Air Plan Approval; Indiana; Infrastructure SIP Requirements for the 2012 PM2.5, 41379-41386 [2017-18503]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 82, Number 168 (Thursday, August 31, 2017)]
[Proposed Rules]
[Pages 41379-41386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-18503]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2016-0343; FRL-9967-18-Region 5]


Air Plan Approval; Indiana; Infrastructure SIP Requirements for 
the 2012 PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve elements of a state implementation plan (SIP) submission from 
Indiana regarding the infrastructure requirements of section 110 of the 
Clean Air Act (CAA) for the 2012 fine particulate matter 
(PM2.5) 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.

DATES: Comments must be received on or before October 2, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2016-0343 at https://www.regulations.gov, or via email to 
aburano.douglas@epa.gov. For comments submitted at Regulations.gov, 
follow the online instructions for submitting comments. Once submitted, 
comments cannot be edited or removed from Regulations.gov. For either 
manner of submission, EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment.

[[Page 41380]]

The written comment is considered the official comment and should 
include discussion of all points you wish to make. EPA will generally 
not consider comments or comment contents located outside of the 
primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, please contact the person 
identified in the FOR FURTHER INFORMATION CONTACT section. For the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Eric Svingen, Environmental Engineer, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 353-4489, 
svingen.eric@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?
II. What guidance is EPA using to evaluate this SIP submission?
III. What is EPA's analysis of this SIP submission?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews

I. What is the background of this SIP submission?

A. What state submission does this rulemaking address?

    In this rulemaking, EPA is proposing to take action on a June 10, 
2016, submission from the Indiana Department of Environmental 
Management (IDEM) intended to address all applicable infrastructure 
requirements for the 2012 PM2.5 NAAQS. On December 28, 2016, 
IDEM supplemented this submittal with additional documentation intended 
to address the transport requirements of Section 110(a)(2)(D) for the 
2012 PM2.5 NAAQS; EPA will take action on this supplement in 
a separate rulemaking.

B. Why did the state make this SIP submission?

    Under section 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 2012 PM2.5 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 the NAAQS 
already meet those requirements.
    EPA highlighted this statutory requirement in an October 2, 2007, 
guidance document entitled ``Guidance on SIP Elements Required Under 
Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and 
PM2.5 \1\ National Ambient Air Quality Standards'' (2007 
Guidance) and has issued additional guidance documents, the most recent 
on September 13, 2013, entitled ``Guidance on Infrastructure State 
Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and 
(2)'' (2013 Guidance). The SIP submission referenced in this rulemaking 
pertains to the applicable requirements of section 110(a)(1) and (2), 
and addresses the 2012 PM2.5 NAAQS.
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    \1\ PM2.5 refers to particles with an aerodynamic 
diameter of less than or equal to 2.5 micrometers, oftentimes 
referred to as ``fine'' particles.
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C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submission from Indiana that addresses 
the infrastructure requirements of CAA section 110(a)(1) and (2) for 
the 2012 PM2.5 NAAQS. The requirement for states to make SIP 
submissions of this type arises out of CAA section 110(a)(1), which 
states that 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 section 110(a)(1) and (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 SIP submissions that address the nonattainment planning requirements 
of part D and the prevention of significant deterioration (PSD) 
requirements of part C of title I of the CAA, and ``regional haze SIP'' 
submissions required to address the visibility protection requirements 
of CAA section 169A.
    In this rulemaking, EPA will not take action on three substantive 
areas of section 110(a)(2): (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 notice or without requiring further approval by EPA, 
that may be contrary to the CAA; and, (iii) existing provisions for 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 rulemakings. A detailed history, interpretation, and rationale 
as they relate to infrastructure SIP requirements can be found in EPA's 
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).

II. What guidance is EPA using to evaluate this SIP submission?

    EPA's guidance for this infrastructure SIP submission is embodied 
in the 2007 Guidance referenced above. Specifically, attachment A of 
the 2007 Guidance (Required Section 110 SIP Elements) identifies the 
statutory elements that states need to submit in order to satisfy the 
requirements for an infrastructure SIP submission. As discussed above, 
EPA issued additional guidance, the most recent being the 2013 Guidance 
that further clarifies aspects of infrastructure SIPs that are not 
NAAQS specific.

III. What is EPA's analysis of this SIP submission?

    Pursuant to section 110(a), states must provide reasonable notice 
and opportunity for public hearing for all infrastructure SIP 
submissions. On April 26, 2016, IDEM opened a 30-day comment period, 
and provided the opportunity for public hearing. No comments or 
requests for public hearing were received.
    Indiana provided a detailed synopsis of how various components of 
its SIP meet each of the applicable

[[Page 41381]]

requirements in section 110(a)(2) for the 2012 PM2.5 NAAQS, 
as applicable. The following review evaluates the state's submission.

