Proposed Rule2022-13716
Air Plan Approval; Indiana; Infrastructure SIP Requirements for the 2015 Ozone NAAQS and References to the Code of Federal Regulations
Primary source
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Published
June 29, 2022
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is proposing to approve elements of a State Implementation Plan (SIP) submission from Indiana regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2015 ozone National Ambient Air Quality Standards (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. EPA is also proposing to approve revisions to the Indiana SIP that would incorporate by reference a more recent edition of the Code of Federal Regulations (CFR).
Full Text
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<title>Federal Register, Volume 87 Issue 124 (Wednesday, June 29, 2022)</title>
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[Federal Register Volume 87, Number 124 (Wednesday, June 29, 2022)]
[Proposed Rules]
[Pages 38693-38702]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13716]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2018-0788; EPA-R05-OAR-2020-0353; FRL-9879-01-R5]
Air Plan Approval; Indiana; Infrastructure SIP Requirements for
the 2015 Ozone NAAQS and References to the Code of Federal Regulations
AGENCY: Environmental Protection Agency (EPA).
[[Page 38694]]
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve elements of a State Implementation Plan (SIP) submission from
Indiana regarding the infrastructure requirements of section 110 of the
Clean Air Act (CAA) for the 2015 ozone National Ambient Air Quality
Standards (NAAQS). The infrastructure requirements are designed to
ensure that the structural components of each state's air quality
management program are adequate to meet the state's responsibilities
under the CAA. EPA is also proposing to approve revisions to the
Indiana SIP that would incorporate by reference a more recent edition
of the Code of Federal Regulations (CFR).
DATES: Comments must be received on or before July 29, 2022.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2018-0788 or EPA-R05-OAR-2020-0353 at <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
or via email to <a href="/cdn-cgi/l/email-protection#72130000135c011300131a321702135c151d04"><span class="__cf_email__" data-cfemail="375645455619445645565f7752475619505841">[email protected]</span></a>. For comments submitted at
<a href="http://Regulations.gov">Regulations.gov</a>, follow the online instructions for submitting
comments. Once submitted, comments cannot be edited or removed from
<a href="http://Regulations.gov">Regulations.gov</a>. 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 <a href="https://www2.epa.gov/dockets/commenting-epa-dockets">https://www2.epa.gov/dockets/commenting-epa-dockets</a>.
FOR FURTHER INFORMATION CONTACT: Andrew Lee, Physical Scientist,
Attainment Planning and Maintenance Section, Air Programs Branch
(AR18J), Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312)-353-7645,
<a href="/cdn-cgi/l/email-protection#c5a9a0a0eba4aba1b7a0b2eba685a0b5a4eba2aab3"><span class="__cf_email__" data-cfemail="1a767f7f347b747e687f6d34795a7f6a7b347d756c">[email protected]</span></a>. The EPA Region 5 office is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding Federal holidays and
facility closures due to COVID-19.
SUPPLEMENTARY INFORMATION: This supplementary information section is
arranged as follows:
I. What is the background of these SIP submissions?
II. What is EPA's analysis of the November 2, 2018, SIP submission?
III. What is EPA's analysis of the June 24, 2020, SIP submission?
IV. What action is EPA taking?
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews
I. What is the background of these SIP submissions?
Whenever EPA promulgates a new or revised NAAQS, CAA section
110(a)(1) requires states to make SIP submissions to provide for the
implementation, maintenance, and enforcement of the NAAQS. This
particular type of SIP submission is commonly referred to as an
``infrastructure SIP.'' These submissions must meet the various
requirements of CAA section 110(a)(2), as applicable. Due to ambiguity
in some of the language of CAA section 110(a)(2), EPA believes that it
is appropriate to interpret these provisions in the specific context of
acting on infrastructure SIP submissions. EPA has previously provided
comprehensive guidance on the application of these provisions through
its September 13, 2013, Infrastructure SIP Guidance (EPA's 2013
Guidance) \1\ and through regional actions on infrastructure
submissions. Unless otherwise noted below, EPA is following that
existing approach in acting on this submission. In addition, in the
context of acting on such infrastructure submissions, EPA evaluates the
submitting state's SIP for facial compliance with statutory and
regulatory requirements, not for the state's implementation of its
SIP.\2\ EPA has other authority to address any issues concerning a
state's implementation of the rules, regulations, consent orders, etc.
that comprise its SIP.
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\1\ EPA explains and elaborates on these ambiguities and its
approach to address them in its September 13, 2013, Infrastructure
SIP Guidance (available at <a href="https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf">https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf</a>), as well as in numerous agency actions, including EPA's prior
action on Indiana's infrastructure SIP to address the 2012
PM<INF>2.5</INF> NAAQS (August 31, 2017, 82 FR 41379, proposed rule
and February 1, 2018, 83 FR 4595, final rule).
\2\ See U.S. Court of Appeals for the Ninth Circuit decision in
Montana Environmental Information Center v. EPA, 902 F.3d 971.
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Pursuant to section 110(a), states must provide reasonable notice
and opportunity for public hearing for all infrastructure SIP
submissions. On August 24, 2018, the Indiana Department of
Environmental Management (IDEM) opened a 30-day comment period and
provided the opportunity for public hearing. No requests for public
hearing were received. Indiana received four separate comments
pertaining to the transport requirements of section 110(a)(2)(D)(i)(I).
EPA has proposed action on the transport portion of Indiana's
submission in a separate rulemaking, therefore those comments are not
germane to this action. See 87 FR 9838, February 22, 2022.
IDEM submitted these rules to EPA on November 2, 2018. In this
rulemaking, EPA is proposing to approve most elements of this
submission, which is intended to address all applicable infrastructure
requirements for the 2015 ozone NAAQS.
Additionally, in this rulemaking EPA is proposing to approve a June
24, 2020, submission from IDEM that seeks to revise the Indiana SIP by
incorporating by reference a more recent edition of the CFR.
II. What is EPA's analysis of the November 2, 2018, SIP submission?
Indiana has provided a detailed synopsis of how various components
of its SIP meet each of the applicable requirements in section
110(a)(2) for the 2015 ozone NAAQS, as applicable. The following review
evaluates the state's submission.
A. Section 110(a)(2)(A)--Emission Limits and Other Control Measures
This section requires SIPs to include enforceable emission limits
and other control measures, means or techniques, schedules for
compliance, and other related matters. EPA has long interpreted
emission limits and control measures for attaining the standards as
being due when nonattainment planning requirements are due.\3\ In the
context of an infrastructure SIP, EPA is not evaluating the existing
SIP provisions for this purpose. Instead, EPA is only evaluating
whether the state's SIP has basic structural provisions for the
implementation of the NAAQS.
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\3\ E.g., EPA's final rule on ``National Ambient Air Quality
Standards for Lead.'' 73 FR 66964 at 67034.
