80_FR_23795 80 FR 23713 - Approval and Promulgation of Air Quality Implementation Plans; Indiana; Infrastructure SIP Requirements for the 2008 Ozone National Ambient Air Quality Standards (NAAQS)

80 FR 23713 - Approval and Promulgation of Air Quality Implementation Plans; Indiana; Infrastructure SIP Requirements for the 2008 Ozone National Ambient Air Quality Standards (NAAQS)

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 80, Issue 82 (April 29, 2015)

Page Range23713-23721
FR Document2015-09883

The Environmental Protection Agency (EPA) is taking final action to approve elements of a state implementation plan (SIP) submission by Indiana regarding the infrastructure requirements of sections 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 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 are adequate to meet the state's responsibilities under the CAA. The proposed rulemaking associated with this final action was published on August 19, 2013, and EPA received two comment letters during the comment period, which ended on September 18, 2013. The concerns raised in these letters, as well as EPA's responses, will be addressed in this final action.

Federal Register, Volume 80 Issue 82 (Wednesday, April 29, 2015)
[Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)]
[Rules and Regulations]
[Pages 23713-23721]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-09883]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0969; FRL-9926-81-Region 5]


Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Infrastructure SIP Requirements for the 2008 Ozone National 
Ambient Air Quality Standards (NAAQS)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve elements of a state implementation plan (SIP) 
submission by Indiana regarding the infrastructure requirements of 
sections 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 
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 are adequate 
to meet the state's responsibilities under the CAA. The proposed 
rulemaking associated with this final action was published on August 
19, 2013, and EPA received two comment letters during the comment 
period, which ended on September 18, 2013. The concerns raised in these 
letters, as well as EPA's responses, will be addressed in this final 
action.

DATES: This final rule is effective on May 29, 2015.

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 in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, will be 
publicly-available only in hard copy. Publicly-available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at the U.S. Environmental

[[Page 23714]]

Protection Agency, Region 5, Air and Radiation Division, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. We recommend that you telephone Sarah Arra at (312) 886-9401 
before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-9401, arra.sarah@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What is the background of this SIP submission?
II. What is our response to comments received on the proposed 
rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background of this SIP submission?

A. What does this rulemaking address?

    This rulemaking addresses a December 12, 2011, submission from the 
Indiana Department of Environmental Management (IDEM) intended to meet 
the applicable infrastructure SIP requirements for the 2008 ozone 
NAAQS.

B. Why did the state make this SIP submission?

    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure that their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS, including 
the 2008 ozone 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 ozone already 
meet those requirements.
    EPA has highlighted this statutory requirement in multiple guidance 
documents, including the most recent guidance document entitled 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under CAA Sections 110(a)(1) and (2)'' issued on September 13, 2013.

C. What is the scope of this rulemaking?

    EPA is acting upon Indiana's SIP submission that addresses the 
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for 
the 2008 ozone NAAQS. The requirement for states to make SIP 
submissions of this type arises out of CAA section 110(a)(1). Pursuant 
to section 110(a)(1), states must make SIP submissions ``within 3 years 
(or such shorter period as the Administrator may prescribe) after the 
promulgation of a national primary ambient air quality standard (or any 
revision thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon EPA's taking any action other than promulgating a new 
or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    This rulemaking will not cover three substantive areas that are not 
integral to acting on a state's infrastructure SIP submission: (i) 
Existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction (``SSM'')at sources, that may be 
contrary to the CAA and EPA's policies addressing such excess 
emissions; (ii) existing provisions related to ``director's variance'' 
or ``director's discretion'' that purport to permit revisions to SIP 
approved emissions limits with limited public process or without 
requiring further approval by EPA, that may be contrary to the CAA 
(collectively referred to as ``director's discretion''); and, (iii) 
existing provisions for Prevention of Significant Deterioration (PSD) 
programs that may be inconsistent with current requirements of EPA's 
``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as 
amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, EPA 
has the authority to address each one of these substantive areas in 
separate rulemaking. A detailed rationale, history, and interpretation 
related to infrastructure SIP requirements can be found in our May 13, 
2014, proposed rule entitled, ``Infrastructure SIP Requirements for the 
2008 Lead NAAQS'' in the section, ``What is the scope of this 
rulemaking?'' (see 79 FR 27241 at 27242-27245).
    In addition, EPA is not acting on section 110(a)(2)(D)(i)(I), 
interstate transport significant contribution and interference with 
maintenance, a portion of section 110(a)(2)(D)(i)(II) with respect to 
visibility, and 110(a)(2)(J) with respect to visibility. EPA is also 
not acting on section 110(a)(2)(I)--Nonattainment Area Plan or Plan 
Revisions Under Part D, in its entirety. The rationale for not acting 
on elements of these requirements was included in EPA's August 19, 
2013, proposed rulemaking or discussed below in today's response to 
comments.

II. What is our response to comments received on the proposed 
rulemaking?

    The public comment period for EPA's proposed actions with respect 
to Indiana's satisfaction of the infrastructure SIP requirements for 
the 2008 ozone NAAQS closed on September 18, 2013. EPA received two 
comment letters, which were from the Sierra Club and the state of 
Connecticut. A synopsis of the comments contained in these letters and 
EPA's responses are provided below.
    Comment 1: The Sierra Club states that, on its face, the CAA 
``requires I-SIPs to be adequate to prevent violations of the NAAQS.'' 
In support, the commenter quotes the language in section 110(a)(1) that 
requires states to adopt a plan for implementation, maintenance, and 
enforcement of the NAAQS and the language in section 110(a)(2)(A) which 
requires SIPs to include enforceable emissions limitations as may be 
necessary to meet the requirements of the CAA and which commenters 
claimed include the maintenance plan requirement. Sierra Club notes the 
CAA definition of ``emission limit'' and reads these provisions 
together to require ``enforceable emission limitations on source 
emissions sufficient to ensure maintenance of the NAAQS.''
    Response 1: EPA disagrees that section 110 must be interpreted in 
the manner suggested by Sierra Club. Section 110 is only one provision 
that is part of the complex structure governing implementation of the 
NAAQS program under the CAA, as

[[Page 23715]]

amended in 1990, and it must be interpreted in the context of not only 
that structure, but also of the historical evolution of that structure. 
In light of the revisions to section 110 since 1970 and the later-
promulgated and more specific planning requirements of the CAA, EPA 
interprets the requirement in section 110(a)(2)(A) that the plan 
provide for ``implementation, maintenance and enforcement'' to mean 
that the infrastructure SIP must contain enforceable emission limits 
that will aid in attaining and/or maintaining the NAAQS and that the 
state demonstrate that it has the necessary tools to implement and 
enforce a NAAQS, such as adequate state personnel and an enforcement 
program.
    With regard to the requirement for emission limitations, EPA has 
interpreted this to mean that, for purposes of section 110, the state 
may rely on measures already in place to address the pollutant at issue 
or any new control measures that the state may choose to submit. As EPA 
stated in ``Guidance on Infrastructure State Implementation Plan (SIP) 
Elements under CAA Sections 110(a)(1) and 110(a)(2),'' dated September 
13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual purpose of 
an infrastructure SIP submission is to assure that the air agency's SIP 
contains the necessary structural requirements for the new or revised 
NAAQS, whether by establishing that the SIP already contains the 
necessary provisions, by making a substantive SIP revision to update 
the SIP, or both. Overall, the infrastructure SIP submission process 
provides an opportunity . . . to review the basic structural 
requirements of the air agency's air quality management program in 
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p. 
2.
    Comment 2: Sierra Club cites two excerpts from the legislative 
history of the CAA Amendments of 1970 asserting that they support an 
interpretation that SIP revisions under CAA section 110 must include 
emissions limitations sufficient to show maintenance of the NAAQS in 
all areas of Indiana. Sierra Club also contends that the legislative 
history of the CAA supports the interpretation that infrastructure SIPs 
under section 110(a)(2) must include enforceable emission limitations, 
citing the Senate Committee Report and the subsequent Senate Conference 
Report accompanying the 1970 CAA.
    Response 2: The CAA, as enacted in 1970, including its legislative 
history, cannot be interpreted in isolation from the later amendments 
that refined that structure and deleted relevant language from section 
110 concerning demonstrating attainment. In any event, the two excerpts 
of legislative history the commenter cites merely provide that states 
should include enforceable emission limits in their SIPs; they do not 
mention or otherwise address whether states are required to include 
maintenance plans for all areas of the state as part of the 
infrastructure SIP.
    Comment 3: Sierra Club cites to 40 CFR 51.112(a), providing that 
each plan must ``demonstrate that the measures, rules, and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the [NAAQS].'' The commenter asserts that this 
regulation requires all SIPs to include emissions limits necessary to 
ensure attainment of the NAAQS. The commenter states that ``[a]lthough 
these regulations were developed before the Clean Air Act separated 
Infrastructure SIPs from nonattainment SIPs--a process that began with 
the 1977 amendments and was completed by the 1990 amendments--the 
regulations apply to I-SIPs.'' The commenter relies on a statement in 
the preamble to the 1986 action restructuring and consolidating 
provisions in part 51, in which EPA stated that ``[i]t is beyond the 
scope of th[is] rulemaking to address the provisions of Part D of the 
Act. . . .'' 51 FR 40656 (November 7, 1986).
    Response 3: The commenter's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
``adequate to prohibit NAAQS violations'' and adequate or sufficient to 
ensure the maintenance of the NAAQS is not supported. As an initial 
matter, EPA notes and the commenter recognizes this regulatory 
provision was initially promulgated and ``restructured and 
consolidated'' prior to the CAA Amendments of 1990, in which Congress 
removed all references to ``attainment'' in section 110(a)(2)(A). In 
addition, it is clear on its face that 40 CFR 51.112 applies to plans 
specifically designed to attain the NAAQS. EPA interprets these 
provisions to apply when states are developing ``control strategy'' 
SIPs such as the detailed attainment and maintenance plans required 
under other provisions of the CAA, as amended in 1977 and again in 
1990, such as section 175A and 182.
    The commenter suggests that these provisions must apply to section 
110 SIPs because in the preamble to EPA's action ``restructuring and 
consolidating'' provisions in part 51, EPA stated that the new 
attainment demonstration provisions in the 1977 Amendments to the CAA 
were ``beyond the scope'' of the rulemaking. It is important to note, 
however, that EPA's action in 1986 was not to establish new substantive 
planning requirements, but rather to consolidate and restructure 
provisions that had previously been promulgated. EPA noted that it had 
already issued guidance addressing the new ``Part D'' attainment 
planning obligations. Also, as to maintenance regulations, EPA 
expressly stated that it was not making any revisions other than to re-
number those provisions. Id. at 40657.
    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``part D'' of the CAA, it is clear 
that the regulations being restructured and consolidated were intended 
to address control strategy plans. In the preamble, EPA clearly stated 
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: 
SOX and PM (portion)''), 51.14 (``Control strategy: CO, HC, 
Ox and NO2 (portion)''), 51.80 (``Demonstration of 
attainment: Pb (portion)''), and 51.82 (``Air quality data 
(portion)''). Id. at 40660. Thus, the present-day 40 CFR 51.112 
contains consolidated provisions that are focused on control strategy 
SIPs, and the infrastructure SIP is not such a plan.
    Comment 4: Sierra Club references two prior EPA rulemaking actions 
where EPA disapproved or proposed to disapprove SIPs, and claimed they 
were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 
51.112 to reject infrastructure SIPs. The commenter first points to a 
2006 partial approval and partial disapproval of revisions to 
Missouri's existing plan addressing the sulfur dioxide (SO2) 
NAAQS. In that action, EPA cited section 110(a)(2)(A) as a basis for 
disapproving a revision to the state plan on the basis that the state 
failed to demonstrate the SIP was sufficient to ensure maintenance of 
the SO2 NAAQS after revision of an emission limit and cited 
to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a 
SIP are adequate to attain the NAAQS. Second, commenter cites a 2013 
proposed disapproval of a revision to the SO2 SIP for 
Indiana, where the revision removed an emission limit that applied to a 
specific emissions source at a facility in the state. EPA relied on 40 
CFR 51.112(a) in proposing to reject the revision, stating that the 
state had not demonstrated that the emission limit was ``redundant, 
unnecessary, or that its removal would not result in or allow an 
increase in actual SO2 emissions.'' EPA further stated in 
that proposed disapproval that the state had not demonstrated that 
removal of the limit would not ``affect the validity of the

