81 FR 58402 - Air Plan Approval; Indiana; RACM Determination for Indiana Portion of the Cincinnati-Hamilton 1997 Annual PM2.5
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 165 (August 25, 2016)
Federal Register Volume 81, Issue 165 (August 25, 2016)
| Page Range | 58402-58405 | |
| FR Document | 2016-20312 |
[Federal Register Volume 81, Number 165 (Thursday, August 25, 2016)] [Rules and Regulations] [Pages 58402-58405] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-20312] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2016-0169; FRL-9951-29-Region 5] Air Plan Approval; Indiana; RACM Determination for Indiana Portion of the Cincinnati-Hamilton 1997 Annual PM2.5 Nonattainment Area AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is approving the reasonably available control measures (RACM) and reasonably available control technology (RACT) analysis that Indiana submitted as part of its attainment plan for the 1997 fine particulate matter (PM2.5 ) standard, in accordance with Indiana's request dated February 11, 2016. The RACM/RACT analysis addresses RACM and RACT for the Indiana portion of the Cincinnati-Hamilton nonattainment area for the 1997 PM2.5 standard. EPA is not acting on the portions of the State Implementation Plan (SIP) submission that are unrelated to RACM/RACT. Other portions of the attainment plan have either been addressed or will be addressed in future rulemaking actions. DATES: This direct final rule will be effective October 24, 2016, unless EPA receives adverse comments by September 26, 2016. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05- OAR-2016-0169 at http://www.regulations.gov or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. FOR FURTHER INFORMATION CONTACT: Joseph Ko, Environmental Engineer, Attainment, Planning and Maintenance Section, Air Programs Branch (AR- 18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7947, [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. Background II. What are EPA's actions? III. What is EPA's analysis of the State's RACM submittal? IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. Background On July 18, 1997, EPA promulgated the first national ambient air quality standards (NAAQS) for PM2.5 . EPA promulgated an annual standard of 15 micrograms per cubic meter ([mu]g/m\3\) (based on a 3-year average of annual mean PM2.5 concentrations) and a 24-hour standard of 65 [mu]g/m\3\ (based on a 3-year average of the 98th percentile of 24-hour concentrations). See 62 FR 38652. On December 17, 2004, based on 2001-2003 monitoring data, EPA designated the Cincinnati-Hamilton OH-KY-IN area (the Cincinnati-Hamilton area) as nonattainment for the annual standard for fine particles, and these designations became effective on April 5, 2005. See 70 FR 944. On July 3, 2008, Indiana requested that EPA redesignate as attainment its portion of the Cincinnati-Hamilton area, showing that existing permanent and enforceable controls would provide for timely attainment of the 1997 PM2.5 standard by the attainment deadline of April 5, 2010. On September 29, 2011, based on 2007-2009 monitoring data, EPA made a ``clean data determination'' and determination of attainment, indicating that the entire area was attaining the 1997 PM2.5 NAAQS by its applicable attainment date. See 76 FR 60373. The clean data determination suspended all further planning SIP revision requirements. As part of its action approving the redesignation of the Indiana and Ohio portions of the Cincinnati-Hamilton area to attainment, published on December 23, 2011, EPA found that the states of Ohio and Indiana had satisfied the remaining applicable requirements, including the requirement to submit an emission inventory in accordance with section 172(c)(3). See 76 FR 80253. The redesignation to attainment was based, in part, on EPA's longstanding interpretation that Subpart 1 nonattainment planning requirements, including RACM, are not ``applicable'' for purposes of Clean Air Act section 107(d)(3)(E)(ii) and (v) when an area is attaining the NAAQS and, therefore, need not be approved into the SIP before EPA can redesignate the area. See 76 FR 80258. On July 14, 2015, the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) issued an opinion in Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015), vacating EPA's redesignation of the Indiana and Ohio portions of the [[Page 58403]] Cincinnati-Hamilton area to attainment for the 1997 PM2.5 NAAQS on the basis that EPA had not approved subpart 1 RACM for the area into the SIP.