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EPA's 2013 Guidance states that to satisfy section 110(a)(2)(A)
requirements, ``an air agency's submission should identify existing
EPA-approved SIP provisions or new SIP provisions that the air agency
has adopted and submitted for EPA approval that limit emissions of
pollutants relevant to the subject
[[Page 38695]]
NAAQS, including precursors of the relevant NAAQS pollutant where
applicable.'' IDEM's authority to adopt emissions standards and
compliance schedules is found in the Indiana Code (IC) at IC 13-14-8,
IC 13-17-3-4, IC 13-17-3-11, and IC 13-17-3-14. IDEM identified
existing controls and emission limits in the IC. These regulations
include controls and emission limits for volatile organic compounds
(VOC) and nitrogen oxides (NO<INF>X</INF>), which are precursors to
ozone. VOC as an ozone precursor is regulated at 326 Indiana
Administrative Code (IAC) 8, and NO<INF>X</INF> as an ozone precursor
is regulated by 326 IAC 10.
Furthermore, in Rules 326 IAC 8 and 326 IAC 10, respectively,
Indiana provides category-specific and source-specific VOC and
NO<INF>X</INF> emission limits in addition to general VOC emission
limits for Boone, Clark, Dearborn, Elkhart, Floyd, Hamilton, Hancock,
Harrison, Hendricks, Johnson, Lake, Marion, Morgan, Porter, St. Joseph,
and Shelby counties, and general NO<INF>X</INF> emission limits for
Clark, Floyd and Warrick counties.
In this rulemaking, EPA is not proposing to take any action on any
new provisions currently in the IAC. EPA is also not proposing to take
any action on any existing state provisions or rules related to start-
up, shutdown or malfunction or director's discretion in the context of
section 110(a)(2)(A). EPA proposes that Indiana has met the
infrastructure SIP requirements of section 110(a)(2)(A) with respect to
the 2015 ozone NAAQS.
B. Section 110(a)(2)(B)--Ambient Air Quality Monitoring/Data System
This section requires SIPs to provide for establishing and
operating ambient air quality monitors, collecting and analyzing
ambient air quality data, and, upon request, to make these data
available to EPA. EPA's 2013 Guidance states that submission of annual
monitoring network plans consistent with EPA's ambient air monitoring
regulations at 40 CFR 58.10 is one way of satisfying requirements to
provide EPA information regarding air quality monitoring activities.
EPA's review of a state's annual monitoring plan includes EPA's
determination that the state: (i) monitors air quality at appropriate
locations throughout the state using EPA-approved Federal Reference
Methods or Federal Equivalent Method monitors; (ii) submits data to
EPA's Air Quality System (AQS) in a timely manner; and, (iii) provides
EPA Regional Offices with prior notification of any planned changes to
monitoring sites or the network plan.
In accordance with 40 CFR part 53 and 40 CFR part 58, IDEM
continues to operate an air monitoring network that is used to
determine compliance with the NAAQS. IDEM enters air monitoring data
into AQS and provides EPA with prior notification when changes to its
monitoring network or plan are being considered. Further, Indiana
submits annual monitoring network plans to EPA. EPA approved Indiana's
2020 Annual Air Monitoring Network Plan on November 21, 2019, including
the plan for ozone. EPA proposes that Indiana has met the
infrastructure SIP requirements of section 110(a)(2)(B) with respect to
the 2015 ozone NAAQS.
C. Section 110(a)(2)(C)--Program for Enforcement of Emission
Limitations and Control Measures; Minor NSR; PSD
This section requires SIPs to set forth a program providing for
enforcement of all SIP measures and the regulation of construction of
new or modified stationary sources to meet New Source Review (NSR)
requirements under Prevention of Significant Deterioration (PSD) and
Nonattainment NSR (NNSR) programs. Part C of the CAA (sections 160-
169B) addresses PSD, while part D of the CAA (sections 171-193)
addresses NNSR requirements. EPA's 2013 Guidance states that the NNSR
requirements of section 110(a)(2)(C) are generally outside the scope of
infrastructure SIPs; however, a state must provide for regulation of
minor sources and minor modifications (minor NSR).
1. Program for Enforcement of Emission Limitations and Control Measures
A state's infrastructure SIP submission should identify the
statutes, regulations, or other provisions in the SIP that provide for
enforcement of emission limits and control measures.
IDEM maintains an enforcement program to ensure compliance with SIP
requirements. Specifically, IC 13-14-1-12 provides the Commissioner
with the authority to enforce rules ``consistent with the purpose of
the air pollution control laws.'' Additionally, IC 13-14-2-6, IC 13-14-
2-7, IC 13-17-3-3 and 13-30-3 provide the Commissioner with the
authority to assess civil penalties and obtain compliance with any
applicable rule a board has adopted in order to enforce air pollution
control laws. Lastly, IC 13-14-10-2 allows for an emergency restraining
order that prevents any person from causing, or introducing
contaminants, that cause or contribute to air pollution. EPA proposes
that Indiana has met the enforcement of SIP measures requirements of
section 110(a)(2)(C) with respect to the 2015 ozone NAAQS.
2. Minor NSR
An infrastructure SIP submission should identify the existing EPA-
approved SIP provisions that govern the minor source pre-construction
program that regulates emissions of the relevant NAAQS pollutant.
EPA approved Indiana's minor NSR program on March 16, 2015 (80 FR
13493); since that date, IDEM and EPA have relied on the existing minor
NSR program to ensure that new and modified sources not captured by the
major NSR permitting programs do not interfere with attainment and
maintenance of the NAAQS. As stated in EPA's 2013 Guidance, the CAA
allows EPA to approve infrastructure SIP submissions that do not
implement the 2002 NSR Reform Rules. Therefore, EPA is not proposing
action on existing NSR Reform regulations for Indiana. EPA proposes
that Indiana has met the minor NSR requirements of section 110(a)(2)(C)
with respect to the 2015 ozone NAAQS.
3. PSD
The evaluation of each state's submission addressing the
infrastructure SIP requirements of section 110(a)(2)(C) covers: (i) PSD
provisions that explicitly identify NO<INF>X</INF> as a precursor to
ozone in the PSD program; (ii) identification of precursors to
PM<INF>2.5</INF> \4\ and the identification of PM<INF>2.5</INF> and
PM<INF>10</INF> \5\ condensibles in the PSD program; (iii)
PM<INF>2.5</INF> increments in the PSD program; and (iv) greenhouse gas
(GHG) permitting and the ``Tailoring Rule'' in the PSD program.\6\
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\4\ PM<INF>2.5</INF> refers to particles with an aerodynamic
diameter of less than or equal to 2.5 micrometers, also referred to
as ``fine'' particles.
\5\ PM<INF>10</INF> refers to particulate matter particles with
an aerodynamic diameter of less than or equal to 10 micrometers.
\6\ In EPA's April 28, 2011, proposed rulemaking for
infrastructure SIPS for the 1997 ozone and PM<INF>2.5</INF> NAAQS,
EPA stated that each state's PSD program must meet applicable
requirements for evaluation of all regulated NSR pollutants in PSD
permits (76 FR 23757 at 23760). This view was reiterated in EPA's
August 2, 2012, proposed rulemaking for infrastructure SIPs for the
2006 PM<INF>2.5</INF> NAAQS (77 FR 45992 at 45998). In other words,
if a state lacks provisions needed to adequately address
NO<INF>X</INF> as a precursor to ozone, PM<INF>2.5</INF> precursors,
PM<INF>2.5</INF> and PM<INF>10</INF> condensibles, PM<INF>2.5</INF>
increments, or the Federal GHG permitting thresholds, the provisions
of Section 110(a)(2)(C) requiring a suitable PSD permitting program
must be considered not to be met irrespective of the NAAQS that
triggered the requirement to submit an infrastructure SIP, including
the 2012 PM<INF>2.5</INF> NAAQS.
