81 FR 38957 - Indiana; Ohio; Disapproval of Interstate Transport Requirements for the 2008 Ozone NAAQS
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 115 (June 15, 2016)
Federal Register Volume 81, Issue 115 (June 15, 2016)
| Page Range | 38957-38963 | |
| FR Document | 2016-14103 |
[Federal Register Volume 81, Number 115 (Wednesday, June 15, 2016)] [Rules and Regulations] [Pages 38957-38963] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-14103] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2011-0969; FRL-9947-71-Region 5] Indiana; Ohio; Disapproval of Interstate Transport Requirements for the 2008 Ozone NAAQS AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is disapproving elements of State Implementation Plan (SIP) submissions from Indiana and Ohio regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 ozone National Ambient Air Quality Standards (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program is adequate to meet the state's responsibilities under the CAA. This action pertains specifically to infrastructure requirements concerning interstate transport provisions, for which Ohio and Indiana made SIP submissions that, among other things, certified that their existing SIPs were sufficient to meet the interstate transport infrastructure SIP requirements for the 2008 ozone NAAQS. DATES: This final rule is effective on July 15, 2016. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2011-0969. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either through www.regulations.gov or please contact the person identified in the ``For Further Information Contact'' section for additional availability information. FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR- 18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected]. SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' ``us,'' or ``our'' is used, we mean EPA. This supplementary information section is arranged as follows: I. What is the background of these SIP submissions? II. What action did EPA propose on the SIP submissions? III. What is our response to comments received on the proposed rulemaking? IV. What action is EPA taking? V. Statutory and Executive Order Reviews. I. What is the background of these SIP submissions? This rulemaking addresses CAA section 110(a)(2)(D)(i) requirements in two infrastructure SIP submissions addressing the applicable infrastructure requirements with respect to the 2008 ozone NAAQS: A December 12, 2011, submission from the Indiana Department of Environmental Management (IDEM), clarified in a May 24, 2012, letter; and a December 27, 2012, submission from the Ohio Environmental Protection Agency (Ohio EPA). The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions ``within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),'' and these SIP submissions are to provide for the ``implementation, maintenance, and enforcement'' of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that ``[e]ach such plan'' submission must address. EPA commonly refers to such state plans as ``infrastructure SIPs.'' This rulemaking takes action on three CAA section 110(a)(2)(D)(i) requirements of these submissions. In particular, section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS (``prong one''), or interfering with maintenance of the NAAQS (``prong two''), by any another state. Section 110(a)(2)(D)(i)(II) requires that infrastructure SIPs include provisions prohibiting any source or other type of emissions activity in one [[Page 38958]] state from interfering with measures required to prevent significant deterioration (PSD) of air quality (``prong three'') and to protect visibility (``prong four'') in another state. This rulemaking addresses prongs one, two, and four of this CAA section. The majority of the other infrastructure elements were approved in rulemakings on April 29, 2015 (80 FR 23713) for Indiana; and October 16, 2014 (79 FR 62019) for Ohio. II. What action did EPA propose on the SIP submissions? The proposed rulemaking associated with today's final action was published on March 16, 2016 (81 FR 14025). In that action, EPA proposed to disapprove the portions of Ohio's December 27, 2012 SIP submission addressing prongs one, two, and four of CAA section 110(a)(2)(D)(i). In proposing to disapprove the SIP submission as to prongs one and two, EPA noted several deficiencies in Ohio's submission: (1) Ohio's SIP submission lacks any technical analysis evaluating or demonstrating whether emissions in each state impact air quality in other states with respect to the 2008 ozone NAAQS; (2) Ohio's SIP does not demonstrate how certain state programs and rules provide sufficient controls on emissions to address interstate transport for the 2008 ozone NAAQS; (3) Ohio's submission relied on the state's implementation of the Clean Air Interstate Rule (CAIR), which was not designed to address interstate transport with respect to the 2008 ozone standard and which is no longer being implemented; and (4) EPA recently released technical data which contradicts the state's conclusion that its SIP contained adequate provisions to address interstate transport with respect to the 2008 ozone NAAQS. In proposing to disapprove the Ohio SIP submission as to prong four, EPA explained that there are two ways in which a state may satisfy its visibility transport obligations: (1) A fully approved regional haze SIP, or (2) a demonstration that emissions within its jurisdiction do not interfere with other air agencies' plans to protect visibility. Ohio's SIP submission relied on the State's regional haze SIP to satisfy its visibility transport requirements under CAA section 110(a)(2)(i)(II). However, Ohio does not have a fully approved regional haze SIP in place because its obligations are satisfied in part by EPA's Cross-State Air Pollution Rule (CSAPR) based regional haze Federal Implementation Plan (FIP). Ohio also did not provide an alternate demonstration that its emissions would not interfere with plans to protect visibility in other states. EPA also proposed to disapprove the portions of Indiana's December 12, 2011 SIP submission addressing prongs one, two, and four of CAA section 110(a)(2)(D)(i). In proposing to disapprove the SIP submission as to prongs one and two, EPA noted several deficiencies in Ohio's submission: (1) Indiana's SIP submission lacks any technical analysis evaluating or demonstrating whether emissions in each state impact air quality in other states with respect to the 2008 ozone NAAQS; (2) Indiana's SIP submission relied on the state's participation on the CSAPR trading program, which was not designed to address interstate transport with respect to the 2008 ozone standard; (3) the state failed to cite any other rules currently being implemented by the state that are part of Indiana's approved SIP or that are being submitted as part of the state's SIP submission to address interstate transport for the 2008 ozone NAAQS; and (4) EPA recently released technical data which contradicts the state's conclusion that its SIP contained adequate provisions to address interstate transport with respect to the 2008 ozone NAAQS. In proposing to disapprove the Indiana SIP submission as to prong four, EPA noted that Indiana's SIP submission relies on its regional haze SIP to satisfy the state's visibility transport obligations. However, Indiana does not have a fully approved regional haze SIP in place because its obligations are satisfied in part by EPA's CSAPR- based regional haze FIP. Indiana also did not provide an alternate demonstration that its emissions would not interfere with plans to protect visibility in other states. III. What is our response to comments received on the proposed rulemaking? EPA received four comments during the comment period, which ended on April 15, 2016. A synopsis of the comments contained in these letters and EPA's responses, are provided below. A. Comments on the Ohio Disapproval for Prongs One and Two Comment 1: Ohio EPA commented that the proposed disapproval focuses on the state's duty to make a SIP submission addressing CAA section 110(a)(2)(D), but contends that EPA has historically taken the lead in addressing transported emissions, citing several prior EPA rulemakings including the Oxides of Nitrogen (NOX ) SIP Call, CAIR, and CSAPR. The state noted that meeting the bar that EPA has set with these rulemakings would be ``extremely resource intensive and require unprecedented multi-state collaboration,'' and is therefore best suited for EPA. Ohio EPA alleged that EPA's actions to develop these regulations are too late for the states to incorporate into their SIPs. The state further commented that EPA has provided insufficient guidance to states addressing the requirements of section 110(a)(2)(D) in their SIPs, and guidance that is provided is often ill-timed. Ohio EPA gave the example of guidance for the 2006 fine particulate matter (PM2.5 ) NAAQS that was released on September 25, 2009, four days after SIPs addressing this standard were due, which stated that the states could not rely on the CAIR. The state also noted that for the 2008 ozone standard, SIP submissions were due on March 12, 2011, and EPA guidance issued two years later on September 13, 2013 did not address section 110(a)(2)(D)(i)(I). The state also commented that under cooperative federalism, EPA should not only set standards, but provided the necessary information and technical assistance for the state to fulfil their CAA obligations. Ohio EPA commented that the proposal did not acknowledge the continued efforts to meet EPA requirements on a timely basis and alleged that they were being punished with a disapproval because of a consent decree in which they were not a party. The state contends that EPA engages in secretive ``sue and settle'' arrangements where EPA agrees to issue disapprovals that commit the states to actions or timeframes that are unreasonable. The state also contends that EPA must disapprove Ohio's SIP submission in order to impose a FIP. The state proposed that a better course of action under cooperative federalism would have been for EPA to have provided the necessary information and allowed the state the necessary time to submit an approvable SIP. Response 1: While EPA issued several previous Federal rulemakings addressing interstate transport obligations in eastern states with respect to ozone and fine particulate matter, the Supreme Court confirmed that the states have the first obligation to prepare and submit state plans that prohibit the appropriate levels of emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in other states. In EPA v. EME Homer City Generation, L.P., the Supreme Court clearly held that ``nothing in the statute places EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations.'' 