\1\ The Court concluded that ``a State seeking redesignation `shall provide for the implementation' of RACM/RACT, even if those measures are not strictly necessary to demonstrate attainment with the PM2.5 NAAQS. . . . If a State has not done so, EPA cannot `fully approve[]' the area's SIP, and redesignation to attainment status is improper.'' Sierra Club, 793 F.3d at 670. --------------------------------------------------------------------------- \1\ The Court issued its initial decision in the case on March 18, 2015, and subsequently issued an amended opinion on July 14 after appeals for rehearing en banc and panel rehearing had been filed. The amended opinion revised some of the legal aspects of the Court's analysis of the relevant statutory provisions (section 107(d)(3)(E)(ii) and section 172(c)(1)) but the overall holding of the opinion was unaltered. On March 28, 2016, the Supreme Court denied a petition for certiorari from Ohio requesting review of the Sixth Circuit's decision. --------------------------------------------------------------------------- EPA is adhering to the Court's precedent within the jurisdiction of the Sixth Circuit, which does not include Indiana. Regardless, on February 11, 2016, Indiana requested that EPA act on the RACM/RACT analysis for its portion of the Cincinnati-Hamilton area from the earlier attainment plan SIP revision in order to eliminate any potential concern regarding the effect of the Sixth Circuit decision. II. What are EPA's actions? EPA is approving Indiana's requested SIP submission as providing for all reasonably available control measures, including reasonably available control technology, in accordance with the requirements of sections 172(c)(1) and 189(a)(1)(C). More detail on EPA's rationale is provided below. III. What is EPA's analysis of the State's RACM submittal? a. Subpart 1 and Subpart 4 RACM Requirements RACM is required under both Subpart 1 and Subpart 4 of Part D of Title I of the CAA. See CAA section 172(c)(1) and section 189(a)(1)(C). Section 172(c)(1) requires that each attainment plan ``provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from the existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology), and shall provide for attainment of the national primary ambient air quality standards.'' Similar language in section 189(a)(1)(C) requires RACM for PM2.5 plans. EPA's current implementation guidance interprets RACM, including RACT, under section 172(c)(1) as measures that are both reasonably available and necessary to demonstrate attainment as expeditiously as practicable in the nonattainment area. See 40 CFR 51.1010(a).\2\ A state must adopt, as RACM, measures that are reasonably available considering technical and economic feasibility if, considered collectively, they would advance the attainment date by one year or more. See 40 CFR 51.1010(b). EPA has also proposed implementation policy that applies a similar interpretation to RACM as required under section 189(a)(1)(C). --------------------------------------------------------------------------- \2\ Subpart 1 RACM requirements at 40 CFR 51.1010 were not at issue in the D.C. Circuit's remand of the PM2.5 implementation rule in the January 2013 Natural Resources Defense Council v. EPA decision and are therefore not subject to the Court's remand. Cf. NRDC v. EPA, 571 F.3d 1245, 1252-53 (D.C. Cir. 2009) (upholding a substantially similar interpretation of Subpart 1 RACM in the context of ozone implementation regulations). --------------------------------------------------------------------------- The PM2.5 Implementation Rule (72 FR 20586) requires that the Subpart 1 RACM portion of the attainment plan SIP revision include the list of potential measures that a state considered and additional information sufficient to show that the state has met all requirements for the determination of what constitutes RACM in a specific nonattainment area. See 40 CFR 51.1010(a). Any measures that are necessary to meet these requirements that are not already either federally promulgated, part of the SIP, or otherwise creditable in SIPs must be submitted in enforceable form as part of a state's attainment plan SIP revision for the area. As discussed above, a clean data determination suspends the requirement for a PM2.5 nonattainment area to submit an attainment plan SIP revision, including RACM, so long as the area continues to attain the PM2.5 NAAQS. See 40 CFR 51.1004(c). b. RACM Based Upon Attainment of the NAAQS EPA is approving the portion of Indiana's July 3, 2008, requested attainment plan SIP revision that addresses Subpart 1 RACM for the State's portion of the Cincinnati-Hamilton area on the basis that it is attaining the 1997 Annual PM2.5 NAAQS and, therefore, no additional emission reduction measures beyond the existing measures in the SIP are necessary to demonstrate attainment or would advance the area's attainment by one year or more. As noted above, EPA determined that the area met the standard by the April 5, 2010 attainment date. See 76 FR 60373. Indiana's submission therefore meets the requirements of section 172(c)(1) pursuant to 40 CFR 51.1010. Given the similarity of requirements under Subpart 4, the submission also meets the RACT/ RACM requirements of section 189(a)(1)(C). c. RACM Based Upon the State's Control Evaluation Additionally, the portion of Indiana's July 3, 2008 requested attainment plan SIP revision that addresses Subpart 1 RACM for the State's portion of the Cincinnati-Hamilton area is approvable on the basis that the requested SIP revision demonstrates