A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures

    This section requires SIPs to include enforceable emission limits 
and other control measures, means or techniques, schedules for 
compliance, and other related matters. EPA has long interpreted 
emission limits and control measures for attaining the standards as 
being due when nonattainment planning requirements are due.\2\ In the 
context of an infrastructure SIP, EPA is not evaluating the existing 
SIP provisions for this purpose. Instead, EPA is only evaluating 
whether the state's SIP has basic structural provisions for the 
implementation of the NAAQS.
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    \2\ See, e.g., EPA's final rule on ``National Ambient Air 
Quality Standards for Lead.'' 73 FR 66964 at 67034.
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    IDEM's authority to adopt emissions standards and compliance 
schedules is found at Indiana Code (IC) 13-14-8, IC 13-17-3-4, IC 13-
17-3-11, and IC 13-17-3-14. To maintain the 2012 PM2.5 
NAAQS, Indiana implements controls and emission limits for particulate 
matter in 326 Indiana Administrative Code (IAC) 6. Additionally, 
Indiana provides emission limits for Clark, Dearborn, Dubois, Howard, 
Marion, St. Joseph, Vanderburgh, Vigo, and Wayne counties at 326 IAC 
6.5, and Lake County at 326 IAC 6.8. EPA proposes that Indiana has met 
the infrastructure SIP requirements of section 110(a)(2)(A) with 
respect to the 2012 PM2.5 NAAQS.
    As previously noted, EPA is not proposing to approve or disapprove 
any existing state provisions or rules related to SSM or director's 
discretion in the context of section 110(a)(2)(A).

B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System

    This section requires SIPs to include provisions to provide for 
establishing and operating ambient air quality monitors, collecting and 
analyzing ambient air quality data, and making these data available to 
EPA upon request. This review of the annual monitoring plan includes 
EPA's determination that the state: (i) Monitors air quality at 
appropriate locations throughout the state using EPA-approved Federal 
Reference Methods or Federal Equivalent Method monitors; (ii) submits 
data to EPA's Air Quality System (AQS) in a timely manner; and, (iii) 
provides EPA Regional Offices with prior notification of any planned 
changes to monitoring sites or the network plan.
    IDEM continues to operate an air monitoring network; EPA approved 
the state's 2017 Annual Air Monitoring Network Plan on October 31, 
2016, including the plan for PM2.5. IDEM enters air 
monitoring data into AQS, and the state provides EPA with prior 
notification when changes to its monitoring network or plan are being 
considered. EPA proposes that Indiana has met the infrastructure SIP 
requirements of section 110(a)(2)(B) with respect to the 2012 
PM2.5 NAAQS.

C. Section 110(a)(2)(C)--Program for Enforcement of Control Measures; 
PSD

    States are required to include a program providing for enforcement 
of all SIP measures and the regulation of construction of new or 
modified stationary sources to meet new source review (NSR) 
requirements under PSD and nonattainment NSR (NNSR) programs. Part C of 
the CAA (sections 160-169B) addresses PSD, while part D of the CAA 
(sections 171-193) addresses NNSR requirements.
    The evaluation of each state's submission addressing the 
infrastructure SIP requirements of section 110(a)(2)(C) covers: (i) 
Enforcement of SIP measures; (ii) PSD provisions that explicitly 
identify oxides of nitrogen (NOX) as a precursor to ozone in 
the PSD program; (iii) identification of precursors to PM2.5 
and the identification of PM2.5 and PM10 \3\ 
condensables in the PSD program; (iv) PM2.5 increments in 
the PSD program; and, (v) greenhouse gas (GHG) permitting and the 
``Tailoring Rule.'' \4\
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    \3\ PM10 refers to particles with an aerodynamic 
diameter of less than or equal to 10 micrometers.
    \4\ In EPA's April 28, 2011, proposed rulemaking for 
infrastructure SIPS for the 1997 ozone and PM2.5 NAAQS, 
we stated that each state's PSD program must meet applicable 
requirements for evaluation of all regulated NSR pollutants in PSD 
permits (see 76 FR 23757 at 23760). This view was reiterated in 
EPA's August 2, 2012, proposed rulemaking for infrastructure SIPs 
for the 2006 PM2.5 NAAQS (see 77 FR 45992 at 45998). In 
other words, if a state lacks provisions needed to adequately 
address NOX as a precursor to ozone, PM2.5 
precursors, PM2.5 and PM10 condensables, 
PM2.5 increments, or the Federal GHG permitting 
thresholds, the provisions of section 110(a)(2)(C) requiring a 
suitable PSD permitting program must be considered not to be met 
irrespective of the NAAQS that triggered the requirement to submit 
an infrastructure SIP, including the 2012 PM2.5 NAAQS.
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Sub-Element 1: Enforcement of SIP Measures
    IDEM maintains an enforcement program to ensure compliance with SIP 
requirements. IC 13-14-1-12 provides the Commissioner with the 
authority to enforce rules ``consistent with the purpose of the air 
pollution control laws.'' Additionally, IC 13-14-2-7 and IC 13-17-3-3 
provide the Commissioner with the authority to assess civil penalties 
and obtain compliance with any applicable rule a board has adopted in 
order to enforce air pollution control laws. Lastly, IC 13-14-10-2 
allows for an emergency restraining order that prevents any person from 
causing, or introducing contaminants, that cause or contribute to air 
pollution. EPA proposes that Indiana has met the enforcement of SIP 
measures requirements of section 110(a)(2)(C) with respect to the 2012 
PM2.5 NAAQS.
Sub-Element 2: PSD Provisions That Explicitly Identify NOX 
as a Precursor to Ozone in the PSD Program
    EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient 
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects 
of the 1990 Amendments Relating to New Source Review and Prevention of 
Significant Deterioration as They Apply in Carbon Monoxide, Particulate 
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase 
2 Rule) was published on November 29, 2005 (see 70 FR 71612). Among 
other requirements, the Phase 2 Rule obligated states to revise their 
PSD programs to explicitly identify NOX as a precursor to 
ozone (70 FR 71612 at 71679, 71699-71700). This requirement was 
codified in 40 CFR 51.166.\5\
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    \5\ Similar changes were codified in 40 CFR 52.21.
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    The Phase 2 Rule required that states submit SIP revisions 
incorporating the requirements of the rule, including these specific 
NOX as a precursor to ozone provisions, by June 15, 2007 
(see 70 FR 71612 at 71683, November 29, 2005).
    EPA approved revisions to Indiana's PSD SIP reflecting these 
requirements on July 2, 2014 (see 79 FR 37646, July 2, 2014), and 
therefore proposes that Indiana has met this set of infrastructure SIP 
requirements of section 110(a)(2)(C) with respect to the 2012 
PM2.5 NAAQS.
Sub-Element 3: Identification of Precursors to PM2.5 and the 
Identification of PM2.5 and PM10 Condensables in 
the PSD Program
    On May 16, 2008 (see 73 FR 28321), EPA issued the Final Rule on the 
``Implementation of the New Source Review (NSR) Program for Particulate 
Matter Less than 2.5 Micrometers (PM2.5)'' (2008 NSR Rule). 
The 2008 NSR Rule finalized several new requirements for SIPs to 
address sources that emit direct PM2.5 and other pollutants 
that contribute to secondary