134 S. Ct. 1584, [[Page 38959]] 1601 (2014).\1\ While EPA has taken a different approach in some prior rulemakings by providing states with an opportunity to submit a SIP after EPA quantified the states' budgets (e.g., the NOX SIP Call and CAIR), the statute does not require such an approach. --------------------------------------------------------------------------- \1\ ``Nothing in the Act differentiates the Good Neighbor Provision from the several other matters a State must address in its SIP. Rather, the statute speaks without reservation: Once a NAAQS has been issued, a State `shall' propose a SIP within three years, Sec. 7410(a)(1), and that SIP `shall' include, among other components, provisions adequate to satisfy the Good Neighbor Provision, Sec. 7410(a)(2).'' EPA v. EME Homer City Generation, L.P., 134 S. Ct. at 1600. --------------------------------------------------------------------------- While EPA did not provide specific guidance regarding how states could satisfy their statutory obligation with respect to CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS, EPA did provide information to assist states with developing or supplementing their SIP submissions. On January 22, 2015, EPA issued a memorandum providing preliminary modeling information regarding potential downwind air quality problems and levels of upwind state contributions. See Memorandum from Stephen D. Page to Regional Air Division Directors, Regions 1-10, ``Information on the Interstate Transport `Good Neighbor' Provision for the 2008 Ozone [NAAQS] under [CAA] Section 110(a)(2)(D)(i)(I)'' (Jan. 22, 2015). As noted at proposal, EPA also provided updated modeling and contribution information in its August 4, 2015 Notice of Data Availability. 80 FR 46271. While Ohio's December 27, 2012 SIP was submitted prior to this information being provided, the state did not attempt to revise or supplement its SIP submission to address this information. Moreover, EPA does not agree that the states needed formal guidance to understand that it was inappropriate to rely on CAIR for purposes of satisfying the state's interstate transport obligations with respect to the 2008 ozone NAAQS. As noted earlier, CAIR was designed to address interstate transport with respect to the 1997 ozone NAAQS, not the more stringent 2008 ozone NAAQS, and in any event the rule is no longer being implemented by the states or EPA. More importantly, in North Carolina v. EPA, the D.C. Circuit held that CAIR was ``fundamentally flawed,'' 531 F.3d 896, 929 (D.C. Cir. 2008), in part because CAIR did not satisfy the statutory requirement to ``achieve[] something measurable towards the goal of prohibiting sources `within the State' from contributing to nonattainment or interfering with maintenance in `any other State.' '' Id. at 908. Accordingly, the D.C. Circuit held in EME Homer City Generation, L.P. v. EPA, ``when our decision in North Carolina deemed CAIR to be an invalid effort to implement the requirements of the good neighbor provision, that ruling meant that the initial approval of the CAIR SIPs was in error at the time it was done.'' 795 F.3d 118, 133 (2015). For these reasons, EPA cannot now approve an interstate transport SIP addressing any NAAQS based on the state's participation in CAIR. Finally, EPA disagrees that either the litigation regarding EPA's deadline to act on Ohio's SIP submission or EPA's proposed action to update CSAPR to address the 2008 ozone standard (CSAPR Update) have dictated the substance of EPA's action on Ohio's SIP with respect to prongs one and two. CAA section 110(k)(2) requires EPA to act on a state's SIP submission within one year after the submission is determined to be complete. Therefore, EPA's statutory obligation to act on Ohio's December 27, 2012 SIP submission was overdue. While EPA did enter into a consent decree with litigants in Sierra Club v. McCarthy, No. 4:14-cv-5091-YGR (N.D. Cal.), which raised claims regarding EPA's alleged failure to fulfill its mandatory duty to take action on Ohio's SIP under CAA section 110(k)(2), that agreement governs only the timetable on which EPA must act on the state's SIP submissions under CAA section 110(k)(2) and not the substance of EPA's action. As described earlier, EPA has evaluated Ohio's SIP submission on its merits and found that it is deficient for purposes of addressing the state's obligation pursuant to CAA section 110(a)(2)(D)(i)(I). Comment 2: A commenter cited comments that were submitted on the docket for the CSAPR Update rulemaking because the modeling used to support that rule is also being used in the disapproval Ohio's interstate transport SIP. The commenter stated that ``the comments detail legal problems and technical flaws with the modeling'' and asserted that EPA should not have acted on Ohio's SIP submission until the CSAPR Update was finalized and EPA had responded to the comments. The commenter disagreed with the need for EPA to take action on the submission at this time and stated that EPA should have issued a SIP call or asked the state for a supplemental submission instead of disapproving the December 27, 2012 SIP submission which was ``in accordance with what was required at the time''. The commenter noted that EPA's analysis was completed three years after the state's submission. Response 2: EPA disagrees with the commenter's conclusion that EPA is disapproving Ohio's SIP submission addressing prongs one and two based primarily on the modeling conducted to support the proposed CSAPR Update rulemaking. As noted earlier, states bear the primary responsibility to demonstrate that their plans contain adequate provisions to address the statutory interstate transport provisions, specifically to demonstrate that the plan properly prohibits emissions that will significantly contribute to nonattainment or interfere with maintenance of the NAAQS in downwind states. As described in the proposal and earlier in this notice, EPA has identified several ways in which Ohio's SIP submission fails to fulfill this obligation. In particular, EPA is disapproving Ohio's submission for its reliance on CAIR, which is legally invalid, and the lack of state rules identified in its submission that are sufficient to prohibit emissions that significantly contribute to nonattainment or interfere with maintenance of the standard in other states. While EPA cited the modeling conducted for the CSAPR Update as additional evidence that Ohio may significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in downwind states, we did not propose to make a specific finding of contribution or to quantify any specific emissions reduction obligation. Rather, the evaluation of whether emissions from Ohio significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS downwind, and if so what reductions are necessary to address that contribution, is being conducted in the context of the CSAPR Update rulemaking. Accordingly, EPA will consider timely-submitted comments regarding EPA's air quality modeling and various associated legal and policy decisions in finalizing that rulemaking. Moreover, it is inappropriate for the commenter to merely cite to or attach comments prepared for another rulemaking without identifying which portions of those comments are pertinent to this action. Without further explanation, EPA has no obligation to address comments prepared for the purpose of the CSAPR Update in the context of this rulemaking. EPA notes that the technical data discussed at proposal with respect to Ohio's potential contribution to downwind air quality problems is consistent with modeling previously conducted for trading programs [[Page 38960]] addressing interstate ozone transport such as CAIR (70 FR 25162), CSAPR (76 FR 48208), and the NOx SIP Call (63 FR 57356) showing that Ohio is frequently linked to downwind receptors. The modeling conducted to support the proposed CSAPR Update is the most recent technical information available to the Agency which still shows such linkages. Even absent this modeling data, Ohio's SIP submission is inadequate to address prongs one and two of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS. Comment 3: Ohio EPA also attached comments that were submitted for the proposal to update CSAPR to address the 2008 ozone NAAQS because, the state explained, the modeling is also being used to disapprove Ohio's SIP as to prongs one and two. The state commented that the attached comments point out ``significant errors and concerns in U.S. EPA's analyses regarding the [Notice of Data Availability] and transport updates'' and that ``it is ill-timed and erroneous for U.S. EPA to use these analyses as evidence that Ohio has not addressed its transport obligations.'' Response 3: While EPA cited the modeling conducted for the CSAPR Update as additional evidence that Ohio may significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in downwind states, we did not propose to make a specific finding of contribution or to quantify any specific emissions reduction obligation. Rather, the evaluation of whether emissions from Ohio significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS downwind, and if so what reductions are necessary to address that contribution, is being conducted in the context of