that no additional reasonably available controls would have advanced the attainment date projected therein. Indiana determined that existing measures and measures planned for implementation by 2009 would result in the Cincinnati-Hamilton area attaining the 1997 PM2.5 NAAQS by the attainment deadline of April 5, 2010. Air quality modeling conducted by Lake Michigan Air Directors Consortium (LADCO) indicated that the area would attain the annual NAAQS in 2009 based upon projected emissions reductions from sources within the area after 2005 (the base year of the nonattainment emissions inventory). As discussed in Chapter 6.0 of the July 3, 2008 SIP submission, the State considered the following existing federally enforceable measures in projecting the emissions inventory used for the 2009 modeling: Tier 2 vehicle standards; heavy-duty gasoline and diesel highway vehicle standards; large non-road diesel engine standards; non- road spark-ignition engines and recreational engines standards; nitrogen oxides (NOX ) SIP call; and the Clean Air Interstate Rule (CAIR). Indiana adopted the NOX SIP Call in 2001, and beginning in 2004, this rule accounted for a reduction of approximately 31% of total NOX emissions in Indiana compared to previous uncontrolled years. Indiana adopted a state rule in response to CAIR in 2006 which included an annual and seasonal NOX trading program, and an annual SO2 trading program. In addition to the federally enforceable measures mentioned above, Indiana also considered further Federal and statewide control measures that, once implemented, would further reduce emissions, but that were not included in the modeling demonstration. The Portable Fuel Container (Gas Can) Controls, and the Small Non-Road Engine Rules were considered as additional Federal controls that would reduce emissions. The Gas Can Controls Rule was issued on February 26, 2007 (71 FR 15830), and [[Page 58404]] it was expected to significantly reduce volatile organic compounds (VOC) emissions. The Small Non-Road Engine Rule was proposed on April 17, 2007, and it was expected to result in a 70% reduction in hydrocarbon and NOX emissions and a 20% reduction in carbon monoxide from new engines' exhaust, as well as a 70% reduction in evaporative emissions. The following Indiana statewide VOC controls rules were considered: Consumer and Commercial Products Rule (326 IAC 8), Architectural and Industrial Maintenance Coatings Rule (326 IAC 8- 14), Automobile Refinishing Operations Rule (326 IAC 8-10), and Stage I Vapor Recovery Rule (326 IAC 8-4). In Indiana's RACM analysis, which appears in chapter 7.0 of the July 3, 2008, SIP submission, the State discusses its evaluation of sources of PM2.5 and its precursors within the Indiana portion of the Cincinnati-Hamilton area and its determination that these sources were meeting Subpart 1 RACM levels of emissions control. As discussed above, a state must show that all Subpart 1 RACM (including RACT for stationary sources) necessary to demonstrate attainment as expeditiously as practicable have been adopted and must consider the cumulative impact of implementing available measures to determine whether a particular emission reduction measure or set of measures is required to be adopted as RACM. Potential measures that are reasonably available considering technical and economic feasibility must be adopted as RACM if, considered collectively, they would advance the attainment date by one year or more. Based on the emissions inventory and other information, the State identified the categories of sources that should be evaluated for controls. These categories include permitted stationary sources; gasoline dispensing facilities; on-road mobile sources; non-road and stationary internal combustion engines; open burning; and home heating with wood. Indiana, in conjunction with LADCO, conducted attainment test modeling that showed that the Indiana portion of the Cincinnati- Hamilton area would attain the current annual PM2.5 NAAQS by 2009, one year before the attainment date deadline of 2010. Indiana evaluated candidate control measures for feasibility, cost effectiveness, and the ability to implement them in the set time frame. No additional measures were needed to demonstrate attainment in an expeditious fashion, since the conducted attainment test modeling showed that the area would attain the fine particles NAAQS by 2009. Indiana's attainment demonstration was validated by quality assured monitoring data at the end of 2009. Therefore, EPA is approving the existing measures as meeting the requirements of RACM/RACT. See 72 FR 20586. In addition to Indiana's modeling demonstration of expeditious attainment and confirmatory monitoring data, the primary source for both direct PM2.5 and its precursor emissions for Indiana's portion of the Cincinnati-Hamilton area (Tanners Creek power plant owned by American Electric Power) was permanently retired on June 1, 2015. As a result of its retirement, direct PM2.5 and PM2.5 precursor emissions in the Indiana portion of the area