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Some PSD requirements under section 110(a)(2)(C) overlap with
elements of section 110(a)(2)(D)(i), section 110(a)(2)(E), and section
110(a)(2)(J).
[[Page 38696]]
These links are discussed in the appropriate areas below.
a. PSD Provisions That Explicitly Identify NO<INF>X</INF> as a
Precursor to Ozone in the PSD Program
EPA's ``Final Rule to Implement the 8-Hour Ozone National Ambient
Air Quality Standard--Phase 2; Final Rule to Implement Certain Aspects
of the 1990 Amendments Relating to New Source Review and Prevention of
Significant Deterioration as They Apply in Carbon Monoxide, Particulate
Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline'' (Phase
2 Rule) was published on November 29, 2005 (70 FR 71612). Among other
requirements, the Phase 2 Rule obligated states to revise their PSD
programs to explicitly identify NO<INF>X</INF> as a precursor to ozone
(70 FR 71612 at 71679, 71699-71700). This requirement was codified in
40 CFR 51.166.\7\
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\7\ Similar changes were codified in 40 CFR 52.21.
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The Phase 2 Rule required that states submit SIP revisions
incorporating the requirements of the rule, including provisions
specifically identifying NO<INF>X</INF> as a precursor to ozone, by
June 15, 2007 (see 70 FR 71612 at 71683, November 29, 2005).
EPA approved revisions to Indiana's PSD SIP reflecting these
requirements on July 2, 2014 (79 FR 37646), and therefore proposes that
Indiana has met this set of infrastructure SIP requirements of section
110(a)(2)(C) with respect to the 2015 ozone NAAQS.
b. Identification of Precursors to PM<INF>2.5</INF> and the
Identification of PM<INF>2.5</INF> and PM<INF>10</INF> Condensibles in
the PSD Program
On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the
``Implementation of the New Source Review (NSR) Program for Particulate
Matter Less than 2.5 Micrometers (PM<INF>2.5</INF>)'' (2008 NSR Rule).
The 2008 NSR Rule finalized several new requirements for SIPs to
address sources that emit direct PM<INF>2.5</INF> and other pollutants
that contribute to secondary PM<INF>2.5</INF> formation. One of these
requirements is for NSR permits to address pollutants responsible for
the secondary formation of PM<INF>2.5,</INF> otherwise known as
precursors. In the 2008 rule, EPA identified precursors to
PM<INF>2.5</INF> for the PSD program to be sulfur dioxide
(SO<INF>2</INF>) and NO<INF>X</INF> (unless the state demonstrates to
the Administrator's satisfaction or EPA demonstrates that
NO<INF>X</INF> emissions in an area are not a significant contributor
to that area's ambient PM<INF>2.5</INF> concentrations). The 2008 NSR
Rule also specifies that VOCs are not considered to be precursors to
PM<INF>2.5</INF> in the PSD program unless the state demonstrates to
the Administrator's satisfaction or EPA demonstrates that emissions of
VOCs in an area are significant contributors to that area's ambient
PM<INF>2.5</INF> concentrations.
The explicit references to SO<INF>2,</INF> NO<INF>X</INF>, and VOCs
as they pertain to secondary PM<INF>2.5</INF> formation are codified at
40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of
identifying pollutants that are precursors to PM<INF>2.5,</INF> the
2008 NSR Rule also required states to revise the definition of
``significant'' as it relates to a net emissions increase or the
potential of a source to emit pollutants. Specifically, 40 CFR
51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define ``significant'' for
PM<INF>2.5</INF> to mean the following emissions rates: 10 tons per
year (tpy) of direct PM<INF>2.5</INF>; 40 tpy of SO<INF>2</INF>; and 40
tpy of NO<INF>X</INF> (unless the state demonstrates to the
Administrator's satisfaction or EPA demonstrates that NO<INF>X</INF>
emissions in an area are not a significant contributor to that area's
ambient PM<INF>2.5</INF> concentrations). The deadline for states to
submit SIP revisions to their PSD programs incorporating these changes
was May 16, 2011 (see 73 FR 28321 at 28341, May 16, 2008).\8\
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\8\ EPA notes that on January 4, 2013, the U.S. Court of Appeals
for the D.C. Circuit, in Natural Resources Defense Council v. EPA,
706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008
NSR Rule in accordance with the CAA's requirements for
PM<INF>10</INF> nonattainment areas (Title I, Part D, subpart 4),
and not the general requirements for nonattainment areas under
subpart 1 (Natural Resources Defense Council v. EPA, No. 08-1250).
As the subpart 4 provisions apply only to nonattainment areas, EPA
does not consider the portions of the 2008 rule that address
requirements for PM<INF>2.5</INF> attainment and unclassifiable
areas to be affected by the court's opinion. Moreover, EPA does not
anticipate the need to revise any PSD requirements promulgated by
the 2008 NSR rule in order to comply with the court's decision.
Accordingly, EPA's approval of Indiana's infrastructure SIP as to
elements (C), (D)(i)(II), or (J) with respect to the PSD
requirements promulgated by the 2008 implementation rule does not
conflict with the court's opinion.
The Court's decision with respect to the nonattainment NSR
requirements promulgated by the 2008 implementation rule also does
not affect EPA's action on the present infrastructure action. EPA
interprets the CAA to exclude nonattainment area requirements,
including requirements associated with a nonattainment NSR program,
from infrastructure SIP submissions due three years after adoption
or revision of a NAAQS. Instead, these elements are typically
referred to as nonattainment SIP or attainment plan elements, which
would be due by the dates statutorily prescribed under subpart 2
through 5 under part D, extending as far as 10 years following
designations for some elements.
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The 2008 NSR Rule did not require states to immediately account for
gases that could condense to form particulate matter, known as
condensibles, in PM<INF>2.5</INF> and PM<INF>10</INF> emission limits
in NSR permits. Instead, EPA determined that states had to account for
PM<INF>2.5</INF> and PM<INF>10</INF> condensibles for applicability
determinations and in establishing emissions limitations for
PM<INF>2.5</INF> and PM<INF>10</INF> in PSD permits beginning on or
after January 1, 2011. This requirement is codified in 40 CFR
751.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to
states' PSD programs incorporating the inclusion of condensibles were
due to EPA by May 16, 2011 (see 73 FR 28321 at 28341, May 16, 2008).
EPA approved revisions to Indiana's PSD SIP reflecting these
requirements on July 2, 2014 (79 FR 37646), and therefore proposes that
Indiana has met this set of infrastructure SIP requirements of section
110(a)(2)(C) with respect to the 2015 ozone NAAQS.
c. PM<INF>2.5</INF> Increments in the PSD Program
On October 20, 2010, EPA issued the final rule on the ``Prevention
of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5
Micrometers (PM<INF>2.5</INF>)--Increments, Significant Impact Levels
(SILs) and Significant Monitoring Concentration (SMC)'' (2010 NSR
Rule). This rule established several components for making PSD
permitting determinations for PM<INF>2.5</INF>, including a system of
``increments'' which is the mechanism used to estimate significant
deterioration of ambient air quality for a pollutant. These increments
are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included
in Table 1 below.