the CSAPR Update rulemaking. Accordingly, EPA will consider timely-submitted comments regarding EPA's air quality modeling and various associated legal and policy decisions in finalizing that rulemaking. Moreover, it is inappropriate for the commenter to merely cite to or attach comments prepared for another rulemaking without identifying which portions of those comments are pertinent to this action. Without further explanation, EPA has no obligation to address comments prepared for the purpose of the CSAPR Update in the context of this rulemaking. B. Comments on the Indiana Disapproval for Prongs One and Two Comment 4: The commenter gave a summary of the regulatory history of CSAPR and the overlapping timeline of the IDEM submission. The commenter alleged that ``EPA was uncertain about the scope of the air transport law, and therefore cannot be certain about its proposed disapproval of the Indiana infrastructure SIP.'' Response 4: In evaluating Indiana's SIP submission with respect to prongs one and two of the interstate transport provisions of the statute, EPA has identified several clear deficiencies in the state's analysis. In particular, EPA noted that the state relied on participation in CSAPR, which does not address interstate transport with respect to the 2008 ozone NAAQS, and failed to otherwise provide any technical analysis to support its conclusion that the state had satisfied its statutory obligation. The commenter has identified no legal uncertainty underlying these bases for EPA's disapproval of Indiana's SIP. Comment 5: The commenter cites to a comment from Connecticut on an older rulemaking in which Connecticut requests further reductions of upwind emissions to address nonattainment concerns in Connecticut. The commenter gave an overview of the Reasonably Available Control Technology (RACT) plan developed by Connecticut looking at feasible local controls to address air quality in the nonattainment area including Connecticut. The commenter concluded that because there are further local controls available to address the nonattainment area, and any attempt to impose reduction obligations on upwind states such as Indiana without addressing these controls first would result in over- control by the upwind states. Response 5: This action is not determining what, if any, emission reductions sources in Indiana may need to achieve in order to address the state's interstate transport obligation with respect to the 2008 ozone NAAQS. Instead, EPA is evaluating the state's interstate transport SIP to determine whether the current submission satisfies the statutory obligations at CAA section 110(a)(2)(D)(i)(I). As noted earlier, Indiana's SIP contains several deficiencies that justify EPA's decision to finalize disapproval as to prongs one and two transport, as Indiana has failed to provide an adequate technical analysis demonstrating that the state's current SIP contains sufficient provisions to properly address interstate transport with respect to the 2008 ozone NAAQS. Moreover, besides Connecticut, EPA's most recent technical analysis shows that emissions from Indiana contribute to projected air quality problems in Wisconsin, Kentucky, Maryland, Michigan, New Jersey, New York, Ohio, and Pennsylvania. Comment 6: A commenter alleged that ``EPA propose[d] disapproval, and its disagreement with IDEM's submission, rests in great part on the modeling and technical data that was used to support the CSAPR Update'' and that a contrary view suggests ``that there is no basis to conclude that Indiana would be expected to significantly contribute to the nonattainment of or interfere with the maintenance of the 2008 ozone NAAQS in 2017.'' The following comments pertain to modeling conducted to support the proposed CSAPR Update and EPA's application of the modeling data in the proposed rule. The commenter first noted that a study prepared by Alpine Geophysics looked at ozone concentrations during a more recent time period. The comment alleged that the concentrations from this study were more appropriate because they reflected recent controls, economic factors, recent regulatory programs, and more consistent precipitation and temperature ranges. The commenter stated that using this data set resulted in all projected air quality problems (both nonattainment and maintenance receptors) being resolved in 2017 with the exception of those in Fairfield, Connecticut. The commenter notes that the proposed rulemaking does not find Indiana to be a significant contributor to the Fairfield, Connecticut monitor. The commenter also cited what they believe are legal and policy issues with the proposed CSAPR Update. The commenter alleged that EPA's reliance on modeled maximum design value for determining whether a state interferes with maintenance of the NAAQS downwind is inconsistent with the Supreme Court's 2014 decision, the D.C. Circuit's 2015 decision in the EME Homer City litigation, the CAA. The commenter contends that this interpretation of that statutory obligation would result in unnecessary over-control. The commenter also alleged that EPA's approach to addressing maintenance concerns is applied differently in transport than it is in the context of redesignations. The commenter contends, based on the Alpine Geophysics report, that EPA inappropriately used grids in its modeling platform that include overwater receptors as well as land receptors, and further inappropriately selected to represent the monitor the highest concentration in the grid from an over the water location. The commenter further alleged that EPA using the latest version of the [[Page 38961]] Integrated Planning Model would show great emissions reductions already in place therefore lowering projected concentrations in downwind states. The commenter also commented that that model did not include controls such as a Pennsylvania RACT rule and mobile source controls in the New England area that are needed to reduce concentrations at the Connecticut monitor. The commenter contended that EPA did not properly account for international emissions, and doing so would lead to the conclusion that Indiana is not contributing to the Connecticut monitor. The commenter concluded that using the alternate analysis by Alpine Geophysical eliminates attainment and maintenance issues at all the monitors except Connecticut and for the reasons summarized above, Indiana does not significantly contribute to that monitor. Response 6: EPA disagrees with the commenter's conclusion that EPA is disapproving Indiana's SIP submission addressing prongs one and two based primarily on the modeling conducted to support the proposed CSAPR Update rulemaking. As noted earlier, states bear the primary responsibility to demonstrate that their plans contain adequate provisions to address the statutory interstate transport provisions, specifically to demonstrate that the plan properly prohibits emissions that will significantly contribute to nonattainment or interfere with maintenance of the NAAQS in downwind states. As described in the proposal and earlier in this notice, EPA has identified several ways in which Indiana's SIP submission fails to fulfill this obligation. In particular, EPA is disapproving Indiana's submission for its reliance on CSAPR, which does not currently address the 2008 ozone standard, and the submission's lack of identified state rules that are sufficient to prohibit emissions that significantly contribute to nonattainment or interfere with maintenance of the standard in other states. While EPA cited the modeling conducted for the CSAPR Update as additional evidence that Indiana may significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in downwind states, we did not propose to make a specific finding of contribution or to quantify any specific emissions reduction obligation. Rather, the evaluation of whether emissions from Indiana significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS downwind, and if so what reductions are necessary to address that contribution, is being conducted in the context of the CSAPR Update rulemaking. Accordingly, EPA will consider comments timely submitted to the Agency regarding EPA's air quality modeling and various associated legal and policy decisions in finalizing that rulemaking. While EPA appreciates the information provided by the commenter regarding EPA's identification of downwind air quality problems and Indiana's potential contribution to those areas, these data do not undermine EPA's primary bases for disapproving Indiana's SIP with respect to prongs one and two of CAA section 110(a)(2)(D)(i)(I). EPA notes that the technical data discussed at proposal with respect to Indiana's potential contribution to downwind air quality problems is consistent with modeling previously conducted for trading programs addressing interstate ozone transport such as CAIR (70 FR 25162), CSAPR (76 FR 48208), and the NOX SIP Call (63 FR 57356) showing that Indiana is frequently linked to downwind receptors. The modeling conducted to support the proposed CSAPR Update is the most recent technical information available to the Agency which still shows such linkages. Even absent these modeling data, Indiana's SIP submission is inadequate to address prongs one and two of CAA section 110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS. C. Comments on Both the Indiana and Ohio Disapprovals for Prongs One and Two Comment 7: The Connecticut Department of Energy and Environmental Protection (DEEP) is supportive of the proposed disapprovals of Indiana and Ohio's SIP submissions addressing the prongs one and two transport obligations. DEEP encouraged EPA to finalize the disapproval quickly and propose and finalize a full transport remedy rather than waiting to couple the action with the 2015 ozone NAAQS. DEEP also encourages EPA to ``describe the implications of the disapproval with respect to each state's good neighbor SIP obligations and the proposed partial remedy provided by the [CSAPR] Update,'' and DEEP supports action