have decreased significantly, further improving air quality, above and beyond what Indiana demonstrated as necessary to maintain attainment. EPA has reviewed the State's RACM/RACT analysis and discussion in Indiana's attainment plan SIP revision, and agrees with the State's conclusion that no other reasonably available measures were available or necessary to attain or advance attainment of the standard. IV. What action is EPA taking? EPA is approving the RACM/RACT portion of Indiana's Cincinnati- Hamilton area attainment plan SIP revision as providing adequate RACM/ RACT consistent with the provisions of 40 CFR 51.1010(b), because Indiana has demonstrated that no further control measures would advance the attainment date in the area. We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective October 24, 2016 without further notice unless we receive relevant adverse written comments by September 26, 2016. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective October 24, 2016. V. Statutory and Executive Order Reviews Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4); Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997); Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an [[Page 58405]] 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 October 24, 2016. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. 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, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides. Dated: August 9, 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. Section 52.776 is amended by adding paragraph (y) to read as follows: Sec. 52.776 Control strategy: Particulate matter. * * * * * (y) Approval-By submittal dated July 3, 2008, Indiana demonstrated satisfaction of the requirements for reasonably available control measures for its portion of the Cincinnati-Hamilton OH-KY-IN area. [FR Doc. 2016-20312 Filed 8-24-16; 8:45 am] BILLING CODE 6560-50-P
![58402 Federal Register / Vol. 81, No. 165 / Thursday, August 25, 2016 / Rules and Regulations
EPA-APPROVED NORTH CAROLINA NON-REGULATORY PROVISIONS
State effective EPA Approval
Provision Federal Register citation Explanation
date date
* * * * * * *
May 2013 Regional Haze Progress Report ............... 5/31/2013 8/25/2016 [Insert citation of publica- Includes updated reason-
tion]. able progress goals for
North Carolina’s Class I
areas.
[FR Doc. 2016–20309 Filed 8–24–16; 8:45 am] comments cannot be edited or removed hour standard of 65 mg/m3 (based on a
BILLING CODE 6560–50–P from Regulations.gov. For either manner 3-year average of the 98th percentile of
of submission, EPA may publish any 24-hour concentrations). See 62 FR
comment received to its public docket. 38652. On December 17, 2004, based on
ENVIRONMENTAL PROTECTION Do not submit electronically any 2001–2003 monitoring data, EPA
AGENCY information you consider to be designated the Cincinnati-Hamilton OH-
Confidential Business Information (CBI) KY-IN area (the Cincinnati-Hamilton
40 CFR Part 52 or other information whose disclosure is area) as nonattainment for the annual
[EPA–R05–OAR–2016–0169; FRL–9951–29– restricted by statute. Multimedia standard for fine particles, and these
Region 5] submissions (audio, video, etc.) must be designations became effective on April
accompanied by a written comment. 5, 2005. See 70 FR 944. On July 3, 2008,
Air Plan Approval; Indiana; RACM The written comment is considered the Indiana requested that EPA redesignate
Determination for Indiana Portion of official comment and should include as attainment its portion of the
the Cincinnati-Hamilton 1997 Annual discussion of all points you wish to
PM2.5 Nonattainment Area Cincinnati-Hamilton area, showing that
make. EPA will generally not consider existing permanent and enforceable
AGENCY: Environmental Protection comments or comment contents located controls would provide for timely
Agency (EPA). outside of the primary submission (i.e. attainment of the 1997 PM2.5 standard
ACTION: Direct final rule. on the web, cloud, or other file sharing by the attainment deadline of April 5,
system). For additional submission 2010. On September 29, 2011, based on
SUMMARY: The Environmental Protection methods, please contact the person
Agency (EPA) is approving the 2007–2009 monitoring data, EPA made
identified in the FOR FURTHER a ‘‘clean data determination’’ and
reasonably available control measures INFORMATION CONTACT section. For the
(RACM) and reasonably available determination of attainment, indicating
full EPA public comment policy, that the entire area was attaining the
control technology (RACT) analysis that information about CBI or multimedia
Indiana submitted as part of its 1997 PM2.5 NAAQS by its applicable
submissions, and general guidance on attainment date. See 76 FR 60373. The
attainment plan for the 1997 fine making effective comments, please visit
particulate matter (PM2.5) standard, in clean data determination suspended all
http://www2.epa.gov/dockets/ further planning SIP revision
accordance with Indiana’s request dated commenting-epa-dockets.
