indiana SIP submission as to prong
four, EPA noted that Indiana's SIP submission relies on its regional
haze SIP to satisfy the state's visibility transport obligations.
However, Indiana does not have a fully approved regional haze SIP in
place because its obligations are satisfied in part by EPA's CSAPR-
based regional haze FIP. Indiana also did not provide an alternate
demonstration that its emissions would not interfere with plans to
protect visibility in other states.
III. What is our response to comments received on the proposed
rulemaking?
EPA received four comments during the comment period, which ended
on April 15, 2016. A synopsis of the comments contained in these
letters and EPA's responses, are provided below.
A. Comments on the Ohio Disapproval for Prongs One and Two
Comment 1: Ohio EPA commented that the proposed disapproval focuses
on the state's duty to make a SIP submission addressing CAA section
110(a)(2)(D), but contends that EPA has historically taken the lead in
addressing transported emissions, citing several prior EPA rulemakings
including the Oxides of Nitrogen (NOX) SIP Call, CAIR, and
CSAPR. The state noted that meeting the bar that EPA has set with these
rulemakings would be ``extremely resource intensive and require
unprecedented multi-state collaboration,'' and is therefore best suited
for EPA. Ohio EPA alleged that EPA's actions to develop these
regulations are too late for the states to incorporate into their SIPs.
The state further commented that EPA has provided insufficient
guidance to states addressing the requirements of section 110(a)(2)(D)
in their SIPs, and guidance that is provided is often ill-timed. Ohio
EPA gave the example of guidance for the 2006 fine particulate matter
(PM2.5) NAAQS that was released on September 25, 2009, four
days after SIPs addressing this standard were due, which stated that
the states could not rely on the CAIR. The state also noted that for
the 2008 ozone standard, SIP submissions were due on March 12, 2011,
and EPA guidance issued two years later on September 13, 2013 did not
address section 110(a)(2)(D)(i)(I). The state also commented that under
cooperative federalism, EPA should not only set standards, but provided
the necessary information and technical assistance for the state to
fulfil their CAA obligations. Ohio EPA commented that the proposal did
not acknowledge the continued efforts to meet EPA requirements on a
timely basis and alleged that they were being punished with a
disapproval because of a consent decree in which they were not a party.
The state contends that EPA engages in secretive ``sue and settle''
arrangements where EPA agrees to issue disapprovals that commit the
states to actions or timeframes that are unreasonable. The state also
contends that EPA must disapprove Ohio's SIP submission in order to
impose a FIP. The state proposed that a better course of action under
cooperative federalism would have been for EPA to have provided the
necessary information and allowed the state the necessary time to
submit an approvable SIP.
Response 1: While EPA issued several previous Federal rulemakings
addressing interstate transport obligations in eastern states with
respect to ozone and fine particulate matter, the Supreme Court
confirmed that the states have the first obligation to prepare and
submit state plans that prohibit the appropriate levels of emissions
that significantly contribute to nonattainment or interfere with
maintenance of the NAAQS in other states. In EPA v. EME Homer City
Generation, L.P., the Supreme Court clearly held that ``nothing in the
statute places EPA under an obligation to provide specific metrics to
States before they undertake to fulfill their good neighbor
obligations.'' 134 S. Ct. 1584,
[[Page 38959]]
1601 (2014).\1\ While EPA has taken a different approach in some prior
rulemakings by providing states with an opportunity to submit a SIP
after EPA quantified the states' budgets (e.g., the NOX SIP
Call and CAIR), the statute does not require such an approach.
---------------------------------------------------------------------------
\1\ ``Nothing in the Act differentiates the Good Neighbor
Provision from the several other matters a State must address in its
SIP. Rather, the statute speaks without reservation: Once a NAAQS
has been issued, a State `shall' propose a SIP within three years,
Sec. 7410(a)(1), and that SIP `shall' include, among other
components, provisions adequate to satisfy the Good Neighbor
Provision, Sec. 7410(a)(2).'' EPA v. EME Homer City Generation,
L.P., 134 S. Ct. at 1600.