by Indiana and Ohio towards resolving outstanding SIP obligations. Response 7: EPA is supportive of any actions taken by the states to resolve transport obligations. EPA will address further obligations for Ohio and Indiana in the final CSAPR Update rule. D. Comments on Both the Indiana and Ohio Disapprovals for Prong Four Comment 8: Both commenters on Indiana's submission and Ohio's submission stated that the visibility portion should be approved, because reliance on CAIR as better than Best Available Retrofit Technology (BART) for electric generating units (EGUs) was consistent with CAA requirements at the time of both submissions. One commenter also stated that since CAIR is better than BART has been replaced with CSAPR is better than BART in the form a FIP, the requirements have been fully addressed, and this transport prong should be fully approved. The other commenter asserts that if EPA decides to finalize the disapproval, EPA should clarify that no further action is needed because of the FIP in place showing that for Ohio EGUs, CSAPR meets the BART requirements for regional haze. Ohio EPA also disagreed with EPA's proposed disapproval of prong four, because there is a FIP in place that satisfies Ohio's obligations. Response 8: Indiana and Ohio cannot rely on CAIR to satisfy their regional haze obligations, and by extension their prong four obligations, because neither the states nor EPA are currently implementing this program. Neither state has submitted an approvable regional haze SIP to replace its current reliance on CAIR; thus, both States have regional haze FIPs in place. However, as stated above, states cannot rely on FIPs to satisfy their prong four obligations. This is consistent with our approach for transport provisions and federally implemented PSD programs. EPA is not promulgating FIPs to address the states' prong four deficiencies in this action. IV. What action is EPA taking? EPA is disapproving a portion of Indiana's December 12, 2011 submission and Ohio's December 27, 2012 submission seeking to address the required infrastructure element under CAA section 110(a)(2)(D)(i) for the 2008 ozone NAAQS, specifically prongs one, two, and four. This disapproval triggers an obligation under CAA section 110(c) for EPA to promulgate a FIP no later than two years from the effective date of this disapproval, if EPA has not approved a SIP revision or revisions addressing the deficiencies identified in this action. This action is not tied to attainment planning requirements and therefore does not start any sanction clocks. [[Page 38962]] V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. B. Paperwork Reduction Act (PRA) This rule does not impose an information collection burden under the provisions of the PRA. C. Regulatory Flexibility Act (RFA) The Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action merely proposes to disapprove state law as not meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. D. Unfunded Mandates Reform Act (UMRA) This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. E. Executive Order 13132: Federalism This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because it proposes to disapprove a state rule. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act (NTTAA) This rulemaking does not involve technical standards. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 15, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).) List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone. Dated: June 3, 2016. Robert A. Kaplan, Acting Regional Administrator, Region 5. 40 CFR part 52 is amended as follows: PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 0 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. 0 2. In Sec. 52.770 the table in paragraph (e) is amended by revising the entry for ``Section 110(a)(2) Infrastructure Requirements for the 2008 Ozone NAAQS''. The amended text reads as follows: Sec. 52.770 Identification of plan. * * * * * (e) * * * EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions ---------------------------------------------------------------------------------------------------------------- Title Indiana date EPA approval Explanation ---------------------------------------------------------------------------------------------------------------- * * * * * * * Section 110(a)(2) Infrastructure 12/12/2011 6/15/2016, [insert This action addresses the Requirements for the 2008 ozone NAAQS. Federal Register following CAA elements: citation]. 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M). * * * * * * * ---------------------------------------------------------------------------------------------------------------- [[Page 38963]] 0 3. In Sec. 52.1870 the table in paragraph (e) is amended by revising the entry for ``Section 110(a)(2) infrastructure requirements for the 2008 Ozone NAAQS''. The amended text reads as follows: Sec. 52.1870 Identification of plan. * * * * * (e) * * * EPA-Approved Ohio Nonregulatory and Quasi-Regulatory Provisions ---------------------------------------------------------------------------------------------------------------- Applicable geographical or Title non-attainment State date EPA approval Comments area ---------------------------------------------------------------------------------------------------------------- * * * * * * * Section 110(a)(2) Statewide......... 12/27/2012 6/15/2016, [insert Addresses the following infrastructure requirements Federal Register CAA elements: for the 2008 ozone NAAQS. citation]. 110(a)(2) (A) to (H) and (J) to (M). * * * * * * * ---------------------------------------------------------------------------------------------------------------- [FR Doc. 2016-14103 Filed 6-14-16; 8:45 am] BILLING CODE 6560-50-P
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Subpart B—Requests Initiated by the ENVIRONMENTAL PROTECTION Chicago, Illinois 60604, (312) 886–9401,
Postal Service To Modify the Product AGENCY arra.sarah@epa.gov.
Lists SUPPLEMENTARY INFORMATION:
40 CFR Part 52 Throughout this document whenever
■ 3. Revise the heading of subpart B to ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean
read as set forth above. [EPA–R05–OAR–2011–0969; FRL–9947–71– EPA. This supplementary information
■ 4. Revise § 3020.30 to read as follows:
Region 5] section is arranged as follows:
I. What is the background of these SIP
§ 3020.30 General. Indiana; Ohio; Disapproval of submissions?
Interstate Transport Requirements for II. What action did EPA propose on the SIP
The Postal Service, by filing a request the 2008 Ozone NAAQS submissions?
with the Commission, may propose a III. What is our response to comments
modification to the market dominant AGENCY: Environmental Protection received on the proposed rulemaking?
product list or the competitive product Agency (EPA). IV. What action is EPA taking?
list. For purposes of this part, ACTION: Final rule. V. Statutory and Executive Order Reviews.
modification shall be defined as adding I. What is the background of these SIP
a product to a list, removing a product SUMMARY: The Environmental Protection
Agency (EPA) is disapproving elements submissions?
from a list, or moving a product from
one list to the other list. of State Implementation Plan (SIP) This rulemaking addresses CAA
submissions from Indiana and Ohio section 110(a)(2)(D)(i) requirements in
Subpart C—Requests Initiated by regarding the infrastructure two infrastructure SIP submissions
Users of the Mail to Modify the Product requirements of section 110 of the Clean addressing the applicable infrastructure
Lists Air Act (CAA) for the 2008 ozone requirements with respect to the 2008
National Ambient Air Quality Standards ozone NAAQS: A December 12, 2011,
■ 5. Revise the heading of subpart C to (NAAQS). The infrastructure submission from the Indiana
read as set forth above. requirements are designed to ensure that Department of Environmental
the structural components of each Management (IDEM), clarified in a May
■ 6. Revise § 3020.50 to read as follows: state’s air quality management program 24, 2012, letter; and a December 27,
§ 3020.50 General. is adequate to meet the state’s 2012, submission from the Ohio
responsibilities under the CAA. This Environmental Protection Agency (Ohio
Users of the mail, by filing a request action pertains specifically to EPA).
with the Commission, may propose a infrastructure requirements concerning The requirement for states to make a
modification to the market dominant interstate transport provisions, for SIP submission of this type arises out of
product list or the competitive product which Ohio and Indiana made SIP CAA section 110(a)(1). Pursuant to
list. For purposes of this part, submissions that, among other things, section 110(a)(1), states must make SIP
modification shall be defined as adding certified that their existing SIPs were submissions ‘‘within 3 years (or such
a product to a list, removing a product sufficient to meet the interstate shorter period as the Administrator may
from a list, or transferring a product transport infrastructure SIP prescribe) after the promulgation of a
from one list to the other list. requirements for the 2008 ozone national primary ambient air quality
NAAQS. standard (or any revision thereof),’’ and
Subpart D—Proposal of the these SIP submissions are to provide for
Commission to Modify the Product DATES: This final rule is effective on July
the ‘‘implementation, maintenance, and
Lists 15, 2016.
enforcement’’ of such NAAQS. The
ADDRESSES: EPA has established a statute directly imposes on states the
■ 7. Revise the heading of subpart D to docket for this action under Docket ID duty to make these SIP submissions,
read as set forth above. No. EPA–R05–OAR–2011–0969. All and the requirement to make the
documents in the docket are listed on submissions is not conditioned upon
Subpart D—Proposal of the the www.regulations.gov Web site. EPA’s taking any action other than
Commission to Modify the Product Although listed in the index, some promulgating a new or revised NAAQS.
