[Federal Register Volume 78, Number 67 (Monday, April 8, 2013)]
[Proposed Rules]
[Pages 20856-20868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-08122]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2009-0839; FRL-9799-5]
Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Redesignation of the Indianapolis Area to Attainment of the
1997 Annual Standard for Fine Particulate Matter
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; supplemental.
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SUMMARY: EPA is issuing a supplement to its proposed approval of the
State of Indiana's request to redesignate the Indianapolis area to
attainment for the 1997 annual National Ambient Air Quality Standards
(NAAQS or standard) for fine particulate matter (PM2.5).
This supplemental proposal revises and expands the basis for proposing
approval of the state's request, in light of developments since EPA
issued its initial proposal on September 27, 2011. This supplemental
proposal addresses four issues, including the effects of two decisions
of the United States Court of
[[Page 20857]]
Appeals for the District of Columbia (D.C. Circuit or Court): the
Court's August 21, 2012 decision to vacate and remand to EPA the Cross-
State Air Pollution Control Rule (CSAPR) and the Court's January 4,
2013 decision to remand to EPA two final rules implementing the 1997
PM2.5 standard. In this supplemental proposal, EPA is also
proposing to approve a supplement to the emission inventories
previously submitted by the state. EPA is proposing that the
inventories for ammonia and Volatile Organic Compounds (VOC), in
conjunction with the inventories for nitrogen oxides (NOX),
direct PM2.5, and sulfur dioxide (SO2) that EPA
previously proposed to approve, meet the comprehensive emissions
inventory requirement of the Clean Air Act (CAA). Finally, this
supplemental proposal solicits comment on the state's January 17, 2013
submission of Motor Vehicle Emissions Budgets (MVEBs) developed using
EPA's Motor Vehicle Emissions Simulator (MOVES) 2010a emissions model
to replace the MOBILE6.2 based MVEBs previously submitted as part of
the PM2.5 maintenance plan for the Indianapolis area. EPA is
seeking comment only on the issues raised in its supplemental proposal,
and is not re-opening for comment other issues raised in its prior
proposal.
DATES: Comments must be received on or before April 29, 2013.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0839, by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected].
3. Fax: (312) 408-2279.
4. Mail: Doug Aburano, Chief, Attainment Planning and Maintenance
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.
5. Hand delivery: Doug Aburano, Chief, Attainment Planning and
Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental
Protection Agency, 77 West Jackson Boulevard, 18th floor, Chicago,
Illinois 60604. Such deliveries are only accepted during the Regional
Office normal hours of operation, and special arrangements should be
made for deliveries of boxed information. The Regional Office official
hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2009-0839. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
instructions on submitting comments, go to Section I of this document,
``What Should I Consider as I Prepare My Comments for EPA?''
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the Environmental Protection
Agency, Region 5, Air and Radiation Division, 77 West Jackson
Boulevard, Chicago, Illinois 60604. This facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
We recommend that you telephone Kathleen D'Agostino, Environmental
Engineer, at (312) 886-1767 before visiting the Region 5 office.
FOR FURTHER INFORMATION CONTACT: Kathleen D'Agostino, 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) 886-1767,
[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 should I consider as I prepare my comments for EPA?
II. What is the background for the supplemental proposal?
III. On what specific issues is EPA taking comments?
A. Effect of the August 21, 2012 D.C. Circuit Decision Regarding
EPA's CSAPR
1. Background
2. Supplemental Proposal on This Issue
B. Effect of the January 4, 2013 D.C. Circuit Decision Regarding
PM2.5 Implementation Under Subpart 4
1. Background
2. Supplemental Proposal on This Issue
a. Applicable Requirements for Purposes of Evaluating the
Redesignation Request
b. Subpart 4 Requirements and Indiana's Redesignation Request
c. Subpart 4 and Control of PM2.5 Precursors
d. Maintenance Plan and Evaluation of Precursors
C. Ammonia and VOC Comprehensive Emissions Inventories
D. MVEBs
1. How are MVEBs developed and what are the MVEBs for the
Indianapolis area?
2. What are safety margins?
IV. Summary of Proposed Actions
V. Statutory and Executive Order Reviews
I. What should I consider as I prepare my comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date, and page number).
2. Follow directions--EPA may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
[[Page 20858]]
8. Make sure to submit your comments by the comment period deadline
identified.
II. What is the background for the supplemental proposal?
On October 20, 2009, the Indiana Department of Environmental
Management (IDEM) submitted a request to EPA to redesignate the
Indianapolis nonattainment area (Hamilton, Hendricks, Johnson, Marion,
and Morgan counties) to attainment for the 1997 annual PM2.5
NAAQS, and for EPA approval of Indiana's State Implementation Plan
(SIP) revision containing an emissions inventory and a maintenance plan
for the area. IDEM supplemented its submission on May 31, 2011.
On September 27, 2011, EPA published notices of proposed (76 FR
59599) and direct final (76 FR 59512) rulemaking determining that the
Indianapolis area has attained the 1997 annual PM2.5
standard and that the area has met the requirements for redesignation
under section 107(d)(3)(E) of the CAA. In those rules EPA proposed
several related actions. First, EPA proposed to approve the request
from IDEM to change the legal designation of the Indianapolis area from
nonattainment to attainment for the 1997 annual PM2.5 NAAQS.
EPA also proposed to approve Indiana's PM2.5 maintenance
plan for the Indianapolis area as a revision to the Indiana SIP because
the plan meets the requirements of section 175A of the CAA. In
addition, EPA proposed to approve 2006 emissions inventories for
primary PM2.5, NOX, and SO2,
documented in Indiana's May 31, 2011 PM2.5 redesignation
request supplemental submittal as satisfying the requirement in section
172(c)(3) of the CAA for a comprehensive, current emission inventory.
Finally, EPA found adequate and proposed to approve 2015 and 2025
direct PM2.5 and NOX MVEBs for the Indianapolis
area. EPA subsequently received adverse comments on the direct final
rule and withdrew it on November 27, 2011 (76 FR 70361). The proposal
was not withdrawn.
EPA today is issuing a supplement to its September 27, 2011
proposed rulemaking. This supplemental proposal addresses four separate
issues which affect the proposed redesignation and which have arisen
since the issuance of the proposal: two recent decisions of the D.C.
Circuit, the State of Indiana's supplemental submission of
comprehensive ammonia and VOC emissions inventories, and the State of
Indiana's supplemental submission of revised MVEBs.
In the first of the two Court decisions, the D.C. Circuit, on
August 21, 2012, issued EME Homer City Generation, L.P. v. EPA, 696
F.3d 7 (D.C. Cir. 2012), which vacated and remanded CSAPR and ordered
EPA to continue administering the Clean Air Interstate Rule (CAIR)
``pending * * * development of a valid replacement.'' EME Homer City at
38. The D.C. Circuit denied all petitions for rehearing on January 24,
2013. In the second decision, on January 4, 2013, in Natural Resources
Defense Council v. EPA, the D.C. Circuit remanded to EPA the ``Final
Clean Air Fine Particle Implementation Rule'' (72 FR 20586, April 25,
2007) and the ``Implementation of the New Source Review (NSR) Program
for Particulate Matter Less than 2.5 Micrometers (PM2.5)''
final rule (73 FR 28321, May 16, 2008). 706 F.3d 428 (D.C. Cir. 2013).
In a supplemental submission to EPA on March 18, 2013, Indiana
submitted 2007/2008 ammonia and VOC emissions inventories to supplement
the emissions inventories that had previously been submitted. In a
separate supplemental submission dated January 17, 2013, the state
submitted MVEBs developed using EPA's MOVES 2010a emissions model to
replace the MOBILE6.2 based MVEBs previously submitted as part of the
PM2.5 maintenance plan for the Indianapolis area. Therefore,
EPA's supplemental proposal revises and expands the basis for EPA's
proposed approval of the state's request to redesignate the
Indianapolis area to attainment for the 1997 PM2.5 standard,
in light of these developments since EPA's initial proposal.