---------------------------------------------------------------------------
While EPA did not provide specific guidance regarding how states
could satisfy their statutory obligation with respect to CAA section
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS, EPA did
provide information to assist states with developing or supplementing
their SIP submissions. On January 22, 2015, EPA issued a memorandum
providing preliminary modeling information regarding potential downwind
air quality problems and levels of upwind state contributions. See
Memorandum from Stephen D. Page to Regional Air Division Directors,
Regions 1-10, ``Information on the Interstate Transport `Good Neighbor'
Provision for the 2008 Ozone [NAAQS] under [CAA] Section
110(a)(2)(D)(i)(I)'' (Jan. 22, 2015). As noted at proposal, EPA also
provided updated modeling and contribution information in its August 4,
2015 Notice of Data Availability. 80 FR 46271. While Ohio's December
27, 2012 SIP was submitted prior to this information being provided,
the state did not attempt to revise or supplement its SIP submission to
address this information.
Moreover, EPA does not agree that the states needed formal guidance
to understand that it was inappropriate to rely on CAIR for purposes of
satisfying the state's interstate transport obligations with respect to
the 2008 ozone NAAQS. As noted earlier, CAIR was designed to address
interstate transport with respect to the 1997 ozone NAAQS, not the more
stringent 2008 ozone NAAQS, and in any event the rule is no longer
being implemented by the states or EPA. More importantly, in North
Carolina v. EPA, the D.C. Circuit held that CAIR was ``fundamentally
flawed,'' 531 F.3d 896, 929 (D.C. Cir. 2008), in part because CAIR did
not satisfy the statutory requirement to ``achieve[] something
measurable towards the goal of prohibiting sources `within the State'
from contributing to nonattainment or interfering with maintenance in
`any other State.' '' Id. at 908. Accordingly, the D.C. Circuit held in
EME Homer City Generation, L.P. v. EPA, ``when our decision in North
Carolina deemed CAIR to be an invalid effort to implement the
requirements of the good neighbor provision, that ruling meant that the
initial approval of the CAIR SIPs was in error at the time it was
done.'' 795 F.3d 118, 133 (2015). For these reasons, EPA cannot now
approve an interstate transport SIP addressing any NAAQS based on the
state's participation in CAIR.
Finally, EPA disagrees that either the litigation regarding EPA's
deadline to act on Ohio's SIP submission or EPA's proposed action to
update CSAPR to address the 2008 ozone standard (CSAPR Update) have
dictated the substance of EPA's action on Ohio's SIP with respect to
prongs one and two. CAA section 110(k)(2) requires EPA to act on a
state's SIP submission within one year after the submission is
determined to be complete. Therefore, EPA's statutory obligation to act
on Ohio's December 27, 2012 SIP submission was overdue. While EPA did
enter into a consent decree with litigants in Sierra Club v. McCarthy,
No. 4:14-cv-5091-YGR (N.D. Cal.), which raised claims regarding EPA's
alleged failure to fulfill its mandatory duty to take action on Ohio's
SIP under CAA section 110(k)(2), that agreement governs only the
timetable on which EPA must act on the state's SIP submissions under
CAA section 110(k)(2) and not the substance of EPA's action. As
described earlier, EPA has evaluated Ohio's SIP submission on its
merits and found that it is deficient for purposes of addressing the
state's obligation pursuant to CAA section 110(a)(2)(D)(i)(I).
Comment 2: A commenter cited comments that were submitted on the
docket for the CSAPR Update rulemaking because the modeling used to
support that rule is also being used in the disapproval Ohio's
interstate transport SIP. The commenter stated that ``the comments
detail legal problems and technical flaws with the modeling'' and
asserted that EPA should not have acted on Ohio's SIP submission until
the CSAPR Update was finalized and EPA had responded to the comments.
The commenter disagreed with the need for EPA to take action on the
submission at this time and stated that EPA should have issued a SIP
call or asked the state for a supplemental submission instead of
disapproving the December 27, 2012 SIP submission which was ``in
accordance with what was required at the time''. The commenter noted
that EPA's analysis was completed three years after the state's
submission.