[[Page 41382]]

PM2.5 formation. One of these requirements is for NSR 
permits to address pollutants responsible for the secondary formation 
of PM2.5, otherwise known as precursors. In the 2008 rule, 
EPA identified precursors to PM2.5 for the PSD program to be 
SO2 and NOX (unless the state demonstrates to the 
Administrator's satisfaction or EPA demonstrates that NOX 
emissions in an area are not a significant contributor to that area's 
ambient PM2.5 concentrations). The 2008 NSR Rule also 
specifies that volatile organic compounds (VOCs) are not considered to 
be precursors to PM2.5 in the PSD program unless the state 
demonstrates to the Administrator's satisfaction or EPA demonstrates 
that emissions of VOCs in an area are significant contributors to that 
area's ambient PM2.5 concentrations.
    The explicit references to SO2, NOX, and VOCs 
as they pertain to secondary PM2.5 formation are codified at 
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of 
identifying pollutants that are precursors to PM2.5, the 
2008 NSR Rule also required states to revise the definition of 
``significant'' as it relates to a net emissions increase or the 
potential of a source to emit pollutants. Specifically, 40 CFR 
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for 
PM2.5 to mean the following emissions rates: 10 tpy of 
direct PM2.5; 40 tpy of SO2; and 40 tpy of 
NOX (unless the state demonstrates to the Administrator's 
satisfaction or EPA demonstrates that NOX emissions in an 
area are not a significant contributor to that area's ambient 
PM2.5 concentrations). The deadline for states to submit SIP 
revisions to their PSD programs incorporating these changes was May 16, 
2011 (see 73 FR 28321 at 28341, May 16, 2008).\6\
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    \6\ EPA notes that on January 4, 2013, the U.S. Court of Appeals 
for the D.C. Circuit, in Natural Resources Defense Council v. EPA, 
706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 
NSR Rule in accordance with the CAA's requirements for 
PM10 nonattainment areas (Title I, Part D, subpart 4), 
and not the general requirements for nonattainment areas under 
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250). 
As the subpart 4 provisions apply only to nonattainment areas, EPA 
does not consider the portions of the 2008 rule that address 
requirements for PM2.5 attainment and unclassifiable 
areas to be affected by the court's opinion. Moreover, EPA does not 
anticipate the need to revise any PSD requirements promulgated by 
the 2008 NSR rule in order to comply with the court's decision. 
Accordingly, EPA's approval of Indiana's infrastructure SIP as to 
elements (C), (D)(i)(II), or (J) with respect to the PSD 
requirements promulgated by the 2008 implementation rule does not 
conflict with the court's opinion. The Court's decision with respect 
to the nonattainment NSR requirements promulgated by the 2008 
implementation rule also does not affect EPA's action on the present 
infrastructure action. EPA interprets the CAA to exclude 
nonattainment area requirements, including requirements associated 
with a nonattainment NSR program, from infrastructure SIP 
submissions due three years after adoption or revision of a NAAQS. 
Instead, these elements are typically referred to as nonattainment 
SIP or attainment plan elements, which would be due by the dates 
statutorily prescribed under subpart 2 through 5 under part D, 
extending as far as 10 years following designations for some 
elements.
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    The 2008 NSR Rule did not require states to immediately account for 
gases that could condense to form particulate matter, known as 
condensables, in PM2.5 and PM10 emission limits 
in NSR permits. Instead, EPA determined that states had to account for 
PM2.5 and PM10 condensables for applicability 
determinations and in establishing emissions limitations for 
PM2.5 and PM10 in PSD permits beginning on or 
after January 1, 2011. This requirement is codified in 40 CFR 
51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states' 
PSD programs incorporating the inclusion of condensables were required 
be submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341, May 16, 
2008).
    EPA approved revisions to Indiana's PSD SIP reflecting these 
requirements on July 2, 2014 (see 79 FR 37646), and therefore proposes 
that Indiana has met this set of infrastructure SIP requirements of 
section 110(a)(2)(C) with respect to the 2012 PM2.5 NAAQS.
Sub-Element 4: PM2.5 Increments in the PSD Program
    On October 20, 2010, EPA issued the 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). This rule established several components for making PSD 
permitting determinations for PM2.5, including a system of 
``increments'' which is the mechanism used to estimate significant 
deterioration of ambient air quality for a pollutant. These increments 
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included 
in the table below.