February 11, 2016. The RACM/RACT requirements.
FOR FURTHER INFORMATION CONTACT: As part of its action approving the
analysis addresses RACM and RACT for
Joseph Ko, Environmental Engineer, redesignation of the Indiana and Ohio
the Indiana portion of the Cincinnati-
Attainment, Planning and Maintenance portions of the Cincinnati-Hamilton area
Hamilton nonattainment area for the
Section, Air Programs Branch (AR–18J), to attainment, published on December
1997 PM2.5 standard. EPA is not acting
Environmental Protection Agency, 23, 2011, EPA found that the states of
on the portions of the State
Region 5, 77 West Jackson Boulevard, Ohio and Indiana had satisfied the
Implementation Plan (SIP) submission
Chicago, Illinois 60604, (312) 886–7947, remaining applicable requirements,
that are unrelated to RACM/RACT.
ko.joseph@epa.gov. including the requirement to submit an
Other portions of the attainment plan
SUPPLEMENTARY INFORMATION: emission inventory in accordance with
have either been addressed or will be
addressed in future rulemaking actions. Throughout this document whenever section 172(c)(3). See 76 FR 80253. The
‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean redesignation to attainment was based,
DATES: This direct final rule will be
EPA. This supplementary information in part, on EPA’s longstanding
effective October 24, 2016, unless EPA
section is arranged as follows: interpretation that Subpart 1
receives adverse comments by
September 26, 2016. If adverse I. Background nonattainment planning requirements,
comments are received, EPA will II. What are EPA’s actions? including RACM, are not ‘‘applicable’’
publish a timely withdrawal of the III. What is EPA’s analysis of the State’s for purposes of Clean Air Act section
RACM submittal? 107(d)(3)(E)(ii) and (v) when an area is
direct final rule in the Federal Register IV. What action is EPA taking?
informing the public that the rule will attaining the NAAQS and, therefore,
V. Statutory and Executive Order Reviews
not take effect. need not be approved into the SIP
ADDRESSES: Submit your comments, I. Background before EPA can redesignate the area. See
identified by Docket ID No. EPA–R05– On July 18, 1997, EPA promulgated 76 FR 80258.
Lhorne on DSK30JT082PROD with RULES
OAR–2016–0169 at http:// the first national ambient air quality On July 14, 2015, the United States
www.regulations.gov or via email to standards (NAAQS) for PM2.5. EPA Court of Appeals for the Sixth Circuit
aburano.douglas@epa.gov. For promulgated an annual standard of 15 (Sixth Circuit) issued an opinion in
comments submitted at Regulations.gov, micrograms per cubic meter (mg/m3) Sierra Club v. EPA, 793 F.3d 656 (6th
follow the online instructions for (based on a 3-year average of annual Cir. 2015), vacating EPA’s redesignation
submitting comments. Once submitted, mean PM2.5 concentrations) and a 24- of the Indiana and Ohio portions of the
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![Federal Register / Vol. 81, No. 165 / Thursday, August 25, 2016 / Rules and Regulations 58403
Cincinnati-Hamilton area to attainment RACM, including RACT, under section requirements of section 172(c)(1)
for the 1997 PM2.5 NAAQS on the basis 172(c)(1) as measures that are both pursuant to 40 CFR 51.1010. Given the
that EPA had not approved subpart 1 reasonably available and necessary to similarity of requirements under
RACM for the area into the SIP.1 The demonstrate attainment as expeditiously Subpart 4, the submission also meets
Court concluded that ‘‘a State seeking as practicable in the nonattainment area. the RACT/RACM requirements of
redesignation ‘shall provide for the See 40 CFR 51.1010(a).2 A state must section 189(a)(1)(C).
