2011-24790. Approval and Promulgation of Air Quality Implementation Plans; Indiana; Prevention of Significant Deterioration Greenhouse Gas Tailoring Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is approving revisions to the Indiana State Implementation Plan (SIP), submitted by the Indiana Department of Environmental Management (IDEM) to EPA on July 7, 2011. The SIP revision modifies Indiana's Prevention of Significant Deterioration (PSD) program to establish appropriate emission thresholds for determining which new stationary sources and modification projects become subject to Indiana's PSD permitting requirements for their greenhouse gas (GHG) emissions. EPA proposed approval of these regulatory revisions on June 17, 2011, and received no comments. This action affects major stationary sources in Indiana that have GHG emissions above the thresholds established in the PSD regulations.

DATES:

This final rule is effective on October 28, 2011.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2010-1024. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://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 Sam Portanova, Environmental Engineer, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Sam Portanova, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

I. What is the background for this action?

II. What comments did EPA receive?

III. What is the effect of this action?

IV. What action is EPA taking?

V. Statutory and Executive Order Reviews

I. What is the background for this action?

EPA has recently undertaken a series of actions pertaining to the regulation of GHGs that, although for the most part distinct from one another, establish the overall framework for today's final action on the Indiana SIP. Four of these actions include, as they are commonly called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA issued in a single final action,^[1] the “Johnson Memo Reconsideration,” ^[2] the “Light-Duty Vehicle Rule,” ^[3] and the “Tailoring Rule.” ^[4] Taken together and in conjunction with the Clean Air Act (CAA), these actions established regulatory requirements for GHGs emitted from new motor vehicles and new motor vehicle engines; determined that such regulations, when they took effect on January 2, 2011, subjected GHGs emitted from stationary sources to PSD requirements; and limited the applicability of PSD requirements to GHG sources on a phased-in basis.

Recognizing that some states had approved SIP PSD programs that do apply PSD to GHGs, but that do so for sources that emit as little as 100 or 250 tons per year of GHG, and that do not limit PSD applicability to GHGs to the higher thresholds in the Tailoring Rule, EPA published a final rule on December 30, 2010, narrowing its previous approval of PSD programs as applicable to GHG-emitting sources in SIPs for 24 states, including Indiana (PSD Narrowing Rule).^[5] In the PSD Narrowing Rule, EPA withdrew its approval of Indiana's SIP, among other SIPs, to the extent that SIP applies PSD permitting requirements to GHG emissions from sources emitting at levels below those set in the Tailoring Rule. Subsequently, Indiana's approved SIP provided the state with authority to regulate GHGs, but only at and above the Tailoring Rule thresholds; and Federally required new and modified sources to receive a PSD permit based on GHG emissions only if they emitted at or above the Tailoring Rule thresholds.

On December 3, 2010, in response to the Tailoring Rule and earlier GHG-related EPA rules, IDEM submitted a draft revision to EPA for parallel processing approval into the Indiana SIP to establish appropriate emission thresholds for determining which new or modified stationary sources become subject to PSD permitting requirements for GHG emissions. Subsequently, on June 17, 2011, EPA published a proposed approval of this parallel processing SIP submittal. See 76 FR 35380. Specifically, EPA proposed to approve revisions to 326 IAC 2-2-1 and 326 IAC 2-2-4 of Indiana's PSD rules to add GHG permitting requirements. Detailed background information and EPA's rationale for the proposed approval are provided in EPA's June 17, 2011, Federal Register action.

EPA's June 17, 2011, proposed approval was contingent upon Indiana providing a final SIP revision that was substantively the same as the December 3, 2010, submittal for parallel processing. Indiana provided its final SIP submittal on July 7, 2011, which included rules adopted final by IDEM on March 16, 2011. There were no differences between the December 3, 2010, draft SIP revision, and the July 7, 2011, final SIP revision.

II. What comments did EPA receive?

The public comment period on the proposed approval of Indiana's SIP revision ended on July 18, 2011. EPA did not receive any comments on the proposed approval of this SIP revision.

III. What is the effect of this action?

Final approval of Indiana's July 7, 2011, SIP revision incorporates changes to 326 IAC 2-2-1 and 326 IAC 2-2-4 of the state's rules to establish the GHG emission thresholds for PSD applicability set forth in EPA's Tailoring Rule, confirming that smaller GHG sources emitting less than these thresholds will not be subject to PSD permitting requirements under the approved Indiana SIP. EPA has determined that the SIP revision approved by today's action is consistent with EPA's regulations, including the Tailoring Rule. Furthermore, EPA has determined that this SIP revision is consistent with section 110 of the CAA. Pursuant to section 110 of the CAA, EPA approves this revision into Indiana's SIP.

As result of today's action approving Indiana's incorporation of the appropriate GHG permitting thresholds into its SIP, paragraph (k) in 40 CFR 52.773, as included in EPA's PSD Narrowing Rule, is no longer necessary.^[6] Thus, today's action also amends 40 CFR 52.773 to remove this unnecessary regulatory language.

IV. What action is EPA taking?

EPA is approving the revisions to 326 IAC 2-2-1 and 326 IAC 2-2-4 of Indiana's PSD regulations which were submitted by IDEM on July 7, 2011. These revisions establish appropriate emissions thresholds for determining PSD applicability with respect to new or modified GHG-emitting stationary sources in accordance with EPA's June 3, 2010, Tailoring Rule.

With this approval, EPA also amends 40 CFR 52.773 to remove paragraph (k).

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 Order 12866 (58 FR 51735, October 4, 1993);
• 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, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 November 28, 2011. 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. 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, and Reporting and recordkeeping requirements

Dated: September 15, 2011.

Susan Hedman,

Regional Administrator, Region 5.

40 CFR part 52 is amended as follows:

PART 52—[AMENDED]

1. The authority citation for part 52 continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart P—Indiana

2. In § 52.770 the table in paragraph (c) is amended by revising the entries for “2-2-1” and “2-2-4” to read as follows:

§ 52.770

Identification of plan.

* * * * *

(c) * * *

EPA-Approved Indiana Regulations

Indiana citation	Subject	Indiana effective date	EPA approval date	Notes
*         *         *         *         *         *         *
2-2-1	Definitions	03/16/2011	9/28/2011, [Insert page number where the document begins]
*         *         *         *         *         *         *
2-2-4	Air quality analysis; requirements	03/16/2011	9/28/2011, [Insert page number where the document begins]
*         *         *         *         *         *         *

* * * * *

3. In § 52.773, paragraph (k) is removed.

Footnotes

1.  “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clean Air Act.” 74 FR 66496 (December 15, 2009).

2.  “Interpretation of Regulations that Determine Pollutants Covered by Clean Air Act Permitting Programs.” 75 FR 17004 (April 2, 2010).

3.  “Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards; Final Rule.” 75 FR 25324 (May 7, 2010).

4.  “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule; Final Rule.” 75 FR 31514 (June 3, 2010).

5.  “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans.” 75 FR 82536 (December 30, 2010).

6.  40 CFR 52.773(k) codifies EPA's limiting its approval of Indiana's PSD SIP to not cover the applicability of PSD to GHG-emitting sources below the Tailoring Rule thresholds.