Table 1--PM2.5 Increments Established by the 2010 NSR Rule in Micrograms
per Cubic Meter
------------------------------------------------------------------------
Annual
arithmetic 24-hour
mean max
------------------------------------------------------------------------
Class I......................................... 1 2
Class II........................................ 4 9
Class III....................................... 8 18
------------------------------------------------------------------------
The 2010 NSR Rule also established a new ``major source baseline
date'' for PM<INF>2.5</INF> as October 20, 2010, and a new trigger date
for PM<INF>2.5</INF> as October 20, 2011. These revisions are codified
in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR
52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule
revised the definition of ``baseline area'' to include a level of
significance of 0.3 micrograms per cubic meter, annual average, for
PM<INF>2.5.</INF> This change is codified in 40 CFR 51.166(b)(15)(i)
and 40 CFR 52.21(b)(15)(i).
On July 12, 2012, and supplemented on December 12, 2012, IDEM
submitted
[[Page 38697]]
revisions intended to address the increments established by the 2010
NSR Rule for incorporation into the SIP, as well as the revised major
source baseline date, trigger date, and baseline area level of
significance for PM<INF>2.5</INF>. IDEM also requested that these
revisions satisfy any applicable infrastructure SIP requirements
related to PSD. Specifically, revisions to 326 IAC 2-2-6(b) contain the
Federal increments for PM<INF>2.5</INF>, 326 IAC 2-2-1(ee)(3) contains
the new major source baseline date for PM<INF>2.5</INF> of October 20,
2010, 326 IAC 2-2-1(gg)(1)(C) contains the new trigger date for
PM<INF>2.5</INF> of October 20, 2011, and 326 IAC 2-2-1(f)(1) contains
the new baseline area level of significance for PM<INF>2.5</INF>. It
should be noted that Indiana's submitted revisions explicitly include
only the PM<INF>2.5</INF> increments as they apply to Class II areas,
and not the PM<INF>2.5</INF> increments as they apply to Class I or
Class III areas.
On August 11, 2014 (79 FR 46709), EPA finalized approval of the
applicable infrastructure SIP PSD revisions in the Indiana SIP;
therefore, EPA is proposing that Indiana has met this set of
infrastructure SIP requirements of section 110(a)(2)(C) with respect to
the 2015 ozone NAAQS.
d. GHG Permitting and the ``Tailoring Rule'' in the PSD Program
With respect to the requirements of section 110(a)(2)(C) as well as
section 110(a)(2)(J), EPA interprets the CAA to require each state to
make an infrastructure SIP submission for a new or revised NAAQS that
demonstrates that the air agency has a complete PSD permitting program
meeting the current requirements for all regulated NSR pollutants. The
requirements of section 110(a)(2)(D)(i)(II) may also be satisfied by
demonstrating the air agency has a complete PSD permitting program
correctly addressing all regulated NSR pollutants. Indiana has shown
that it currently has a PSD program in place that covers all regulated
NSR pollutants, including GHGs. EPA finalized approval of a revision to
Indiana's SIP on September 15, 2011 (76 FR 59899), which included
revisions to 326 IAC 2-2-1 and 326 IAC 2-2-4 of Indiana's PSD
regulations. These revisions established appropriate emissions
thresholds for determining PSD applicability with respect to new or
modified GHG-emitting stationary sources in accordance with EPA's GHG
Tailoring Rule.
On June 23, 2014, the United States Supreme Court issued a decision
addressing the application of PSD permitting requirements to GHG
emissions. Utility Air Regulatory Group v. Environmental Protection
Agency, 134 S.Ct. 2427 (the UARG case). The Supreme Court said that EPA
may not treat GHGs as an air pollutant for purposes of determining
whether a source is a major source required to obtain a PSD permit. The
Court also said that EPA could continue to require that PSD permits,
otherwise required based on emissions of pollutants other than GHGs,
contain limitations on GHG emissions based on the application of Best
Available Control Technology (BACT).
In accordance with the Supreme Court decision, on April 10, 2015,
the U.S. Court of Appeals for the District of Columbia Circuit (the
D.C. Circuit) issued an amended judgment vacating the regulations that
implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas
Tailoring Rule, but not the regulations that implement Step 1 of that
rule. See Coalition for Responsible Regulation, Inc. v. EPA, No. 09-
1322. Step 1 of the Tailoring Rule covers sources that are required to
obtain a PSD permit based on emissions of pollutants other than GHGs.
Step 2 applied to sources that emitted only GHGs above the thresholds
triggering the requirement to obtain a PSD permit. The amended judgment
preserves, without the need for additional rulemaking by the EPA, the
application of the BACT requirement to GHG emissions from Step 1 or
``anyway'' sources. With respect to Step 2 sources, the D.C. Circuit's
amended judgment vacated the regulations at issue in the litigation,
including 40 CFR 51.166(b)(48)(v), ``to the extent they require a
stationary source to obtain a PSD permit if greenhouse gases are the
only pollutant (i) that the source emits or has the potential to emit
above the applicable major source thresholds, or (ii) for which there
is a significant emission increase from a modification.''
EPA is planning to take additional steps to revise federal PSD
rules in light of the Supreme Court opinion and subsequent D.C. Circuit
judgment. Some states have begun to revise their existing SIP-approved
PSD programs to address these court decisions, and some states may
prefer not to initiate this process until they have more information
about the planned revisions to EPA's PSD regulations. EPA is not
expecting states to have revised their PSD programs in anticipation of
EPA's planned actions to revise its PSD program rules in response to
the court decisions or purposes of infrastructure SIP submissions. For
purposes of infrastructure SIP submissions, EPA is only evaluating such
submissions to assure that the state's program addresses GHGs
consistent with both court decisions.
Under IC 13-14-9-8(h) Indiana's rules that implement Step 2 of the
Tailoring Rule were automatically invalidated in the UARG case
discussed above. Therefore, Indiana only implements Step 1 for
``anyway'' sources. The Indiana Environmental Rules Board adopted the
GHG regulations required by EPA at 326 IAC 2-2-1(zz), pursuant to IC
13-14-9-8(h) (a section 8 rulemaking). While the Step 2 provisions
still appear at 326 IAC 2-2-1(zz)(5), as a result of IC 13-14-9-8(h), a
rule, or part of a rule, adopted under section 8 is automatically
invalidated when the corresponding federal rule, or part of the rule,
is invalidated. Due to the ruling in UARG v. EPA, the Step 2 portion
of the Indiana's rule was automatically invalidated, and IDEM cannot
consider GHG emissions to determine operating permit applicability or
PSD applicability to a source or modification. Therefore, EPA is
proposing that Indiana's SIP is sufficient to satisfy Elements (C),
(D)(i)(II), and (J) with respect to GHGs because the PSD permitting
program previously approved by the EPA into the Indiana SIP continues
to require that PSD permits issued to ``anyway sources'' contain
limitations on GHG emissions based on the application of BACT.