[[Page 23716]]

emission rates used in the existing attainment demonstration.''
    Response 4: EPA does not agree that the two prior actions 
referenced by the commenter establish how EPA reviews infrastructure 
SIPs. It is clear from both the final Missouri rule and the now final 
Indiana rule that EPA was not reviewing initial infrastructure SIP 
submissions under section 110 of the CAA, but rather reviewing 
revisions that would make an already approved SIP designed to 
demonstrate attainment of the NAAQS less stringent.
    EPA's partial approval and partial disapproval of revisions to 
restrictions on emissions of sulfur compounds for the Missouri SIP 
addressed a control strategy SIP and not an infrastructure SIP (71 FR 
12623).
    The Indiana action provides even less support for the commenter's 
position (78 FR 78720). The review in that rule was of a completely 
different requirement than the 110(a)(2)(A) SIP. Rather, in that case, 
the state had an approved SO2 attainment plan and was 
seeking to remove from the SIP, provisions relied on as part of the 
modeled attainment demonstration. EPA determined that the state had 
failed to demonstrate under section 110(l) of the CAA that the SIP 
revision would not result in increased SO2 emissions and 
thus not interfere with attainment of the NAAQS. Nothing in that 
rulemaking addresses the necessary content of the initial 
infrastructure SIP for a new or revised NAAQS. Rather, it is simply 
applying the clear statutory requirement that a state must demonstrate 
why a revision to an approved attainment plan will not interfere with 
attainment of the NAAQS.
    Comment 5: Sierra Club discusses several cases applying to the CAA 
which it claims support its contention that courts have been clear that 
section 110(a)(2)(A) requires enforceable emissions limits in 
infrastructure SIPs to prevent violations of the NAAQS and demonstrate 
maintenance throughout the area. Sierra Club first cites to language in 
Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for 
``emission limitations'' and stating that emission limitations ``are 
specific rules to which operators of pollution sources are subject, and 
which if enforced should result in ambient air which meet the national 
standards.'' Sierra Club also cites to Pennsylvania Dept. of Envtl. 
Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition 
that the CAA directs EPA to withhold approval of a SIP where it does 
not ensure maintenance of the NAAQS and Mision Industrial, Inc. v. EPA, 
547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of 
the CAA of 1970. The commenter contends that the 1990 Amendments do not 
alter how courts have interpreted the requirements of section 110, 
quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 
(2004) which in turn quoted section 110(a)(2)(A) of the CAA and also 
stated that ``SIPs must include certain measures Congress specified'' 
to ensure attainment of the NAAQS. The commenter also quotes several 
additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 
F.3d 1174, 1180 (9th Cir. 2012) (``The Clean Air Act directs states to 
develop implementation plans--SIPs--that `assure' attainment and 
maintenance of [NAAQS] through enforceable emissions limitations''); 
Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (``Each State must 
submit a [SIP] that specif[ies] the manner in which [NAAQS] will be 
achieved and maintained within each air quality control region in the 
state''). The commenter also cites Mich. Dept. of Envtl. Quality v. 
Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may 
not approve a SIP revision that does not demonstrate how the rules 
would not interfere with attainment and maintenance of the NAAQS.
    Response 5: None of the cases the commenter cites supports the 
commenter's contention that section 110(a)(2)(A) requires that 
infrastructure SIPs include detailed plans providing for attainment and 
maintenance of the NAAQS in all areas of the state, nor do they shed 
light on how section 110(a)(2)(A) may reasonably be interpreted. With 
the exception of Train, 421 U.S. 60, none of the cases the commenter 
cites concerned the interpretation of CAA section 110(a)(2)(A) (or 
section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a 
challenge to an EPA action, revisions to a SIP that were required and 
approved as meeting other provisions of the CAA or in the context of an 
enforcement action, the court references section 110(a)(2)(A) (or 
section 110(a)(2)(B) of the pre-1990 CAA) in the background section of 
its decision.
    In Train, a case that was decided almost 40 years ago, the court 
was addressing a state revision to an attainment plan submission made 
pursuant to section 110 of the CAA, the sole statutory provision at 
that time regulating such submissions. The issue in that case concerned 
whether changes to requirements that would occur before attainment was 
required were variances that should be addressed pursuant to the 
provision governing SIP revisions or were ``postponements'' that must 
be addressed under section 110(f) of the CAA of 1970, which contained 
prescriptive criteria. The court concluded that EPA reasonably 
interpreted section 110(f) not to restrict a state's choice of the mix 
of control measures needed to attain the NAAQS and that revisions to 
SIPs that would not impact attainment of the NAAQS by the attainment 
date were not subject to the limits of section 110(f). Thus, the issue 
was not whether a section 110 SIP needs to provide for attainment or 
whether emissions limits are needed as part of the SIP; rather the 
issue was which statutory provision governed when the state wanted to 
revise the emission limits in its SIP if such revision would not impact 
attainment or maintenance of the NAAQS. To the extent the holding in 
the case has any bearing on how section 110(a)(2)(A) might be 
interpreted, it is important to realize that in 1975, when the opinion 
was issued, section 110(a)(2)(B) (the predecessor to section 
110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, 
a reference that was removed in 1990.
    The decision in Pennsylvania Dept. of Envtl. Resources was also 
decided based on the pre-1990 provision of the CAA. At issue was 
whether EPA properly rejected a revision to an approved plan where the 
inventories relied on by the state for the updated submission had gaps. 
The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of 
EPA's disapproval, but did not provide any interpretation of that 
provision. Yet, even if the court had interpreted that provision, EPA 
notes that it was modified by Congress in 1990; thus, this decision has 
little bearing on the issue here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of 
``emissions limitation'' not whether section 110 requires the state to 
demonstrate how all areas of the state will attain and maintain the 
NAAQS as part of their infrastructure SIPs. The language from the 
opinion the commenter quotes does not interpret but rather merely 
describes section 110(a)(2)(A). The commenters do not raise any 
concerns about whether the measures relied on by the state in the 
infrastructure SIP are ``emissions limitations'' and the decision in 
this case has no bearing here.
    In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the court was 
reviewing a Federal implementation plan that EPA promulgated after a 
long history of the state failing to submit an adequate state 
implementation plan. The court cited generally to sections 107 and 
110(a)(2)(A) of the CAA for the proposition that SIPs should assure

[[Page 23717]]

attainment and maintenance of NAAQS through emission limitations but 
this language was not part of the court's holding in the case.
    The commenter suggests that Alaska Dept. of Envtl. Conservation, 
540 U.S. 461, stands for the proposition that the 1990 CAA Amendments 
do not alter how courts interpret section 110. This claim is 
inaccurate. Rather, the court quoted section 110(a)(2)(A), which, as 
noted previously, differs from the pre-1990 version of that provision 
and the court makes no mention of the changed language. Furthermore, 
the commenter also quotes the court's statement that ``SIPs must 
include certain measures Congress specified'' but that statement 
specifically referenced the requirement in section 110(a)(2)(C), which 
requires an enforcement program and a program for the regulation of the 
modification and construction of new sources. Notably, at issue in that 
case was the state's ``new source'' permitting program, not its 
infrastructure SIP.
    Two of the cases the commenter cites, Mich. Dept. of Envtl. 
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 
110(l), the provision governing ``revisions'' to plans, and not the 
initial plan submission requirement under section 110(a)(2) for a new 
or revised NAAQS, such as the infrastructure SIP at issue in this 
instance. In those cases, the courts cited to section 110(a)(2)(A) 
solely for the purpose of providing a brief background of the CAA.
    Comment 6: Sierra Club contends that EPA cannot approve the section 
110(a)(2)(A) portion of Indiana's 2008 ozone infrastructure SIP 
revision because an infrastructure SIP should include enforceable 
emission limits to prevent NAAQS violations in areas not designated 
nonattainment. Specifically, Sierra Club cited air monitoring reports 
for Clark, Floyd, and LaPorte Counties indicating violations of the 
NAAQS based on 2010-2012 and 2011-2013 design values and air quality 
monitoring reports for Greene County indicating violations based on 
data from 2010-2012. The commenter alleges that these violations 
demonstrate that the infrastructure SIP fails to ensure that air 
pollution levels meet or are below the level of the NAAQS and thus the 
infrastructure SIP must be disapproved. Sierra Club noted that the 
violation of the NAAQS based on data from 2010-2012 had been known for 
over four months, and that Indiana failed to strengthen its 
infrastructure SIP and address the violations by enacting enforceable 
limits.
    Furthermore, the commenter suggests that the state adopt specific 
controls that they contend are cost-effective for reducing NOx, a 
precursor to ozone.
    Response 6: We disagree with the commenter that infrastructure SIPs 
must include detailed attainment and maintenance plans for all areas of 
the state and must be disapproved if air quality data that became 
available late in the process or after the SIP was due and submitted 
changes the status of areas within the state. We believe that section 
110(a)(2)(A) is reasonably interpreted to require states to submit SIPs 
that reflect the first step in their planning for attaining and 
maintaining a new or revised NAAQS and that they contain enforceable 
control measures and a demonstration that the state has the available 
tools and authority to develop and implement plans to attain and 
maintain the NAAQS.
    The suggestion that the infrastructure SIP must include measures 
addressing violations of the standard that did not occur until shortly 
before or even after the SIP was due and submitted cannot be supported. 
The CAA provides states with three years to develop infrastructure SIPs 
and states cannot reasonably be expected to address the annual change 
in an area's design value for each year over that period. Moreover, the 
CAA recognizes and has provisions to address changes in air quality 
over time, such as an area slipping from attainment to nonattainment or 
changing from nonattainment to attainment. These include provisions 
providing for redesignation in section 107(d) and provisions in section 
110(k)(5) allowing EPA to call on the state to revise its SIP, as 
appropriate.
    We do not believe that section 110(a)(2)(A) requires detailed 
planning SIPs demonstrating either attainment or maintenance for 
specific geographic areas of the state. The infrastructure SIP is 
triggered by promulgation of the NAAQS, not designation. Moreover, 
infrastructure SIPs are due three years following promulgation of the 
NAAQS and designations are not due until two years (or in some cases 
three years) following promulgation of the NAAQS. Thus, during a 
significant portion of the period that the state has available for 
developing the infrastructure SIP, it does not know what the 
designation will be for individual areas of the state.\1\ In light of 
the structure of the CAA, EPA's long-standing position regarding 
infrastructure SIPs is that they are general planning SIPs to ensure 
that the state has adequate resources and authority to implement a 
NAAQS in general throughout the state and not detailed attainment and 
maintenance plans for each individual area of the state.
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    \1\ While it is true that there may be some monitors within a 
state with values so high as to make a nonattainment designation of 
the county with that monitor almost a certainty, the geographic 
boundaries of the nonattainment area associated with that monitor 
would not be known until EPA issues final designations.
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    Our interpretation that infrastructure SIPs are more general 
planning SIPs is consistent with the statute as understood in light of 
its history and structure. When Congress enacted the CAA in 1970, it 
did not include provisions requiring states and the EPA to label areas 
as attainment or nonattainment. Rather, states were required to include 
all areas of the state in ``air quality control regions'' (AQCRs) and 
section 110 set forth the core substantive planning provisions for 
these AQCRs. At that time, Congress anticipated that states would be 
able to address air pollution quickly pursuant to the very general 
planning provisions in section 110 and could bring all areas into 
compliance with the NAAQS within five years. Moreover, at that time, 
section 110(a)(2)(A)(i) specified that the section 110 plan provide for 
``attainment'' of the NAAQS and section 110(a)(2)(B) specified that the 
plan must include ``emission limitations, schedules, and timetables for 
compliance with such limitations, and such other measures as may be 
necessary to insure attainment and maintenance [of the NAAQS].''
    In 1977, Congress recognized that the existing structure was not 
sufficient and many areas were still violating the NAAQS. At that time, 
Congress for the first time added provisions requiring states and EPA 
to identify whether areas of the state were violating the NAAQS (i.e., 
were nonattainment) or were meeting the NAAQS (i.e., were attainment) 
and established specific planning requirements in section 172 for areas 
not meeting the NAAQS.
    In 1990, many areas still had air quality not meeting the NAAQS and 
Congress again amended the CAA and added yet another layer of more 
prescriptive planning requirements for each of the NAAQS, with the 
primary provisions for ozone in section 182. At that same time, 
Congress modified section 110 to remove references to the section 110 
SIP providing for attainment, including removing pre-existing section 
110(a)(2)(A) in its entirety and renumbering subparagraph (B) as 
section 110(a)(2)(A).
    Additionally, Congress replaced the clause ``as may be necessary to 
insure attainment and maintenance [of the NAAQS]'' with ``as may be 
necessary or appropriate to meet the applicable

[[Page 23718]]