III. On what specific issues is EPA taking comments?
A. Effect of the August 21, 2012 D.C. Circuit Decision Regarding EPA's
CSAPR
1. Background
In its September 27, 2011 proposal to redesignate the Indianapolis
area, EPA proposed to determine that the emission reduction
requirements that contributed to attainment of the 1997 annual
PM2.5 standard in the nonattainment area could be considered
permanent and enforceable. In the proposal, EPA noted that it had
recently promulgated CSAPR (76 FR 48208, August 8, 2011), to replace
CAIR, which had been in place since 2005. See 76 FR 59517. CAIR
requires significant reductions in emissions of SO2 and
NOX from electric generating units to limit the interstate
transport of these pollutants and the ozone and fine particulate matter
they form in the atmosphere. See 76 FR 70093. The D.C. Circuit
initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.
2008), but ultimately remanded that rule to EPA without vacatur to
preserve the environmental benefits provided by CAIR, North Carolina v.
EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008).
CSAPR included regulatory changes to sunset (i.e., discontinue)
CAIR and the CAIR Federal Implementation Plans (FIPs) for control
periods in 2012 and beyond. See 76 FR 48322. Although Indiana's
redesignation request and maintenance plan relied on reductions
associated with CAIR, EPA proposed to approve the request based in part
on the fact that CAIR was to remain in force through the end of 2011
and CSAPR would achieve ``similar or greater reductions in the relevant
areas in 2012 and beyond.'' 76 FR 59517.
On December 30, 2011, the D.C. Circuit issued an order addressing
the status of CSAPR and CAIR in response to motions filed by numerous
parties seeking a stay of CSAPR pending judicial review. In that order,
the Court stayed CSAPR pending resolution of the petitions for review
of that rule in EME Homer City Generation, L.P. v. EPA (No. 11-1302 and
consolidated cases). The Court also indicated that EPA was expected to
continue to administer CAIR in the interim until judicial review of
CSAPR was completed.
On August 21, 2012, the D.C. Circuit issued the decision in EME
Homer City, to vacate and remand CSAPR and ordered EPA to continue
administering CAIR ``pending * * * development of a valid
replacement.'' EME Homer City at 38. The D.C. Circuit denied all
petitions for rehearing on January 24, 2013. The deadline to file
petitions for certiorari to the U.S. Supreme Court has not passed.\1\
Nonetheless, EPA intends to continue to act in accordance with the EME
Homer City opinion. EPA is therefore issuing this portion of its
supplemental proposal to explain the legal status of CAIR and CSAPR,
and to provide a limited opportunity to comment specifically on the
impact of the EME Homer City decision on the proposed redesignation of
the Indianapolis area.
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\1\ Pursuant to Rule 13 of the U.S. Supreme Court Rules, a
petition for certiorari must be filed within 90 days of the date of
denial of rehearing. The Supreme Court may extend this deadline for
good cause by up to 60 days.
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2. Supplemental Proposal on This Issue
In light of these unique circumstances and for the reasons
explained below, EPA in this portion of its supplemental rule is
seeking comment limited to the impact of the Court's decision in EME
[[Page 20859]]
Homer City on EPA's proposal to approve the redesignation request and
the related SIP revisions for the Indianapolis area, including
Indiana's plan for maintaining attainment of the annual
PM2.5 standard in the area. As explained in greater detail
below, to the extent that attainment is due to emission reductions
associated with CAIR, EPA is here determining that those reductions are
sufficiently permanent and enforceable for purposes of CAA sections
107(d)(3)(E)(iii) and 175A.
As directed by the D.C. Circuit, CAIR remains in place and
enforceable until EPA promulgates a valid replacement rule to
substitute for CAIR. Indiana's SIP revision lists CAIR as a control
measure that was adopted by the State in 2006 and required compliance
by January 1, 2009. CAIR was thus in place and getting emission
reductions when Indianapolis began monitoring attainment of the 1997
annual PM2.5 standard during the 2006-2008 time period. The
quality-assured, certified monitoring data continues to show the area
in attainment of the 1997 PM2.5 standard through 2011.
To the extent that Indiana is relying on CAIR in its maintenance
plan to support continued attainment into the future, the recent
directive from the DC Circuit in EME Homer City ensures that the
reductions associated with CAIR will be permanent and enforceable for
the necessary time period. EPA has been ordered by the Court to develop
a new rule to address interstate transport to replace CSAPR and the
opinion makes clear that after promulgating that new rule EPA must
provide states an opportunity to draft and submit SIPs to implement
that rule. Thus, CAIR will remain in place until EPA has promulgated a
final rule through a notice-and-comment rulemaking process, states have
had an opportunity to draft and submit SIPs in response to it, EPA has
reviewed the SIPs to determine if they can be approved, and EPA has
taken action on the SIPs, including promulgating a FIP if appropriate.
The Court's clear instruction to EPA is that it must continue to
administer CAIR until a valid replacement exists, and thus EPA believes
that CAIR emission reductions may be relied upon until the necessary
actions are taken by EPA and states to administer CAIR's replacement.
Furthermore, the Court's instruction provides an additional backstop:
by definition, any rule that replaces CAIR and meets the Court's
direction would require upwind states to have SIPs that eliminate any
significant contributions to downwind nonattainment and prevent
interference with maintenance in downwind areas.
Moreover, in vacating CSAPR and requiring EPA to continue
administering CAIR, the D.C. Circuit emphasized that the consequences
of vacating CAIR ``might be more severe now in light of the reliance
interests accumulated over the intervening four years.'' EME Homer
City, 696 F.3d at 38. The accumulated reliance interests include the
interests of states that reasonably assumed they could rely on
reductions associated with CAIR which brought certain nonattainment
areas into attainment with the NAAQS. If EPA were prevented from
relying on reductions associated with CAIR in redesignation actions,
states would be forced to impose additional, redundant reductions on
top of those achieved by CAIR. EPA believes this is precisely the type
of irrational result the Court sought to avoid by ordering EPA to
continue administering CAIR. For these reasons also, EPA believes it is
appropriate to allow states to rely on CAIR, and the existing emissions
reductions achieved by CAIR, as sufficiently permanent and enforceable
for regulatory purposes such as redesignations. Following promulgation
of the replacement rule for CSAPR, EPA will review existing SIPs as
appropriate to identify whether there are any issues that need to be
addressed.
B. Effect of the January 4, 2013 D.C. Circuit Decision Regarding
PM2.5 Implementation Under Subpart 4
1. Background
As discussed above, on January 4, 2013, in Natural Resources
Defense Council v. EPA, the D.C. Circuit remanded to EPA the ``Final
Clean Air Fine Particle Implementation Rule'' (72 FR 20586, April 25,
2007) and the ``Implementation of the New Source Review (NSR) Program
for Particulate Matter Less than 2.5 Micrometers (PM2.5)''
final rule (73 FR 28321, May 16, 2008) (collectively, ``1997
PM2.5 Implementation Rule''). 706 F.3d 428 (D.C. Cir. 2013).
The Court found that EPA erred in implementing the 1997
PM2.5 NAAQS pursuant to the general implementation
provisions of subpart 1 of Part D of Title I of the CAA, rather than
the particulate-matter-specific provisions of subpart 4 of Part D of
Title I.