Response 2: EPA disagrees with the commenter's conclusion that EPA
is disapproving Ohio's SIP submission addressing prongs one and two
based primarily on the modeling conducted to support the proposed CSAPR
Update rulemaking. As noted earlier, states bear the primary
responsibility to demonstrate that their plans contain adequate
provisions to address the statutory interstate transport provisions,
specifically to demonstrate that the plan properly prohibits emissions
that will significantly contribute to nonattainment or interfere with
maintenance of the NAAQS in downwind states. As described in the
proposal and earlier in this notice, EPA has identified several ways in
which Ohio's SIP submission fails to fulfill this obligation. In
particular, EPA is disapproving Ohio's submission for its reliance on
CAIR, which is legally invalid, and the lack of state rules identified
in its submission that are sufficient to prohibit emissions that
significantly contribute to nonattainment or interfere with maintenance
of the standard in other states.
While EPA cited the modeling conducted for the CSAPR Update as
additional evidence that Ohio may significantly contribute to
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in
downwind states, we did not propose to make a specific finding of
contribution or to quantify any specific emissions reduction
obligation. Rather, the evaluation of whether emissions from Ohio
significantly contribute to nonattainment or interfere with maintenance
of the 2008 ozone NAAQS downwind, and if so what reductions are
necessary to address that contribution, is being conducted in the
context of the CSAPR Update rulemaking. Accordingly, EPA will consider
timely-submitted comments regarding EPA's air quality modeling and
various associated legal and policy decisions in finalizing that
rulemaking. Moreover, it is inappropriate for the commenter to merely
cite to or attach comments prepared for another rulemaking without
identifying which portions of those comments are pertinent to this
action. Without further explanation, EPA has no obligation to address
comments prepared for the purpose of the CSAPR Update in the context of
this rulemaking.
EPA notes that the technical data discussed at proposal with
respect to Ohio's potential contribution to downwind air quality
problems is consistent with modeling previously conducted for trading
programs
[[Page 38960]]
addressing interstate ozone transport such as CAIR (70 FR 25162), CSAPR
(76 FR 48208), and the NOx SIP Call (63 FR 57356) showing that Ohio is
frequently linked to downwind receptors. The modeling conducted to
support the proposed CSAPR Update is the most recent technical
information available to the Agency which still shows such linkages.
Even absent this modeling data, Ohio's SIP submission is inadequate to
address prongs one and two of CAA section 110(a)(2)(D)(i)(I) with
respect to the 2008 ozone NAAQS.
Comment 3: Ohio EPA also attached comments that were submitted for
the proposal to update CSAPR to address the 2008 ozone NAAQS because,
the state explained, the modeling is also being used to disapprove
Ohio's SIP as to prongs one and two. The state commented that the
attached comments point out ``significant errors and concerns in U.S.
EPA's analyses regarding the [Notice of Data Availability] and
transport updates'' and that ``it is ill-timed and erroneous for U.S.
EPA to use these analyses as evidence that Ohio has not addressed its
transport obligations.''
Response 3: While EPA cited the modeling conducted for the CSAPR
Update as additional evidence that Ohio may significantly contribute to
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in
downwind states, we did not propose to make a specific finding of
contribution or to quantify any specific emissions reduction
obligation. Rather, the evaluation of whether emissions from Ohio
significantly contribute to nonattainment or interfere with maintenance
of the 2008 ozone NAAQS downwind, and if so what reductions are
necessary to address that contribution, is being conducted in the
context of the CSAPR Update rulemaking. Accordingly, EPA will consider
timely-submitted comments regarding EPA's air quality modeling and
various associated legal and policy decisions in finalizing that
rulemaking. Moreover, it is inappropriate for the commenter to merely
cite to or attach comments prepared for another rulemaking without
identifying which portions of those comments are pertinent to this
action. Without further explanation, EPA has no obligation to address
comments prepared for the purpose of the CSAPR Update in the context of
this rulemaking.
B. Comments on the Indiana Disapproval for Prongs One and Two
Comment 4: The commenter gave a summary of the regulatory history
of CSAPR and the overlapping timeline of the IDEM submission. The
commenter alleged that ``EPA was uncertain about the scope of the air
transport law, and therefore cannot be certain about its proposed
disapproval of the Indiana infrastructure SIP.''