Table 1--PM2.5 Increments Established by the 2010 NSR Rule in Micrograms
                             per Cubic Meter
------------------------------------------------------------------------
                                                   Annual
                                                 arithmetic  24-Hour max
                                                    mean
------------------------------------------------------------------------
Class I.......................................            1            2
Class II......................................            4            9
Class III.....................................            8           18
------------------------------------------------------------------------

    The 2010 NSR Rule also established a new ``major source baseline 
date'' for PM2.5 as October 20, 2010, and a new trigger date 
for PM2.5 as October 20, 2011. These revisions are codified 
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 
52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule 
revised the definition of ``baseline area'' to include a level of 
significance of 0.3 micrograms per cubic meter, annual average, for 
PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) 
and 40 CFR 52.21(b)(15)(i).
    On July 12, 2012, and supplemented on December 12, 2012, IDEM 
submitted revisions intended to address the increments established by 
the 2010 NSR Rule for incorporation into the SIP, as well as the 
revised major source baseline date, trigger date, and baseline area 
level of significance for PM2.5. IDEM also requested that 
these revisions satisfy any applicable infrastructure SIP requirements 
related to PSD. Specifically, revisions to 326 IAC 2-2-6(b) contain the 
Federal increments for PM2.5, 326 IAC 2-2-1(ee)(3) contains 
the new major source baseline date for PM2.5 of October 20, 
2010, 326 IAC 2-2-1(gg)(1)(C) contains the new trigger date for 
PM2.5 of October 20, 2011, and 326 IAC 2-2-1(f)(1) contains 
the new baseline area level of significance for PM2.5. It 
should be noted that Indiana's submitted revisions explicitly include 
only the PM2.5 increments as they apply to Class II areas, 
and not the PM2.5 increments as they apply to Class I or 
Class III areas. However, Indiana's requested revisions specify that if 
areas in the state are classified as Class I or III in the future, it 
would require that, pursuant to 40 CFR 52.21, those PSD increments be 
adhered to.
    On August 11, 2014 (79 FR 46709), EPA finalized approval of the 
applicable infrastructure SIP PSD revisions; therefore, we are 
proposing that Indiana has met this set of infrastructure SIP 
requirements of section 110(a)(2)(C) with respect to the 2012 
PM2.5 NAAQS.
Sub-Element 5: GHG Permitting and the ``Tailoring Rule''
    With respect to the requirements of section 110(a)(2)(C) as well as 
section 110(a)(2)(J), EPA interprets the CAA to

[[Page 41383]]