requirements of this chapter.'' Thus, the CAA has significantly evolved 
in the more than 40 years since it was originally enacted. While at one 
time section 110 did provide the only detailed SIP planning provisions 
for states and specified that such plans must provide for attainment of 
the NAAQS, under the structure of the current CAA, section 110 is only 
the initial stepping-stone in the planning process for a specific 
NAAQS. And, more detailed, later-enacted provisions govern the 
substantive planning process, including planning for attainment of the 
NAAQS.
    For all of the above reasons, we disagree with the commenter that 
EPA must disapprove an infrastructure SIP revision if there are 
monitored violations of the standard in the state and the section 
110(a)(2)(A) revision does not have detailed plans for demonstrating 
how the state will bring that area into attainment. Rather, EPA 
believes that the proper inquiry at this juncture is whether the state 
has met the basic structural SIP requirements appropriate when EPA is 
acting upon the submittal.
    Moreover, Indiana's SIP contains existing emission reduction 
measures that control emissions of VOCs and NOX found in 326 
IAC 8 and 326 IAC 10, respectively. Indiana's SIP revision reflects 
several provisions that have the ability to reduce ground level ozone 
and its precursors. The Indiana SIP relies on measures and programs 
used to implement previous ozone NAAQS. Because there is no substantive 
difference between the previous ozone NAAQS and the more recent ozone 
NAAQS, other than the level of the standard, the provisions relied on 
by Indiana will provide benefits for the new NAAQS; in other words, the 
measures reduce overall ground-level ozone and its precursors and are 
not limited to reducing ozone levels to meet one specific NAAQS. 
Further, in approving Indiana's infrastructure SIP revision, EPA is 
affirming that Indiana has sufficient authority to take the types of 
actions required by the CAA in order to bring such areas back into 
attainment.
    Comment 7: Sierra Club asserted that Indiana's infrastructure SIP 
fails to meet the requirements of section 110(a)(2)(A) and section 
110(a)(2)(E) because IC 13-14-8-8 contains provisions that would allow 
the board to grant variances to rules when the rules would impose 
``undue hardships or burden.'' The commenter noted that EPA had cited 
IC 13-14-8 as one of IDEM's mechanisms for satisfying the requirements 
of section 110(a)(2)(A) and section 110(a)(2)(E), but contended that 
the variance provisions in IC 13-14-8-8 are too broad and vague to 
ensure that emission limits and controls are properly enforced, or to 
ensure that adequate legal authority is provided to carry out Indiana's 
SIP. Therefore, EPA cannot approve IC 13-14-8 to meet any requirements 
of section 110.
    Response 7: EPA disagrees the commenter's claim that Indiana's 
infrastructure SIP fails to meet the requirements of section 
110(a)(2)(A) and section 110(a)(2)(E). As an initial matter, IC 13-14-
8-8 is not a regulation that has been approved into the SIP. Thus, any 
variance granted by the state pursuant to this provision would not 
modify the requirements of the SIP. Furthermore, for a variance from 
the state to be approved into the SIP, a demonstration must be made 
under CAA section 110(l) showing that the revision does not interfere 
with any requirements of the act including attainment or maintenance of 
a NAAQS. We disagree that the existence of this provision as solely a 
matter of state law means that the state does not have adequate 
authority to carry out the implementation plan.
    Comment 8: Sierra Club asserted that EPA must disapprove Indiana's 
infrastructure SIP because it does not address the visibility 
provisions under section 110(a)(2)(D)(i)(II). The commenter noted that 
EPA's basis for proposing approval for the visibility protection 
provisions of section 110(a)(2)(D)(i)(II) was contingent upon EPA's 
claim that Indiana has an approved regional haze SIP. The commenter 
contended that Indiana's regional haze SIP was only partially approved 
and no action has been taken on issues addressing the Best Available 
Retrofit Technology requirements for EGUs. Therefore, the commenter 
believes that EPA must disapprove the visibility protection 
requirements found in section 110(a)(2)(D)(i)(II) for Indiana's 
infrastructure SIP.
    Response 8: The commenter is correct that EPA issued a limited 
disapproval of Indiana's regional haze SIP. Our limited disapproval was 
based on Indiana's reliance on the Clean Air Interstate Rule (CAIR) to 
satisfy certain requirements for controlling emissions of 
SO2 and NOX from EGUs. EPA also issued a limited 
approval of the remaining portion of the regional haze plan. However, 
in response to this comment, EPA is not taking final action today on 
the portion of Indiana's infrastructure SIP addressing the requirements 
of section 110(a)(2)(D)(i)(II) with respect to visibility.
    Comment 9: Sierra Club asserted that EPA must disapprove Indiana's 
infrastructure SIP because it does not address the visibility 
protection provisions, as described above, for section 110(a)(2)(J). 
The commenter contended that EPA did not provide a rationale for why 
the visibility provisions in section 110(a)(2)(J) are not applicable to 
the 2008 Pb and 2008 ozone NAAQS.
    Response 9: The visibility requirements in part C of the CAA that 
are referenced in section 110(a)(2)(J) are not affected by the 
establishment or revision of a NAAQS. As a result, there are no 
``applicable'' visibility protection obligations associated with the 
promulgation of a new or revised NAAQS. Because there are no applicable 
requirements, states are not required to address section 110(a)(2)(J) 
in their infrastructure SIP.
    Comment 10: Sierra Club stated that EPA cannot approve Indiana's 
infrastructure SIP, specifically the infrastructure element under 
section 110(a)(2)(A), for the 2008 ozone NAAQS because the state has 
not incorporated this NAAQS into the SIP. Instead, the commenter noted 
that the SIP at the time of proposed rulemaking, specifically at 326 
Indiana Administrative Code (IAC) 1-3-4(b)(4)(B), contained the older 
8-hour ozone NAAQS promulgated in 1997.
    Response 10: In a rulemaking published on December 18, 2014 (79 FR 
75527), EPA approved revisions to Indiana's SIP incorporating the 2008 
ozone NAAQS.
    Comment 11: Sierra Club asserted that EPA must clarify two repealed 
regulations that were cited in the proposed rulemaking. Specifically, 
the commenter observed that EPA cited 326 IAC 11-5 as helping Indiana 
satisfy the requirements of section 110(a)(2)(G) ``Emergency Powers'' 
and IC 13-4-8 which was cited to satisfy section 110(a)(2)(H), ``Future 
SIP Revisions.''
    Response 11: EPA did not intend to engender any confusion with 
these citations. The commenter is correct in noting that 326 IAC 11-5 
has been repealed. That rule was of little relevance to section 
110(a)(2)(G) and was incorrectly cited; the correct citation that was 
provided by IDEM is SIP-approved IAC 1-5, ``Alert Levels.'' In a 
similar manner, IDEM provided IC 13-14-8 as helping to meet the 
requirements under section 110(a)(2)(H), but EPA incorrectly cited IC 
13-4-8.
    Comment 12: Sierra Club asserted that EPA must disapprove portions 
of Indiana's infrastructure SIP for the 2008 ozone NAAQS addressing 
certain PM2.5 requirements under section 110(a)(2)(C). In 
particular, the commenter objected to the fact that Indiana has not 
codified the

[[Page 23719]]

increments for areas designated as class I or class III for 
PM2.5. The commenter noted that while Indiana does not have 
class I or class III areas, the increments for class I and class III 
areas are still a requirement to satisfy section 110(a)(2)(C). The 
commenter contends it is insufficient for EPA to ``hope'' that the 
state will adopt the increments if areas in the state are later 
redesignated to class I or class III, and therefore EPA must disapprove 
this section of Indiana's infrastructure SIP.
    Response 12: EPA disagrees with the commenter's view that Indiana's 
infrastructure SIP related to section 110(a)(2)(C) must be disapproved 
because the state has not codified the PM2.5 increments for 
class I and class III areas as provided at 40 CFR 52.166(c) and 40 CFR 
52.21(c). As explained in the August 19, 2013, proposed approval, 
Indiana does not currently have any areas designated class I or class 
III for PM2.5. Accordingly, EPA does not consider the 
PM2.5 increments for class I and class III areas to be 
necessary for the implementation of PSD permitting in Indiana at this 
time. In the event that areas in Indiana are one day classified as 
class I or class III, EPA expects IDEM to adopt these increments and 
submit them for incorporation into the SIP (see 78 FR 50360 at 50364). 
Federal regulations at 40 CFR 51.166(g)(1) and 52.21(g)(1) specify that 
if a state seeks to have an area reclassified to either class I or 
class III, it must submit such a request as a revision to its SIP for 
approval by the EPA Administrator. Thus, no areas in Indiana can be 
reclassified to class I or class III without EPA approval, and the 
process of evaluating such a request for approval requires a notice-
and-comment rulemaking process. The EPA and other interested parties 
can evaluate the adequacy of Indiana's PSD regulations as they apply to 
the proposed reclassified area at that time and, if necessary, initiate 
a process to cure any identified deficiency. However, at this time, EPA 
does not believe there to be an applicability gap for the 
PM2.5 increments as they apply in the state of Indiana.
    Comment 13: The State of Connecticut asserts that its ability to 
attain the 2008 ozone NAAQS is substantially compromised by the 
transport of pollution from upwind states. Specifically, modeling 
conducted by both the Ozone Transport Commission and EPA as part of the 
Cross-State Air Pollution Rule (CSAPR) shows emissions from Indiana 
contributing to the nonattainment problem in Connecticut. The State of 
Connecticut states that it has done its share to reduce in-state 
emissions, and EPA should ensure that each upwind state addresses 
contribution to another downwind state's nonattainment. With regard to 
the ``good neighbor provision'' in Section 1109(a)(1) of the CAA, 
Connecticut characterizes Indiana's 2008 ozone submission as relying on 
state regulations which implement the Clean Air Interstate Rule and 
CSAPR, and that such programs were intended by EPA to address the 1997 
ozone NAAQS and not the more stringent 2008 standard. Connecticut 
asserts EPA should therefore disapprove the Indiana submission. 
Connecticut also states that, under section 110(a)(2), Indiana was 
required to submit a complete SIP that demonstrated compliance with the 
good neighbor provision of section 110(a)(2)(D)(i)(I). Connecticut 
further suggests that the CAA does not give EPA discretion to take no 
action on the submitted good neighbor provisions on the grounds of 
taking a separate action. Instead, it asserts that the only action 
available to EPA is to determine the approvability of the good neighbor 
provision of Indiana's 2008 ozone NAAQS infrastructure SIP submission, 
or promulgate a FIP under section 110(c)(1) within two years.
    Response 13: As explained in the notice of proposed rulemaking 
(NPR), this action does not address, for the 2008 ozone NAAQS, the good 
neighbor provision in section 110(a)(2)(D)(i)(I), which prohibits 
emissions that significantly contribute to nonattainment or interfere 
with maintenance of the NAAQS in another state. Thus, to the extent the 
comment relates to the substance or approvability of the good neighbor 
provision in Indiana's 2008 ozone infrastructure SIP submission, the 
comment is not relevant to the present rulemaking. As stated herein and 
in the NPR, EPA will take later, separate action to address section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS.
    EPA disagrees with the commenter's argument that EPA cannot approve 
a SIP without the good neighbor provision. Section 110(k)(3) of the CAA 
authorizes EPA to approve a plan in full, disapprove it in full, or 
approve it in part and disapprove it in part, depending on the extent 
to which such plan meets the requirements of the CAA. This authority to 
approve the states' SIP revisions in separable parts was included in 
the 1990 Amendments to the CAA to overrule a decision in the Court of 
Appeals for the Ninth Circuit holding that EPA could not approve 
individual measures in a plan submission without either approving or 
disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 
U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of 
Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).
    The Agency interprets its authority under section 110(k)(3) as 
affording it the discretion to approve or conditionally approve 
individual elements of Indiana's infrastructure submission for the 2008 
ozone NAAQS, separate and apart from any action with respect to the 
requirements of section 110(a)(2)(D)(i)(I) with respect to that NAAQS. 
EPA views discrete infrastructure SIP requirements, such as the 
requirements of 110(a)(2)(D)(i)(I), as severable from the other 
infrastructure elements, and interprets section 110(k)(3) as allowing 
EPA to act on individual severable measures in a plan submission. In 
short, EPA has discretion under section 110(k) to act upon the various 
individual elements of the state's infrastructure SIP submission, 
separately or together, as appropriate. The commenter raises no 
compelling legal or environmental rationale for an alternate 
interpretation.
    EPA notes, however, that it is working with state partners to 
assess next steps to address air pollution that crosses state 
boundaries and will later take a separate action to address section 
110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. EPA's approval of the 
Indiana infrastructure SIP submission for the 2008 ozone NAAQS for the 
portions described in the NPR is, therefore, appropriate.

III. What action is EPA taking?

    For the reasons discussed in our August 19, 2013, proposed 
rulemaking and in the above responses to public comments, EPA is taking 
final action to approve Indiana's infrastructure SIP for the 2008 ozone 
NAAQS as proposed with the exception of not taking final action on 
section 110(a)(2)(D)(i)(II) with respect to visibility. In EPA's August 
19, 2013, proposed rulemaking for these infrastructure SIPs, EPA also 
proposed to approve Indiana's satisfaction of the state board 
requirements contained in section 128 of the CAA, as well as certain 
PSD requirements obligated by EPA's October 20, 2010, final rule on the 
``Prevention of Significant Deterioration (PSD) for Particulate Matter 
Less Than 2.5 Micrometers (PM2.5)--Increments, Significant 
Impact Levels (SILs), Significant Monitoring Concentration (SMC)'' 
(2010 NSR Rule), and the infrastructure requirements for the 2008 lead 
NAAQS. The final approvals for each of the above requirements were 
published in the Federal Register on December 24, 2013 (see 78 FR 
77599, state board

[[Page 23720]]

requirements), July 2, 2014 (see 79 FR 37646, 2010 NSR Rule 
requirements), August 11, 2013 (see 78 FR 46709, 2010 NSR Rule 
requirements, continued), and October 16, 2014 (see 79 FR 62035, 2008 
Lead Infrastructure requirements). In today's rulemaking, we are taking 
final action on only the infrastructure SIP requirements for the 2008 
ozone NAAQS. Our final actions by element of section 110(a)(2) and 
NAAQS, are contained in the table below.

------------------------------------------------------------------------
                                                            2008 Ozone
                        Element                               NAAQS
------------------------------------------------------------------------
(A): Emission limits and other control measures........               A
(B): Ambient air quality monitoring and data system....               A
(C)1: Enforcement of SIP measures......................               A
(C)2: PSD..............................................               A
(D)1: Contribute to nonattainment/interfere with                     NA
 maintenance of NAAQS..................................
(D)2: PSD..............................................               A
(D)3: Visibility Protection............................              NA
(D)4: Interstate Pollution Abatement...................               A
(D)5: International Pollution Abatement................               A
(E)1: Adequate resources...............................               A
(E)2: State boards.....................................               A
(F): Stationary source monitoring system...............               A
(G): Emergency power...................................               A
(H): Future SIP revisions..............................               A
(I): Nonattainment area plan or plan revisions under                 NA
 part D................................................
(J)1: Consultation with government officials...........               A
(J)2: Public notification..............................               A
(J)3: PSD..............................................               A
(J)4: Visibility protection (Regional Haze)............              NA
(K): Air quality modeling and data.....................               A
(L): Permitting fees...................................               A
(M): Consultation and participation by affected local                 A
 entities..............................................
------------------------------------------------------------------------

    In the table above, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A......................................  Approve.
NA.....................................  No Action/Separate Rulemaking.
------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 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).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by June 29, 2015. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this action for the purposes of judicial review nor 
does it extend the time within which a petition for judicial review may 
be filed, and shall not postpone the effectiveness of such rule or 
action. This action may not be challenged later in proceedings to 
enforce its requirements. (See section 307(b)(2).)