Response 4: In evaluating Indiana's SIP submission with respect to
prongs one and two of the interstate transport provisions of the
statute, EPA has identified several clear deficiencies in the state's
analysis. In particular, EPA noted that the state relied on
participation in CSAPR, which does not address interstate transport
with respect to the 2008 ozone NAAQS, and failed to otherwise provide
any technical analysis to support its conclusion that the state had
satisfied its statutory obligation. The commenter has identified no
legal uncertainty underlying these bases for EPA's disapproval of
Indiana's SIP.
Comment 5: The commenter cites to a comment from Connecticut on an
older rulemaking in which Connecticut requests further reductions of
upwind emissions to address nonattainment concerns in Connecticut. The
commenter gave an overview of the Reasonably Available Control
Technology (RACT) plan developed by Connecticut looking at feasible
local controls to address air quality in the nonattainment area
including Connecticut. The commenter concluded that because there are
further local controls available to address the nonattainment area, and
any attempt to impose reduction obligations on upwind states such as
Indiana without addressing these controls first would result in over-
control by the upwind states.
Response 5: This action is not determining what, if any, emission
reductions sources in Indiana may need to achieve in order to address
the state's interstate transport obligation with respect to the 2008
ozone NAAQS. Instead, EPA is evaluating the state's interstate
transport SIP to determine whether the current submission satisfies the
statutory obligations at CAA section 110(a)(2)(D)(i)(I). As noted
earlier, Indiana's SIP contains several deficiencies that justify EPA's
decision to finalize disapproval as to prongs one and two transport, as
Indiana has failed to provide an adequate technical analysis
demonstrating that the state's current SIP contains sufficient
provisions to properly address interstate transport with respect to the
2008 ozone NAAQS. Moreover, besides Connecticut, EPA's most recent
technical analysis shows that emissions from Indiana contribute to
projected air quality problems in Wisconsin, Kentucky, Maryland,
Michigan, New Jersey, New York, Ohio, and Pennsylvania.
Comment 6: A commenter alleged that ``EPA propose[d] disapproval,
and its disagreement with IDEM's submission, rests in great part on the
modeling and technical data that was used to support the CSAPR Update''
and that a contrary view suggests ``that there is no basis to conclude
that Indiana would be expected to significantly contribute to the
nonattainment of or interfere with the maintenance of the 2008 ozone
NAAQS in 2017.''
The following comments pertain to modeling conducted to support the
proposed CSAPR Update and EPA's application of the modeling data in the
proposed rule. The commenter first noted that a study prepared by
Alpine Geophysics looked at ozone concentrations during a more recent
time period. The comment alleged that the concentrations from this
study were more appropriate because they reflected recent controls,
economic factors, recent regulatory programs, and more consistent
precipitation and temperature ranges. The commenter stated that using
this data set resulted in all projected air quality problems (both
nonattainment and maintenance receptors) being resolved in 2017 with
the exception of those in Fairfield, Connecticut. The commenter notes
that the proposed rulemaking does not find Indiana to be a significant
contributor to the Fairfield, Connecticut monitor.
The commenter also cited what they believe are legal and policy
issues with the proposed CSAPR Update. The commenter alleged that EPA's
reliance on modeled maximum design value for determining whether a
state interferes with maintenance of the NAAQS downwind is inconsistent
with the Supreme Court's 2014 decision, the D.C. Circuit's 2015
decision in the EME Homer City litigation, the CAA. The commenter
contends that this interpretation of that statutory obligation would
result in unnecessary over-control. The commenter also alleged that
EPA's approach to addressing maintenance concerns is applied
differently in transport than it is in the context of redesignations.
The commenter contends, based on the Alpine Geophysics report, that
EPA inappropriately used grids in its modeling platform that include
overwater receptors as well as land receptors, and further
inappropriately selected to represent the monitor the highest
concentration in the grid from an over the water location.