Lists information is not publicly available, Section 110(a)(2) includes a list of
i.e., Confidential Business Information specific elements that ‘‘[e]ach such
■ 8. Revise § 3020.70 to read as follows: (CBI) or other information whose plan’’ submission must address. EPA
disclosure is restricted by statute. commonly refers to such state plans as
§ 3020.70 General. Certain other material, such as ‘‘infrastructure SIPs.’’
The Commission, of its own initiative, copyrighted material, is not placed on This rulemaking takes action on three
may propose a modification to the the Internet and will be publicly CAA section 110(a)(2)(D)(i)
market dominant product list or the available only in hard copy form. requirements of these submissions. In
competitive product list. For purposes Publicly available docket materials are particular, section 110(a)(2)(D)(i)(I)
of this part, modification shall be available either through requires SIPs to include provisions
defined as adding a product to a list, www.regulations.gov or please contact prohibiting any source or other type of
removing a product from a list, or the person identified in the ‘‘For Further emissions activity in one state from
transferring a product from one list to Information Contact’’ section for contributing significantly to
the other list. additional availability information. nonattainment of the NAAQS (‘‘prong
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By the Commission. FOR FURTHER INFORMATION CONTACT: one’’), or interfering with maintenance
Sarah Arra, Environmental Scientist, of the NAAQS (‘‘prong two’’), by any
Stacy L. Ruble,
Attainment Planning and Maintenance another state. Section 110(a)(2)(D)(i)(II)
Secretary. Section, Air Programs Branch (AR–18J), requires that infrastructure SIPs include
[FR Doc. 2016–14171 Filed 6–14–16; 8:45 am] Environmental Protection Agency, provisions prohibiting any source or
BILLING CODE 7710–FW–P Region 5, 77 West Jackson Boulevard, other type of emissions activity in one
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1601 (2014).1 While EPA has taken a in EME Homer City Generation, L.P. v. Response 2: EPA disagrees with the
different approach in some prior EPA, ‘‘when our decision in North commenter’s conclusion that EPA is
rulemakings by providing states with an Carolina deemed CAIR to be an invalid disapproving Ohio’s SIP submission
opportunity to submit a SIP after EPA effort to implement the requirements of addressing prongs one and two based
quantified the states’ budgets (e.g., the the good neighbor provision, that ruling primarily on the modeling conducted to
NOX SIP Call and CAIR), the statute meant that the initial approval of the support the proposed CSAPR Update
does not require such an approach. CAIR SIPs was in error at the time it was rulemaking. As noted earlier, states bear
While EPA did not provide specific done.’’ 795 F.3d 118, 133 (2015). For the primary responsibility to
guidance regarding how states could these reasons, EPA cannot now approve demonstrate that their plans contain
satisfy their statutory obligation with an interstate transport SIP addressing adequate provisions to address the
respect to CAA section 110(a)(2)(D)(i)(I) any NAAQS based on the state’s statutory interstate transport provisions,
with respect to the 2008 ozone NAAQS, participation in CAIR. specifically to demonstrate that the plan
EPA did provide information to assist Finally, EPA disagrees that either the properly prohibits emissions that will
states with developing or litigation regarding EPA’s deadline to significantly contribute to
supplementing their SIP submissions. act on Ohio’s SIP submission or EPA’s nonattainment or interfere with
On January 22, 2015, EPA issued a proposed action to update CSAPR to maintenance of the NAAQS in
memorandum providing preliminary address the 2008 ozone standard downwind states. As described in the
modeling information regarding (CSAPR Update) have dictated the proposal and earlier in this notice, EPA
potential downwind air quality substance of EPA’s action on Ohio’s SIP has identified several ways in which
problems and levels of upwind state with respect to prongs one and two. Ohio’s SIP submission fails to fulfill this
contributions. See Memorandum from CAA section 110(k)(2) requires EPA to obligation. In particular, EPA is
Stephen D. Page to Regional Air act on a state’s SIP submission within disapproving Ohio’s submission for its
Division Directors, Regions 1–10, one year after the submission is reliance on CAIR, which is legally
‘‘Information on the Interstate Transport determined to be complete. Therefore, invalid, and the lack of state rules
‘Good Neighbor’ Provision for the 2008 EPA’s statutory obligation to act on identified in its submission that are
Ozone [NAAQS] under [CAA] Section Ohio’s December 27, 2012 SIP sufficient to prohibit emissions that
110(a)(2)(D)(i)(I)’’ (Jan. 22, 2015). As submission was overdue. While EPA significantly contribute to
noted at proposal, EPA also provided did enter into a consent decree with nonattainment or interfere with
updated modeling and contribution litigants in Sierra Club v. McCarthy, No. maintenance of the standard in other
information in its August 4, 2015 Notice 4:14-cv-5091–YGR (N.D. Cal.), which states.
of Data Availability. 80 FR 46271. While raised claims regarding EPA’s alleged While EPA cited the modeling
Ohio’s December 27, 2012 SIP was failure to fulfill its mandatory duty to conducted for the CSAPR Update as
submitted prior to this information take action on Ohio’s SIP under CAA additional evidence that Ohio may
being provided, the state did not section 110(k)(2), that agreement significantly contribute to
attempt to revise or supplement its SIP governs only the timetable on which nonattainment or interfere with
submission to address this information. EPA must act on the state’s SIP maintenance of the 2008 ozone NAAQS
Moreover, EPA does not agree that the submissions under CAA section in downwind states, we did not propose
states needed formal guidance to 110(k)(2) and not the substance of EPA’s to make a specific finding of
understand that it was inappropriate to action. As described earlier, EPA has contribution or to quantify any specific
rely on CAIR for purposes of satisfying evaluated Ohio’s SIP submission on its emissions reduction obligation. Rather,
the state’s interstate transport merits and found that it is deficient for the evaluation of whether emissions
obligations with respect to the 2008 purposes of addressing the state’s from Ohio significantly contribute to
ozone NAAQS. As noted earlier, CAIR obligation pursuant to CAA section nonattainment or interfere with
was designed to address interstate 110(a)(2)(D)(i)(I). maintenance of the 2008 ozone NAAQS
transport with respect to the 1997 ozone Comment 2: A commenter cited downwind, and if so what reductions
NAAQS, not the more stringent 2008 comments that were submitted on the are necessary to address that
ozone NAAQS, and in any event the docket for the CSAPR Update contribution, is being conducted in the
rule is no longer being implemented by rulemaking because the modeling used context of the CSAPR Update
the states or EPA. More importantly, in to support that rule is also being used rulemaking. Accordingly, EPA will
North Carolina v. EPA, the D.C. Circuit in the disapproval Ohio’s interstate consider timely-submitted comments
held that CAIR was ‘‘fundamentally transport SIP. The commenter stated regarding EPA’s air quality modeling
flawed,’’ 531 F.3d 896, 929 (D.C. Cir. that ‘‘the comments detail legal and various associated legal and policy
2008), in part because CAIR did not problems and technical flaws with the decisions in finalizing that rulemaking.
satisfy the statutory requirement to modeling’’ and asserted that EPA should Moreover, it is inappropriate for the
‘‘achieve[] something measurable not have acted on Ohio’s SIP commenter to merely cite to or attach
towards the goal of prohibiting sources submission until the CSAPR Update comments prepared for another
‘within the State’ from contributing to was finalized and EPA had responded to rulemaking without identifying which
nonattainment or interfering with the comments. The commenter portions of those comments are
maintenance in ‘any other State.’ ’’ Id. at disagreed with the need for EPA to take pertinent to this action. Without further
908. Accordingly, the D.C. Circuit held action on the submission at this time explanation, EPA has no obligation to
and stated that EPA should have issued address comments prepared for the
1 ‘‘Nothing in the Act differentiates the Good
a SIP call or asked the state for a purpose of the CSAPR Update in the
Neighbor Provision from the several other matters supplemental submission instead of context of this rulemaking.