require each state to make an infrastructure SIP submission for a new 
or revised NAAQS that demonstrates that the state has a complete PSD 
permitting program meeting the current requirements for all regulated 
NSR pollutants. The requirements of element D(i)(II) may also be 
satisfied by demonstrating the air agency has a complete PSD permitting 
program correctly addressing all regulated NSR pollutants. Indiana has 
shown that it currently has a PSD program in place that covers all 
regulated NSR pollutants, including GHGs.
    On June 23, 2014, the United States Supreme Court issued a decision 
addressing the application of PSD permitting requirements to GHG 
emissions. Utility Air Regulatory Group v. Environmental Protection 
Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not 
treat GHGs as an air pollutant for purposes of determining whether a 
source is a major source required to obtain a PSD permit. The Court 
also said that the EPA could continue to require that PSD permits, 
otherwise required based on emissions of pollutants other than GHGs, 
contain limitations on GHG emissions based on the application of Best 
Available Control Technology (BACT).
    In order to act consistently with its understanding of the Court's 
decision pending further judicial action to effectuate the decision, 
the EPA is not continuing to apply EPA regulations that would require 
that SIPs include permitting requirements that the Supreme Court found 
impermissible. Specifically, EPA is not applying the requirement that a 
state's SIP-approved PSD program require that sources obtain PSD 
permits when GHGs are the only pollutant (i) that the source emits or 
has the potential to emit above the major source thresholds, or (ii) 
for which there is a significant emissions increase and a significant 
net emissions increase from a modification (e.g., 40 CFR 
51.166(b)(48)(v)).
    EPA anticipates a need to revise Federal PSD rules in light of the 
Supreme Court opinion. In addition, EPA anticipates that many states 
will revise their existing SIP-approved PSD programs in light of the 
Supreme Court's decision. The timing and content of subsequent EPA 
actions with respect to the EPA regulations and state PSD program 
approvals are expected to be informed by additional legal process 
before the United States Court of Appeals for the District of Columbia 
Circuit. At this juncture, EPA is not expecting states to have revised 
their PSD programs for purposes of infrastructure SIP submissions and 
is only evaluating such submissions to assure that the state's program 
correctly addresses GHGs consistent with the Supreme Court's decision.
    At present, EPA is proposing that Indiana's SIP is sufficient to 
satisfy elements C, D(i)(II), and J with respect to GHGs because the 
PSD permitting program previously approved by EPA into the SIP 
continues to require that PSD permits (otherwise required based on 
emissions of pollutants other than GHGs) contain limitations on GHG 
emissions based on the application of BACT. Although the approved 
Indiana PSD permitting program may currently contain provisions that 
are no longer necessary in light of the Supreme Court decision, this 
does not render the infrastructure SIP submission inadequate to satisfy 
elements C, (D)(i)(II), and J. The SIP contains the necessary PSD 
requirements at this time, and the application of those requirements is 
not impeded by the presence of other previously-approved provisions 
regarding the permitting of sources of GHGs that EPA does not consider 
necessary at this time in light of the Supreme Court decision.
    For the purposes of the 2012 PM2.5 NAAQS infrastructure 
SIPs, EPA reiterates that NSR reform regulations are not within the 
scope of these actions. Therefore, we are not taking action on existing 
NSR reform regulations for Indiana. EPA approved Indiana's minor NSR 
program on October 7, 1994 (see 59 FR 51108), and most recently 
approved revisions to the program on March 16, 2015 (see 80 FR 13493). 
IDEM and EPA rely on the minor NSR program to ensure that new and 
modified sources not captured by the major NSR permitting programs do 
not interfere with attainment and maintenance of the 2012 
PM2.5 NAAQS.
    Certain sub-elements in this section overlap with elements of 
section 110(a)(2)(D)(i), section 110(a)(2)(E) and section 110(a)(2)(J). 
These links will be discussed in the appropriate areas below.

D. Section 110(a)(2)(D)--Interstate Transport

    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, or interfering with 
maintenance, of the NAAQS in another state. EPA is not taking action on 
this infrastructure element in regards to the 2012 PM2.5 
NAAQS and will do so in a future rulemaking.
    Section 110(a)(2)(D)(i)(II) requires SIPs to include provisions 
prohibiting any source or other type of emissions activity in one state 
from interfering with measures required to prevent significant 
deterioration of air quality or to protect visibility in another state.
    EPA notes that Indiana's satisfaction of the applicable 
infrastructure SIP PSD requirements for the 2012 PM2.5 NAAQS 
has been detailed in the section addressing section 110(a)(2)(C). EPA 
further notes that the proposed actions in that section related to PSD 
are consistent with the proposed actions related to PSD for section 
110(a)(2)(D)(i)(II), and they are reiterated below.
    EPA has previously approved revisions to Indiana's SIP that meet 
certain requirements obligated by the Phase 2 Rule and the 2008 NSR 
Rule. These revisions included provisions that: Explicitly identify 
NOX as a precursor to ozone, explicitly identify 
SO2 and NOX as precursors to PM2.5, 
and regulate condensable PM2.5 and PM10 in 
applicability determinations and establishing emissions limits. EPA has 
also previously approved revisions to Indiana's SIP that incorporate 
the PM2.5 increments and the associated implementation 
regulations including the major source baseline date, trigger date, and 
level of significance for PM2.5 per the 2010 NSR Rule. EPA 
is proposing that Indiana's SIP contains provisions that adequately 
address the 2012 PM2.5 NAAQS.
    States also have an obligation to ensure that sources located in 
nonattainment areas do not interfere with a neighboring state's PSD 
program. One way that this requirement can be satisfied is through an 
NNSR program consistent with the CAA that addresses any pollutants for 
which there is a designated nonattainment area within the state.
    Indiana's EPA-approved NNSR regulations are contained in 326 IAC 2-
3, and are consistent with 40 CFR 51.165. Therefore, EPA proposes that 
Indiana has met all of the applicable PSD requirements for the 2012 
PM2.5 NAAQS related to section 110(a)(2)(D)(i)(II).
    With regard to the applicable requirements for visibility 
protection of section 110(a)(2)(D)(i)(II), states are subject to 
visibility and regional haze program requirements under part C of the 
CAA (which includes sections 169A and 169B). The 2013 Memo states that 
these requirements can be satisfied by an approved SIP addressing 
reasonably attributable visibility impairment, if required, or an 
approved SIP addressing regional haze. In this rulemaking, EPA is not 
proposing to approve or disapprove Indiana's satisfaction of the

[[Page 41384]]

visibility protection requirements of section 110(a)(2)(D)(i)(II) for 
the 2012 PM2.5 NAAQS. Instead, EPA will evaluate Indiana's 
compliance with these requirements in a separate rulemaking.\7\
---------------------------------------------------------------------------