EPA proposes that Indiana has met the infrastructure SIP
requirements of section 110(a)(2)(C) with respect to the 2015 ozone
NAAQS.
3. Minor NSR
An infrastructure SIP submission should identify the existing EPA-
approved SIP provisions that govern the minor source pre-construction
program that regulates emissions of the relevant NAAQS pollutant.
EPA approved Indiana's minor construction permit rule (326 IAC 2-1)
on October 7, 1994 (59 FR 51108). On March 16, 2015, EPA approved
revisions to 326 IAC 2-1 (see 80 FR 13493). Since October 7, 1994 and
March 16, 2015, respectively, IDEM and EPA have relied on the existing
minor NSR program to ensure that new and modified sources not captured
by the major NSR permitting programs do not interfere with attainment
and maintenance of the NAAQS. As stated in EPA's 2013 Guidance, the CAA
allows EPA to approve infrastructure SIP submissions that do not
implement the 2002 NSR Reform Rules. Therefore, EPA is not proposing
action on existing NSR Reform regulations for Indiana. EPA proposes
that Indiana has met the minor NSR requirements of section
[[Page 38698]]
110(a)(2)(C) with respect to the 2015 ozone NAAQS.
D. Section 110(a)(2)(D)--Interstate Transport
Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct
components, commonly referred to as ``prongs,'' that must be addressed
in infrastructure SIP submissions. The first two prongs, which are
codified in section 110(a)(2)(D)(i)(I), prohibit any source or other
type of emissions activity in one state from contributing significantly
to nonattainment of the NAAQS in another state (prong 1) and from
interfering with maintenance of the NAAQS in another state (prong 2).
The third and fourth prongs, which are codified in section
110(a)(2)(D)(i)(II), prohibit emissions activity in one state from
interfering with measures required to prevent significant deterioration
of air quality in another state (prong 3) or from interfering with
measures to protect visibility in another state (prong 4).
Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions
prohibiting any source or other type of emission activity in one state
from contributing significantly to nonattainment, or interfering with
maintenance, of the NAAQS in another state. Section 110(a)(2)(D)(i)(II)
requires SIPs to include provisions prohibiting any source of other
type of emission activity in one state from interfering with measures
required of any other state to prevent significant deterioration of air
quality, or from interfering with measures required of any other state
to protect visibility. Section 110(a)(2)(D)(ii) requires each SIP to
contain adequate provisions requiring compliance with the applicable
requirements of section 126 and section 115 (relating to interstate and
international pollution abatement, respectively).
1. Significant Contribution to Nonattainment
In this rulemaking, EPA is not evaluating section
110(a)(2)(D)(i)(I) requirements relating to significant contribution to
nonattainment for the 2015 ozone NAAQS. Instead, EPA has evaluated
these requirements in a separate rulemaking. See 87 FR 9838, February
22, 2022.
2. Interference With Maintenance
In this rulemaking, EPA is not evaluating section
110(a)(2)(D)(i)(I) requirements relating to interference with
maintenance for the 2015 ozone NAAQS. Instead, EPA has evaluated these
requirements in a separate rulemaking. See 87 FR 9838, February 22,
2022.
3. Interference With PSD
EPA notes that Indiana's satisfaction of the applicable
infrastructure SIP PSD requirements for the 2015 ozone NAAQS has been
detailed in the section addressing section 110(a)(2)(C). EPA further
notes that the proposed actions in that section related to PSD are
consistent with the proposed actions related to PSD for section
110(a)(2)(D)(i)(II), and they are reiterated below.
EPA has previously approved revisions to Indiana's SIP that meet
certain requirements obligated by the Phase 2 Rule and the 2008 NSR
Rule. These revisions included provisions that explicitly identify
NO<INF>X</INF> as a precursor to ozone, explicitly identify
SO<INF>2</INF> and NO<INF>X</INF> as precursors to PM<INF>2.5</INF> and
regulate condensable PM<INF>2.5</INF> and PM<INF>10</INF> in
applicability determinations for purposes of establishing emission
limits. EPA has also previously approved revisions to Indiana's SIP
that incorporate the PM<INF>2.5</INF> increments and the associated
implementation regulations including the major source baseline date,
trigger date, and level of significance for PM<INF>2.5</INF> per the
2010 NSR Rule. EPA is proposing that Indiana's SIP contains provisions
that adequately address the 2015 ozone NAAQS.
States also have an obligation to ensure that sources located in
nonattainment areas do not interfere with a neighboring state's PSD
program. One way that this requirement can be satisfied is through an
NNSR program consistent with the CAA that addresses any pollutants for
which there is a designated nonattainment area within the state.
Indiana's EPA-approved NNSR regulations are contained in 326 IAC 2-
3, approved on July 8, 2011 (76 FR 40242), and are consistent with 40
CFR 51.165 and 40 CFR part 51, appendix S. Therefore, EPA proposes that
Indiana has met all of the applicable section 110(a)(2)(D)(i)(II)
requirements relating to interference with PSD for the 2015 ozone
NAAQS.
4. Interference With Visibility Protection
In this rulemaking, EPA is not approving or disapproving Indiana's
satisfaction of the visibility protection requirements of section
110(a)(2)(D)(i)(II), transport prong 4, for the 2015 ozone NAAQS.
Instead, EPA will evaluate Indiana's compliance with these requirements
in a separate rulemaking.
5. Interstate and International Pollution Abatement
Section 110(a)(2)(D)(ii) requires each SIP to contain adequate
provisions requiring compliance with the applicable requirements of
section 126 and section 115 (relating to interstate and international
pollution abatement, respectively). section 126(a) requires new or
modified sources to notify neighboring states of potential impacts from
the source. The statute does not specify the method by which the source
should provide the notification. States with SIP-approved PSD programs
must have a provision requiring such notification by new or modified
sources. A lack of such a requirement in state rules would be grounds
for disapproval of this element.
Indiana's EPA-approved PSD portion of its program in 326 IAC 2-2-15
(b)(3) contains provisions requiring new or modified sources to notify
neighboring states of potential negative air quality impacts. EPA is
proposing that Indiana has met the infrastructure SIP requirements of
section 126(a) with respect to the 2015 ozone NAAQS. Indiana does not
have any obligations under any other subsection of section 126, nor
does it have any pending obligations under section 115. Therefore, EPA
proposes that Indiana has met all of the applicable section
110(a)(2)(D)(ii) requirements for the 2015 ozone NAAQS.
E. Section 110(a)(2)(E)--Adequate Resources; State Board Requirements
This section requires each state to provide for adequate personnel,
funding, and legal authority under state law to carry out its SIP, and
related issues. Section 110(a)(2)(E)(ii) also requires each state to
comply with the requirements respecting state boards under section 128.
1. Adequate Resources
To satisfy the adequate resources requirements of section
110(a)(2)(E), the state should provide assurances that its air agency
has adequate resources, personnel, and legal authority to implement the
relevant NAAQS.