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a State must address in its SIP. Rather, the statute
speaks without reservation: Once a NAAQS has disapproving the December 27, 2012 SIP EPA notes that the technical data
been issued, a State ‘shall’ propose a SIP within submission which was ‘‘in accordance discussed at proposal with respect to
three years, § 7410(a)(1), and that SIP ‘shall’ with what was required at the time’’. Ohio’s potential contribution to
include, among other components, provisions
adequate to satisfy the Good Neighbor Provision,
The commenter noted that EPA’s downwind air quality problems is
§ 7410(a)(2).’’ EPA v. EME Homer City Generation, analysis was completed three years after consistent with modeling previously
L.P., 134 S. Ct. at 1600. the state’s submission. conducted for trading programs
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![38960 Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations
addressing interstate ozone transport the IDEM submission. The commenter Kentucky, Maryland, Michigan, New
such as CAIR (70 FR 25162), CSAPR (76 alleged that ‘‘EPA was uncertain about Jersey, New York, Ohio, and
FR 48208), and the NOx SIP Call (63 FR the scope of the air transport law, and Pennsylvania.
57356) showing that Ohio is frequently therefore cannot be certain about its Comment 6: A commenter alleged that
linked to downwind receptors. The proposed disapproval of the Indiana ‘‘EPA propose[d] disapproval, and its
modeling conducted to support the infrastructure SIP.’’ disagreement with IDEM’s submission,
proposed CSAPR Update is the most Response 4: In evaluating Indiana’s rests in great part on the modeling and
recent technical information available to SIP submission with respect to prongs technical data that was used to support
the Agency which still shows such one and two of the interstate transport the CSAPR Update’’ and that a contrary
linkages. Even absent this modeling provisions of the statute, EPA has view suggests ‘‘that there is no basis to
data, Ohio’s SIP submission is identified several clear deficiencies in conclude that Indiana would be
inadequate to address prongs one and the state’s analysis. In particular, EPA expected to significantly contribute to
two of CAA section 110(a)(2)(D)(i)(I) noted that the state relied on the nonattainment of or interfere with
with respect to the 2008 ozone NAAQS. participation in CSAPR, which does not the maintenance of the 2008 ozone
Comment 3: Ohio EPA also attached address interstate transport with respect NAAQS in 2017.’’
comments that were submitted for the to the 2008 ozone NAAQS, and failed to The following comments pertain to
proposal to update CSAPR to address otherwise provide any technical modeling conducted to support the
the 2008 ozone NAAQS because, the analysis to support its conclusion that proposed CSAPR Update and EPA’s
state explained, the modeling is also the state had satisfied its statutory application of the modeling data in the
being used to disapprove Ohio’s SIP as obligation. The commenter has proposed rule. The commenter first
to prongs one and two. The state identified no legal uncertainty noted that a study prepared by Alpine
commented that the attached comments underlying these bases for EPA’s Geophysics looked at ozone
point out ‘‘significant errors and disapproval of Indiana’s SIP. concentrations during a more recent
concerns in U.S. EPA’s analyses Comment 5: The commenter cites to time period. The comment alleged that
regarding the [Notice of Data a comment from Connecticut on an the concentrations from this study were
Availability] and transport updates’’ and older rulemaking in which Connecticut more appropriate because they reflected
that ‘‘it is ill-timed and erroneous for requests further reductions of upwind recent controls, economic factors, recent
U.S. EPA to use these analyses as emissions to address nonattainment regulatory programs, and more
evidence that Ohio has not addressed its concerns in Connecticut. The consistent precipitation and
transport obligations.’’ commenter gave an overview of the temperature ranges. The commenter
Response 3: While EPA cited the Reasonably Available Control stated that using this data set resulted in
modeling conducted for the CSAPR Technology (RACT) plan developed by all projected air quality problems (both
Update as additional evidence that Ohio Connecticut looking at feasible local nonattainment and maintenance
may significantly contribute to controls to address air quality in the receptors) being resolved in 2017 with
nonattainment or interfere with nonattainment area including the exception of those in Fairfield,
maintenance of the 2008 ozone NAAQS Connecticut. The commenter concluded Connecticut. The commenter notes that
in downwind states, we did not propose that because there are further local the proposed rulemaking does not find
to make a specific finding of controls available to address the Indiana to be a significant contributor to
contribution or to quantify any specific nonattainment area, and any attempt to the Fairfield, Connecticut monitor.
emissions reduction obligation. Rather, impose reduction obligations on The commenter also cited what they
the evaluation of whether emissions upwind states such as Indiana without believe are legal and policy issues with
from Ohio significantly contribute to addressing these controls first would the proposed CSAPR Update. The
nonattainment or interfere with result in over-control by the upwind commenter alleged that EPA’s reliance
maintenance of the 2008 ozone NAAQS states. on modeled maximum design value for
downwind, and if so what reductions Response 5: This action is not determining whether a state interferes
are necessary to address that determining what, if any, emission with maintenance of the NAAQS
contribution, is being conducted in the reductions sources in Indiana may need downwind is inconsistent with the
context of the CSAPR Update to achieve in order to address the state’s Supreme Court’s 2014 decision, the D.C.
rulemaking. Accordingly, EPA will interstate transport obligation with Circuit’s 2015 decision in the EME
consider timely-submitted comments respect to the 2008 ozone NAAQS. Homer City litigation, the CAA. The
regarding EPA’s air quality modeling Instead, EPA is evaluating the state’s commenter contends that this
and various associated legal and policy interstate transport SIP to determine interpretation of that statutory
decisions in finalizing that rulemaking. whether the current submission satisfies obligation would result in unnecessary
Moreover, it is inappropriate for the the statutory obligations at CAA section over-control. The commenter also
commenter to merely cite to or attach 110(a)(2)(D)(i)(I). As noted earlier, alleged that EPA’s approach to
comments prepared for another Indiana’s SIP contains several addressing maintenance concerns is
rulemaking without identifying which deficiencies that justify EPA’s decision applied differently in transport than it is
portions of those comments are to finalize disapproval as to prongs one in the context of redesignations.
pertinent to this action. Without further and two transport, as Indiana has failed The commenter contends, based on
explanation, EPA has no obligation to to provide an adequate technical the Alpine Geophysics report, that EPA
address comments prepared for the analysis demonstrating that the state’s inappropriately used grids in its
purpose of the CSAPR Update in the current SIP contains sufficient modeling platform that include
context of this rulemaking. provisions to properly address interstate overwater receptors as well as land
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transport with respect to the 2008 ozone receptors, and further inappropriately
B. Comments on the Indiana NAAQS. Moreover, besides selected to represent the monitor the
Disapproval for Prongs One and Two Connecticut, EPA’s most recent highest concentration in the grid from
Comment 4: The commenter gave a technical analysis shows that emissions an over the water location.