[[Page 23721]]

List of Subjects in 40 CFR Part 52

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

    Dated: April 16, 2015.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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


0
2. In Sec.  52.770, the table in paragraph (e) is amended by adding an 
entry in alphabetical order for ``Section 110(a)(2) Infrastructure 
Requirements for the 2008 Ozone NAAQS'' to read as follows:


Sec.  52.770  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                 Title                    Indiana date         EPA Approval                 Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure            12/12/2011   4/29/2015, [insert        This action addresses the
 Requirements for the 2008 Ozone NAAQS.                   Federal Register          following CAA elements:
                                                          citation].                110(a)(2)(A), (B), (C),
                                                                                    (D)(i)(II) except
                                                                                    visibility, (D)(ii), (E),
                                                                                    (F), (G), (H), (J) except
                                                                                    visibility, (K), (L), and
                                                                                    (M).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2015-09883 Filed 4-28-15; 8:45 am]
 BILLING CODE 6560-50-P



                                                                 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations                                               23713

                                                Order 12988, Civil Justice Reform, to                     For the reasons discussed in the                      (d) Enforcement periods. This rule
                                                minimize litigation, eliminate                          preamble, the Coast Guard amends 33                   will be enforced from 8:30 p.m. to 9
                                                ambiguity, and reduce burden.                           CFR part 165 as follows:                              p.m. on May 30, 2015.
                                                10. Protection of Children                                                                                      Dated: April 17, 2015.
                                                                                                        PART 165—REGULATED NAVIGATION
                                                                                                        AREAS AND LIMITED ACCESS AREAS                        Christopher S. Keane,
                                                  We have analyzed this rule under
                                                                                                                                                              Captain, U.S. Coast Guard, Captain of the
                                                Executive Order 13045, Protection of                    ■ 1. The authority citation for part 165              Port Hampton Roads.
                                                Children from Environmental Health                      continues to read as follows:                         [FR Doc. 2015–10018 Filed 4–28–15; 8:45 am]
                                                Risks and Safety Risks. This rule is not
                                                an economically significant rule and                      Authority: 33 U.S.C. 1231; 50 U.S.C. 191;           BILLING CODE 9110–04–P
                                                                                                        33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5;
                                                does not create an environmental risk to
                                                                                                        Department of Homeland Security Delegation
                                                health or risk to safety that may                       No. 0170.1.
                                                disproportionately affect children.                                                                           ENVIRONMENTAL PROTECTION
                                                                                                        ■ 2. Add § 165.T05–0117 to read as                    AGENCY
                                                11. Indian Tribal Governments                           follows:
                                                                                                                                                              40 CFR Part 52
                                                   This rule does not have tribal                       165.T05–0117 Safety Zone, Southern
                                                implications under Executive Order                                                                            [EPA–R05–OAR–2011–0969; FRL–9926–81–
                                                                                                        Branch Elizabeth River; Chesapeake, VA.
                                                13175, Consultation and Coordination                                                                          Region 5]
                                                                                                          (a) Definitions. For the purposes of
                                                with Indian Tribal Governments,                         this section:
                                                because it does not have a substantial                                                                        Approval and Promulgation of Air
                                                                                                          Captain of the Port means the                       Quality Implementation Plans; Indiana;
                                                direct effect on one or more Indian                     Commander, Sector Hampton Roads.
                                                tribes, on the relationship between the                                                                       Infrastructure SIP Requirements for
                                                                                                          Participants mean individuals                       the 2008 Ozone National Ambient Air
                                                Federal Government and Indian tribes,                   responsible for launching the fireworks.
                                                or on the distribution of power and                                                                           Quality Standards (NAAQS)
                                                                                                          Representative means any Coast
                                                responsibilities between the Federal                    Guard commissioned, warrant or petty                  AGENCY:  Environmental Protection
                                                Government and Indian tribes.                           officer who has been authorized to act                Agency (EPA).
                                                12. Energy Effects                                      on the behalf of the Captain of the Port.             ACTION: Final rule.
                                                                                                          (b) Locations. The following area is a
                                                  This action is not a ‘‘significant                    safety zone:                                          SUMMARY:    The Environmental Protection
                                                energy action’’ under Executive Order                     (1) All waters of the Southern Branch               Agency (EPA) is taking final action to
                                                13211, Actions Concerning Regulations                   of the Elizabeth River within a 140 foot              approve elements of a state
                                                That Significantly Affect Energy Supply,                radius of the fireworks display in                    implementation plan (SIP) submission
                                                Distribution, or Use.                                   approximate position 36°48′31.0818″ N,                by Indiana regarding the infrastructure
                                                                                                        076°17′14.2506″ W, located near the                   requirements of sections 110(a)(1) and
                                                13. Technical Standards                                                                                       (2) of the Clean Air Act (CAA) for the
                                                                                                        Elizabeth River Park, Chesapeake,
                                                  This rule does not use technical                      Virginia.                                             2008 ozone national ambient air quality
                                                standards. Therefore, we did not                          (c) Regulations.                                    standards (NAAQS). The infrastructure
                                                consider the use of voluntary consensus                   (1) All persons are required to comply              requirements are designed to ensure that
                                                standards.                                              with the general regulations governing                the structural components of each
                                                                                                        safety zones in § 165.23 of this part.                state’s air quality management program
                                                14. Environment                                           (2) With the exception of participants,             are adequate to meet the state’s
                                                   We have analyzed this rule under                     entry into or remaining in this safety                responsibilities under the CAA. The
                                                Department of Homeland Security                         zone is prohibited unless authorized by               proposed rulemaking associated with
                                                Management Directive 023–01 and                         the Captain of the Port, Hampton Roads                this final action was published on
                                                Commandant Instruction M16475.lD,                       or his designated representatives.                    August 19, 2013, and EPA received two
                                                which guide the Coast Guard in                            (3) All vessels underway within this                comment letters during the comment
                                                complying with the National                             safety zone at the time it is implemented             period, which ended on September 18,
                                                Environmental Policy Act of 1969                        are to depart the zone immediately.                   2013. The concerns raised in these
                                                                                                          (4) The Captain of the Port, Hampton                letters, as well as EPA’s responses, will
                                                (NEPA) (42 U.S.C. 4321–4370f), and
                                                                                                        Roads or his representative can be                    be addressed in this final action.
                                                have determined that this action is one
                                                                                                        reached at telephone number (757) 668–                DATES: This final rule is effective on
                                                of a category of actions that do not
                                                                                                        5555.                                                 May 29, 2015.
                                                individually or cumulatively have a                       (5) The Coast Guard vessels enforcing
                                                significant effect on the human                         the safety zone can be contacted on                   ADDRESSES: EPA has established a
                                                environment. This rule involves the                     VHF–FM marine band radio channel 13                   docket for this action under Docket ID
                                                establishment of a safety zone. This rule               (165.65Mhz) and channel 16 (156.8                     No. EPA–R05–OAR–2011–0969. All
                                                is categorically excluded from further                  Mhz).                                                 documents in the docket are listed in
                                                review under paragraph 34(g) of Figure                    (6) This section applies to all persons             the www.regulations.gov index.
                                                2–1 of the Commandant Instruction. We                   or vessels wishing to transit through the             Although listed in the index, some
                                                seek any comments or information that                   safety zone except participants and                   information is not publicly available,
                                                may lead to the discovery of a                          vessels that are engaged in the following             e.g., Confidential Business Information
                                                significant environmental impact from                   operations:                                           or other information whose disclosure is
mstockstill on DSK4VPTVN1PROD with RULES




                                                this rule.                                                (i) Enforcing laws;                                 restricted by statute. Certain other
                                                                                                          (ii) servicing aids to navigation, and              material, such as copyrighted material,
                                                List of Subjects in 33 CFR Part 165
                                                                                                          (iii) Emergency response vessels.                   will be publicly-available only in hard
                                                  Harbors, Marine safety, Navigation                      (7) The U.S. Coast Guard may be                     copy. Publicly-available docket
                                                (water), Reporting and recordkeeping                    assisted in the patrol and enforcement                materials are available either
                                                requirements, Security measures,                        of the safety zone by Federal, State, and             electronically in www.regulations.gov or
                                                Waterways.                                              local agencies.                                       in hard copy at the U.S. Environmental


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                                                23714            Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations

                                                Protection Agency, Region 5, Air and                    for states to make SIP submissions of                 Reform’’). Instead, EPA has the
                                                Radiation Division, 77 West Jackson                     this type arises out of CAA section                   authority to address each one of these
                                                Boulevard, Chicago, Illinois 60604. This                110(a)(1). Pursuant to section 110(a)(1),             substantive areas in separate
                                                facility is open from 8:30 a.m. to 4:30                 states must make SIP submissions                      rulemaking. A detailed rationale,
                                                p.m., Monday through Friday, excluding                  ‘‘within 3 years (or such shorter period              history, and interpretation related to
                                                Federal holidays. We recommend that                     as the Administrator may prescribe)                   infrastructure SIP requirements can be
                                                you telephone Sarah Arra at (312) 886–                  after the promulgation of a national                  found in our May 13, 2014, proposed
                                                9401 before visiting the Region 5 office.               primary ambient air quality standard (or              rule entitled, ‘‘Infrastructure SIP
                                                FOR FURTHER INFORMATION CONTACT:                        any revision thereof),’’ and these SIP                Requirements for the 2008 Lead
                                                Sarah Arra, Environmental Scientist,                    submissions are to provide for the                    NAAQS’’ in the section, ‘‘What is the
                                                Attainment Planning and Maintenance                     ‘‘implementation, maintenance, and                    scope of this rulemaking?’’ (see 79 FR
                                                Section, Air Programs Branch (AR–18J),                  enforcement’’ of such NAAQS. The                      27241 at 27242–27245).
                                                U.S. Environmental Protection Agency,                   statute directly imposes on states the                   In addition, EPA is not acting on
                                                Region 5, 77 West Jackson Boulevard,                    duty to make these SIP submissions,                   section 110(a)(2)(D)(i)(I), interstate
                                                Chicago, Illinois 60604, (312) 886–9401,                and the requirement to make the                       transport significant contribution and
                                                arra.sarah@epa.gov.                                     submissions is not conditioned upon                   interference with maintenance, a
                                                                                                        EPA’s taking any action other than                    portion of section 110(a)(2)(D)(i)(II) with
                                                SUPPLEMENTARY INFORMATION:
                                                                                                        promulgating a new or revised NAAQS.                  respect to visibility, and 110(a)(2)(J)
                                                Throughout this document whenever                                                                             with respect to visibility. EPA is also
                                                                                                        Section 110(a)(2) includes a list of
                                                ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean                                                                   not acting on section 110(a)(2)(I)—
                                                                                                        specific elements that ‘‘[e]ach such
                                                EPA. This supplementary information                                                                           Nonattainment Area Plan or Plan
                                                                                                        plan’’ submission must address.
                                                section is arranged as follows:                            EPA has historically referred to these             Revisions Under Part D, in its entirety.
                                                I. What is the background of this SIP                   SIP submissions made for the purpose                  The rationale for not acting on elements
                                                     submission?                                        of satisfying the requirements of CAA                 of these requirements was included in
                                                II. What is our response to comments                    sections 110(a)(1) and 110(a)(2) as                   EPA’s August 19, 2013, proposed
                                                     received on the proposed rulemaking?               ‘‘infrastructure SIP’’ submissions.                   rulemaking or discussed below in
                                                III. What action is EPA taking?
                                                                                                        Although the term ‘‘infrastructure SIP’’              today’s response to comments.
                                                IV. Statutory and Executive Order Reviews
                                                                                                        does not appear in the CAA, EPA uses
                                                                                                                                                              II. What is our response to comments
                                                I. What is the background of this SIP                   the term to distinguish this particular
                                                                                                                                                              received on the proposed rulemaking?
                                                submission?                                             type of SIP submission from
                                                                                                        submissions that are intended to satisfy                 The public comment period for EPA’s
                                                A. What does this rulemaking address?                                                                         proposed actions with respect to
                                                                                                        other SIP requirements under the CAA,
                                                  This rulemaking addresses a                           such as ‘‘nonattainment SIP’’ or                      Indiana’s satisfaction of the
                                                December 12, 2011, submission from the                  ‘‘attainment plan SIP’’ submissions to                infrastructure SIP requirements for the
                                                Indiana Department of Environmental                     address the nonattainment planning                    2008 ozone NAAQS closed on
                                                Management (IDEM) intended to meet                      requirements of part D of title I of the              September 18, 2013. EPA received two
                                                the applicable infrastructure SIP                       CAA, ‘‘regional haze SIP’’ submissions                comment letters, which were from the
                                                requirements for the 2008 ozone                         required by EPA rule to address the                   Sierra Club and the state of Connecticut.
                                                NAAQS.                                                  visibility protection requirements of                 A synopsis of the comments contained
                                                                                                        CAA section 169A, and nonattainment                   in these letters and EPA’s responses are
                                                B. Why did the state make this SIP                                                                            provided below.
                                                                                                        new source review (NNSR) permit
                                                submission?                                                                                                      Comment 1: The Sierra Club states
                                                                                                        program submissions to address the
                                                  Under sections 110(a)(1) and (2) of the               permit requirements of CAA, title I, part             that, on its face, the CAA ‘‘requires I–
                                                CAA, states are required to submit                      D.                                                    SIPs to be adequate to prevent violations
                                                infrastructure SIPs to ensure that their                   This rulemaking will not cover three               of the NAAQS.’’ In support, the
                                                SIPs provide for implementation,                        substantive areas that are not integral to            commenter quotes the language in
                                                maintenance, and enforcement of the                     acting on a state’s infrastructure SIP                section 110(a)(1) that requires states to
                                                NAAQS, including the 2008 ozone                         submission: (i) Existing provisions                   adopt a plan for implementation,
                                                NAAQS. These submissions must                           related to excess emissions during                    maintenance, and enforcement of the
                                                contain any revisions needed for                        periods of start-up, shutdown, or                     NAAQS and the language in section
                                                meeting the applicable SIP requirements                 malfunction (‘‘SSM’’)at sources, that                 110(a)(2)(A) which requires SIPs to
                                                of section 110(a)(2), or certifications that            may be contrary to the CAA and EPA’s                  include enforceable emissions
                                                their existing SIPs for ozone already                   policies addressing such excess                       limitations as may be necessary to meet
                                                meet those requirements.                                emissions; (ii) existing provisions                   the requirements of the CAA and which
                                                  EPA has highlighted this statutory                    related to ‘‘director’s variance’’ or                 commenters claimed include the
                                                requirement in multiple guidance                        ‘‘director’s discretion’’ that purport to             maintenance plan requirement. Sierra
                                                documents, including the most recent                    permit revisions to SIP approved                      Club notes the CAA definition of
                                                guidance document entitled ‘‘Guidance                   emissions limits with limited public                  ‘‘emission limit’’ and reads these
                                                on Infrastructure State Implementation                  process or without requiring further                  provisions together to require
                                                Plan (SIP) Elements under CAA                           approval by EPA, that may be contrary                 ‘‘enforceable emission limitations on
                                                Sections 110(a)(1) and (2)’’ issued on                  to the CAA (collectively referred to as               source emissions sufficient to ensure
                                                September 13, 2013.                                     ‘‘director’s discretion’’); and, (iii)                maintenance of the NAAQS.’’
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                                                                                                        existing provisions for Prevention of                    Response 1: EPA disagrees that
                                                C. What is the scope of this rulemaking?                Significant Deterioration (PSD)                       section 110 must be interpreted in the
                                                  EPA is acting upon Indiana’s SIP                      programs that may be inconsistent with                manner suggested by Sierra Club.
                                                submission that addresses the                           current requirements of EPA’s ‘‘Final                 Section 110 is only one provision that
                                                infrastructure requirements of CAA                      NSR Improvement Rule,’’ 67 FR 80186                   is part of the complex structure
                                                sections 110(a)(1) and 110(a)(2) for the                (December 31, 2002), as amended by 72                 governing implementation of the
                                                2008 ozone NAAQS. The requirement                       FR 32526 (June 13, 2007) (‘‘NSR                       NAAQS program under the CAA, as