Indiana's biennial budget and its environmental performance
partnership agreement with EPA document funding and personnel levels
for IDEM every two years. As discussed in earlier sections, IC 13-14-1-
12 provides the Commissioner of IDEM with the authority to enforce air
pollution control laws. Furthermore, IC 13-14-8, IC 13-17-3-11, and IC
13-17-3-14 contain the authority for IDEM to adopt air emissions
standards and compliance
[[Page 38699]]
schedules. EPA proposes that Indiana has met the infrastructure SIP
requirements of this portion of section 110(a)(2)(E) with respect to
the 2015 ozone NAAQS.
2. State Board Requirements
Section 110(a)(2)(E) also requires each SIP to set forth provisions
that comply with the state board requirements of section 128 of the
CAA. Specifically, this section contains two explicit requirements: (i)
That any board or body which approves permits or enforcement orders
under this chapter shall have at least a majority of members who
represent the public interest and do not derive any significant portion
of their income from persons subject to permits and enforcement orders
under this chapter, and (ii) that any potential conflicts of interest
by members of such board or body or the head of an executive agency
with similar powers be adequately disclosed.
On November 29, 2012, IDEM submitted rules regarding its
Environmental Rules Board at IC 13-13-8 for incorporation into the SIP,
pursuant to section 128 of the CAA. On December 12, 2012, IDEM provided
a supplemental submission clarifying that the Environmental Rules Board
established by IC 13-13-8, which has the authority to adopt
environmental regulations under IC 4-22-2 and IC 13-14-9, does not have
the authority to approve enforcement orders or permitting actions as
outlined in section 128(a)(1) of the CAA. Therefore, section 128(a)(1)
of the CAA is not applicable in Indiana.
Under section 128(a)(2), the head of the executive agency with the
power to approve enforcement orders or permits must adequately disclose
any potential conflicts of interest. IC 13-13-8-11 ``Disclosure of
conflicts of interest'' contains provisions that adequately satisfy the
requirements of section 128(a)(2). This section requires that each
member of the board shall fully disclose any potential conflicts of
interest relating to permits or enforcement orders. IC 13-13-8-4
defines the membership of the board, and the commissioner (of IDEM) or
his/her designee is explicitly included as a member of the board.
Therefore, when evaluated together in the context of section 128(a)(2),
the commissioner (of IDEM) or his/her designee must fully disclose any
potential conflicts of interest relating to permits or enforcement
orders under the CAA. EPA concludes that IDEM's submission as it
relates to the state board requirements under section 128 is consistent
with applicable CAA requirements. EPA approved these rules on December
24, 2013 (78 FR 77599). Therefore, EPA is proposing that IDEM has
satisfied the applicable infrastructure SIP requirements of section
110(a)(2)(E) for the 2015 ozone NAAQS.
F. Section 110(a)(2)(F)--Stationary Source Monitoring System
Section 110(a)(2)(F) contains several requirements, each of which
are described below.
1. Installation, Maintenance, Replacement of Equipment, and Other
Necessary Steps by Owners or Operators of Stationary Sources To Monitor
Emissions From Such Sources
EPA's rules regarding how SIPs need to address requirements for
source monitoring are contained in 40 CFR 51.212 (``Testing,
inspection, enforcement, and compliance''). This regulation requires
SIPs to provide for a program of periodic testing and inspection of
stationary sources, to provide for the identification of allowable test
methods, and to exclude any provision that would prevent the use of any
credible evidence of noncompliance. IDEM's rules for monitoring
requirements are contained in 326 IAC 3, which includes provisions
specific to the continuous monitoring of emissions at 326 IAC 3-5-1,
approved on June 25, 2021 (86 FR 33525), and minimum performance and
operating specifications at 326 IAC 3-5-2, quality assurance
requirements at 326 IAC 3-5-5, recordkeeping requirements at 326 IAC 3-
5-6, source sampling procedures at 326 IAC 3-6-1, and fuel sampling and
analysis procedures at 326 IAC 7, approved on October 23, 2013 (78 FR
63093). Therefore, EPA proposes that Indiana has met the infrastructure
SIP requirements of section 110(a)(2)(F)(i) with respect to the 2015
ozone standard.
2. Periodic Reports on the Nature and Amounts of Emissions and
Emissions-Related Data From Stationary Sources
To address periodic reporting requirements, the infrastructure SIP
submission should include air agency requirements providing for
periodic reporting of emissions and emissions-related data by sources
to the air agency, as required by the following emissions reporting
requirements: 40 CFR 51.211 (``Emissions reports and recordkeeping'');
40 CFR 51.321 through 51.323 (``Source Emissions and State Action
Reporting''); and the EPA's Air Emissions Reporting Rule, 40 CFR part
51, subpart A (``Air Emissions Reporting Requirements'').\9\ The
section 51.321 requirement that emission reports from states be made
through the appropriate EPA Regional Office has been superseded in
practice, as these data are now to be reported electronically through a
centralized data portal pursuant to 40 CFR 51.45(b), which refers to
the website <a href="http://www.epa.gov/ttn/chief">http://www.epa.gov/ttn/chief</a>, which was moved to <a href="https://www.epa.gov/">https://www.epa.gov/</a>. All states have existing periodic source reporting of
emissions and emission inventory reporting practices. Thus, for any new
or revised NAAQS, the infrastructure SIP may be able to certify
existing authority and commitments and provide any additional assurance
needed to meet changes in reporting and inventory requirements
associated with the new or revised NAAQS.
---------------------------------------------------------------------------
\9\ 40 CFR 51.321 through 51.323 nominally address emission
reporting but merely cross-reference to 40 CFR part 51, subpart A.
---------------------------------------------------------------------------
Indiana sets forth reporting requirements in 326 IAC 2-6-4,
approved on March 29, 2007 (72 FR 14678), that are consistent with 40
CFR 51.211, 40 CFR 51.321 to 323, and 40 CFR part 51, subpart A.
Therefore, EPA proposes that Indiana has met the infrastructure SIP
requirements of section 110(a)(2)(F)(ii) with respect to the 2015 ozone
standard.
3. Correlation of Emissions Reports by the State Agency With Any
Applicable Emission Limitations or Standards, Reports Shall Be
Available at Reasonable Times for Public Inspection
For this sub-element, the infrastructure SIP submission should
reference and describe existing air agency requirements that have been
approved into the SIP by the EPA, or include air agency requirements
being newly submitted, that provide for the following: (1) correlation
\10\ by the air agency of emissions reports by sources with applicable
emission limitations or standards; and (2) the public availability of
emission reports by sources. Under 40 CFR part 51 Subpart G, 40 CFR
51.116 (``Data availability''), contains the requirements for
correlating data. Correlation with applicable emissions limitations or
standards is relevant only for those reports of source emissions that
reflect the test method(s) and averaging period(s) specified in
applicable emission limitations or standards. Thus, source reports of
annual, ozone season, or summer day
[[Page 38700]]
emissions used by the air agency to create the annual and triennial
emission inventory submission to the EPA under 40 CFR part 51 subpart A
in general would not need to be correlated with specific emission
limitations or standards, as many sources do not have applicable
emission limitations defined for those averaging periods. However, if
the sources have applicable emissions limitations that are defined for
these averaging periods, then they would need to be correlated.
---------------------------------------------------------------------------
\10\ As defined in 40 CFR 51.116(c), the term ``correlate''
means ``present in such a manner as to show the relationship between
measured or estimated amounts of emissions and the amounts of such
emissions allowable under the applicable emission limitations or
other measures.''