2. Supplemental Proposal on This Issue
In this portion of EPA's supplemental proposal, EPA is soliciting
comment on the limited issue of the effect of the Court's January 4,
2013 ruling on the proposed redesignation of Indianapolis to attainment
for the 1997 annual PM2.5 standard. As explained below, EPA
is proposing to determine that the Court's January 4, 2013 decision
does not prevent EPA from redesignating the Indianapolis area to
attainment, because even in light of the Court's decision,
redesignation for this area is appropriate under the CAA and EPA's
longstanding interpretations of the CAA's provisions regarding
redesignation. EPA first explains its longstanding interpretation that
requirements that are imposed, or that become due, after a complete
redesignation request is submitted for an area that is attaining the
standard, are not applicable for purposes of evaluating a redesignation
request. Second, EPA then shows that, even if EPA applies the subpart 4
requirements to the Indianapolis redesignation request and disregards
the provisions of its 1997 PM2.5 implementation rule
recently remanded by the Court, the state's request for redesignation
of this area still qualifies for approval. EPA's discussion takes into
account the effect of the Court's ruling on the area's maintenance
plan, which EPA views as approvable when subpart 4 requirements are
considered.
a. Applicable Requirements for Purposes of Evaluating the Redesignation
Request
With respect to the 1997 PM2.5 Implementation Rule, the
Court's January 4, 2013 ruling rejected EPA's reasons for implementing
the PM2.5 NAAQS solely in accordance with the provisions of
subpart 1, and remanded that matter to EPA, so that it could address
implementation of the 1997 PM2.5 NAAQS under subpart 4 of
Part D of the CAA, in addition to subpart 1. For the purposes of
evaluating Indiana's redesignation request for the Indianapolis area,
to the extent that implementation under subpart 4 would impose
additional requirements for areas designated nonattainment, EPA
believes that those requirements are not ``applicable'' for the
purposes of CAA section 107(d)(3)(E), and thus EPA is not required to
consider subpart 4 requirements with respect to the Indianapolis
redesignation. Under its longstanding interpretation of the CAA, EPA
has interpreted section 107(d)(3)(E) to mean, as a threshold matter,
that the part D provisions which are ``applicable'' and which must be
approved in order for EPA to redesignate an area include only those
which came due prior to a state's submittal of a complete redesignation
request. See ``Procedures for Processing Requests to Redesignate Areas
to Attainment,'' Memorandum from John
[[Page 20860]]
Calcagni, Director, Air Quality Management Division, September 4, 1992
(Calcagni memorandum). See also ``State Implementation Plan (SIP)
Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air
Quality Standards (NAAQS) on or after November 15, 1992,'' Memorandum
from Michael Shapiro, Acting Assistant Administrator, Air and
Radiation, September 17, 1993 (Shapiro memorandum); Final Redesignation
of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 1995); Final
Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-27, May 12,
2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding
EPA's redesignation rulemaking applying this interpretation and
expressly rejecting Sierra Club's view that the meaning of
``applicable'' under the statute is ``whatever should have been in the
plan at the time of attainment rather than whatever actually was in the
plan and already implemented or due at the time of attainment'').\2\ In
this case, at the time that Indiana submitted its redesignation
request, requirements under subpart 4 were not due, and indeed, were
not yet known to apply.
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\2\ Applicable requirements of the CAA that come due subsequent
to the area's submittal of a complete redesignation request remain
applicable until a redesignation is approved, but are not required
as a prerequisite to redesignation. Section 175A(c) of the CAA.
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EPA's view that, for purposes of evaluating the Indianapolis
redesignation, the subpart 4 requirements were not due at the time
Indiana submitted the redesignation request is in keeping with the
EPA's interpretation of subpart 2 requirements for subpart 1 ozone
areas redesignated subsequent to the D.C. Circuit's decision in South
Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). In
South Coast, the Court found that EPA was not permitted to implement
the 1997 8-hour ozone standard solely under subpart 1, and held that
EPA was required under the statute to implement the standard under the
ozone-specific requirements of subpart 2 as well. Subsequent to the
South Coast decision, in evaluating and acting upon redesignation
requests for the 1997 8-hour ozone standard that were submitted to EPA
for areas under subpart 1, EPA applied its longstanding interpretation
of the CAA that ``applicable requirements'', for purposes of evaluating
a redesignation, are those that had been due at the time the
redesignation request was submitted. See, e.g., Proposed Redesignation
of Manitowoc County and Door County Nonattainment Areas (75 FR 22047,
22050, April 27, 2010). In those actions, EPA therefore did not
consider subpart 2 requirements to be ``applicable'' for the purposes
of evaluating whether the area should be redesignated under section
107(d)(3)(E).
EPA's interpretation derives from the provisions of CAA Section
107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be
redesignated, a state must meet ``all requirements `applicable' to the
area under section 110 and part D''. Section 107(d)(3)(E)(ii) provides
that the EPA must have fully approved the ``applicable'' SIP for the
area seeking redesignation. These two sections read together support
EPA's interpretation of ``applicable'' as only those requirements that
came due prior to submission of a complete redesignation request.
First, holding states to an ongoing obligation to adopt new CAA
requirements that arose after the state submitted its redesignation
request, in order to be redesignated, would make it problematic or
impossible for EPA to act on redesignation requests in accordance with
the 18-month deadline Congress set for EPA action in section
107(d)(3)(D). If ``applicable requirements'' were interpreted to be a
continuing flow of requirements with no reasonable limitation, states,
after submitting a redesignation request, would be forced continuously
to make additional SIP submissions that in turn would require EPA to
undertake further notice-and-comment rulemaking actions to act on those
submissions. This would create a regime of unceasing rulemaking that
would delay action on the redesignation request beyond the 18-month
timeframe provided by the Act for this purpose.
Second, a fundamental premise for redesignating a nonattainment
area to attainment is that the area has attained the relevant NAAQS due
to emission reductions from existing controls. Thus, an area for which
a redesignation request has been submitted would have already attained
the NAAQS as a result of satisfying statutory requirements that came
due prior to the submission of the request. Absent a showing that
unadopted and unimplemented requirements are necessary for future
maintenance, it is reasonable to view the requirements applicable for
purposes of evaluating the redesignation request as including only
those SIP requirements that have already come due. These are the
requirements that led to attainment of the NAAQS. To require, for
redesignation approval, that a state also satisfy additional SIP
requirements coming due after the state submits its complete
redesignation request, and while EPA is reviewing it, would compel the
state to do more than is necessary to attain the NAAQS, without a
showing that the additional requirements are necessary for maintenance.
In the context of the Indianapolis redesignation, the timing and
nature of the Court's January 4, 2013 decision in NRDC v. EPA compound
the consequences of imposing requirements that come due after the
redesignation request is submitted. While Indiana submitted its
redesignation request in 2009 and EPA proposed to approve it in 2011,
the Court did not issue its decision remanding EPA's 1997
PM2.5 implementation rule concerning the applicability of
the provisions of subpart 4 until January 2013.
To require Indiana's fully-completed and long-pending redesignation
request to comply now with requirements of subpart 4 that the Court has
just announced would be to give retroactive effect to such requirements
when the State had no notice that it was required to meet them. The
D.C. Circuit recognized the inequity of this type of retroactive impact
in Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002),\3\ where it
upheld the District Court's ruling refusing to make retroactive EPA's
determination that the St. Louis area did not meet its attainment
deadline. In that case, petitioners urged the Court to make EPA's
nonattainment determination effective as of the date that the statute
required, rather than the later date on which EPA actually made the
determination. The Court rejected this view, stating that applying it
``would likely impose large costs on States, which would face fines and
suits for not implementing air pollution prevention plans * * * even
though they were not on notice at the time.'' Id. at 68. Similarly, it
would be unreasonable to penalize Indiana by rejecting its
redesignation request for an area that is already attaining the 1997
PM2.5 standard and that met all applicable requirements
known to be in effect at the time of the request. For EPA now to reject
the redesignation request solely because the state did not expressly
address subpart 4 requirements of which it had no notice, would inflict
the same unfairness
[[Page 20861]]
condemned by the Court in Sierra Club v. Whitman.
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\3\ Sierra Club v. Whitman was discussed and distinguished in a
recent D.C. Circuit decision that addressed retroactivity in a quite
different context, where, unlike the situation here, EPA sought to
give its regulations retroactive effect. National Petrochemical and
Refiners Ass'n v. EPA. 630 F.3d 145, 163 (D.C. Cir. 2010), rehearing
denied 643 F.3d 958 (D.C. Cir. 2011), cert denied 132 S. Ct. 571
(2011).
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b. Subpart 4 Requirements and Indiana's Redesignation Request
Even if EPA were to take the view that the Court's January 4, 2013
decision requires that, in the context of pending redesignations,
subpart 4 requirements were due and in effect at the time the State
submitted its redesignation request, EPA proposes to determine that the
Indianapolis area still qualifies for redesignation to attainment. As
explained below, EPA believes that the redesignation request for the
Indianapolis area, though not expressed in terms of subpart 4
requirements, substantively meets the requirements of that subpart for
purposes of redesignating the area to attainment.