    \7\ Indiana does have an approved regional haze plan for non-
EGUs. Indiana's plan for EGUs relied on the Clean Air Interstate 
Rule that has been recently superseded by the Cross State Air 
Pollution Rule to which Indiana EGU sources are also subject.
---------------------------------------------------------------------------

    Section 110(a)(2)(D)(ii) requires each SIP to contain adequate 
provisions requiring compliance with the applicable requirements of 
section 126 and section 115 (relating to interstate and international 
pollution abatement, respectively).
    Section 126(a) requires new or modified sources to notify 
neighboring states of potential impacts from the source. The statute 
does not specify the method by which the source should provide the 
notification. States with SIP-approved PSD programs must have a 
provision requiring such notification by new or modified sources. A 
lack of such a requirement in state rules would be grounds for 
disapproval of this element. Indiana has provisions in its EPA-approved 
PSD program in 326 IAC 2-2-15 (b)(3) requiring new or modified sources 
to notify neighboring states of potential negative air quality impacts, 
and has referenced this program as having adequate provisions to meet 
the requirements of section 126(a). EPA is proposing that Indiana has 
met the infrastructure SIP requirements of section 126(a) with respect 
to the 2012 PM2.5 NAAQS. Indiana does not have any 
obligations under any other subsection of section 126, nor does it have 
any pending obligations under section 115. EPA, therefore, is proposing 
that Indiana has met all applicable infrastructure SIP requirements of 
section 110(a)(2)(D)(ii).

E. Section 110(a)(2)(E)--Adequate Resources

    This section requires each state to provide for adequate personnel, 
funding, and legal authority under state law to carry out its SIP, and 
related issues. Section 110(a)(2)(E)(ii) also requires each state to 
comply with the requirements respecting state boards under section 128.
Sub-Element 1: Adequate Personnel, Funding, and Legal Authority Under 
State Law To Carry Out Its SIP, and Related Issues
    Indiana's biennial budget and its environmental performance 
partnership agreement with EPA document funding and personnel levels 
for IDEM every two years. As discussed in earlier sections, IC 13-14-1-
12 provides the Commissioner of IDEM with the authority to enforce air 
pollution control laws. Furthermore, IC 13-14-8, IC 13-17-3-11, and IC 
13-17-3-14 contain the authority for IDEM to adopt air emissions 
standards and compliance schedules. EPA proposes that Indiana has met 
the infrastructure SIP requirements of this portion of section 
110(a)(2)(E) with respect to the 2012 PM2.5 NAAQS.
Sub-Element 2: State Board Requirements Under Section 128 of the CAA
    Section 110(a)(2)(E) also requires each SIP to contain provisions 
that comply with the state board requirements of section 128 of the 
CAA. That provision contains two explicit requirements: (i) That any 
board or body which approves permits or enforcement orders under this 
chapter shall have at least a majority of members who represent the 
public interest and do not derive any significant portion of their 
income from persons subject to permits and enforcement orders under 
this chapter, and (ii) that any potential conflicts of interest by 
members of such board or body or the head of an executive agency with 
similar powers be adequately disclosed.
    On November 29, 2012, IDEM submitted rules regarding its 
Environmental Rules Board at IC 13-13-8 for incorporation into the SIP, 
pursuant to section 128 of the CAA. On December 12, 2012, IDEM provided 
a supplemental submission clarifying that the Environmental Rules Board 
established by IC 13-13-8, which has the authority to adopt 
environmental regulations under IC 4-22-2 and IC 13-14-9, does not have 
the authority to approve enforcement orders or permitting actions as 
outlined in section 128(a)(1) of the CAA. Therefore, section 128(a)(1) 
of the CAA is not applicable in Indiana.
    Under section 128(a)(2), the head of the executive agency with the 
power to approve enforcement orders or permits must adequately disclose 
any potential conflicts of interest. IC 13-13-8-11 ``Disclosure of 
conflicts of interest'' contains provisions that adequately satisfy the 
requirements of section 128(a)(2). This section requires that each 
member of the board shall fully disclose any potential conflicts of 
interest relating to permits or enforcement orders. IC 13-13-8-4 
defines the membership of the board, and the commissioner (of IDEM) or 
his/her designee is explicitly included as a member of the board. 
Therefore, when evaluated together in the context of section 128(a)(2), 
the commissioner (of IDEM) or his/her designee must fully disclose any 
potential conflicts of interest relating to permits or enforcement 
orders under the CAA. EPA concludes that IDEM's submission as it 
relates to the state board requirements under section 128 is consistent 
with applicable CAA requirements. EPA approved these rules on December 
6, 2013 (78 FR 77599). Therefore, EPA is proposing that IDEM has 
satisfied the applicable infrastructure SIP requirements for this 
section of 110(a)(2)(E) for the 2012 PM2.5 NAAQS.