implementation’ of RACM/RACT, even adopt, as RACM, measures that are c. RACM Based Upon the State’s Control
if those measures are not strictly reasonably available considering Evaluation
necessary to demonstrate attainment technical and economic feasibility if,
with the PM2.5 NAAQS. . . . If a State considered collectively, they would Additionally, the portion of Indiana’s
has not done so, EPA cannot ‘fully advance the attainment date by one year July 3, 2008 requested attainment plan
approve[]’ the area’s SIP, and or more. See 40 CFR 51.1010(b). EPA SIP revision that addresses Subpart 1
redesignation to attainment status is has also proposed implementation RACM for the State’s portion of the
improper.’’ Sierra Club, 793 F.3d at 670. policy that applies a similar Cincinnati-Hamilton area is approvable
EPA is adhering to the Court’s interpretation to RACM as required on the basis that the requested SIP
precedent within the jurisdiction of the under section 189(a)(1)(C). revision demonstrates that no additional
Sixth Circuit, which does not include The PM2.5 Implementation Rule (72 reasonably available controls would
Indiana. Regardless, on February 11, FR 20586) requires that the Subpart 1 have advanced the attainment date
2016, Indiana requested that EPA act on RACM portion of the attainment plan projected therein.
the RACM/RACT analysis for its portion SIP revision include the list of potential Indiana determined that existing
of the Cincinnati-Hamilton area from measures that a state considered and measures and measures planned for
the earlier attainment plan SIP revision implementation by 2009 would result in
additional information sufficient to
in order to eliminate any potential the Cincinnati-Hamilton area attaining
show that the state has met all
concern regarding the effect of the Sixth the 1997 PM2.5 NAAQS by the
requirements for the determination of
Circuit decision. attainment deadline of April 5, 2010.
what constitutes RACM in a specific
Air quality modeling conducted by Lake
II. What are EPA’s actions? nonattainment area. See 40 CFR
Michigan Air Directors Consortium
51.1010(a). Any measures that are
EPA is approving Indiana’s requested (LADCO) indicated that the area would
necessary to meet these requirements
SIP submission as providing for all attain the annual NAAQS in 2009 based
that are not already either federally
reasonably available control measures, upon projected emissions reductions
promulgated, part of the SIP, or
including reasonably available control from sources within the area after 2005
otherwise creditable in SIPs must be
technology, in accordance with the (the base year of the nonattainment
requirements of sections 172(c)(1) and submitted in enforceable form as part of emissions inventory). As discussed in
189(a)(1)(C). More detail on EPA’s a state’s attainment plan SIP revision for Chapter 6.0 of the July 3, 2008 SIP
rationale is provided below. the area. As discussed above, a clean submission, the State considered the
data determination suspends the following existing federally enforceable
III. What is EPA’s analysis of the State’s requirement for a PM2.5 nonattainment measures in projecting the emissions
RACM submittal? area to submit an attainment plan SIP inventory used for the 2009 modeling:
a. Subpart 1 and Subpart 4 RACM revision, including RACM, so long as Tier 2 vehicle standards; heavy-duty
Requirements the area continues to attain the PM2.5 gasoline and diesel highway vehicle
NAAQS. See 40 CFR 51.1004(c). standards; large non-road diesel engine
RACM is required under both Subpart
1 and Subpart 4 of Part D of Title I of b. RACM Based Upon Attainment of the standards; non-road spark-ignition
the CAA. See CAA section 172(c)(1) and NAAQS engines and recreational engines
section 189(a)(1)(C). Section 172(c)(1) standards; nitrogen oxides (NOX) SIP
EPA is approving the portion of call; and the Clean Air Interstate Rule
requires that each attainment plan Indiana’s July 3, 2008, requested
‘‘provide for the implementation of all (CAIR). Indiana adopted the NOX SIP
attainment plan SIP revision that Call in 2001, and beginning in 2004, this
reasonably available control measures as addresses Subpart 1 RACM for the
expeditiously as practicable (including rule accounted for a reduction of
State’s portion of the Cincinnati- approximately 31% of total NOX
such reductions in emissions from the Hamilton area on the basis that it is
existing sources in the area as may be emissions in Indiana compared to
attaining the 1997 Annual PM2.5 previous uncontrolled years. Indiana
obtained through the adoption, at a NAAQS and, therefore, no additional
minimum, of reasonably available adopted a state rule in response to CAIR
emission reduction measures beyond in 2006 which included an annual and
control technology), and shall provide the existing measures in the SIP are
for attainment of the national primary seasonal NOX trading program, and an
necessary to demonstrate attainment or annual SO2 trading program.