With respect to evaluating the relevant substantive requirements of
subpart 4 for purposes of redesignating the Indianapolis area, EPA
notes that subpart 4 incorporates components of subpart 1 of part D,
which contains general air quality planning requirements for areas
designated as nonattainment. See Section 172(c). Subpart 4 itself
contains specific planning and scheduling requirements for
PM10 \4\ nonattainment areas, and under the Court's January
4, 2013 decision in NRDC v. EPA, these same statutory requirements also
apply for PM2.5 nonattainment areas. EPA has longstanding
general guidance that interprets the 1990 amendments to the CAA, making
recommendations to states for meeting the statutory requirements for
SIPs for nonattainment areas. See, ``State Implementation Plans;
General Preamble for the Implementation of Title I of the Clear Air Act
Amendments of 1990,'' 57 FR 13498 (April 16, 1992) (the ``General
Preamble''). In the General Preamble, EPA discussed the relationship of
subpart 1 and subpart 4 SIP requirements, and pointed out that subpart
1 requirements were to an extent ``subsumed by, or integrally related
to, the more specific PM-10 requirements.'' 57 FR 13538 (April 16,
1992). EPA's previously published proposal for this redesignation
action addressed how the Indianapolis area meets the requirements for
redesignation under subpart 1. These subpart 1 requirements include,
among other things, provisions for attainment demonstrations,
reasonably available control measures (RACM), reasonable further
progress (RFP), emissions inventories, and contingency measures.
---------------------------------------------------------------------------
\4\ PM10 refers to particulates nominally 10
micrometers in diameter or smaller.
---------------------------------------------------------------------------
For the purposes of this redesignation, in order to identify any
additional requirements which would apply under subpart 4, we are
considering the Indianapolis area to be a ``moderate'' PM2.5
nonattainment area. Under section 188 of the CAA, all areas designated
nonattainment areas under subpart 4 would initially be classified by
operation of law as ``moderate'' nonattainment areas, and would remain
moderate nonattainment areas unless and until EPA reclassifies the area
as a ``serious'' nonattainment area.\5\ Accordingly, EPA believes that
it is appropriate to limit the evaluation of the potential impact of
subpart 4 requirements to those that would be applicable to moderate
nonattainment areas. Sections 189(a) and (c) of subpart 4 apply to
moderate nonattainment areas and include the following: (1) An approved
permit program for construction of new and modified major stationary
sources (section 189(a)(1)(A)); (2) an attainment demonstration
(section 189(a)(1)(B)); (3) provisions for RACM (section 189(a)(1)(C));
and (4) quantitative milestones demonstrating RFP toward attainment by
the applicable attainment date (section 189(c)).
---------------------------------------------------------------------------
\5\ Section 188(a) also provides that EPA publish a notice
announcing the classification of each area under subpart 4.
---------------------------------------------------------------------------
The permit requirements of subpart 4, as contained in section
189(a)(1)(A), refer to and apply the subpart 1 permit provisions
requirements of sections 172 and 173 to PM10, without adding
to them. Consequently, EPA believes that section 189(a)(1)(A) does not
itself impose for redesignation purposes any additional requirements
for moderate areas beyond those contained in subpart 1.\6\ In any
event, in the context of redesignation, EPA has long relied on the
interpretation that a fully approved nonattainment new source review
program is not considered an applicable requirement for redesignation,
provided the area can maintain the standard with a prevention of
significant deterioration (PSD) program after redesignation. A detailed
rationale for this view is described in a memorandum from Mary Nichols,
Assistant Administrator for Air and Radiation, dated October 14, 1994,
entitled, ``Part D New Source Review Requirements for Areas Requesting
Redesignation to Attainment.'' See also rulemakings for Detroit,
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain,
Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66
FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-
31837, June 21, 1996).
---------------------------------------------------------------------------
\6\ The potential effect of section 189(e) on section
189(a)(1)(A) for purposes of evaluating this redesignation is
discussed below.
---------------------------------------------------------------------------
With respect to the specific attainment planning requirements under
subpart 4,\7\ when EPA evaluates a redesignation request under either
subpart 1 and/or 4, any area that is attaining the PM2.5
standard is viewed as having satisfied the attainment planning
requirements for these subparts. For redesignations, EPA has for many
years interpreted attainment-linked requirements as not applicable for
areas attaining the standard. In the General Preamble, EPA stated that:
---------------------------------------------------------------------------
\7\ I.e., attainment demonstration, RFP, RACM, milestone
requirements, contingency measures.
The requirements for RFP will not apply in evaluating a request
for redesignation to attainment since, at a minimum, the air quality
data for the area must show that the area has already attained.
Showing that the State will make RFP towards attainment will,
---------------------------------------------------------------------------
therefore, have no meaning at that point.
``General Preamble for the Interpretation of Title I of the Clean Air
Act Amendments of 1990''; (57 FR 13498, 13564, April 16, 1992).
The General Preamble also explained that
[t]he section 172(c)(9) requirements are directed at ensuring RFP
and attainment by the applicable date. These requirements no longer
apply when an area has attained the standard and is eligible for
redesignation. Furthermore, section 175A for maintenance plans * * *
provides specific requirements for contingency measures that
effectively supersede the requirements of section 172(c)(9) for
these areas.
Id.
EPA similarly stated in its 1992 Calcagni memorandum that, ``The
requirements for reasonable further progress and other measures needed
for attainment will not apply for redesignations because they only have
meaning for areas not attaining the standard.''
It is evident that even if we were to consider the Court's January
4, 2013 decision in NRDC v. EPA to mean that attainment-related
requirements specific to subpart 4 should be imposed retroactively \8\
and thus are now past due, those requirements do not apply to an area
that is attaining the 1997 PM2.5 standard, for the purpose
of evaluating a pending request to redesignate the area to attainment.
EPA has consistently enunciated this interpretation of applicable
requirements under section 107(d)(3)(E) since the General Preamble
[[Page 20862]]
was published more than twenty years ago. Courts have recognized the
scope of EPA's authority to interpret ``applicable requirements'' in
the redesignation context. See Sierra Club v. EPA, 375 F.3d 537 (7th
Cir. 2004).
---------------------------------------------------------------------------
\8\ As EPA has explained above, we do not believe that the
Court's January 4, 2013 decision should be interpreted so as to
impose these requirements on the states retroactively. Sierra Club
v. Whitman, supra.
---------------------------------------------------------------------------
Moreover, even outside the context of redesignations, EPA has
viewed the obligations to submit attainment-related SIP planning
requirements of subpart 4 as inapplicable for areas that EPA determines
are attaining the standard. EPA's prior ``Clean Data Policy''
rulemakings for the PM10 NAAQS, also governed by the
requirements of subpart 4, explain EPA's reasoning. They describe the
effects of a determination of attainment on the attainment-related SIP
planning requirements of subpart 4. See ``Determination of Attainment
for Coso Junction Nonattainment Area,'' (75 FR 27944, May 19, 2010).
See also Coso Junction proposed PM10 redesignation, (75 FR
36023, 36027, June 24, 2010); Proposed and Final Determinations of
Attainment for San Joaquin Nonattainment Area (71 FR 40952, 40954-55,
July 19, 2006; and 71 FR 63641, 63643-47 October 30, 2006). In short,
EPA in this context has also long concluded that to require states to
meet superfluous SIP planning requirements is not necessary and not
required by the CAA, so long as those areas continue to attain the
relevant NAAQS.
In its September 27, 2011 proposal for this action, EPA proposed to
determine that the Indianapolis area has attained the 1997
PM2.5 standard and therefore meets the attainment-related
plan requirements of subpart 1. Under its longstanding interpretation,
EPA is proposing to determine here that the area also meets the
attainment-related plan requirements of subpart 4.
Thus, EPA is proposing to conclude that the requirements to submit
an attainment demonstration under 189(a)(1)(B), a RACM determination
under section 172(c) and section 189(a)(1)(c), and a RFP demonstration
under 189(c)(1) are satisfied for purposes of evaluating the
redesignation request.
c. Subpart 4 and Control of PM2.5 Precursors
The D.C. Circuit in NRDC v. EPA remanded to EPA the two rules at
issue in the case with instructions to EPA to re-promulgate them
consistent with the requirements of subpart 4. The Court's opinion
raises the issue of the appropriate approach to addressing
PM2.5 precursors in this and future EPA actions. While past
implementation of subpart 4 for PM10 has allowed for control
of PM10 precursors such as NOX from major
stationary, mobile, and area sources in order to attain the standard as
expeditiously as practicable, CAA section 189(e) specifically provides
that control requirements for major stationary sources of direct
PM10 shall also apply to PM10 precursors from
those sources, except where EPA determines that major stationary
sources of such precursors ``do not contribute significantly to
PM10 levels which exceed the standard in the area.''