The commenter further alleged that EPA using the latest version of
the
[[Page 38961]]
Integrated Planning Model would show great emissions reductions already
in place therefore lowering projected concentrations in downwind
states. The commenter also commented that that model did not include
controls such as a Pennsylvania RACT rule and mobile source controls in
the New England area that are needed to reduce concentrations at the
Connecticut monitor. The commenter contended that EPA did not properly
account for international emissions, and doing so would lead to the
conclusion that Indiana is not contributing to the Connecticut monitor.
The commenter concluded that using the alternate analysis by Alpine
Geophysical eliminates attainment and maintenance issues at all the
monitors except Connecticut and for the reasons summarized above,
Indiana does not significantly contribute to that monitor.
Response 6: EPA disagrees with the commenter's conclusion that EPA
is disapproving Indiana's SIP submission addressing prongs one and two
based primarily on the modeling conducted to support the proposed CSAPR
Update rulemaking. As noted earlier, states bear the primary
responsibility to demonstrate that their plans contain adequate
provisions to address the statutory interstate transport provisions,
specifically to demonstrate that the plan properly prohibits emissions
that will significantly contribute to nonattainment or interfere with
maintenance of the NAAQS in downwind states. As described in the
proposal and earlier in this notice, EPA has identified several ways in
which Indiana's SIP submission fails to fulfill this obligation. In
particular, EPA is disapproving Indiana's submission for its reliance
on CSAPR, which does not currently address the 2008 ozone standard, and
the submission's lack of identified state rules that are sufficient to
prohibit emissions that significantly contribute to nonattainment or
interfere with maintenance of the standard in other states.
While EPA cited the modeling conducted for the CSAPR Update as
additional evidence that Indiana may significantly contribute to
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in
downwind states, we did not propose to make a specific finding of
contribution or to quantify any specific emissions reduction
obligation. Rather, the evaluation of whether emissions from Indiana
significantly contribute to nonattainment or interfere with maintenance
of the 2008 ozone NAAQS downwind, and if so what reductions are
necessary to address that contribution, is being conducted in the
context of the CSAPR Update rulemaking. Accordingly, EPA will consider
comments timely submitted to the Agency regarding EPA's air quality
modeling and various associated legal and policy decisions in
finalizing that rulemaking. While EPA appreciates the information
provided by the commenter regarding EPA's identification of downwind
air quality problems and Indiana's potential contribution to those
areas, these data do not undermine EPA's primary bases for disapproving
Indiana's SIP with respect to prongs one and two of CAA section
110(a)(2)(D)(i)(I).
EPA notes that the technical data discussed at proposal with
respect to Indiana's potential contribution to downwind air quality
problems is consistent with modeling previously conducted for trading
programs addressing interstate ozone transport such as CAIR (70 FR
25162), CSAPR (76 FR 48208), and the NOX SIP Call (63 FR
57356) showing that Indiana is frequently linked to downwind receptors.
The modeling conducted to support the proposed CSAPR Update is the most
recent technical information available to the Agency which still shows
such linkages. Even absent these modeling data, Indiana's SIP
submission is inadequate to address prongs one and two of CAA section
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS.
C. Comments on Both the Indiana and Ohio Disapprovals for Prongs One
and Two
Comment 7: The Connecticut Department of Energy and Environmental
Protection (DEEP) is supportive of the proposed disapprovals of Indiana
and Ohio's SIP submissions addressing the prongs one and two transport
obligations. DEEP encouraged EPA to finalize the disapproval quickly
and propose and finalize a full transport remedy rather than waiting to
couple the action with the 2015 ozone NAAQS. DEEP also encourages EPA
to ``describe the implications of the disapproval with respect to each
state's good neighbor SIP obligations and the proposed partial remedy
provided by the [CSAPR] Update,'' and DEEP supports action by Indiana
and Ohio towards resolving outstanding SIP obligations.
Response 7: EPA is supportive of any actions taken by the states to
resolve transport obligations. EPA will address further obligations for
Ohio and Indiana in the final CSAPR Update rule.
