[Federal Register Volume 81, Number 165 (Thursday, August 25, 2016)]
[Rules and Regulations]
[Pages 58402-58405]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-20312]
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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.
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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.
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\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.
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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).
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\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).
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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]
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