EPA's 1997 PM2.5 implementation rule, remanded by the
D.C. Circuit, contained rebuttable presumptions concerning certain
PM2.5 precursors applicable to attainment plans and control
measures related to those plans. Specifically, in 40 CFR 51.1002, EPA
provided, among other things, that a state was ``not required to
address VOC [and ammonia] as * * * PM2.5 attainment plan
precursor[s] and to evaluate sources of VOC [and ammonia] emissions in
the State for control measures.'' EPA intended these to be rebuttable
presumptions. EPA established these presumptions at the time because of
uncertainties regarding the emission inventories for these pollutants
and the effectiveness of specific control measures in various regions
of the country in reducing PM2.5 concentrations. EPA also
left open the possibility for such regulation of VOC and ammonia in
specific areas where that was necessary.
The Court in its January 4, 2013 decision made reference to both
section 189(e) and 40 CFR 51. 1002, and stated that, ``In light of our
disposition, we need not address the petitioners' challenge to the
presumptions in [40 CFR 51.1002] that volatile organic compounds and
ammonia are not PM2.5 precursors, as subpart 4 expressly
governs precursor presumptions.'' NRDC v. EPA, at 27, n.10.
Elsewhere in the Court's opinion, however, the Court observed:
Ammonia is a precursor to fine particulate matter, making it a
precursor to both PM2.5 and PM10. For a
PM10 nonattainment area governed by subpart 4, a
precursor is presumptively regulated. See 42 U.S.C. Sec. 7513a(e)
[section 189(e)].
Id. at 21, n.7.
For a number of reasons, EPA believes that the Court's decision on
this aspect of subpart 4 does not preclude EPA's approval of Indiana's
redesignation request for the 1997 PM2.5 NAAQS. First, while
the Court, citing section 189(e), stated that ``for a PM10
area governed by subpart 4, a precursor is `presumptively regulated,'''
the Court expressly declined to decide the specific challenge to EPA's
1997 PM2.5 implementation rule provisions regarding ammonia
and VOC as precursors. The Court had no occasion to reach whether and
how it was substantively necessary to regulate any specific precursor
in a particular PM2.5 nonattainment area, and did not
address what might be necessary for purposes of acting upon a
redesignation request.
However, even if EPA takes the view that the requirements of
subpart 4 were deemed applicable at the time the state submitted the
redesignation request, and disregards the implementation rule's
rebuttable presumptions regarding ammonia and VOC as PM2.5
precursors, the regulatory consequence would be to consider the need
for regulation of all precursors from any sources in the area to
demonstrate attainment and to apply the section 189(e) provisions to
major stationary sources of precursors. In the case of Indianapolis,
EPA believes that doing so would not affect the approvability of the
proposed redesignation of the area for the 1997 PM2.5
standard. Indianapolis has attained the standard without any specific
additional controls of VOC and ammonia emissions from any sources in
the area.
Precursors in subpart 4 are specifically regulated under the
provisions of section 189(e), which requires, with important
exceptions, control requirements for major stationary sources of
PM10 precursors.\9\ Under subpart 1 and EPA's prior
implementation rule, all major stationary sources of PM2.5
precursors were subject to regulation, with the exception of ammonia
and VOC. Thus we must address here whether additional controls of
ammonia and VOC from major stationary sources are required under
section 189(e) of subpart 4 in order to redesignate the Indianapolis
area for the 1997 PM2.5 standard. As explained below, we do
not believe that any additional controls of ammonia and VOC are
required in the context of this redesignation.
---------------------------------------------------------------------------
\9\ Under either subpart 1 or subpart 4, for purposes of
demonstrating attainment as expeditiously as practicable, a state is
required to evaluate all economically and technologically feasible
control measures for direct PM emissions and precursor emissions,
and adopt those measures that are deemed reasonably available.
---------------------------------------------------------------------------
In the General Preamble, EPA discusses its approach to implementing
section 189(e). See 57 FR 13538-13542. With regard to precursor
regulation under section 189(e), the General Preamble explicitly stated
that control of VOCs under other Act requirements may suffice to
relieve a state from the need to adopt precursor controls under section
189(e). 57 FR 13542. EPA in this supplemental proposal proposes to
[[Page 20863]]
determine that the Indiana SIP has met the provisions of section 189(e)
with respect to ammonia and VOCs as precursors. This proposed
supplemental determination is based on our findings that (1) the
Indianapolis area contains no major stationary sources of ammonia, and
(2) existing major stationary sources of VOC are adequately controlled
under other provisions of the CAA regulating the ozone NAAQS.\10\ In
the alternative, EPA proposes to determine that, under the express
exception provisions of section 189(e), and in the context of the
redesignation of the Indianapolis area, which is attaining the 1997
annual PM2.5 standard, at present ammonia and VOC precursors
from major stationary sources do not contribute significantly to levels
exceeding the 1997 PM2.5 standard in the Indianapolis area.
See 57 FR 13539-13542.
---------------------------------------------------------------------------
\10\ The Indianapolis area has reduced VOC emissions through the
implementation of various control programs including VOC Reasonably
Available Control Technology regulations and various on-road and
non-road motor vehicle control programs.
---------------------------------------------------------------------------
EPA notes that its 1997 PM2.5 implementation rule
provisions in 40 CFR 51.1002 were not directed at evaluation of
PM2.5 precursors in the context of redesignation, but at SIP
plans and control measures required to bring a nonattainment area into
attainment of the 1997 PM2.5 NAAQS. By contrast,
redesignation to attainment primarily requires the area to have already
attained due to permanent and enforceable emission reductions, and to
demonstrate that controls in place can continue to maintain the
standard. Thus, even if we regard the Court's January 4, 2013 decision
as calling for ``presumptive regulation'' of ammonia and VOC for
PM2.5 under the attainment planning provisions of subpart 4,
those provisions in and of themselves do not require additional
controls of these precursors for an area that already qualifies for
redesignation. Nor does EPA believe that requiring Indiana to address
precursors differently than they have already would result in a
substantively different outcome.
Although, as EPA has emphasized, its consideration here of
precursor requirements under subpart 4 is in the context of a
redesignation to attainment, EPA's existing interpretation of subpart 4
requirements with respect to precursors in attainment plans for
PM10 contemplates that states may develop attainment plans
that regulate only those precursors that are necessary for purposes of
attainment in the area in question, i.e., states may determine that
only certain precursors need be regulated for attainment and control
purposes.\11\ Courts have upheld this approach to the requirements of
subpart 4 for PM10.\12\ EPA believes that application of
this approach to PM2.5 precursors under subpart 4 is
reasonable. Because the Indianapolis area has already attained the 1997
PM2.5 NAAQS with its current approach to regulation of
PM2.5 precursors, EPA believes that it is reasonable to
conclude in the context of this redesignation that there is no need to
revisit the attainment control strategy with respect to the treatment
of precursors. Even if the Court's decision is construed to impose an
obligation, in evaluating this redesignation request, to consider
additional precursors under subpart 4, it would not affect EPA's
approval here of Indiana's request for redesignation of the
Indianapolis area. In the context of a redesignation, the area has
shown that it has attained the standard. Moreover, the state has shown
and EPA has proposed to determine that attainment in this area is due
to permanent and enforceable emissions reductions on all precursors
necessary to provide for continued attainment. It follows logically
that no further control of additional precursors is necessary.
Accordingly, EPA does not view the January 4, 2013 decision of the
Court as precluding redesignation of the Indianapolis area to
attainment for the 1997 PM2.5 NAAQS at this time.
---------------------------------------------------------------------------
\11\ See, e.g., ``Approval and Promulgation of Implementation
Plans for California--San Joaquin Valley PM-10 Nonattainment Area;
Serious Area Plan for Nonattainment of the 24-Hour and Annual PM-10
Standards,'' 69 FR 30006 (May 26, 2004) (approving a PM10
attainment plan that impose controls on direct PM10 and
NOX emissions and did not impose controls on
SO2, VOC, or ammonia emissions).