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                                                                 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations                                         23715

                                                amended in 1990, and it must be                         from section 110 concerning                           however, that EPA’s action in 1986 was
                                                interpreted in the context of not only                  demonstrating attainment. In any event,               not to establish new substantive
                                                that structure, but also of the historical              the two excerpts of legislative history               planning requirements, but rather to
                                                evolution of that structure. In light of                the commenter cites merely provide that               consolidate and restructure provisions
                                                the revisions to section 110 since 1970                 states should include enforceable                     that had previously been promulgated.
                                                and the later-promulgated and more                      emission limits in their SIPs; they do                EPA noted that it had already issued
                                                specific planning requirements of the                   not mention or otherwise address                      guidance addressing the new ‘‘Part D’’
                                                CAA, EPA interprets the requirement in                  whether states are required to include                attainment planning obligations. Also,
                                                section 110(a)(2)(A) that the plan                      maintenance plans for all areas of the                as to maintenance regulations, EPA
                                                provide for ‘‘implementation,                           state as part of the infrastructure SIP.              expressly stated that it was not making
                                                maintenance and enforcement’’ to mean                      Comment 3: Sierra Club cites to 40                 any revisions other than to re-number
                                                that the infrastructure SIP must contain                CFR 51.112(a), providing that each plan               those provisions. Id. at 40657.
                                                enforceable emission limits that will aid               must ‘‘demonstrate that the measures,                    Although EPA was explicit that it was
                                                in attaining and/or maintaining the                     rules, and regulations contained in it are            not establishing requirements
                                                NAAQS and that the state demonstrate                    adequate to provide for the timely                    interpreting the provisions of new ‘‘part
                                                that it has the necessary tools to                      attainment and maintenance of the                     D’’ of the CAA, it is clear that the
                                                implement and enforce a NAAQS, such                     [NAAQS].’’ The commenter asserts that                 regulations being restructured and
                                                as adequate state personnel and an                      this regulation requires all SIPs to                  consolidated were intended to address
                                                enforcement program.                                    include emissions limits necessary to                 control strategy plans. In the preamble,
                                                   With regard to the requirement for                   ensure attainment of the NAAQS. The                   EPA clearly stated that 40 CFR 51.112
                                                emission limitations, EPA has                           commenter states that ‘‘[a]lthough these              was replacing 40 CFR 51.13 (‘‘Control
                                                interpreted this to mean that, for                      regulations were developed before the                 strategy: SOX and PM (portion)’’), 51.14
                                                purposes of section 110, the state may                  Clean Air Act separated Infrastructure                (‘‘Control strategy: CO, HC, Ox and NO2
                                                rely on measures already in place to                    SIPs from nonattainment SIPs—a                        (portion)’’), 51.80 (‘‘Demonstration of
                                                address the pollutant at issue or any                   process that began with the 1977                      attainment: Pb (portion)’’), and 51.82
                                                new control measures that the state may                 amendments and was completed by the                   (‘‘Air quality data (portion)’’). Id. at
                                                choose to submit. As EPA stated in                      1990 amendments—the regulations                       40660. Thus, the present-day 40 CFR
                                                ‘‘Guidance on Infrastructure State                      apply to I–SIPs.’’ The commenter relies               51.112 contains consolidated provisions
                                                Implementation Plan (SIP) Elements                      on a statement in the preamble to the
                                                                                                                                                              that are focused on control strategy SIPs,
                                                under CAA Sections 110(a)(1) and                        1986 action restructuring and
                                                                                                                                                              and the infrastructure SIP is not such a
                                                110(a)(2),’’ dated September 13, 2013                   consolidating provisions in part 51, in
                                                                                                                                                              plan.
                                                (Infrastructure SIP Guidance), ‘‘[t]he                  which EPA stated that ‘‘[i]t is beyond
                                                conceptual purpose of an infrastructure                 the scope of th[is] rulemaking to address                Comment 4: Sierra Club references
                                                SIP submission is to assure that the air                the provisions of Part D of the Act. . . .’’          two prior EPA rulemaking actions
                                                agency’s SIP contains the necessary                     51 FR 40656 (November 7, 1986).                       where EPA disapproved or proposed to
                                                structural requirements for the new or                     Response 3: The commenter’s reliance               disapprove SIPs, and claimed they were
                                                revised NAAQS, whether by                               on 40 CFR 51.112 to support its                       actions in which EPA relied on section
                                                establishing that the SIP already                       argument that infrastructure SIPs must                110(a)(2)(A) and 40 CFR 51.112 to reject
                                                contains the necessary provisions, by                   contain emission limits ‘‘adequate to                 infrastructure SIPs. The commenter first
                                                making a substantive SIP revision to                    prohibit NAAQS violations’’ and                       points to a 2006 partial approval and
                                                update the SIP, or both. Overall, the                   adequate or sufficient to ensure the                  partial disapproval of revisions to
                                                infrastructure SIP submission process                   maintenance of the NAAQS is not                       Missouri’s existing plan addressing the
                                                provides an opportunity . . . to review                 supported. As an initial matter, EPA                  sulfur dioxide (SO2) NAAQS. In that
                                                the basic structural requirements of the                notes and the commenter recognizes                    action, EPA cited section 110(a)(2)(A) as
                                                air agency’s air quality management                     this regulatory provision was initially               a basis for disapproving a revision to the
                                                program in light of each new or revised                 promulgated and ‘‘restructured and                    state plan on the basis that the state
                                                NAAQS.’’ Infrastructure SIP Guidance                    consolidated’’ prior to the CAA                       failed to demonstrate the SIP was
                                                at p. 2.                                                Amendments of 1990, in which                          sufficient to ensure maintenance of the
                                                   Comment 2: Sierra Club cites two                     Congress removed all references to                    SO2 NAAQS after revision of an
                                                excerpts from the legislative history of                ‘‘attainment’’ in section 110(a)(2)(A). In            emission limit and cited to 40 CFR
                                                the CAA Amendments of 1970 asserting                    addition, it is clear on its face that 40             51.112 as requiring that a plan
                                                that they support an interpretation that                CFR 51.112 applies to plans specifically              demonstrates the rules in a SIP are
                                                SIP revisions under CAA section 110                     designed to attain the NAAQS. EPA                     adequate to attain the NAAQS. Second,
                                                must include emissions limitations                      interprets these provisions to apply                  commenter cites a 2013 proposed
                                                sufficient to show maintenance of the                   when states are developing ‘‘control                  disapproval of a revision to the SO2 SIP
                                                NAAQS in all areas of Indiana. Sierra                   strategy’’ SIPs such as the detailed                  for Indiana, where the revision removed
                                                Club also contends that the legislative                 attainment and maintenance plans                      an emission limit that applied to a
                                                history of the CAA supports the                         required under other provisions of the                specific emissions source at a facility in
                                                interpretation that infrastructure SIPs                 CAA, as amended in 1977 and again in                  the state. EPA relied on 40 CFR
                                                under section 110(a)(2) must include                    1990, such as section 175A and 182.                   51.112(a) in proposing to reject the
                                                enforceable emission limitations, citing                   The commenter suggests that these                  revision, stating that the state had not
                                                the Senate Committee Report and the                     provisions must apply to section 110                  demonstrated that the emission limit
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                                                subsequent Senate Conference Report                     SIPs because in the preamble to EPA’s                 was ‘‘redundant, unnecessary, or that its
                                                accompanying the 1970 CAA.                              action ‘‘restructuring and consolidating’’            removal would not result in or allow an
                                                   Response 2: The CAA, as enacted in                   provisions in part 51, EPA stated that                increase in actual SO2 emissions.’’ EPA
                                                1970, including its legislative history,                the new attainment demonstration                      further stated in that proposed
                                                cannot be interpreted in isolation from                 provisions in the 1977 Amendments to                  disapproval that the state had not
                                                the later amendments that refined that                  the CAA were ‘‘beyond the scope’’ of                  demonstrated that removal of the limit
                                                structure and deleted relevant language                 the rulemaking. It is important to note,              would not ‘‘affect the validity of the


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                                                23716            Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations

                                                emission rates used in the existing                     which quoted section 110(a)(2)(B) of the              CAA of 1970, which contained
                                                attainment demonstration.’’                             CAA of 1970. The commenter contends                   prescriptive criteria. The court
                                                   Response 4: EPA does not agree that                  that the 1990 Amendments do not alter                 concluded that EPA reasonably
                                                the two prior actions referenced by the                 how courts have interpreted the                       interpreted section 110(f) not to restrict
                                                commenter establish how EPA reviews                     requirements of section 110, quoting                  a state’s choice of the mix of control
                                                infrastructure SIPs. It is clear from both              Alaska Dept. of Envtl. Conservation v.                measures needed to attain the NAAQS
                                                the final Missouri rule and the now final               EPA, 540 U.S. 461, 470 (2004) which in                and that revisions to SIPs that would
                                                Indiana rule that EPA was not reviewing                 turn quoted section 110(a)(2)(A) of the               not impact attainment of the NAAQS by
                                                initial infrastructure SIP submissions                  CAA and also stated that ‘‘SIPs must                  the attainment date were not subject to
                                                under section 110 of the CAA, but rather                include certain measures Congress                     the limits of section 110(f). Thus, the
                                                reviewing revisions that would make an                  specified’’ to ensure attainment of the               issue was not whether a section 110 SIP
                                                already approved SIP designed to                        NAAQS. The commenter also quotes                      needs to provide for attainment or
                                                demonstrate attainment of the NAAQS                     several additional opinions in this vein.             whether emissions limits are needed as
                                                less stringent.                                         Mont. Sulphur & Chem. Co. v. EPA, 666                 part of the SIP; rather the issue was
                                                   EPA’s partial approval and partial                   F.3d 1174, 1180 (9th Cir. 2012) (‘‘The                which statutory provision governed
                                                disapproval of revisions to restrictions                Clean Air Act directs states to develop               when the state wanted to revise the
                                                on emissions of sulfur compounds for                    implementation plans—SIPs—that                        emission limits in its SIP if such
                                                the Missouri SIP addressed a control                    ‘assure’ attainment and maintenance of                revision would not impact attainment or
                                                strategy SIP and not an infrastructure                  [NAAQS] through enforceable emissions                 maintenance of the NAAQS. To the
                                                SIP (71 FR 12623).                                      limitations’’); Hall v. EPA 273 F.3d                  extent the holding in the case has any
                                                   The Indiana action provides even less                1146, 1153 (9th Cir. 2001) (‘‘Each State              bearing on how section 110(a)(2)(A)
                                                support for the commenter’s position                    must submit a [SIP] that specif[ies] the              might be interpreted, it is important to
                                                (78 FR 78720). The review in that rule                  manner in which [NAAQS] will be                       realize that in 1975, when the opinion
                                                was of a completely different                           achieved and maintained within each                   was issued, section 110(a)(2)(B) (the
                                                requirement than the 110(a)(2)(A) SIP.                  air quality control region in the state’’).           predecessor to section 110(a)(2)(A))
                                                Rather, in that case, the state had an                  The commenter also cites Mich. Dept. of               expressly referenced the requirement to
                                                approved SO2 attainment plan and was                    Envtl. Quality v. Browner, 230 F.3d 181               attain the NAAQS, a reference that was
                                                seeking to remove from the SIP,                         (6th Cir. 2000) for the proposition that              removed in 1990.
                                                provisions relied on as part of the                     EPA may not approve a SIP revision that                  The decision in Pennsylvania Dept. of
                                                modeled attainment demonstration.                       does not demonstrate how the rules                    Envtl. Resources was also decided based
                                                EPA determined that the state had failed                would not interfere with attainment and               on the pre-1990 provision of the CAA.
                                                to demonstrate under section 110(l) of                  maintenance of the NAAQS.                             At issue was whether EPA properly
                                                the CAA that the SIP revision would not                    Response 5: None of the cases the                  rejected a revision to an approved plan
                                                result in increased SO2 emissions and                   commenter cites supports the                          where the inventories relied on by the
                                                thus not interfere with attainment of the               commenter’s contention that section                   state for the updated submission had
                                                NAAQS. Nothing in that rulemaking                       110(a)(2)(A) requires that infrastructure             gaps. The court quoted section
                                                addresses the necessary content of the                  SIPs include detailed plans providing                 110(a)(2)(B) of the pre-1990 CAA in
                                                initial infrastructure SIP for a new or                 for attainment and maintenance of the                 support of EPA’s disapproval, but did
                                                revised NAAQS. Rather, it is simply                     NAAQS in all areas of the state, nor do               not provide any interpretation of that
                                                applying the clear statutory requirement                they shed light on how section                        provision. Yet, even if the court had
                                                that a state must demonstrate why a                     110(a)(2)(A) may reasonably be                        interpreted that provision, EPA notes
                                                revision to an approved attainment plan                 interpreted. With the exception of                    that it was modified by Congress in
                                                will not interfere with attainment of the               Train, 421 U.S. 60, none of the cases the             1990; thus, this decision has little
                                                NAAQS.                                                  commenter cites concerned the                         bearing on the issue here.
                                                   Comment 5: Sierra Club discusses                     interpretation of CAA section                            At issue in Mision Industrial, 547
                                                several cases applying to the CAA                       110(a)(2)(A) (or section 110(a)(2)(B) of              F.2d 123, was the definition of
                                                which it claims support its contention                  the pre-1990 Act). Rather, in the context             ‘‘emissions limitation’’ not whether
                                                that courts have been clear that section                of a challenge to an EPA action,                      section 110 requires the state to
                                                110(a)(2)(A) requires enforceable                       revisions to a SIP that were required and             demonstrate how all areas of the state
                                                emissions limits in infrastructure SIPs                 approved as meeting other provisions of               will attain and maintain the NAAQS as
                                                to prevent violations of the NAAQS and                  the CAA or in the context of an                       part of their infrastructure SIPs. The
                                                demonstrate maintenance throughout                      enforcement action, the court references              language from the opinion the
                                                the area. Sierra Club first cites to                    section 110(a)(2)(A) (or section                      commenter quotes does not interpret but
                                                language in Train v. NRDC, 421 U.S. 60,                 110(a)(2)(B) of the pre-1990 CAA) in the              rather merely describes section
                                                78 (1975), addressing the requirement                   background section of its decision.                   110(a)(2)(A). The commenters do not
                                                for ‘‘emission limitations’’ and stating                   In Train, a case that was decided                  raise any concerns about whether the
                                                that emission limitations ‘‘are specific                almost 40 years ago, the court was                    measures relied on by the state in the
                                                rules to which operators of pollution                   addressing a state revision to an                     infrastructure SIP are ‘‘emissions
                                                sources are subject, and which if                       attainment plan submission made                       limitations’’ and the decision in this
                                                enforced should result in ambient air                   pursuant to section 110 of the CAA, the               case has no bearing here.
                                                which meet the national standards.’’                    sole statutory provision at that time                    In Mont. Sulphur & Chem. Co., 666
                                                Sierra Club also cites to Pennsylvania                  regulating such submissions. The issue                F.3d 1174, the court was reviewing a
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                                                Dept. of Envtl. Resources v. EPA, 932                   in that case concerned whether changes                Federal implementation plan that EPA
                                                F.2d 269, 272 (3d Cir. 1991) for the                    to requirements that would occur before               promulgated after a long history of the
                                                proposition that the CAA directs EPA to                 attainment was required were variances                state failing to submit an adequate state
                                                withhold approval of a SIP where it                     that should be addressed pursuant to                  implementation plan. The court cited
                                                does not ensure maintenance of the                      the provision governing SIP revisions or              generally to sections 107 and
                                                NAAQS and Mision Industrial, Inc. v.                    were ‘‘postponements’’ that must be                   110(a)(2)(A) of the CAA for the
                                                EPA, 547 F.2d 123, 129 (1st Cir. 1976),                 addressed under section 110(f) of the                 proposition that SIPs should assure


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                                                                 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations                                           23717

                                                attainment and maintenance of NAAQS                     they contend are cost-effective for                     infrastructure SIPs is that they are
                                                through emission limitations but this                   reducing NOx, a precursor to ozone.                     general planning SIPs to ensure that the
                                                language was not part of the court’s                       Response 6: We disagree with the                     state has adequate resources and
                                                holding in the case.                                    commenter that infrastructure SIPs must                 authority to implement a NAAQS in
                                                   The commenter suggests that Alaska                   include detailed attainment and                         general throughout the state and not
                                                Dept. of Envtl. Conservation, 540 U.S.                  maintenance plans for all areas of the                  detailed attainment and maintenance
                                                461, stands for the proposition that the                state and must be disapproved if air                    plans for each individual area of the
                                                1990 CAA Amendments do not alter                        quality data that became available late                 state.
                                                how courts interpret section 110. This                  in the process or after the SIP was due                    Our interpretation that infrastructure
                                                claim is inaccurate. Rather, the court                  and submitted changes the status of                     SIPs are more general planning SIPs is
                                                quoted section 110(a)(2)(A), which, as                  areas within the state. We believe that                 consistent with the statute as
                                                noted previously, differs from the pre-                 section 110(a)(2)(A) is reasonably                      understood in light of its history and
                                                1990 version of that provision and the                  interpreted to require states to submit                 structure. When Congress enacted the
                                                court makes no mention of the changed                   SIPs that reflect the first step in their               CAA in 1970, it did not include
                                                language. Furthermore, the commenter                    planning for attaining and maintaining                  provisions requiring states and the EPA
                                                also quotes the court’s statement that                  a new or revised NAAQS and that they                    to label areas as attainment or
                                                ‘‘SIPs must include certain measures                    contain enforceable control measures                    nonattainment. Rather, states were
                                                Congress specified’’ but that statement                 and a demonstration that the state has                  required to include all areas of the state
                                                specifically referenced the requirement                 the available tools and authority to                    in ‘‘air quality control regions’’ (AQCRs)
                                                in section 110(a)(2)(C), which requires                 develop and implement plans to attain                   and section 110 set forth the core
                                                an enforcement program and a program                    and maintain the NAAQS.                                 substantive planning provisions for
                                                for the regulation of the modification                     The suggestion that the infrastructure               these AQCRs. At that time, Congress
                                                and construction of new sources.                        SIP must include measures addressing                    anticipated that states would be able to
                                                Notably, at issue in that case was the                  violations of the standard that did not                 address air pollution quickly pursuant
                                                state’s ‘‘new source’’ permitting                       occur until shortly before or even after                to the very general planning provisions
                                                program, not its infrastructure SIP.                    the SIP was due and submitted cannot                    in section 110 and could bring all areas
                                                   Two of the cases the commenter cites,                be supported. The CAA provides states                   into compliance with the NAAQS
                                                Mich. Dept. of Envtl. Quality, 230 F.3d                 with three years to develop                             within five years. Moreover, at that
                                                181, and Hall, 273 F.3d 1146, interpret                 infrastructure SIPs and states cannot                   time, section 110(a)(2)(A)(i) specified
                                                CAA section 110(l), the provision                       reasonably be expected to address the                   that the section 110 plan provide for
                                                governing ‘‘revisions’’ to plans, and not               annual change in an area’s design value                 ‘‘attainment’’ of the NAAQS and section
                                                the initial plan submission requirement                 for each year over that period.                         110(a)(2)(B) specified that the plan must
                                                under section 110(a)(2) for a new or                    Moreover, the CAA recognizes and has                    include ‘‘emission limitations,
                                                revised NAAQS, such as the                              provisions to address changes in air                    schedules, and timetables for
                                                infrastructure SIP at issue in this                     quality over time, such as an area                      compliance with such limitations, and
                                                instance. In those cases, the courts cited              slipping from attainment to                             such other measures as may be
                                                to section 110(a)(2)(A) solely for the                  nonattainment or changing from                          necessary to insure attainment and
                                                purpose of providing a brief background                 nonattainment to attainment. These                      maintenance [of the NAAQS].’’
                                                of the CAA.                                             include provisions providing for                           In 1977, Congress recognized that the
                                                   Comment 6: Sierra Club contends that                 redesignation in section 107(d) and                     existing structure was not sufficient and
                                                EPA cannot approve the section                          provisions in section 110(k)(5) allowing                many areas were still violating the
                                                110(a)(2)(A) portion of Indiana’s 2008                  EPA to call on the state to revise its SIP,             NAAQS. At that time, Congress for the
                                                ozone infrastructure SIP revision                       as appropriate.                                         first time added provisions requiring
                                                because an infrastructure SIP should                       We do not believe that section                       states and EPA to identify whether areas
                                                include enforceable emission limits to                  110(a)(2)(A) requires detailed planning                 of the state were violating the NAAQS
                                                prevent NAAQS violations in areas not                   SIPs demonstrating either attainment or                 (i.e., were nonattainment) or were
                                                designated nonattainment. Specifically,                 maintenance for specific geographic                     meeting the NAAQS (i.e., were
                                                Sierra Club cited air monitoring reports                areas of the state. The infrastructure SIP              attainment) and established specific
                                                for Clark, Floyd, and LaPorte Counties                  is triggered by promulgation of the                     planning requirements in section 172
                                                indicating violations of the NAAQS                      NAAQS, not designation. Moreover,                       for areas not meeting the NAAQS.
                                                based on 2010–2012 and 2011–2013                        infrastructure SIPs are due three years                    In 1990, many areas still had air
                                                design values and air quality monitoring                following promulgation of the NAAQS                     quality not meeting the NAAQS and
                                                reports for Greene County indicating                    and designations are not due until two                  Congress again amended the CAA and
                                                violations based on data from 2010–                     years (or in some cases three years)                    added yet another layer of more
                                                2012. The commenter alleges that these                  following promulgation of the NAAQS.                    prescriptive planning requirements for
                                                violations demonstrate that the                         Thus, during a significant portion of the               each of the NAAQS, with the primary
                                                infrastructure SIP fails to ensure that air             period that the state has available for                 provisions for ozone in section 182. At
                                                pollution levels meet or are below the                  developing the infrastructure SIP, it                   that same time, Congress modified
                                                level of the NAAQS and thus the                         does not know what the designation                      section 110 to remove references to the
                                                infrastructure SIP must be disapproved.                 will be for individual areas of the state.1             section 110 SIP providing for
                                                Sierra Club noted that the violation of                 In light of the structure of the CAA,                   attainment, including removing pre-
                                                the NAAQS based on data from 2010–                      EPA’s long-standing position regarding                  existing section 110(a)(2)(A) in its
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                                                2012 had been known for over four                                                                               entirety and renumbering subparagraph
                                                months, and that Indiana failed to                         1 While it is true that there may be some monitors   (B) as section 110(a)(2)(A).
                                                strengthen its infrastructure SIP and                   within a state with values so high as to make a            Additionally, Congress replaced the
                                                address the violations by enacting                      nonattainment designation of the county with that       clause ‘‘as may be necessary to insure
                                                                                                        monitor almost a certainty, the geographic
                                                enforceable limits.                                     boundaries of the nonattainment area associated
                                                                                                                                                                attainment and maintenance [of the
                                                   Furthermore, the commenter suggests                  with that monitor would not be known until EPA          NAAQS]’’ with ‘‘as may be necessary or
                                                that the state adopt specific controls that             issues final designations.                              appropriate to meet the applicable


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                                                23718            Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations

                                                requirements of this chapter.’’ Thus, the               variance provisions in IC 13–14–8–8 are               infrastructure SIP because it does not
                                                CAA has significantly evolved in the                    too broad and vague to ensure that                    address the visibility protection
                                                more than 40 years since it was                         emission limits and controls are                      provisions, as described above, for
                                                originally enacted. While at one time                   properly enforced, or to ensure that                  section 110(a)(2)(J). The commenter
                                                section 110 did provide the only                        adequate legal authority is provided to               contended that EPA did not provide a
                                                detailed SIP planning provisions for                    carry out Indiana’s SIP. Therefore, EPA               rationale for why the visibility
                                                states and specified that such plans                    cannot approve IC 13–14–8 to meet any                 provisions in section 110(a)(2)(J) are not
                                                must provide for attainment of the                      requirements of section 110.                          applicable to the 2008 Pb and 2008
                                                NAAQS, under the structure of the                          Response 7: EPA disagrees the                      ozone NAAQS.
                                                current CAA, section 110 is only the                    commenter’s claim that Indiana’s                         Response 9: The visibility
                                                initial stepping-stone in the planning                  infrastructure SIP fails to meet the                  requirements in part C of the CAA that
                                                process for a specific NAAQS. And,                      requirements of section 110(a)(2)(A) and              are referenced in section 110(a)(2)(J) are
                                                more detailed, later-enacted provisions                 section 110(a)(2)(E). As an initial matter,           not affected by the establishment or
                                                govern the substantive planning                         IC 13–14–8–8 is not a regulation that                 revision of a NAAQS. As a result, there
                                                process, including planning for                         has been approved into the SIP. Thus,                 are no ‘‘applicable’’ visibility protection
                                                attainment of the NAAQS.                                any variance granted by the state                     obligations associated with the
                                                   For all of the above reasons, we                     pursuant to this provision would not                  promulgation of a new or revised
                                                disagree with the commenter that EPA                    modify the requirements of the SIP.                   NAAQS. Because there are no
                                                must disapprove an infrastructure SIP                   Furthermore, for a variance from the                  applicable requirements, states are not
                                                revision if there are monitored                         state to be approved into the SIP, a                  required to address section 110(a)(2)(J)
                                                violations of the standard in the state                 demonstration must be made under                      in their infrastructure SIP.
                                                and the section 110(a)(2)(A) revision                   CAA section 110(l) showing that the                      Comment 10: Sierra Club stated that
                                                does not have detailed plans for                        revision does not interfere with any                  EPA cannot approve Indiana’s
                                                demonstrating how the state will bring                  requirements of the act including                     infrastructure SIP, specifically the
                                                that area into attainment. Rather, EPA                  attainment or maintenance of a NAAQS.                 infrastructure element under section
                                                believes that the proper inquiry at this                We disagree that the existence of this                110(a)(2)(A), for the 2008 ozone NAAQS
                                                juncture is whether the state has met the               provision as solely a matter of state law             because the state has not incorporated
                                                basic structural SIP requirements                       means that the state does not have                    this NAAQS into the SIP. Instead, the
                                                appropriate when EPA is acting upon                     adequate authority to carry out the                   commenter noted that the SIP at the
                                                the submittal.                                          implementation plan.                                  time of proposed rulemaking,
                                                   Moreover, Indiana’s SIP contains                        Comment 8: Sierra Club asserted that               specifically at 326 Indiana
                                                existing emission reduction measures                    EPA must disapprove Indiana’s                         Administrative Code (IAC) 1–3–
                                                that control emissions of VOCs and NOX                  infrastructure SIP because it does not                4(b)(4)(B), contained the older 8-hour
                                                found in 326 IAC 8 and 326 IAC 10,                      address the visibility provisions under               ozone NAAQS promulgated in 1997.
                                                respectively. Indiana’s SIP revision                    section 110(a)(2)(D)(i)(II). The                         Response 10: In a rulemaking
                                                reflects several provisions that have the               commenter noted that EPA’s basis for                  published on December 18, 2014 (79 FR
                                                ability to reduce ground level ozone and                proposing approval for the visibility                 75527), EPA approved revisions to
                                                its precursors. The Indiana SIP relies on               protection provisions of section                      Indiana’s SIP incorporating the 2008
                                                measures and programs used to                           110(a)(2)(D)(i)(II) was contingent upon               ozone NAAQS.
                                                implement previous ozone NAAQS.                         EPA’s claim that Indiana has an                          Comment 11: Sierra Club asserted that
                                                Because there is no substantive                         approved regional haze SIP. The                       EPA must clarify two repealed
                                                difference between the previous ozone                   commenter contended that Indiana’s                    regulations that were cited in the
                                                NAAQS and the more recent ozone                         regional haze SIP was only partially                  proposed rulemaking. Specifically, the
                                                NAAQS, other than the level of the                      approved and no action has been taken                 commenter observed that EPA cited 326
                                                standard, the provisions relied on by                   on issues addressing the Best Available               IAC 11–5 as helping Indiana satisfy the
                                                Indiana will provide benefits for the                   Retrofit Technology requirements for                  requirements of section 110(a)(2)(G)
                                                new NAAQS; in other words, the                          EGUs. Therefore, the commenter                        ‘‘Emergency Powers’’ and IC 13–4–8
                                                measures reduce overall ground-level                    believes that EPA must disapprove the                 which was cited to satisfy section
                                                ozone and its precursors and are not                    visibility protection requirements found              110(a)(2)(H), ‘‘Future SIP Revisions.’’
                                                limited to reducing ozone levels to meet                in section 110(a)(2)(D)(i)(II) for Indiana’s             Response 11: EPA did not intend to
                                                one specific NAAQS. Further, in                         infrastructure SIP.                                   engender any confusion with these
                                                approving Indiana’s infrastructure SIP                     Response 8: The commenter is correct               citations. The commenter is correct in
                                                revision, EPA is affirming that Indiana                 that EPA issued a limited disapproval of              noting that 326 IAC 11–5 has been
                                                has sufficient authority to take the types              Indiana’s regional haze SIP. Our limited              repealed. That rule was of little
                                                of actions required by the CAA in order                 disapproval was based on Indiana’s                    relevance to section 110(a)(2)(G) and
                                                to bring such areas back into attainment.               reliance on the Clean Air Interstate Rule             was incorrectly cited; the correct
                                                   Comment 7: Sierra Club asserted that                 (CAIR) to satisfy certain requirements                citation that was provided by IDEM is
                                                Indiana’s infrastructure SIP fails to meet              for controlling emissions of SO2 and                  SIP-approved IAC 1–5, ‘‘Alert Levels.’’
                                                the requirements of section 110(a)(2)(A)                NOX from EGUs. EPA also issued a                      In a similar manner, IDEM provided IC
                                                and section 110(a)(2)(E) because IC 13–                 limited approval of the remaining                     13–14–8 as helping to meet the
                                                14–8–8 contains provisions that would                   portion of the regional haze plan.                    requirements under section 110(a)(2)(H),
                                                allow the board to grant variances to                   However, in response to this comment,                 but EPA incorrectly cited IC 13–4–8.
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                                                rules when the rules would impose                       EPA is not taking final action today on                  Comment 12: Sierra Club asserted that
                                                ‘‘undue hardships or burden.’’ The                      the portion of Indiana’s infrastructure               EPA must disapprove portions of
                                                commenter noted that EPA had cited IC                   SIP addressing the requirements of                    Indiana’s infrastructure SIP for the 2008
                                                13–14–8 as one of IDEM’s mechanisms                     section 110(a)(2)(D)(i)(II) with respect to           ozone NAAQS addressing certain PM2.5
                                                for satisfying the requirements of                      visibility.                                           requirements under section 110(a)(2)(C).
                                                section 110(a)(2)(A) and section                          Comment 9: Sierra Club asserted that                In particular, the commenter objected to
                                                110(a)(2)(E), but contended that the                    EPA must disapprove Indiana’s                         the fact that Indiana has not codified the


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                                                                 Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations                                         23719

                                                increments for areas designated as class                share to reduce in-state emissions, and               S. Rep. No. 101–228, at 22, 1990
                                                I or class III for PM2.5. The commenter                 EPA should ensure that each upwind                    U.S.C.C.A.N. 3385, 3408 (discussing the
                                                noted that while Indiana does not have                  state addresses contribution to another               express overruling of Abramowitz v.
                                                class I or class III areas, the increments              downwind state’s nonattainment. With                  EPA, 832 F.2d 1071 (9th Cir. 1987)).
                                                for class I and class III areas are still a             regard to the ‘‘good neighbor provision’’                The Agency interprets its authority
                                                requirement to satisfy section                          in Section 1109(a)(1) of the CAA,                     under section 110(k)(3) as affording it
                                                110(a)(2)(C). The commenter contends it                 Connecticut characterizes Indiana’s                   the discretion to approve or
                                                is insufficient for EPA to ‘‘hope’’ that                2008 ozone submission as relying on                   conditionally approve individual
                                                the state will adopt the increments if                  state regulations which implement the                 elements of Indiana’s infrastructure
                                                areas in the state are later redesignated               Clean Air Interstate Rule and CSAPR,                  submission for the 2008 ozone NAAQS,
                                                to class I or class III, and therefore EPA              and that such programs were intended                  separate and apart from any action with
                                                must disapprove this section of                         by EPA to address the 1997 ozone                      respect to the requirements of section
                                                Indiana’s infrastructure SIP.                           NAAQS and not the more stringent 2008                 110(a)(2)(D)(i)(I) with respect to that
                                                   Response 12: EPA disagrees with the                  standard. Connecticut asserts EPA                     NAAQS. EPA views discrete
                                                commenter’s view that Indiana’s                         should therefore disapprove the Indiana               infrastructure SIP requirements, such as
                                                infrastructure SIP related to section                   submission. Connecticut also states that,             the requirements of 110(a)(2)(D)(i)(I), as
                                                110(a)(2)(C) must be disapproved                        under section 110(a)(2), Indiana was                  severable from the other infrastructure
                                                because the state has not codified the                  required to submit a complete SIP that                elements, and interprets section
                                                PM2.5 increments for class I and class III              demonstrated compliance with the good                 110(k)(3) as allowing EPA to act on
                                                areas as provided at 40 CFR 52.166(c)                   neighbor provision of section                         individual severable measures in a plan
                                                and 40 CFR 52.21(c). As explained in                    110(a)(2)(D)(i)(I). Connecticut further               submission. In short, EPA has discretion
                                                the August 19, 2013, proposed approval,                 suggests that the CAA does not give EPA               under section 110(k) to act upon the
                                                Indiana does not currently have any                     discretion to take no action on the                   various individual elements of the
                                                areas designated class I or class III for               submitted good neighbor provisions on                 state’s infrastructure SIP submission,
                                                PM2.5. Accordingly, EPA does not                        the grounds of taking a separate action.              separately or together, as appropriate.
                                                consider the PM2.5 increments for class                 Instead, it asserts that the only action              The commenter raises no compelling
                                                I and class III areas to be necessary for               available to EPA is to determine the                  legal or environmental rationale for an
                                                the implementation of PSD permitting                    approvability of the good neighbor                    alternate interpretation.
                                                in Indiana at this time. In the event that              provision of Indiana’s 2008 ozone                        EPA notes, however, that it is working
                                                areas in Indiana are one day classified                 NAAQS infrastructure SIP submission,                  with state partners to assess next steps
                                                as class I or class III, EPA expects IDEM               or promulgate a FIP under section                     to address air pollution that crosses
                                                to adopt these increments and submit                    110(c)(1) within two years.                           state boundaries and will later take a
                                                them for incorporation into the SIP (see                   Response 13: As explained in the                   separate action to address section
                                                78 FR 50360 at 50364). Federal                          notice of proposed rulemaking (NPR),                  110(a)(2)(D)(i)(I) for the 2008 ozone
                                                regulations at 40 CFR 51.166(g)(1) and                  this action does not address, for the                 NAAQS. EPA’s approval of the Indiana
                                                52.21(g)(1) specify that if a state seeks to            2008 ozone NAAQS, the good neighbor                   infrastructure SIP submission for the
                                                have an area reclassified to either class               provision in section 110(a)(2)(D)(i)(I),              2008 ozone NAAQS for the portions
                                                I or class III, it must submit such a                   which prohibits emissions that                        described in the NPR is, therefore,
                                                request as a revision to its SIP for                    significantly contribute to                           appropriate.
                                                approval by the EPA Administrator.                      nonattainment or interfere with                       III. What action is EPA taking?
                                                Thus, no areas in Indiana can be                        maintenance of the NAAQS in another
                                                reclassified to class I or class III without            state. Thus, to the extent the comment                   For the reasons discussed in our
                                                EPA approval, and the process of                        relates to the substance or approvability             August 19, 2013, proposed rulemaking
                                                evaluating such a request for approval                  of the good neighbor provision in                     and in the above responses to public
                                                requires a notice-and-comment                           Indiana’s 2008 ozone infrastructure SIP               comments, EPA is taking final action to
                                                rulemaking process. The EPA and other                   submission, the comment is not relevant               approve Indiana’s infrastructure SIP for
                                                interested parties can evaluate the                     to the present rulemaking. As stated                  the 2008 ozone NAAQS as proposed
                                                adequacy of Indiana’s PSD regulations                   herein and in the NPR, EPA will take                  with the exception of not taking final
                                                as they apply to the proposed                           later, separate action to address section             action on section 110(a)(2)(D)(i)(II) with
                                                reclassified area at that time and, if                  110(a)(2)(D)(i)(I) for the 2008 ozone                 respect to visibility. In EPA’s August 19,
                                                necessary, initiate a process to cure any               NAAQS.                                                2013, proposed rulemaking for these
                                                identified deficiency. However, at this                    EPA disagrees with the commenter’s                 infrastructure SIPs, EPA also proposed
                                                time, EPA does not believe there to be                  argument that EPA cannot approve a SIP                to approve Indiana’s satisfaction of the
                                                an applicability gap for the PM2.5                      without the good neighbor provision.                  state board requirements contained in
                                                increments as they apply in the state of                Section 110(k)(3) of the CAA authorizes               section 128 of the CAA, as well as
                                                Indiana.                                                EPA to approve a plan in full,                        certain PSD requirements obligated by
                                                   Comment 13: The State of                             disapprove it in full, or approve it in               EPA’s October 20, 2010, final rule on
                                                Connecticut asserts that its ability to                 part and disapprove it in part,                       the ‘‘Prevention of Significant
                                                attain the 2008 ozone NAAQS is                          depending on the extent to which such                 Deterioration (PSD) for Particulate
                                                substantially compromised by the                        plan meets the requirements of the                    Matter Less Than 2.5 Micrometers
                                                transport of pollution from upwind                      CAA. This authority to approve the                    (PM2.5)—Increments, Significant Impact
                                                states. Specifically, modeling conducted                states’ SIP revisions in separable parts              Levels (SILs), Significant Monitoring
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                                                by both the Ozone Transport                             was included in the 1990 Amendments                   Concentration (SMC)’’ (2010 NSR Rule),
                                                Commission and EPA as part of the                       to the CAA to overrule a decision in the              and the infrastructure requirements for
                                                Cross-State Air Pollution Rule (CSAPR)                  Court of Appeals for the Ninth Circuit                the 2008 lead NAAQS. The final
                                                shows emissions from Indiana                            holding that EPA could not approve                    approvals for each of the above
                                                contributing to the nonattainment                       individual measures in a plan                         requirements were published in the
                                                problem in Connecticut. The State of                    submission without either approving or                Federal Register on December 24, 2013
                                                Connecticut states that it has done its                 disapproving the plan as a whole. See                 (see 78 FR 77599, state board


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                                                23720                    Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations

                                                requirements), July 2, 2014 (see 79 FR                                      October 16, 2014 (see 79 FR 62035, 2008                                      requirements for the 2008 ozone
                                                37646, 2010 NSR Rule requirements),                                         Lead Infrastructure requirements). In                                        NAAQS. Our final actions by element of
                                                August 11, 2013 (see 78 FR 46709, 2010                                      today’s rulemaking, we are taking final                                      section 110(a)(2) and NAAQS, are
                                                NSR Rule requirements, continued), and                                      action on only the infrastructure SIP                                        contained in the table below.