---------------------------------------------------------------------------
Emission reports are available from IDEM upon request by EPA or
other interested parties. Additionally, IDEM emissions data can be
downloaded from the IDEM website at <a href="https://www.in.gov/idem/airquality/2507.htm">https://www.in.gov/idem/airquality/2507.htm</a>. This site provides summaries of emissions of air pollutants
reported by companies throughout the state of Indiana. The pollutants
in these summaries include NO<INF>X</INF> and VOC. Therefore, EPA
proposes that Indiana has met the infrastructure SIP requirements of
section 110(a)(2)(F)(iii) with respect to the 2015 ozone standard.
G. Section 110(a)(2)(G)--Emergency Powers
Section 110(a)(2)(G) requires the SIP to provide for authority
analogous to that in section 303 of the CAA and adequate contingency
plans to implement such authority. EPA's 2013 Guidance states that
infrastructure SIP submissions should specify authority, vested in an
appropriate official, to restrain any source from causing or
contributing to emissions which present an imminent and substantial
endangerment to public health or welfare, or the environment.
326 IAC 1-5-2, approved on May 31, 1972 (37 FR 10842), establishes
air pollution episode alert levels based on concentrations of criteria
pollutants. This rule requires that emergency reduction plans be
submitted to the Commissioner of IDEM by major air pollution sources,
and these plans must include actions that will be taken when each
episode level is declared, to reduce or eliminate emissions of the
appropriate air pollutants. Similarly, under IC 13-17-4, Indiana also
retains the ability to declare an air pollution emergency and order all
persons causing or contributing to the conditions warranting the air
pollution emergency to immediately reduce or discontinue emission of
air contaminants. EPA proposes that Indiana has met the applicable
infrastructure SIP requirements of section 110(a)(2)(G) related to
authority to implement measures to restrain sources from causing or
contributing to emissions which present an imminent and substantial
endangerment to public health, welfare or the environment with respect
to the 2015 ozone NAAQS.
H. Section 110(a)(2)(H)--Future SIP Revisions
This section requires states to provide for the authority to revise
their SIPs in response to changes in the NAAQS, availability of
improved methods for attaining the NAAQS, or to an EPA finding that the
SIP is substantially inadequate.
IDEM continues to update and implement needed revisions to
Indiana's SIP as necessary to meet ambient air quality standards. As
discussed in previous sections, authority to adopt emissions standards
and compliance schedules is found at IC 13-4-8, IC 13-17-3-4, IC 13-17-
3-11, and IC 13-17-3-14. EPA proposes that Indiana has met the
infrastructure SIP requirements of section 110(a)(2)(H) with respect to
the 2015 ozone NAAQS.
I. Section 110(a)(2)(I)--Nonattainment Planning Requirements of Part D
The CAA requires that each plan or plan revision for an area
designated as a nonattainment area meet the applicable requirements of
Part D of the CAA. Part D relates to nonattainment areas.
EPA has determined that section 110(a)(2)(I) is not applicable to
the infrastructure SIP process. Instead, EPA takes action on Part D
attainment plans through separate processes.
J. Section 110(a)(2)(J)--Consultation With Government Officials; Public
Notifications; PSD; Visibility Protection
The evaluation of the submission from Indiana with respect to the
requirements of section 110(a)(2)(J) are described below.
1. Consultation With Government Officials
States must provide a process for consultation with local
governments and Federal Land Managers (FLMs) carrying out NAAQS
implementation requirements.
IDEM actively participates in the regional planning efforts that
include state rule developers, representatives from the FLMs, and other
affected stakeholders. Additionally, Indiana is an active member of the
Lake Michigan Air Director's Consortium (LADCO), which consists of
collaboration with the States of Illinois, Wisconsin, Michigan,
Minnesota, and Ohio. EPA proposes that Indiana has met the
infrastructure SIP requirements of this portion of section 110(a)(2)(J)
with respect to the 2015 ozone NAAQS.
2. Public Notification
Section 110(a)(2)(J) also requires states to notify the public if
NAAQS are exceeded in an area and to enhance public awareness of
measures that can be taken to prevent exceedances.
IDEM monitors air quality data daily and reports the air quality
index to the interested public and media, if necessary. IDEM also
participates in and submits information to EPA's AIRNOW program, and
maintains SmogWatch, which is an informational tool created by IDEM to
share air quality forecasts for each day. SmogWatch provides daily
information about ground-level ozone, particulate matter concentration
levels, health information, and monitoring data for seven regions in
Indiana. In addition, IDEM maintains a publicly available website that
allows interested members of the community and other stakeholders to
view current monitoring data summaries, including those for ozone.\11\
EPA proposes that Indiana has met the infrastructure SIP requirements
of this portion of section 110(a)(2)(J) with respect to the 2015 ozone
NAAQS.
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\11\ <a href="http://www.in.gov/idem/airquality/2489.htm">http://www.in.gov/idem/airquality/2489.htm</a>.
---------------------------------------------------------------------------
3. PSD
States must meet applicable requirements of section 110(a)(2)(C)
related to PSD. IDEM's PSD program in the context of infrastructure
SIPs has already been discussed above in the paragraphs addressing
sections 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the
proposed actions for those sections are consistent with the proposed
actions for this portion of section 110(a)(2)(J).
Therefore, EPA proposes that Indiana has met all of the
infrastructure SIP requirements for PSD associated with section
110(a)(2)(D)(J) for the 2015 ozone NAAQS.
4. Visibility Protection
States are subject to visibility and regional haze program
requirements under part C of the CAA (which includes sections 169A and
169B). In the event of the establishment of a new NAAQS, however, the
visibility and regional haze program requirements under part C do not
change. Thus, EPA finds that there is no new visibility obligation
``triggered'' under section 110(a)(2)(J) when a new NAAQS becomes
effective. In other words, the visibility protection requirements of
section 110(a)(2)(J) are not germane to infrastructure SIPs for the
2015 ozone NAAQS.
[[Page 38701]]
K. Section 110(a)(2)(K)--Air Quality Modeling/Data
SIPs must provide for performance of air quality modeling to
predict the effects on air quality of emissions from any NAAQS
pollutant and the submission of such data to EPA upon request.
IDEM maintains the capability of performing computer modeling of
the air quality impacts of all criteria pollutants, including both
source-oriented and more regionally directed complex photochemical grid
models. IDEM collaborates with LADCO, EPA, and other Lake Michigan
states in performing modeling. These modeling data are available to EPA
or other interested parties upon request. Indiana's rules regarding air
quality modeling are contained in 326 IAC 2-2-4, 326 IAC 2-2-5, 326 IAC
2-2-6, and 326 IAC 2-2-7. EPA proposes that Indiana has met the
infrastructure SIP requirements of section 110(a)(2)(K) with respect to
the 2015 ozone NAAQS.
L. Section 110(a)(2)(L)--Permitting Fees
This section requires SIPs to mandate each major stationary source
to pay permitting fees to cover the cost of reviewing, approving,
implementing, and enforcing a permit.