\12\ See, e.g., Assoc. of Irritated Residents v. EPA et al., 423
F.3d 989 (9th Cir. 2005).
---------------------------------------------------------------------------
In sum, even if Indiana were required to address precursors for the
Indianapolis area under subpart 4 rather than under subpart 1, as
interpreted in EPA's remanded PM2.5 implementation rule, EPA
would still conclude that the area had met all applicable requirements
for purposes of redesignation in accordance with section
107(d)(3(E)(ii) and (v).
d. Maintenance Plan and Evaluation of Precursors
With regard to the redesignation of Indianapolis, in evaluating the
effect of the Court's remand of EPA's implementation rule, which
included presumptions against consideration of VOC and ammonia as
PM2.5 precursors, EPA in this supplemental proposal is also
considering the impact of the decision on the maintenance plan required
under sections 175A and 107(d)(3)(E)(iv). To begin with, EPA notes that
the area has attained the 1997 PM2.5 standard and that the
state has shown that attainment of that standard is due to permanent
and enforceable emission reductions.
In its prior proposal notice for this action, EPA proposed to
determine that the State's maintenance plan shows continued maintenance
of the standard by tracking the levels of the precursors whose control
brought about attainment of the 1997 PM2.5 standard in the
Indianapolis area. EPA therefore believes that the only additional
consideration related to the maintenance plan requirements that results
from the Court's January 4, 2013 decision is that of assessing the
potential role of VOC and ammonia in demonstrating continued
maintenance in this area. As explained below, based upon documentation
provided by the State and supporting information, EPA believes that the
maintenance plan for the Indianapolis area need not include any
additional emission reductions of VOC or ammonia in order to provide
for continued maintenance of the standard.
First, as noted above in EPA's discussion of section 189(e), VOC
emission levels in this area have historically been well-controlled
under SIP requirements related to ozone and other pollutants. Second,
total ammonia emissions throughout the Indianapolis area are very low,
estimated to be less than 4,000 tons per year. See Table 4 below. This
amount of ammonia emissions appears especially small in comparison to
the total amounts of SO2, NOX, and even direct
PM2.5 emissions from sources in the area. Third, as
described below, available information shows that no precursor,
including VOC and ammonia, is expected to increase over the maintenance
period so as to interfere with or undermine the State's maintenance
demonstration.
Indiana's maintenance plan shows that emissions of direct
PM2.5, SO2, and NOX are projected to
decrease by 1,048 tons per year (tpy), 11,301 tpy, and 39,894 tpy,
respectively, over the maintenance period. See Tables 1-3 below. In
addition, emissions inventories used in the regulatory impact analysis
(RIA) for the 2012 PM2.5 NAAQS show that VOC and ammonia
emissions are projected to decrease by 14,551 tpy and 99 tpy,
respectively between 2007 and 2020. See Table 4 below. While the RIA
emissions inventories are only projected out to 2020, there is no
reason to believe that this downward trend would not continue through
2025. Given that the Indianapolis area is already attaining the 1997
PM2.5 NAAQS even with the
[[Page 20864]]
current level of emissions from sources in the area, the downward trend
of emissions inventories would be consistent with continued attainment.
Indeed, projected emissions reductions for the precursors that the
State is addressing for purposes of the 1997 PM2.5 NAAQS
indicate that the area should continue to attain the NAAQS following
the precursor control strategy that the state has already elected to
pursue. Even if VOC and ammonia emissions were to increase unexpectedly
between 2020 and 2025, the overall emissions reductions projected in
direct PM2.5, SO2, and NOX would be
sufficient to offset any increases. For these reasons, EPA believes
that local emissions of all of the potential PM2.5
precursors will not increase to the extent that they will cause
monitored PM2.5 levels to violate the 1997 PM2.5
standard during the maintenance period.
Table 1--Comparison of 2008, 2015, 2020, and 2025 Direct PM2.5 Emission Totals by Source Sector (tpy) for the
Indianapolis Area
----------------------------------------------------------------------------------------------------------------
Direct PM2.5
----------------------------------------------------------------
Sector Net change
2008 2015 2020 2025 2008-2025
----------------------------------------------------------------------------------------------------------------
Point.......................................... 843 823 806 790 -53
EGU \13\....................................... 1,966 2,568 2,568 2,568 601
Area........................................... 85 82 79 76 -9
Nonroad........................................ 805 538 384 282 -524
On-road \14\................................... 1,464 742 571 400 -1,064
----------------------------------------------------------------
Total...................................... 5,164 4,753 4,408 4,116 -1,048
----------------------------------------------------------------------------------------------------------------
Table 2--Comparison of 2008, 2015, 2020, and 2025 SO2 Emission Totals by Source Sector (tpy) for the
Indianapolis Area
----------------------------------------------------------------------------------------------------------------
SO2
----------------------------------------------------------------
Sector Net change
2008 2015 2020 2025 2008-2025
----------------------------------------------------------------------------------------------------------------
Point.......................................... 2,416 1,632 1,605 1,579 -837
EGU............................................ 38,027 28,315 28,314 28,314 -9,713
Area........................................... 1,830 1,778 1,732 1,687 -143
Nonroad........................................ 576 166 89 57 -519
On-road \15\................................... 654 498 532 565 88
----------------------------------------------------------------
Total...................................... 43,503 32,389 32,272 32,202 -11,301
----------------------------------------------------------------------------------------------------------------
Table 3--Comparison of 2008, 2015, 2020, and 2025 NOX Emission Totals by Source Sector (tpy) for the
Indianapolis Area
----------------------------------------------------------------------------------------------------------------
NOX
----------------------------------------------------------------
Sector Net change
2008 2015 2020 2025 2008-2025
----------------------------------------------------------------------------------------------------------------
Point.......................................... 6,259 6,268 6,183 6,099 -161
EGU............................................ 7,184 6,865 6,864 6,863 -321
Area........................................... 4,886 4,809 4,727 4,646 -240
Nonroad........................................ 10,954 7,147 4,961 3,545 -7,409
On-road \14\................................... 43,389 22,013 16,819 11,625 -31,76
----------------------------------------------------------------
Total...................................... 72,672 47,101 39,554 32,778 -39,894
----------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
\13\ Electric generating units.
\14\ Emissions projections for the on-road sector were generated
using the MOVES model. Indiana submitted the MOVES based
NOX and direct PM2.5 emissions projections and
MVEBs for the on-road sector on January 17, 2013, to replace the
MOBILE6.2 based on-road emissions projections and MVEBs submitted as
part of the maintenance plan.
\15\ On-road sector emissions were projected using the MOBILE6.2
emissions model.
[[Page 20865]]
Table 4--Comparison of 2007 and 2020 VOC and Ammonia Emission Totals by Source Sector (tpy) for the Indianapolis
Area \16\
----------------------------------------------------------------------------------------------------------------
VOC Ammonia
-----------------------------------------------------------------------------
Sector Net change Net change
2007 2020 2007-2020 2007 2020 2007-2020
----------------------------------------------------------------------------------------------------------------
Point............................. 1,699 1,716 17 58 68 10
Area.............................. 27,618 27,516 -102 3,056 3,198 142
Nonroad........................... 7,114 4,121 -2,993 11 14 3
On-road........................... 17,972 6,499 -11,473 636 382 -254
Fires............................. 113 113 0 8 8 0
-----------------------------------------------------------------------------
Total......................... 54,516 39,965 -14,551 3,769 3,670 -99
----------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------
\16\ These emissions estimates were taken from the emissions
inventories developed for the RIA for the 2012 PM2.5
NAAQS.
---------------------------------------------------------------------------
In addition, available air quality modeling analyses show continued
maintenance of the standard during the maintenance period. The current
air quality design value for the area is 13.1 micrograms per cubic
meter ([micro]g/m\3\) (based on 2009-11 air quality data), which is
well below the 1997 annual PM2.5 NAAQS of 15 [micro]g/m\3\.