                                                                                                                                                                                                                                                          2008 Ozone
                                                                                                                                             Element                                                                                                        NAAQS

                                                (A): Emission limits and other control measures ................................................................................................................................                              A
                                                (B): Ambient air quality monitoring and data system ..........................................................................................................................                                A
                                                (C)1: Enforcement of SIP measures ...................................................................................................................................................                         A
                                                (C)2: PSD ............................................................................................................................................................................................        A
                                                (D)1: Contribute to nonattainment/interfere with maintenance of NAAQS .........................................................................................                                              NA
                                                (D)2: PSD ............................................................................................................................................................................................        A
                                                (D)3: Visibility Protection .....................................................................................................................................................................            NA
                                                (D)4: Interstate Pollution Abatement ...................................................................................................................................................                      A
                                                (D)5: International Pollution Abatement ..............................................................................................................................................                        A
                                                (E)1: Adequate resources ....................................................................................................................................................................                 A
                                                (E)2: State boards ...............................................................................................................................................................................            A
                                                (F): Stationary source monitoring system ...........................................................................................................................................                          A
                                                (G): Emergency power ........................................................................................................................................................................                 A
                                                (H): Future SIP revisions .....................................................................................................................................................................               A
                                                (I): Nonattainment area plan or plan revisions under part D ..............................................................................................................                                   NA
                                                (J)1: Consultation with government officials ........................................................................................................................................                         A
                                                (J)2: Public notification ........................................................................................................................................................................            A
                                                (J)3: PSD .............................................................................................................................................................................................       A
                                                (J)4: Visibility protection (Regional Haze) ...........................................................................................................................................                      NA
                                                (K): Air quality modeling and data .......................................................................................................................................................                    A
                                                (L): Permitting fees ..............................................................................................................................................................................           A
                                                (M): Consultation and participation by affected local entities .............................................................................................................                                  A



                                                  In the table above, the key is as                                            • Does not contain any unfunded                                           specified by Executive Order 13175 (65
                                                follows:                                                                    mandate or significantly or uniquely                                         FR 67249, November 9, 2000).
                                                                                                                            affect small governments, as described                                          The Congressional Review Act, 5
                                                A ...........    Approve.                                                   in the Unfunded Mandates Reform Act                                          U.S.C. 801 et seq., as added by the Small
                                                NA ........      No Action/Separate Rulemaking.                             of 1995 (Pub. L. 104–4);                                                     Business Regulatory Enforcement
                                                                                                                               • Does not have Federalism                                                Fairness Act of 1996, generally provides
                                                IV. Statutory and Executive Order                                           implications as specified in Executive                                       that before a rule may take effect, the
                                                Reviews                                                                     Order 13132 (64 FR 43255, August 10,                                         agency promulgating the rule must
                                                                                                                            1999);                                                                       submit a rule report, which includes a
                                                  Under the CAA, the Administrator is
                                                required to approve a SIP submission                                           • Is not an economically significant                                      copy of the rule, to each House of the
                                                that complies with the provisions of the                                    regulatory action based on health or                                         Congress and to the Comptroller General
                                                CAA and applicable Federal regulations.                                     safety risks subject to Executive Order                                      of the United States. EPA will submit a
                                                42 U.S.C. 7410(k); 40 CFR 52.02(a).                                         13045 (62 FR 19885, April 23, 1997);                                         report containing this action and other
                                                Thus, in reviewing SIP submissions,                                            • Is not a significant regulatory action                                  required information to the U.S. Senate,
                                                EPA’s role is to approve state choices,                                     subject to Executive Order 13211 (66 FR                                      the U.S. House of Representatives, and
                                                provided that they meet the criteria of                                     28355, May 22, 2001);                                                        the Comptroller General of the United
                                                the CAA. Accordingly, this action                                              • Is not subject to requirements of                                       States prior to publication of the rule in
                                                merely approves state law as meeting                                        Section 12(d) of the National                                                the Federal Register. A major rule
                                                Federal requirements and does not                                           Technology Transfer and Advancement                                          cannot take effect until 60 days after it
                                                impose additional requirements beyond                                       Act of 1995 (15 U.S.C. 272 note) because                                     is published in the Federal Register.
                                                those imposed by state law. For that                                        application of those requirements would                                      This action is not a ‘‘major rule’’ as
                                                reason, this action:                                                        be inconsistent with the CAA; and                                            defined by 5 U.S.C. 804(2).
                                                                                                                               • Does not provide EPA with the                                              Under section 307(b)(1) of the CAA,
                                                  • Is not a ‘‘significant regulatory
                                                                                                                            discretionary authority to address, as                                       petitions for judicial review of this
                                                action’’ subject to review by the Office
                                                                                                                            appropriate, disproportionate human                                          action must be filed in the United States
                                                of Management and Budget under
                                                                                                                            health or environmental effects, using                                       Court of Appeals for the appropriate
                                                Executive Orders 12866 (58 FR 51735,
                                                                                                                            practicable and legally permissible                                          circuit by June 29, 2015. Filing a
                                                October 4, 1993) and 13563 (76 FR 3821,
                                                                                                                            methods, under Executive Order 12898                                         petition for reconsideration by the
                                                January 21, 2011);
                                                                                                                            (59 FR 7629, February 16, 1994).                                             Administrator of this final rule does not
                                                  • Does not impose an information                                             In addition, the SIP is not approved                                      affect the finality of this action for the
                                                collection burden under the provisions                                      to apply on any Indian reservation land                                      purposes of judicial review nor does it
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                                                of the Paperwork Reduction Act (44                                          or in any other area where EPA or an                                         extend the time within which a petition
                                                U.S.C. 3501 et seq.);                                                       Indian tribe has demonstrated that a                                         for judicial review may be filed, and
                                                  • Is certified as not having a                                            tribe has jurisdiction. In those areas of                                    shall not postpone the effectiveness of
                                                significant economic impact on a                                            Indian country, the rule does not have                                       such rule or action. This action may not
                                                substantial number of small entities                                        tribal implications and will not impose                                      be challenged later in proceedings to
                                                under the Regulatory Flexibility Act (5                                     substantial direct costs on tribal                                           enforce its requirements. (See section
                                                U.S.C. 601 et seq.);                                                        governments or preempt tribal law as                                         307(b)(2).)


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                                                                    Federal Register / Vol. 80, No. 82 / Wednesday, April 29, 2015 / Rules and Regulations                                                            23721

                                                List of Subjects in 40 CFR Part 52                          Dated: April 16, 2015.                                           Authority: 42 U.S.C. 7401 et seq.
                                                                                                          Susan Hedman,
                                                  Environmental protection, Air                                                                                          ■ 2. In § 52.770, the table in paragraph
                                                                                                          Regional Administrator, Region 5.
                                                pollution control, Incorporation by                                                                                      (e) is amended by adding an entry in
                                                reference, Intergovernmental relations,                         40 CFR part 52 is amended as follows:                    alphabetical order for ‘‘Section 110(a)(2)
                                                Ozone, Reporting and recordkeeping                                                                                       Infrastructure Requirements for the 2008
                                                                                                          PART 52—APPROVAL AND                                           Ozone NAAQS’’ to read as follows:
                                                requirements.                                             PROMULGATION OF
                                                                                                          IMPLEMENTATION PLANS                                           § 52.770    Identification of plan.

                                                                                                          ■ 1. The authority citation for part 52                        *       *    *       *      *
                                                                                                          continues to read as follows:                                      (e) * * *
                                                                             EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS
                                                                 Title                    Indiana date                 EPA Approval                                                 Explanation


                                                         *                     *                              *                     *                             *                       *                       *
                                                Section 110(a)(2) Infrastructure           12/12/2011         4/29/2015, [insert Federal                 This action addresses the following CAA elements:
                                                  Requirements for the 2008                                     Register citation].                        110(a)(2)(A), (B), (C), (D)(i)(II) except visibility, (D)(ii), (E),
                                                  Ozone NAAQS.                                                                                             (F), (G), (H), (J) except visibility, (K), (L), and (M).

                                                          *                         *                         *                          *                         *                      *                       *



                                                [FR Doc. 2015–09883 Filed 4–28–15; 8:45 am]               DATES:  This final rule is effective on                           (ii) The words ‘‘EPA’’, ‘‘we’’, ‘‘us’’ or
                                                BILLING CODE 6560–50–P                                    May 29, 2015.                                                  ‘‘our’’ mean or refer to the
                                                                                                          ADDRESSES: The EPA has established a                           Environmental Protection Agency.
                                                                                                          docket for this action under Docket ID                            (iii) The initials ‘‘SIP’’ mean or refer
                                                ENVIRONMENTAL PROTECTION                                  No. EPA–R10–OAR–2014–0755. All                                 to State Implementation Plan.
                                                AGENCY                                                                                                                      (iv) The words ‘‘Washington’’ and
                                                                                                          documents in the docket are listed on
                                                                                                                                                                         ‘‘State’’ mean the State of Washington.
                                                40 CFR Part 52                                            the www.regulations.gov Web site.
                                                                                                          Although listed in the index, some                             Table of Contents
                                                [EPA–R10–OAR–2014–0755; FRL–9926–95–                      information is not publicly available,
                                                Region 10]                                                                                                               I. Background Information
                                                                                                          e.g., Confidential Business Information                        II. Response to Comments
                                                                                                          (CBI) or other information the disclosure                      III. Final Action
                                                Approval and Promulgation of
                                                                                                          of which is restricted by statute. Certain                     IV. Incorporation by Reference
                                                Implementation Plans; Washington:                                                                                        V. Statutory and Executive Orders Review
                                                                                                          other material, such as copyrighted
                                                Prevention of Significant Deterioration
                                                                                                          material, is not placed on the Internet
                                                and Visibility Protection                                                                                                I. Background Information
                                                                                                          and will be publicly available only in
                                                AGENCY:  Environmental Protection                         hard copy form. Publicly available                                On January 27, 2014, Ecology
                                                Agency (EPA).                                             docket materials are available either                          submitted revisions to update the
                                                ACTION: Final rule.                                       electronically through                                         general air quality regulations contained
                                                                                                          www.regulations.gov or in hard copy at                         in Chapter 173–400 of the Washington
                                                SUMMARY:   The Environmental Protection                   the Air Planning Unit, Office of Air,                          Administrative Code (WAC) that apply
                                                Agency (EPA) is approving revisions to                    Waste and Toxics, EPA Region 10, 1200                          to sources within Ecology’s jurisdiction,
                                                the Washington State Implementation                       Sixth Avenue, Seattle, WA 98101. The                           including minor new source review,
                                                Plan (SIP) that were submitted by the                     EPA requests that if at all possible, you                      major source nonattainment new source
                                                Department of Ecology (Ecology) on                        contact the individual listed in the FOR                       review (major NNSR), PSD, and the
                                                January 27, 2014. These revisions                         FURTHER INFORMATION CONTACT section to                         visibility protection (visibility) program.
                                                implement the preconstruction                             view the hard copy of the docket. You                          On October 3, 2014, the EPA finalized
                                                permitting regulations for large                          may view the hard copy of the docket                           approval of provisions contained in
                                                industrial (major source) facilities in                   Monday through Friday, 8:00 a.m. to                            Chapter 173–400 WAC that apply
                                                attainment and unclassifiable areas,                      4:00 p.m., excluding Federal holidays.                         generally to all sources under Ecology’s
                                                called the Prevention of Significant                                                                                     jurisdiction, but stated that we would
                                                                                                          FOR FURTHER INFORMATION CONTACT: Jeff
                                                Deterioration (PSD) program. The PSD                                                                                     act separately on the major source-
                                                                                                          Hunt at (206) 553–0256,
                                                program in Washington has been                                                                                           specific permitting programs in a
                                                                                                          hunt.jeff@epa.gov, or by using the above
                                                historically operated under a Federal                                                                                    phased approach (79 FR 59653). On
                                                                                                          EPA, Region 10 address.
                                                Implementation Plan (FIP). This                                                                                          November 7, 2014, the EPA finalized the
                                                approval of Ecology’s PSD program                         SUPPLEMENTARY INFORMATION:                                     second phase in the series, approving
                                                narrows the FIP to include only those                     Definitions                                                    the major NNSR regulations contained
                                                few facilities, emission sources,                                                                                        in WAC 173–400–800 through 173–400–
mstockstill on DSK4VPTVN1PROD with RULES




                                                geographic areas, and permits for which                      For the purpose of this document, we                        860, as well as other parts of Chapter
                                                Ecology does not have PSD permitting                      are giving meaning to certain words or                         173–400 WAC that support major NNSR
                                                jurisdiction or authority. The EPA is                     initials as follows:                                           (79 FR 66291).
                                                also approving Ecology’s visibility                          (i) The words or initials ‘‘Act’’ or                           On January 7, 2015, the EPA proposed
                                                protection permitting program which                       ‘‘CAA’’ mean or refer to the Clean Air                         approval of the remainder of Ecology’s
                                                overlaps significantly with the PSD                       Act, unless the context indicates                              January 27, 2014 submittal, covering the
                                                program.                                                  otherwise.                                                     PSD and visibility requirements for


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Document Created: 2015-12-16 08:25:52
Document Modified: 2015-12-16 08:25:52
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis final rule is effective on May 29, 2015.
ContactSarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR- 18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected]
FR Citation80 FR 23713 
CFR AssociatedEnvironmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Ozone and Reporting and Recordkeeping Requirements

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