IDEM's EPA-approved permit fee program, specifically contained in
326 IAC 2-1.1-7, contains the provisions, requirements, and structures
associated with the costs for reviewing, approving, implementing, and
enforcing various types of permits. EPA proposes that Indiana has met
the infrastructure SIP requirements of section 110(a)(2)(L) with
respect to the 2015 ozone NAAQS.
M. Section 110(a)(2)(M)--Consultation/Participation by Affected Local
Entities
States must consult with and allow participation from local
political subdivisions affected by the SIP. Any IDEM rulemaking
procedure contained in IC 13-14-9 requires public participation in the
SIP development process. In addition, IDEM ensures that the public
hearing requirements of 40 CFR 51.102 are satisfied during the SIP
development process. EPA proposes that Indiana has met the
infrastructure SIP requirements of section 110(a)(2)(M) with respect to
the 2015 ozone NAAQS.
III. What is EPA's analysis of the June 24, 2020, SIP submission?
On June 24, 2020, IDEM submitted a separate SIP revision request
that EPA approve into the Indiana SIP updated rules at 326 IAC 1-1-3
(References to the Code of Federal Regulations) with an effective date
April 4, 2020.
IDEM periodically revises its rules to reference updated versions
of the CFR. Most recently, on June 25, 2017, EPA approved into the
Indiana SIP revised rules at 326 IAC 1-1-3, which removed a reference
to the July 1, 2013, edition of the CFR and added a reference to the
July 1, 2015, edition of the CFR (82 FR 28775).
IDEM's June 24, 2020, submittal includes a further revised version
of 326 IAC 1-1-3, which removes the reference to the to the July 1,
2015, edition of the CFR and adds a reference to the July 1, 2018,
edition of the CFR. Following approval of these revisions into the
Indiana SIP, unless otherwise indicated, any reference within 326 IAC
to a provision of the CFR shall mean the July 1, 2018, edition. By
updating the reference date to July 1, 2018, the Indiana SIP will be
consistent with those regulations that the Federal government
promulgated between July 1, 2015, and June 30, 2018. EPA is therefore
proposing to approve the revisions at 326 IAC 1-1-3 into the Indiana
SIP.
Indiana's June 24, 2020, submission also includes a summary of
several changes to the CFR, which upon EPA's approval will be
incorporated into the Indiana SIP. These include revisions applicable
to appendix W to 40 CFR part 51, which contains updates to the
Guideline on Air Quality Models finalized by EPA on January 17, 2017
(82 FR 5182). In the context of infrastructure SIP requirements for the
2015 ozone NAAQS, EPA must demonstrate that a state provides for the
performance of air quality modeling as prescribed by the Administrator,
which means the 2017 revision to appendix W. If a state's SIP includes
incorporation by reference to an outdated version of appendix W and the
state lacks other authority to conduct modeling according to the 2017
revision to appendix W, EPA cannot approve the state's infrastructure
SIP elements at section 110(a)(2)(C), ``prong 3'' of section
110(a)(2)(D)(i)(II), section 110(a)(2)(J), and section 110(a)(2)(K).
Upon approval into the Indiana SIP of the revisions at 326 IAC 1-1-3,
the Indiana SIP will include incorporation by reference of the current
2017 version of appendix W. In EPA's analysis, above, of Indiana's
November 2, 2018, submittal regarding the infrastructure SIP
requirements for the 2015 ozone NAAQS, EPA has evaluated the Indiana
SIP together with the revisions at 326 IAC 1-1-3, which EPA is
proposing to approve in this rulemaking, and which provide IDEM with
the authority to conduct modeling according to the 2017 revision to
appendix W.
IV. What action is EPA taking?
EPA is proposing to approve most elements of the November 2, 2018,
submission from Indiana certifying that its current SIP is sufficient
to meet the required infrastructure elements under sections 110(a)(1)
and (2) for the 2015 ozone NAAQS. EPA has proposed action in a separate
rulemaking on the portion of the submission pertaining to the
interstate transport requirements of section 110(a)(2)(D)(i)(I) with
respect to the 2015 ozone NAAQS. See 87 FR 9838. EPA is not taking
action on the visibility protection requirements of section
110(a)(2)(D)(i)(II), transport prong 4, and will address this
requirement in a future rulemaking.
EPA's proposed actions for the State's satisfaction of
infrastructure SIP requirements pursuant to section 110(a)(2) and the
NAAQS are contained in the table below.
------------------------------------------------------------------------
Element 2015 ozone
------------------------------------------------------------------------
(A)--Emission limits and other control A
measures.
(B)--Ambient air quality monitoring/data A
system.
(C)1--Program for enforcement of control A
measures.
(C)2--PSD................................ A
(D)1--I Prong 1: Interstate transport-- NA
significant contribution.
(D)2--I Prong 2: Interstate transport-- NA
interfere with maintenance.
(D)3--II Prong 3: Interstate transport-- A
prevention of significant deterioration.
(D)4--II Prong 4: Interstate transport-- NA
protect visibility.
(D)5--Interstate and international A
pollution abatement.
(E)1--Adequate resources................. A
(E)2--State board requirements........... A
(F)--Stationary source monitoring system. A
(G)--Emergency power..................... A
[[Page 38702]]
(H)--Future SIP revisions................ A
(I)--Nonattainment planning requirements *
of part D.
(J)1--Consultation with government A
officials.
(J)2--Public notification................ A
(J)3--PSD................................ A
(J)4--Visibility protection.............. *
(K)--Air quality modeling/data........... A
(L)--Permitting fees..................... A
(M)--Consultation and participation by A
affected local entities.
------------------------------------------------------------------------
In the above table, the key is as follows:
------------------------------------------------------------------------
------------------------------------------------------------------------
A.............................. Approve.
NA............................. No Action/Separate Rulemaking.
*.............................. Not germane to infrastructure SIPs.
------------------------------------------------------------------------
EPA is also proposing to approve the June 24, 2020, submission from
Indiana, which revises the Indiana SIP by incorporating by reference
the more recent July 1, 2018, edition of the CFR.
V. Incorporation by Reference
In this rule, EPA is proposing to include in a final EPA rule
regulatory text that includes incorporation by reference. In accordance
with requirements of 40 CFR 51.5, EPA is proposing to incorporate by
reference Indiana rule 326 IAC 1-1-3, effective April 4, 2020, as
discussed in Section III of this preamble. EPA has made, and will
continue to make, these documents generally available through
<a href="http://www.regulations.gov">www.regulations.gov</a> and at the EPA Region 5 Office (please contact the
person identified in the FOR FURTHER INFORMATION CONTACT section of
this preamble for more information).
VI. 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:
<bullet> 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);
<bullet> Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
<bullet> 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.);
<bullet> 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);
<bullet> Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
<bullet> Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
<bullet> Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
<bullet> 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
<bullet> Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where EPA or an Indian tribe has
demonstrated that a tribe has jurisdiction. In those areas of Indian
country, the rule does not have tribal implications and will not impose
substantial direct costs on tribal governments or preempt tribal law as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, nitrogen oxides, ozone,
Reporting and recordkeeping requirements, volatile organic compounds.
Dated: June 21, 2022.
Debra Shore,
Regional Administrator, Region 5.
[FR Doc. 2022-13716 Filed 6-28-22; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on June 29, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.