Moreover, the modeling analysis conducted for the RIA for the 2012
PM2.5 NAAQS indicates that the design value for this area is
expected to continue to decline through 2020. In the RIA analysis, the
2020 modeled design value for the Indianapolis area is 10.4 [micro]g/
m\3\. Given that precursor emissions are projected to decrease through
2025, it is reasonable to conclude that monitored PM2.5
levels in this area will also continue to decrease through 2025.
Thus, EPA believes that there is ample justification to conclude
that the Indianapolis area should be redesignated, even taking into
consideration the emissions of other precursors potentially relevant to
PM2.5. After consideration of the D.C. Circuit's January 4,
2013 decision, and for the reasons set forth in this supplemental
notice, EPA continues to propose approval of the State of Indiana's
maintenance plan and its request to redesignate the Indianapolis area
to attainment for the 1997 PM2.5 annual standard.
C. Ammonia and VOC Comprehensive Emissions Inventories
EPA in this supplemental proposal also addresses the State of
Indiana's supplemental submission that provides additional information
concerning ammonia and VOC emissions in the Indianapolis area in order
to meet the emissions inventory requirement of CAA section 172(c)(3).
Section 172(c)(3) of the CAA requires states to submit a comprehensive,
accurate, and current emissions inventory for a nonattainment area. For
purposes of the PM2.5 NAAQS, this emissions inventory should
address not only direct emissions of PM2.5, but also
emissions of all precursors with the potential to participate in
PM2.5 formation, i.e., SO2, NOX, VOC
and ammonia.
In the September 27, 2011 proposed rule, EPA proposed to approve
the emissions inventory information for direct PM2.5,
NOX, and SO2 submitted by IDEM as meeting the
emissions inventory requirement for the Indianapolis area. On March 18,
2013, IDEM supplemented its submittal with 2007/2008 emissions
inventories for ammonia and VOC. The additional emissions inventory
information provided by the State addresses emissions of VOC and
ammonia from the general source categories of point sources, area
sources, on-road mobile sources, and nonroad mobile sources. The state-
submitted emissions inventories were based upon information generated
by the Lake Michigan Air Directors Consortium (LADCO) in conjunction
with its member states and are presented in Table 5 below.
LADCO ran the EMS model using data provided by the State of Indiana
to generate point source emissions estimates. The point source data
supplied by the state was obtained from Indiana's source facility
emissions reporting.
For area sources, LADCO ran the EMS model using the 2008 National
Emissions Inventory (NEI) data provided by Indiana. LADCO followed
Eastern Regional Technical Advisory Committee (ERTAC) recommendations
on area sources when preparing the data. Agricultural ammonia emissions
were not taken from NEI; instead emissions were based on Carnegie
Mellon University's Ammonia Emission Inventory for the Continental
United States (CMU). Specifically, the CMU 2002 annual emissions were
grown to reflect 2007 conditions. A process-based ammonia emissions
model developed for LADCO was then used to develop temporal factors to
reflect the impact of average meteorology on livestock emissions.
Non-road mobile source emissions were generated using the NMIM2008
emissions model. LADCO also accounted for three other non-road
categories not covered by the NMIM model: commercial marine vessels,
aircraft, and railroads. Marine emissions were based on reports
prepared by Environ entitled ``LADCO Nonroad Emissions Inventory
Project for Locomotive, Commercial Marine, and Recreational Marine
Emission Sources, Final Report, December 2004'' and ``LADCO 2005
Commercial Marine Emissions, Draft, March 2, 2007.'' Aircraft emissions
were provided by Indiana and calculated using AP-42 emission factors
and landing and take-off data provided by the Federal Aviation
Administration. Rail emissions were based on the 2008 inventory
developed by ERTAC.
On-road mobile source emissions were generated using EPA's
MOVES2010a emissions model.
EPA notes that the emissions inventory developed by LADCO is
documented in ``Regional Air Quality Analyses for Ozone,
PM2.5, and Regional Haze: Base C Emissions Inventory''
(September 12, 2011).
Table 5--Indianapolis Area Ammonia and VOC Emissions (tpy) for 2007/2008
by Source Sector
------------------------------------------------------------------------
Sector Ammonia VOC
------------------------------------------------------------------------
Point........................................... 41.73 1,284.14
Area............................................ 3,139.54 27,646.25
Non-road........................................ 10.51 8,277.20
On-road......................................... 685.41 21,866.66
-----------------------
Total....................................... 3,877.19 59,074.25
------------------------------------------------------------------------
EPA has concluded that the 2007/2008 ammonia and VOC emissions
[[Page 20866]]
inventories provided by the State are complete and as accurate as
possible given the input data available for the relevant source
categories. EPA also believes that these inventories provide
information about VOC and ammonia as PM2.5 precursors in the
context of evaluating redesignation of the Indianapolis area under
subpart 4. Therefore, we are proposing to approve the ammonia and VOC
emissions inventories submitted by the State, in conjunction with the
NOX, direct PM2.5, and SO2 emissions
inventories that EPA previously proposed to approve, as fully meeting
the comprehensive inventory requirement of section 172(c)(3) of the CAA
for the Indianapolis area for the 1997 annual PM2.5
standard. Since EPA's prior proposal addressed other precursor
emissions inventories, EPA in this supplemental proposal is seeking
comment only with respect to the additional inventories for VOC and
ammonia that Indiana has submitted.
D. MVEBs
1. How are MVEBs developed and what are the MVEBs for the Indianapolis
area?
On January 17, 2013, Indiana submitted to EPA a request to revise
its maintenance plan for the Indianapolis area by replacing the
previously submitted MOBILE6.2 based MVEBs with budgets developed using
EPA's MOVES 2010a emissions model.
Under the CAA, states are required to submit, at various times,
control strategy SIP revisions and maintenance plans for nonattainment
areas and for areas seeking redesignation to attainment for a given
NAAQS. These emission control strategy SIP revisions (e.g., RFP and
attainment demonstration SIP revisions) and maintenance plans create
MVEBs based on on-road mobile source emissions for the relevant
criteria pollutants and/or their precursors, where appropriate, to
address pollution from on-road transportation sources. The MVEBs are
the portions of the total allowable emissions that are allocated to on-
road vehicle use that, together with emissions from all other sources
in the area, will provide for attainment, RFP, or maintenance, as
applicable. The budget serves as a ceiling on emissions from an area's
planned transportation system. Under 40 CFR part 93, a MVEB for an area
seeking a redesignation to attainment is established for the last year
of the maintenance plan. See the September 27, 2011 notice of direct
final approval for a more complete discussion of MVEBs. (76 FR 59512).
EPA's substantive criteria for determining the adequacy of MVEBs
are set out in 40 CFR 93.118(e)(4). Additionally, to approve a motor
vehicle emissions budget, EPA must complete a thorough review of the
SIP, in this case the PM2.5 maintenance plan, and conclude
that with the projected level of motor vehicle and all other emissions,
the SIP will achieve its overall purpose, in this case providing for
maintenance of the 1997 annual PM2.5 standard.
EPA's process for determining adequacy of a MVEB consists of three
basic steps: (1) Providing public notification of a SIP submission; (2)
providing the public the opportunity to comment on the MVEB during a
public comment period; and, (3) EPA taking action on the MVEB. The
process for determining the adequacy of submitted SIP MVEBs is codified
at 40 CFR 93.118.
The maintenance plan revision submitted by Indiana for the
Indianapolis area contains primary PM2.5 and NOX
MVEBs for the area for the years 2015 and 2025.
IDEM has determined the 2015 MVEBs for the Indianapolis area to be
853.76 tpy for primary PM2.5 and 25,314.49 tpy for
NOX. IDEM has determined the 2025 MVEBs for the Indianapolis
area to be 460.18 tpy for primary PM2.5 and 13,368.60 tpy
for NOX. These MVEBs exceed the on-road mobile source
primary PM2.5 and NOX emissions projected by IDEM
for 2015 and 2025, as summarized in Table 6 below. IDEM decided to
include ``safety margins'' as provided for in 40 CFR 93.124(a)
(described further below) of 111.36 tpy and 60.02 tpy for primary
PM2.5 and 3,301.89 tpy and 1,743.73 tpy for NOX
in the 2015 and 2025 MVEBs, respectively, to provide for on-road mobile
source growth. Indiana did not provide emission budgets for
SO2, VOC, and ammonia because it concluded, consistent with
the presumptions regarding these precursors in the conformity rule at
40 CFR 93.102(b)(2)(v), which predated and was not disturbed by the
litigation on the PM2.5 implementation rule, that emissions
of these precursors from motor vehicles are not significant
contributors to the area's PM2.5 air quality problem.