F. Section 110(a)(2)(F)--Stationary Source Monitoring System

    States must establish a system to monitor emissions from stationary 
sources and submit periodic emissions reports. Each plan shall also 
require the installation, maintenance, and replacement of equipment, 
and the implementation of other necessary steps, by owners or operators 
of stationary sources to monitor emissions from such sources. The state 
plan shall also require periodic reports on the nature and amounts of 
emissions and emissions-related data from such sources, and correlation 
of such reports by each state agency with any emission limitations or 
standards established pursuant to this chapter. Lastly, the reports 
shall be available at reasonable times for public inspection.
    The Indiana state rules for monitoring requirements are contained 
in 326 IAC 3. Additional emissions reporting requirements are found in 
326 IAC 2-6. Emission reports are available upon request by EPA or 
other interested parties. EPA proposes that Indiana has satisfied the 
infrastructure SIP requirements of section 110(a)(2)(F) with respect to 
the 2012 PM2.5 NAAQS.

G. Section 110(a)(2)(G)--Emergency Powers

    This section requires that a plan provide for authority that is 
analogous to what is provided in section 303 of the CAA, and adequate 
contingency plans to implement such authority. The 2013 Memo states 
that infrastructure SIP submissions should specify authority, rested in 
an appropriate official, to restrain any source from causing or 
contributing to emissions which present an imminent and substantial 
endangerment to public health or welfare, or the environment.
    326 IAC 1-5 establishes air pollution episode levels based on 
concentrations of criteria pollutants. This rule requires that 
emergency reduction plans be submitted to the Commissioner of IDEM by 
major air pollution sources, and

[[Page 41385]]

these plans must include actions that will be taken when each episode 
level is declared, to reduce or eliminate emissions of the appropriate 
air pollutants. Similarly, under IC 13-17-4, Indiana also has the 
ability to declare an air pollution emergency and order all persons 
causing or contributing to the conditions warranting the air pollution 
emergency to immediately reduce or discontinue emission of air 
contaminants. EPA proposes that Indiana has met the applicable 
infrastructure SIP requirements of section 110(a)(2)(G) related to 
authority to implement measures to restrain sources from causing or 
contributing to emissions which present an imminent and substantial 
endangerment to public health or welfare, or the environment with 
respect to the 2012 PM2.5 NAAQS.

H. Section 110(a)(2)(H)--Future SIP Revisions

    This section requires states to have the authority to revise their 
SIPs in response to changes in the NAAQS, availability of improved 
methods for attaining the NAAQS, or to an EPA finding that the SIP is 
substantially inadequate.
    IDEM continues to update and implement needed revisions to 
Indiana's SIP as necessary to meet ambient air quality standards. As 
discussed in previous sections, authority to adopt emissions standards 
and compliance schedules is found at IC 13-4-8, IC 13-17-3-4, IC 13-17-
3-11, and IC 13-17-3-14. EPA proposes that Indiana has met the 
infrastructure SIP requirements of section 110(a)(2)(H) with respect to 
the 2012 PM2.5 NAAQS.

I. Section 110(a)(2)(I)--Nonattainment Area Plan or Plan Revisions 
Under Part D

    The CAA requires that each plan or plan revision for an area 
designated as a nonattainment area meet the applicable requirements of 
part D of the CAA. Part D relates to nonattainment areas.
    EPA has determined that section 110(a)(2)(I) is not applicable to 
the infrastructure SIP process. Instead, EPA takes action on part D 
attainment plans through separate processes.

J. Section 110(a)(2)(J)--Consultation With Government Officials; Public 
Notifications; PSD; Visibility Protection

    The evaluation of the submissions from Indiana with respect to the 
requirements of section 110(a)(2)(J) are described below.
Sub-Element 1: Consultation With Government Officials
    States must provide a process for consultation with local 
governments and Federal Land Managers (FLMs) carrying out NAAQS 
implementation requirements.
    IDEM actively participates in the regional planning efforts that 
include state rule developers, representatives from the FLMs, and other 
affected stakeholders. Additionally, Indiana is an active member of the 
Lake Michigan Air Director's Consortium, which consists of 
collaboration with the States of Illinois, Wisconsin, Michigan, 
Minnesota, and Ohio. EPA proposes that Indiana has met the 
infrastructure SIP requirements of this portion of section 110(a)(2)(J) 
with respect to the 2012 PM2.5 NAAQS.
Sub-Element 2: Public Notification
    Section 110(a)(2)(J) also requires states to notify the public if 
NAAQS are exceeded in an area and to enhance public awareness of 
measures that can be taken to prevent exceedances.
    IDEM monitors air quality data daily, and reports the air quality 
index to the interested public and media, if necessary. IDEM also 
participates in and submits information to EPA's AIRNOW program, and 
maintains SmogWatch, which is an informational tool created by IDEM to 
share air quality forecasts for each day. SmogWatch provides daily 
information about ground-level ozone, particulate matter concentration 
levels, health information, and monitoring data for seven regions in 
Indiana. In addition, IDEM maintains a publicly available Web site that 
allows interested members of the community and other stakeholders to 
view current monitoring data summaries, including those for 
PM2.5.\8\ EPA proposes that Indiana has met the 
infrastructure SIP requirements of this portion of section 110(a)(2)(J) 
with respect to the 2012 PM2.5 NAAQS.
---------------------------------------------------------------------------

    \8\ See https://www.in.gov/idem/airquality/2489.htm.
---------------------------------------------------------------------------