ambient air quality standards.’’ Similar would advance the area’s attainment by
language in section 189(a)(1)(C) requires In addition to the federally
one year or more. As noted above, EPA enforceable measures mentioned above,
RACM for PM2.5 plans. EPA’s current determined that the area met the
implementation guidance interprets Indiana also considered further Federal
standard by the April 5, 2010 attainment and statewide control measures that,
1 The Court issued its initial decision in the case
date. See 76 FR 60373. Indiana’s once implemented, would further
on March 18, 2015, and subsequently issued an submission therefore meets the reduce emissions, but that were not
amended opinion on July 14 after appeals for included in the modeling
rehearing en banc and panel rehearing had been 2 Subpart 1 RACM requirements at 40 CFR
demonstration. The Portable Fuel
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filed. The amended opinion revised some of the 51.1010 were not at issue in the D.C. Circuit’s
legal aspects of the Court’s analysis of the relevant remand of the PM2.5 implementation rule in the Container (Gas Can) Controls, and the
statutory provisions (section 107(d)(3)(E)(ii) and January 2013 Natural Resources Defense Council v. Small Non-Road Engine Rules were
section 172(c)(1)) but the overall holding of the EPA decision and are therefore not subject to the considered as additional Federal
opinion was unaltered. On March 28, 2016, the Court’s remand. Cf. NRDC v. EPA, 571 F.3d 1245,
Supreme Court denied a petition for certiorari from 1252–53 (D.C. Cir. 2009) (upholding a substantially
controls that would reduce emissions.
Ohio requesting review of the Sixth Circuit’s similar interpretation of Subpart 1 RACM in the The Gas Can Controls Rule was issued
decision. context of ozone implementation regulations). on February 26, 2007 (71 FR 15830), and
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![Federal Register / Vol. 81, No. 165 / Thursday, August 25, 2016 / Rules and Regulations 58405
Indian tribe has demonstrated that a PART 52—APPROVAL AND edited or removed from Regulations.gov.
tribe has jurisdiction. In those areas of PROMULGATION OF The EPA may publish any comment
Indian country, the rule does not have IMPLEMENTATION PLANS received to its public docket. Do not
tribal implications and will not impose submit electronically any information
substantial direct costs on tribal ■ 1. The authority citation for part 52 you consider to be Confidential
governments or preempt tribal law as continues to read as follows: Business Information (CBI) or other
specified by Executive Order 13175 (65 Authority: 42 U.S.C. 7401 et seq. information whose disclosure is
FR 67249, November 9, 2000). restricted by statute. Multimedia
■ 2. Section 52.776 is amended by
The Congressional Review Act, 5 submissions (audio, video, etc.) must be
adding paragraph (y) to read as follows:
U.S.C. 801 et seq., as added by the Small accompanied by a written comment.
Business Regulatory Enforcement § 52.776 Control strategy: Particulate The written comment is considered the
Fairness Act of 1996, generally provides matter. official comment and should include
that before a rule may take effect, the * * * * * discussion of all points you wish to
agency promulgating the rule must (y) Approval-By submittal dated July make. The EPA will generally not
submit a rule report, which includes a 3, 2008, Indiana demonstrated consider comments or comment
copy of the rule, to each House of the satisfaction of the requirements for contents located outside of the primary
Congress and to the Comptroller General reasonably available control measures submission (i.e., on the Web, cloud, or
of the United States. EPA will submit a for its portion of the Cincinnati- other file sharing system).
report containing this action and other Hamilton OH-KY-IN area. For additional submission methods,
required information to the U.S. Senate, the full EPA public comment policy,
[FR Doc. 2016–20312 Filed 8–24–16; 8:45 am]
the U.S. House of Representatives, and information about CBI or multimedia
BILLING CODE 6560–50–P
the Comptroller General of the United submissions, and general guidance on
States prior to publication of the rule in making effective comments, please visit
the Federal Register. A major rule http://www2.epa.gov/dockets/
ENVIRONMENTAL PROTECTION
cannot take effect until 60 days after it commenting-epa-dockets.
AGENCY
is published in the Federal Register. FOR FURTHER INFORMATION CONTACT:
This action is not a ‘‘major rule’’ as 40 CFR Part 62 Edward J. Linky, Environmental
defined by 5 U.S.C. 804(2). Protection Agency, Air Programs
[EPA–R02–OAR–2016–0088; FRL–9951–24– Branch, 290 Broadway, New York, New
Under section 307(b)(1) of the CAA, Region 2]
petitions for judicial review of this York 10007–1866 at 212–637–3764 or
action must be filed in the United States by email at Linky.Edward@epa.gov.