EPA issued conformity regulations to implement the 1997
PM2.5 NAAQS in July 2004 and May 2005 (69 FR 40004, July 1,
2004 and 70 FR 24280, May 6, 2005, respectively). Those actions were
not part of the final rule recently remanded to EPA by the Court of
Appeals for the District of Columbia in NRDC v. EPA, No. 08-1250 (Jan.
4, 2013), in which the Court remanded to EPA the implementation rule
for the PM2.5 NAAQS because it concluded that EPA must
implement that NAAQS pursuant to the PM-specific implementation
provisions of subpart 4 of Part D of Title I of the CAA, rather than
solely under the general provisions of subpart 1. That decision does
not affect EPA's proposed approval of the Indianapolis MVEBs.
First, as noted above, EPA's conformity rule implementing the 1997
PM2.5 NAAQS was a separate action from the overall
PM2.5 implementation rule addressed by the Court and was not
considered or disturbed by the decision. Therefore, the conformity
regulations were not at issue in NRDC v. EPA.\17\ In addition, as
discussed in section III.B., the Indianapolis area is attaining the
1997 annual standard for PM2.5 with a 2009-2011 design value
of 13.1 [micro]g/m\3\, which is well below the annual PM2.5
NAAQS of 15 [micro]g/m\3\. The modeling analysis conducted for the RIA
for the 2012 p.m. NAAQS indicates that the design value for this area
is expected to continue to decline through 2020. Further, the State's
maintenance plan shows continued maintenance through 2025 by
demonstrating that NOX, SO2, and direct
PM2.5 emissions continue to decrease through the maintenance
period. For VOC and ammonia, RIA inventories for 2007 and 2020 show
that both on-road and total emissions for these pollutants are expected
to decrease, supporting the state's conclusion, consistent with the
presumptions regarding these precursors in the conformity rule, that
emissions of these precursors from motor vehicles are not significant
contributors to the area's PM2.5 air quality problem and the
MVEBs for these precursors are unnecessary. With regard to
SO2, the 2005 final conformity rule (70 FR 24280) based its
presumption concerning on-road SO2 motor vehicle emissions
budgets on emissions inventories that show that SO2
emissions from on-road sources constitute a ``de minimis'' portion of
total SO2 emissions. As shown elsewhere in this supplemental
proposal, on-road emissions in 2025 are less than 2% of total
SO2 emissions in the area. While on-road SO2
emissions reach a low point in 2015 and gradually begin to increase,
these increases are small in the context of the entire SO2
[[Page 20867]]
inventory and, even with those increases, the on-road emissions are
lower in 2025 than in the base year. Moreover, the revised MVEBs simply
update the budget calculations using MOVES, as explained above.
---------------------------------------------------------------------------
\17\ The 2004 rulemaking addressed most of the transportation
conformity requirements that apply in PM2.5 nonattainment
and maintenance areas. The 2005 conformity rule included provisions
addressing treatment of PM2.5 precursors in MVEBs. See 40
CFR 93.102(b)(2). While none of these provisions were challenged in
the NRDC case, EPA also notes that the Court declined to address
challenges to EPA's presumptions regarding PM2.5
precursors in the PM2.5 implementation rule. NRDC v. EPA,
at 27, n. 10.
Table 6--On-road Mobile Source Emissions Estimates (tpy) and Budgets
----------------------------------------------------------------------------------------------------------------
NOX PM2.5
-----------------------------------------------------------------------------
Emissions Safety Emissions Safety
estimate Budget margin estimate Budget margin
----------------------------------------------------------------------------------------------------------------
2008.............................. 43,388.93 ........... ........... 1,463.72 ........... ...........
2015.............................. 22,012.60 25,314.49 3,301.89 742.40 853.76 111.36
2025.............................. 11624.87 13,368.60 1,743.73 400.16 460.18 60.02
----------------------------------------------------------------------------------------------------------------
2. What are safety margins?
A ``safety margin'' is the difference between the attainment level
of emissions (from all sources) and the projected level of emissions
(from all sources) in the maintenance plan. As shown in Table 3,
NOX emissions in the Indianapolis area are projected to have
safety margins of 25,571 tpy and 39,894 tpy in 2015 and 2025,
respectively (the difference between the attainment year, 2008,
emissions and the projected 2015 and 2025 emissions for all sources in
the Indianapolis area). Table 1 shows direct PM2.5 emissions
in the Indianapolis area are projected to have a safety margin of 412
tpy and 1,048 tpy in 2015 and 2025, respectively. Even if emissions
reached the full level of the safety margin, the area would still
demonstrate maintenance since emission levels would equal those in the
attainment year.
The transportation conformity rule allows areas to allocate all or
a portion of a ``safety margin'' to the area's motor vehicle emissions
budgets (40 CFR 92.124(a)). The MVEBs requested by IDEM contain
NOX and direct PM2.5 safety margins for mobile
sources in 2015 and 2025 smaller than the allowable safety margins
reflected in the total emissions inventory for the Indianapolis area.
Thus, the State is not requesting allocation to the MVEBs of the entire
available safety margins reflected in the demonstration of maintenance.
Therefore, even though the State has submitted MVEBs that exceed the
projected on-road mobile source emissions for 2015 and 2025 contained
in the demonstration of maintenance, the differences between the MVEBs
and the projected on-road mobile source emissions are well within the
safety margins of the PM2.5 maintenance demonstration.
Further, once allocated to mobile sources, these safety margins will
not be available for use by other sources.
EPA has reviewed the submitted budgets for 2015 and 2025, including
the added safety margins using the conformity rule's adequacy criteria
found at 40 CFR 93.118(e)(4) and the conformity rule's requirements for
safety margins found at 40 CFR 93.124(a). EPA has determined that the
area can maintain attainment of the 1997 annual PM2.5 NAAQS
for the relevant maintenance period with on-road mobile source
emissions at the levels of the MVEBs since total emissions will still
remain under attainment year emission levels. EPA is therefore
proposing to approve the MOVES based MVEBs submitted by Indiana for use
in determining transportation conformity in the Indianapolis area.
IV. Summary of Proposed Actions
After fully considering the DC Circuit's decisions in EME Homer
City on EPA's CSAPR rule, and NRDC v. EPA on EPA's 1997
PM2.5 Implementation rule, EPA in this supplemental notice
is proposing to proceed with approval of the request to redesignate the
Indianapolis area to attainment for the 1997 annual PM2.5
NAAQS and of the associated maintenance plan. In this supplemental
notice, EPA is also proposing to approve the 2007/2008 ammonia and VOC
emissions inventories as meeting, in conjunction with the
NOX, direct PM2.5 and SO2 inventories
that EPA previously proposed to approve, the comprehensive emissions
inventory requirements of section 172(c)(3) of the CAA. Finally, EPA is
proposing to approve Indiana's MOVES-based NOX and direct
PM2.5 MVEBs for 2015 and 2025 for the Indianapolis area for
transportation conformity purposes. EPA is seeking comment only on the
issues raised in its supplemental proposals, and is not re-opening
comment on other issues addressed in its prior proposal.
V. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by state law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, 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, these proposed actions do not impose additional
requirements beyond those imposed by state law and the CAA. For that
reason, these proposed actions:
Are not ``significant regulatory actions'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
are 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.);
do 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);
do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
are not economically significant regulatory actions based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
are not significant regulatory actions subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
are not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement
[[Page 20868]]
Act of 1995 (15 U.S.C. 272 note) because application of those
requirements would be inconsistent with the CAA; and
do 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, this proposed rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because a determination of attainment is an action that affects the
status of a geographical area and does not impose any new regulatory
requirements on tribes, impact any existing sources of air pollution on
tribal lands, nor impair the maintenance of ozone national ambient air
quality standards in tribal lands.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Dated: March 28, 2013.
Susan Hedman,
Regional Administrator, Region 5.
[FR Doc. 2013-08122 Filed 4-5-13; 8:45 am]
BILLING CODE 6560-50-P