D. Comments on Both the Indiana and Ohio Disapprovals for Prong Four
Comment 8: Both commenters on Indiana's submission and Ohio's
submission stated that the visibility portion should be approved,
because reliance on CAIR as better than Best Available Retrofit
Technology (BART) for electric generating units (EGUs) was consistent
with CAA requirements at the time of both submissions. One commenter
also stated that since CAIR is better than BART has been replaced with
CSAPR is better than BART in the form a FIP, the requirements have been
fully addressed, and this transport prong should be fully approved. The
other commenter asserts that if EPA decides to finalize the
disapproval, EPA should clarify that no further action is needed
because of the FIP in place showing that for Ohio EGUs, CSAPR meets the
BART requirements for regional haze. Ohio EPA also disagreed with EPA's
proposed disapproval of prong four, because there is a FIP in place
that satisfies Ohio's obligations.
Response 8: Indiana and Ohio cannot rely on CAIR to satisfy their
regional haze obligations, and by extension their prong four
obligations, because neither the states nor EPA are currently
implementing this program. Neither state has submitted an approvable
regional haze SIP to replace its current reliance on CAIR; thus, both
States have regional haze FIPs in place. However, as stated above,
states cannot rely on FIPs to satisfy their prong four obligations.
This is consistent with our approach for transport provisions and
federally implemented PSD programs. EPA is not promulgating FIPs to
address the states' prong four deficiencies in this action.
IV. What action is EPA taking?
EPA is disapproving a portion of Indiana's December 12, 2011
submission and Ohio's December 27, 2012 submission seeking to address
the required infrastructure element under CAA section 110(a)(2)(D)(i)
for the 2008 ozone NAAQS, specifically prongs one, two, and four. This
disapproval triggers an obligation under CAA section 110(c) for EPA to
promulgate a FIP no later than two years from the effective date of
this disapproval, if EPA has not approved a SIP revision or revisions
addressing the deficiencies identified in this action. This action is
not tied to attainment planning requirements and therefore does not
start any sanction clocks.
[[Page 38962]]
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This rule does not impose an information collection burden under
the provisions of the PRA.
C. Regulatory Flexibility Act (RFA)
The Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the RFA. In making this determination, the impact of concern is
any significant adverse economic impact on small entities. An agency
may certify that a rule will not have a significant economic impact on
a substantial number of small entities if the rule relieves regulatory
burden, has no net burden or otherwise has a positive economic effect
on the small entities subject to the rule. This action merely proposes
to disapprove state law as not meeting Federal requirements and imposes
no additional requirements beyond those imposed by state law.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not have substantial direct effects on
tribal governments. Thus, Executive Order 13175 does not apply to this
rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because EPA does not believe the environmental health or safety risks
addressed by this action present a disproportionate risk to children
because it proposes to disapprove a state rule.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes the human health or environmental risk addressed by
this action will not have potential disproportionately high and adverse
human health or environmental effects on minority, low-income or
indigenous populations.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 15, 2016. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule 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, Ozone.
Dated: June 3, 2016.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.
40 CFR part 52 is amended as follows:
PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. In Sec. 52.770 the table in paragraph (e) is amended by revising
the entry for ``Section 110(a)(2) Infrastructure Requirements for the
2008 Ozone NAAQS''. The amended text reads 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 6/15/2016, [insert This action addresses the
Requirements for the 2008 ozone NAAQS. Federal Register following CAA elements:
citation]. 110(a)(2)(A), (B), (C), (D),
(E), (F), (G), (H), (J),
(K), (L), and (M).
* * * * * * *
----------------------------------------------------------------------------------------------------------------
[[Page 38963]]
0
3. In Sec. 52.1870 the table in paragraph (e) is amended by revising
the entry for ``Section 110(a)(2) infrastructure requirements for the
2008 Ozone NAAQS''. The amended text reads as follows:
Sec. 52.1870 Identification of plan.
* * * * *
(e) * * *
EPA-Approved Ohio Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
Applicable
geographical or
Title non-attainment State date EPA approval Comments
area
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Section 110(a)(2) Statewide......... 12/27/2012 6/15/2016, [insert Addresses the following
infrastructure requirements Federal Register CAA elements:
for the 2008 ozone NAAQS. citation]. 110(a)(2) (A) to (H)
and (J) to (M).
* * * * * * *
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[FR Doc. 2016-14103 Filed 6-14-16; 8:45 am]
BILLING CODE 6560-50-P