Sub-Element 3: PSD
    States must meet applicable requirements of section 110(a)(2)(C) 
related to PSD. IDEM's PSD program in the context of infrastructure 
SIPs has already been discussed above in the paragraphs addressing 
section 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the 
proposed actions for those sections are consistent with the proposed 
actions for this portion of section 110(a)(2)(J).
    Therefore, EPA proposes that Indiana has met all of the 
infrastructure SIP requirements for PSD associated with section 
110(a)(2)(D)(J) for the 2012 PM2.5 NAAQS.
Sub-Element 4: Visibility Protection
    With regard to the applicable requirements for visibility 
protection, states are subject to visibility and regional haze program 
requirements under part C of the CAA (which includes sections 169A and 
169B). In the event of the establishment of a new NAAQS, however, the 
visibility and regional haze program requirements under part C do not 
change. Thus, we find that there is no new visibility obligation 
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes 
effective. In other words, the visibility protection requirements of 
section 110(a)(2)(J) are not germane to infrastructure SIPs for the 
2012 PM2.5 NAAQS.

K. Section 110(a)(2)(K)--Air Quality Modeling/Data

    SIPs must provide for performing air quality modeling for 
predicting effects on air quality of emissions from any NAAQS pollutant 
and submission of such data to EPA upon request.
    IDEM continues to review the potential impact of all major and some 
minor new and modified sources using computer models. Indiana's rules 
regarding air quality modeling are contained in 326 IAC 2-2-4, 326 IAC 
2-2-5, 326 IAC 2-2-6, and 326 IAC 2-2-7. These modeling data are 
available to EPA or other interested parties upon request. EPA proposes 
that Indiana has met the infrastructure SIP requirements of section 
110(a)(2)(K) with respect to the 2012 PM2.5 NAAQS.

L. Section 110(a)(2)(L)--Permitting Fees

    This section requires SIPs to mandate each major stationary source 
to pay permitting fees to cover the cost of reviewing, approving, 
implementing, and enforcing a permit.
    IDEM implements and operates the title V permit program, which EPA 
approved on December 4, 2001 (66 FR 62969); revisions to the program 
were approved on August 13, 2002 (67 FR 52615). In addition to the 
title V permit program, IDEM's EPA-approved PSD program, specifically 
contained in 326 IAC 2-1.1-07, contains the provisions, requirements, 
and structures associated with the costs for reviewing, approving, 
implementing, and enforcing various types of permits. EPA proposes that 
Indiana has met the infrastructure SIP requirements of section 
110(a)(2)(L) with respect to the 2012 PM2.5 NAAQS.

[[Page 41386]]

M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local 
Entities

    States must consult with and allow participation from local 
political subdivisions affected by the SIP.
    Any IDEM rulemaking procedure contained in IC 13-14-9 requires 
public participation in the SIP development process. In addition, IDEM 
ensures that the public hearing requirements of 40 CFR 51.102 are 
satisfied during the SIP development process. EPA proposes that Indiana 
has met the infrastructure SIP requirements of section 110(a)(2)(M) 
with respect to the 2012 PM2.5 NAAQS.

IV. What action is EPA taking?

    EPA is proposing to approve most elements of a submission from 
Indiana certifying that its current SIP is sufficient to meet the 
required infrastructure elements under sections 110(a)(1) and (2) for 
the 2012 PM2.5 NAAQS. EPA's proposed actions for the state's 
satisfaction of infrastructure SIP requirements, by element of section 
110(a)(2) are contained in the table below.

------------------------------------------------------------------------
                        Element                             2012 PM2.5
------------------------------------------------------------------------
(A)--Emission limits and other control measures........               A
(B)--Ambient air quality monitoring/data system........               A
(C)1--Program for enforcement of control measures......               A
(C)2--PSD..............................................               A
(D)1--I Prong 1: Interstate transport--significant                   NA
 contribution..........................................
(D)2--I Prong 2: Interstate transport--interfere with                NA
 maintenance...........................................
(D)3--II Prong 3: Interstate transport--prevention of                 A
 significant deterioration.............................
(D)4--II Prong 4: Interstate transport--protect                      NA
 visibility............................................
(D)5--Interstate and international pollution abatement.               A
(E)1--Adequate resources...............................               A
(E)2--State board requirements.........................               A
(F)--Stationary source monitoring system...............               A
(G)--Emergency power...................................               A
(H)--Future SIP revisions..............................               A
(I)--Nonattainment planning requirements of part D.....               *
(J)1--Consultation with government officials...........               A
(J)2--Public notification..............................               A
(J)3--PSD..............................................               A
(J)4--Visibility protection............................               *
(K)--Air quality modeling/data.........................               A
(L)--Permitting fees...................................               A
(M)--Consultation and participation by affected local                 A
 entities..............................................
------------------------------------------------------------------------

    In the above table, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A.........................................  Approve.
NA........................................  No Action/Separate
                                             Rulemaking.
 *........................................  Not germane to
                                             infrastructure SIPs.
------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves state law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by state 
law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP 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 and will not impose 
substantial direct costs on tribal governments or preempt tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter, Reporting 
and recordkeeping requirements.

    Dated: August 21, 2017.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.
[FR Doc. 2017-18503 Filed 8-30-17; 8:45 am]
BILLING CODE 6560-50-P