Approval and Promulgation of State
Court of Appeals for the appropriate SUPPLEMENTARY INFORMATION:
Plans for Designated Facilities and
circuit by October 24, 2016. Filing a Pollutants; Virgin Islands; Sewage Throughout this document ‘‘we,’’ ‘‘us,’’
petition for reconsideration by the Sludge Incinerators or ‘‘our’’ refer to the EPA. This section
Administrator of this final rule does not provides additional information by
affect the finality of this action for the AGENCY: Environmental Protection addressing the following:
purposes of judicial review nor does it Agency (EPA). I. Background
extend the time within which a petition ACTION: Direct final rule. II. Analysis of State Submittal
for judicial review may be filed, and III. Statutory and Executive Order Reviews
shall not postpone the effectiveness of SUMMARY: The Environmental Protection
Agency (EPA) is taking direct final I. Background
such rule or action. Parties with
action to approve the Clean Air Act The Clean Air Act (CAA) requires that
objections to this direct final rule are
(CAA) section 111(d)/129 negative state 1 regulatory agencies implement
encouraged to file a comment in
declaration for the Government of the the emission guidelines and compliance
response to the parallel notice of
United States Virgin Islands, for existing times using a state plan developed
proposed rulemaking for this action
sewage sludge incinerator (SSI) units. under sections 111(d) and 129 of the
published in the proposed rules section
This negative declaration certifies that CAA.
of today’s Federal Register, rather than The general provisions for the
file an immediate petition for judicial existing SSI units subject to sections
111(d) and 129 of the CAA do not exist submittal and approval of state plans are
review of this direct final rule, so that codified in 40 CFR part 60, subpart B
EPA can withdraw this direct final rule within the jurisdiction of United States
Virgin Islands. The EPA is accepting the and 40 CFR part 62, subpart A. Section
and address the comment in the 111(d) establishes general requirements
proposed rulemaking. This action may negative declaration in accordance with
the requirements of the CAA. and procedures on state plan submittals
not be challenged later in proceedings to for the control of designated pollutants.
enforce its requirements. (See section DATES: This direct final rule will be
Section 129 requires emission
307(b)(2).) effective October 24, 2016, without guidelines to be promulgated for all
further notice, unless the EPA receives categories of solid waste incineration
List of Subjects in 40 CFR Part 52 adverse comment by September 26, units, including SSI units. Section 129
Environmental protection, Air 2016. If EPA receives adverse comment, mandates that all plan requirements be
pollution control, Incorporation by we will publish a timely withdrawal of at least as protective and restrictive as
reference, Intergovernmental relations, the direct final rule in the Federal the promulgated emission guidelines.
Nitrogen dioxide, Particulate matter, Register informing the public that the This includes fixed final compliance
Reporting and recordkeeping rule will not take effect. dates, fixed compliance schedules, and
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requirements, Sulfur oxides. ADDRESSES: Submit your comments, Title V permitting requirements for all
Dated: August 9, 2016. identified by Docket ID No. EPA–R02– affected sources. Section 129 also
Robert A. Kaplan, OAR–016–0088), to http:// requires that state plans be submitted to
Acting Regional Administrator, Region 5.
www.regulations.gov. Follow the online
instructions for submitting comments. 1 Section 302(d) of the CAA includes the Virgin
40 CFR part 52 is amended as follows: Once submitted, comments cannot be Islands in the definition of the term ‘‘State.’’
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Document Created: 2016-08-25 00:34:41
Document Modified: 2016-08-25 00:34:41
| 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 | Direct final rule. | |
| Dates | This direct final rule will be effective October 24, 2016, unless EPA receives adverse comments by September 26, 2016. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect. | |
| Contact | Joseph Ko, Environmental Engineer, Attainment, Planning and Maintenance Section, Air Programs Branch (AR- 18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-7947, [email protected] | |
| FR Citation | 81 FR 58402 | |
| CFR Associated | Environmental Protection; Air Pollution Control; Incorporation by Reference; Intergovernmental Relations; Nitrogen Dioxide; Particulate Matter; Reporting and Recordkeeping Requirements and Sulfur Oxides |
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