summary of the regulatory history of from Indiana contribute to projected air The commenter further alleged that
CSAPR and the overlapping timeline of quality problems in Wisconsin, EPA using the latest version of the
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Integrated Planning Model would show context of the CSAPR Update submission stated that the visibility
great emissions reductions already in rulemaking. Accordingly, EPA will portion should be approved, because
place therefore lowering projected consider comments timely submitted to reliance on CAIR as better than Best
concentrations in downwind states. The the Agency regarding EPA’s air quality Available Retrofit Technology (BART)
commenter also commented that that modeling and various associated legal for electric generating units (EGUs) was
model did not include controls such as and policy decisions in finalizing that consistent with CAA requirements at
a Pennsylvania RACT rule and mobile rulemaking. While EPA appreciates the the time of both submissions. One
source controls in the New England area information provided by the commenter commenter also stated that since CAIR
that are needed to reduce concentrations regarding EPA’s identification of is better than BART has been replaced
at the Connecticut monitor. The downwind air quality problems and
with CSAPR is better than BART in the
commenter contended that EPA did not Indiana’s potential contribution to those
form a FIP, the requirements have been
properly account for international areas, these data do not undermine
emissions, and doing so would lead to EPA’s primary bases for disapproving fully addressed, and this transport
the conclusion that Indiana is not Indiana’s SIP with respect to prongs one prong should be fully approved. The
contributing to the Connecticut monitor. and two of CAA section other commenter asserts that if EPA
The commenter concluded that using 110(a)(2)(D)(i)(I). decides to finalize the disapproval, EPA
the alternate analysis by Alpine EPA notes that the technical data should clarify that no further action is
Geophysical eliminates attainment and discussed at proposal with respect to needed because of the FIP in place
maintenance issues at all the monitors Indiana’s potential contribution to showing that for Ohio EGUs, CSAPR
except Connecticut and for the reasons downwind air quality problems is meets the BART requirements for
summarized above, Indiana does not consistent with modeling previously regional haze. Ohio EPA also disagreed
significantly contribute to that monitor. conducted for trading programs with EPA’s proposed disapproval of
Response 6: EPA disagrees with the addressing interstate ozone transport prong four, because there is a FIP in
commenter’s conclusion that EPA is such as CAIR (70 FR 25162), CSAPR (76 place that satisfies Ohio’s obligations.
disapproving Indiana’s SIP submission FR 48208), and the NOX SIP Call (63 FR
Response 8: Indiana and Ohio cannot
addressing prongs one and two based 57356) showing that Indiana is
primarily on the modeling conducted to frequently linked to downwind rely on CAIR to satisfy their regional
support the proposed CSAPR Update receptors. The modeling conducted to haze obligations, and by extension their
rulemaking. As noted earlier, states bear support the proposed CSAPR Update is prong four obligations, because neither
the primary responsibility to the most recent technical information the states nor EPA are currently
demonstrate that their plans contain available to the Agency which still implementing this program. Neither
adequate provisions to address the shows such linkages. Even absent these state has submitted an approvable
statutory interstate transport provisions, modeling data, Indiana’s SIP submission regional haze SIP to replace its current
specifically to demonstrate that the plan is inadequate to address prongs one and reliance on CAIR; thus, both States have
properly prohibits emissions that will two of CAA section 110(a)(2)(D)(i)(I) regional haze FIPs in place. However, as
significantly contribute to with respect to the 2008 ozone NAAQS. stated above, states cannot rely on FIPs
nonattainment or interfere with to satisfy their prong four obligations.
maintenance of the NAAQS in C. Comments on Both the Indiana and
This is consistent with our approach for
downwind states. As described in the Ohio Disapprovals for Prongs One and
Two transport provisions and federally
proposal and earlier in this notice, EPA implemented PSD programs. EPA is not
has identified several ways in which Comment 7: The Connecticut promulgating FIPs to address the states’
Indiana’s SIP submission fails to fulfill Department of Energy and prong four deficiencies in this action.
this obligation. In particular, EPA is Environmental Protection (DEEP) is
disapproving Indiana’s submission for supportive of the proposed disapprovals IV. What action is EPA taking?
its reliance on CSAPR, which does not of Indiana and Ohio’s SIP submissions
currently address the 2008 ozone addressing the prongs one and two EPA is disapproving a portion of
standard, and the submission’s lack of transport obligations. DEEP encouraged Indiana’s December 12, 2011
identified state rules that are sufficient EPA to finalize the disapproval quickly submission and Ohio’s December 27,
to prohibit emissions that significantly and propose and finalize a full transport 2012 submission seeking to address the
contribute to nonattainment or interfere remedy rather than waiting to couple required infrastructure element under
with maintenance of the standard in the action with the 2015 ozone NAAQS. CAA section 110(a)(2)(D)(i) for the 2008
other states. DEEP also encourages EPA to ‘‘describe ozone NAAQS, specifically prongs one,
While EPA cited the modeling the implications of the disapproval with two, and four. This disapproval triggers
conducted for the CSAPR Update as respect to each state’s good neighbor SIP an obligation under CAA section 110(c)
additional evidence that Indiana may obligations and the proposed partial for EPA to promulgate a FIP no later
significantly contribute to remedy provided by the [CSAPR] than two years from the effective date of
nonattainment or interfere with Update,’’ and DEEP supports action by this disapproval, if EPA has not
maintenance of the 2008 ozone NAAQS Indiana and Ohio towards resolving approved a SIP revision or revisions
in downwind states, we did not propose outstanding SIP obligations. addressing the deficiencies identified in
to make a specific finding of Response 7: EPA is supportive of any this action. This action is not tied to
contribution or to quantify any specific actions taken by the states to resolve attainment planning requirements and
emissions reduction obligation. Rather, transport obligations. EPA will address
the evaluation of whether emissions therefore does not start any sanction
further obligations for Ohio and Indiana
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from Indiana significantly contribute to clocks.
in the final CSAPR Update rule.
nonattainment or interfere with
maintenance of the 2008 ozone NAAQS D. Comments on Both the Indiana and
downwind, and if so what reductions Ohio Disapprovals for Prong Four
are necessary to address that Comment 8: Both commenters on
contribution, is being conducted in the Indiana’s submission and Ohio’s
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![38962 Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations
V. Statutory and Executive Order F. Executive Order 13175: Consultation Congress and to the Comptroller General
Reviews and Coordination With Indian Tribal of the United States. EPA will submit a
Governments report containing this rule and other
A. Executive Order 12866: Regulatory
This action does not have tribal required information to the U.S. Senate,
Planning and Review and Executive
implications as specified in Executive the U.S. House of Representatives, and
Order 13563: Improving Regulation and
Order 13175. It will not have substantial the Comptroller General of the United
Regulatory Review
direct effects on tribal governments. States prior to publication of the rule in
This action is not a significant Thus, Executive Order 13175 does not the Federal Register. A major rule
regulatory action and was therefore not apply to this rule. cannot take effect until 60 days after it
submitted to the Office of Management is published in the Federal Register.
and Budget (OMB) for review. G. Executive Order 13045: Protection of This action is not a ‘‘major rule’’ as
Children From Environmental Health defined by 5 U.S.C. 804(2).
B. Paperwork Reduction Act (PRA) Risks and Safety Risks Under section 307(b)(1) of the CAA,
This rule does not impose an This action is not subject to Executive petitions for judicial review of this
information collection burden under the Order 13045 because it is not action must be filed in the United States
provisions of the PRA. economically significant as defined in Court of Appeals for the appropriate
Executive Order 12866, and because circuit by August 15, 2016. Filing a
C. Regulatory Flexibility Act (RFA) EPA does not believe the environmental petition for reconsideration by the
The Administrator certifies that this health or safety risks addressed by this Administrator of this final rule does not
rule will not have a significant action present a disproportionate risk to affect the finality of this rule for the
economic impact on a substantial children because it proposes to purposes of judicial review nor does it
number of small entities under the RFA. disapprove a state rule. extend the time within which a petition
In making this determination, the H. Executive Order 13211: Actions for judicial review may be filed, and
impact of concern is any significant Concerning Regulations That shall not postpone the effectiveness of
adverse economic impact on small Significantly Affect Energy Supply, such rule or action. This action may not
entities. An agency may certify that a Distribution or Use be challenged later in proceedings to
rule will not have a significant enforce its requirements. (See section
economic impact on a substantial This action is not subject to Executive 307(b)(2).)
number of small entities if the rule Order 13211, because it is not a
significant regulatory action under List of Subjects in 40 CFR Part 52
relieves regulatory burden, has no net
burden or otherwise has a positive Executive Order 12866. Environmental protection, Air
economic effect on the small entities I. National Technology Transfer and pollution control, Incorporation by
subject to the rule. This action merely Advancement Act (NTTAA) reference, Intergovernmental relations,
proposes to disapprove state law as not Ozone.
This rulemaking does not involve
meeting Federal requirements and technical standards. Dated: June 3, 2016.
imposes no additional requirements Robert A. Kaplan,
beyond those imposed by state law. J. Executive Order 12898: Federal
Acting Regional Administrator, Region 5.
Actions To Address Environmental
D. Unfunded Mandates Reform Act Justice in Minority Populations and 40 CFR part 52 is amended as follows:
(UMRA) Low-Income Populations
This action does not contain any PART 52—APPROVAL AND
EPA believes the human health or PROMULGATION OF
unfunded mandate as described in environmental risk addressed by this
UMRA, 2 U.S.C. 1531–1538, and does IMPLEMENTATION PLANS
action will not have potential
not significantly or uniquely affect small disproportionately high and adverse ■ 1. The authority citation for part 52
governments. The action imposes no human health or environmental effects continues to read as follows:
enforceable duty on any state, local or on minority, low-income or indigenous
tribal governments or the private sector. Authority: 42 U.S.C. 7401 et seq.
populations.
E. Executive Order 13132: Federalism ■ 2. In § 52.770 the table in paragraph
Congressional Review Act
(e) is amended by revising the entry for
This action does not have federalism The Congressional Review Act, 5 ‘‘Section 110(a)(2) Infrastructure
implications. It will not have substantial U.S.C. 801 et seq., as added by the Small Requirements for the 2008 Ozone
direct effects on the states, on the Business Regulatory Enforcement NAAQS’’. The amended text reads as
relationship between the national Fairness Act of 1996, generally provides follows:
government and the states, or on the that before a rule may take effect, the
distribution of power and agency promulgating the rule must § 52.770 Identification of plan.
responsibilities among the various submit a rule report, which includes a * * * * *
levels of government. copy of the rule, to each House of the (e) * * *
EPA-APPROVED INDIANA NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Title Indiana date EPA approval Explanation
ehiers on DSK5VPTVN1PROD with RULES
* * * * * * *
Section 110(a)(2) Infrastructure Require- 12/12/2011 6/15/2016, [insert Federal This action addresses the following CAA elements:
ments for the 2008 ozone NAAQS. Register citation]. 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K),
(L), and (M).
* * * * * * *
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![Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations 38963
■ 3. In § 52.1870 the table in paragraph requirements for the 2008 Ozone § 52.1870 Identification of plan.
(e) is amended by revising the entry for NAAQS’’. The amended text reads as * * * * *
‘‘Section 110(a)(2) infrastructure follows: (e) * * *
EPA-APPROVED OHIO NONREGULATORY AND QUASI-REGULATORY PROVISIONS
Applicable geo-
Title graphical or non-at- State date EPA approval Comments
tainment area
* * * * * * *
Section 110(a)(2) infrastructure Statewide .................. 12/27/2012 6/15/2016, [insert Addresses the following CAA elements:
requirements for the 2008 Federal Register 110(a)(2) (A) to (H) and (J) to (M).
ozone NAAQS. citation].
* * * * * * *
[FR Doc. 2016–14103 Filed 6–14–16; 8:45 am] ADDRESSES: The EPA has established a The EPA refers to this type of SIP
BILLING CODE 6560–50–P docket for this action under Docket ID submission as the ‘‘infrastructure’’ SIP
No. EPA–R02–OAR–2016–0316. All because the SIP ensures that states can
documents in the docket are listed on implement, maintain and enforce the air
ENVIRONMENTAL PROTECTION the www.regulations.gov Web site. standards. Within these requirements,
AGENCY FOR FURTHER INFORMATION CONTACT: section 110(a)(2)(D)(i) contains
Kenneth Fradkin, Environmental requirements to address interstate
40 CFR PART 52 Protection Agency, 290 Broadway, 25th transport of NAAQS pollutants. A SIP
Floor, New York, NY 10007–1866, (212) revision submitted for this sub-section
[EPA–R02–OAR–2016–0316; FRL–9947–77– 637–3702, or by email at is referred to as an ‘‘interstate transport
Region 2] Fradkin.Kenneth@epa.gov. SIP.’’ In turn, section 110(a)(2)(D)(i)(I)
SUPPLEMENTARY INFORMATION: Section requires that such a plan contain
Finding of Failure To Submit a State adequate provisions to prohibit
553 of the Administrative Procedures
Implementation Plan; New Jersey; emissions from the state that will
Act, 5 United States Code (U.S.C.)
Interstate Transport Requirements for contribute significantly to
553(b)(3)(B), provides that, when an
2008 8-Hour National Ambient Air nonattainment of the NAAQS in any
agency for good cause finds that notice
Quality Standards for Ozone other state (‘‘prong 1’’) or interfere with
and public procedure are impracticable,
AGENCY: Environmental Protection unnecessary or contrary to the public maintenance of the NAAQS in any other
Agency (EPA). interest, the agency may issue a rule state (‘‘prong 2’’). Interstate transport
ACTION: Final rule.
without providing notice and an prongs 1 and 2, also called the ‘‘good
opportunity for public comment. The neighbor’’ provisions, are the
SUMMARY: The Environmental Protection EPA has determined that there is good requirements relevant to this findings
Agency (EPA) is taking final action cause for making this rule final without notice.
finding that New Jersey has failed to prior proposal and opportunity for Pursuant to CAA section 110(k)(1)(B),
submit an infrastructure State comment because no significant EPA the EPA must determine no later than 6
Implementation Plan (SIP) revision to judgment is involved in making a months after the date by which a state
satisfy certain interstate transport finding of failure to submit SIPs, or is required to submit a SIP whether a
requirements of the Clean Air Act (CAA) elements of SIPs, required by the CAA, state has made a submission that meets
with respect to the 2008 8-hour ozone where states have made no submittals, the minimum completeness criteria
national ambient air quality standard or incomplete submittals, to meet the established in CAA section 110(k)(1)(A).
(NAAQS). Specifically, these requirement by the statutory date. Thus, The EPA refers to the determination that
requirements pertain to the obligation to notice and public procedure are a state has not submitted a SIP
prohibit emissions which significantly unnecessary. The EPA finds that this submission that meets the minimum
contribute to nonattainment, or interfere constitutes good cause under 5 U.S.C. completeness criteria as a ‘‘finding of
with maintenance, of the 2008 8-hour 553(b)(3)(B). failure to submit.’’ If the EPA finds a
ozone NAAQS in other states. This Table of Contents state has failed to submit a SIP to meet
finding of failure to submit establishes its statutory obligation to address
a 2-year deadline for the EPA to I. Background
II. Final Action 110(a)(2)(D)(i)(I), pursuant to section
promulgate a Federal Implementation III. Statutory and Executive Order Reviews 110(c)(1) the EPA has not only the
Plan (FIP) to address the interstate authority, but the obligation, to
transport SIP requirements pertaining to I. Background promulgate a FIP within 2 years to
the state’s significant contribution to Section 110(a) of the CAA imposes an address the CAA requirement. This
nonattainment and interference with obligation upon states to submit SIPs finding therefore starts a 2-year clock for
maintenance of the 2008 ozone NAAQS that provide for the implementation, promulgation by the EPA of a FIP, in
ehiers on DSK5VPTVN1PROD with RULES
in other states unless, prior to the EPA maintenance and enforcement of a new accordance with CAA section 110(c)(1),
promulgating a FIP, the state submits, or revised NAAQS within 3 years unless prior to such promulgation the
and the EPA approves, a SIP that meets following the promulgation of that state submits, and the EPA approves, a
these requirements. NAAQS. Section 110(a)(2) lists specific submittal from the state to meet the
DATES: This rule is effective on July 15, requirements that states must meet in requirements of CAA section
2016. these SIP submissions, as applicable. 110(a)(2)(D)(i)(I). The EPA notes this
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Document Created: 2016-06-15 02:21:10
Document Modified: 2016-06-15 02:21:10
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on July 15, 2016. | |
| Contact | Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR- 18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected] | |
| FR Citation | 81 FR 38957 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations and Ozone |
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