2019-10069. Air Plan Approval; Indiana; Regional Haze Plan and Prong 4 (Visibility) for the 2006 and 2012 PM2.5

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to take action under the Clean Air Act (CAA) on an Indiana's November 27, 2017 State Implementation Plan (SIP) submittal addressing regional haze. This proposed action is based on EPA's determination that a state's implementation of the Cross-State Air Pollution Rule (CSAPR) program continues to meet the criteria of the Regional Haze Rule (RHR) to qualify as an alternative to the application of Best Available Retrofit Technology (BART). EPA is proposing several related actions. First, EPA is proposing to approve the portion of Indiana's November 27, 2017 SIP submittal seeking to change reliance from the Clean Air Interstate Rule (CAIR) to CSAPR for certain regional haze requirements. EPA is also proposing to convert EPA's limited approval/limited disapproval of Indiana's regional haze SIP to a full approval and to withdraw the Federal Implementation Plan (FIP) provisions that address the limited disapproval. Finally, EPA is proposing to approve the visibility prong of Indiana's infrastructure SIP submittals for the 2012 annual and 2006 24-hour fine particulate matter (PM_2.5), 2010 nitrogen dioxide (NO₂), and 2010 sulfur dioxide (SO₂) National Ambient Air Quality Standards (NAAQS) and to convert EPA's disapproval of the visibility portion of Indiana's infrastructure SIP submittal for the 2008 ozone NAAQS to an approval.

DATES:

Comments must be received on or before June 21, 2019.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2017-0700 at http://www.regulations.gov or via email to [e-mail]. 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:

Kathleen D'Agostino, Environmental Scientist, Attainment Planning and Maintenance 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.

I. Background

A. Regional Haze SIPs and Their Relationship With CAIR and CSAPR

Section 169A(a)(1) of the CAA establishes as a national visibility goal “the prevention of any future, and the remedying of any existing, impairment of visibility in mandatory class I Federal areas which impairment results from manmade air pollution.” Section 169A(b)(2)(A) of the CAA requires states to submit regional haze SIPs that contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate BART as determined by the state. Under the RHR, states are directed to conduct BART determinations for such “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART. See 40 CFR 51.308(e)(2). EPA provided states with this flexibility in the RHR, adopted in 1999, and further refined the criteria for assessing whether an alternative program provides for greater reasonable progress in two subsequent rulemakings. See 64 FR 35714 (July 1, 1999); 70 FR 39104 (July 6, 2005); 71 FR 60612 (October 13, 2006).

In revisions to the regional haze program made in 2005, EPA demonstrated that CAIR would achieve greater reasonable progress than BART.^[1] See 70 FR 39104. In those revisions, EPA amended its regulations to provide that states participating in the CAIR cap-and-trade programs pursuant to an EPA-approved CAIR SIP, or states that remain subject to a CAIR FIP need not require affected BART-eligible electric generating units (EGUs) to install, operate, and maintain BART for emissions of SO₂ and nitrogen oxides (NO_X).

As a result of EPA's determination that CAIR was “better-than-BART,” a number of states in which CAIR applies, including Indiana, relied on the CAIR cap-and-trade programs as an alternative to BART for EGU emissions of SO₂ and NO_X in designing their regional haze SIPs. These states also relied on CAIR as an element of a long-term strategy (LTS) for achieving reasonable progress goals (RPGs) for their regional haze programs. However, in 2008, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanded CAIR to EPA without vacatur (preserving the environmental benefits provided by CAIR). North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace CAIR and issued FIPs to implement the rule in CSAPR-subject states.^[2] Implementation of CSAPR was scheduled to begin on January 1, 2012, when CSAPR would have superseded the CAIR program.

Due to the D.C. Circuit's 2008 ruling that CAIR was “fatally flawed,” and its resulting status as a temporary measure following that ruling, EPA could not fully approve regional haze SIPs to the extent that they relied on CAIR to satisfy the BART requirement and the requirement for a LTS sufficient to achieve the state-adopted RPGs. On these grounds, EPA finalized a limited disapproval of Indiana's regional haze SIP on June 7, 2012 (77 FR 33642), triggering the requirement for EPA to promulgate a FIP unless Indiana submitted, and EPA approved a SIP revision that corrected the deficiency. EPA finalized a limited approval of Indiana's regional haze SIP on June 11, 2012 (77 FR 34218), as meeting the remaining applicable regional haze requirements set forth in the CAA and the RHR.

In the June 7, 2012 limited disapproval action, EPA also amended the RHR to provide that participation by a state's EGUs in a CSAPR trading program for a given pollutant—either a CSAPR Federal trading program implemented through a CSAPR FIP or an integrated CSAPR state trading program implemented through an approved CSAPR SIP revision—qualifies as a BART alternative for those EGUs for that pollutant.^[3] See 40 CFR 51.308(e)(4). Since EPA promulgated this amendment, numerous states covered by CSAPR, including Indiana, have utilized the provision through either SIPs or FIPs.^[4]

Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on August 21, 2012, the court issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the D.C. Circuit to resolve remaining issues in accordance with the high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the CSAPR budgets as to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015).

The remanded budgets include the Phase 2 SO₂ emissions budgets for four states and the Phase 2 ozone-season NO_X budgets for eleven states. This litigation ultimately delayed implementation of CSAPR for three years, from January 1, 2012, when CSAPR's cap-and-trade programs were originally scheduled to replace the CAIR cap-and-trade programs, to January 1, 2015. Thus, the rule's Phase 2 budgets that were originally scheduled to begin on January 1, 2014, began on January 1, 2017.

On September 29, 2017 (82 FR 45481), EPA published a final rule affirming the continued validity of the Agency's 2012 determination that participation in CSAPR meets the RHR's criteria for an alternative to the application of source specific BART. In the rulemaking, EPA explained that the limited changes to the scope of CSAPR coverage did not alter EPA's conclusion that CSAPR remains “better-than-BART;” that is, that participation in CSAPR remains available as an alternative to BART for EGUs covered by the trading program.

Indiana's November 27, 2017 SIP submittal seeks to correct the deficiencies identified in the June 7, 2012 limited disapproval of its regional haze SIP by replacing reliance on CAIR with reliance on CSAPR. Specifically, Indiana requests that EPA approve the State's regional haze SIP revision that replaces reliance on CAIR with CSAPR to satisfy SO₂ and NO_X BART requirements.

B. Infrastructure SIPs

The “infrastructure SIP” 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. The requirement for states to make an infrastructure SIP submission is under CAA section 110(a)(1). SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are required to be submitted by states within three years (or less, if the Administrator so prescribes) after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.

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).

“Prong 4” Requirements

Section 110(a)(2)(D)(i)(II) requires a state's implementation plan to contain provisions prohibiting sources in that state from emitting pollutants in amounts that interfere with any other state's efforts to protect visibility under part C of the CAA (which includes sections 169A and 169B). EPA issued guidance on infrastructure SIPs in a September 13, 2013 memorandum from Stephen D. Page titled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” (2013 Guidance). The 2013 Guidance states that these prong 4 requirements can be satisfied by approved SIP provisions that EPA has found to adequately address any contribution of that state's sources that impact the visibility program requirements in other states. The 2013 Guidance also states that EPA interprets this prong to be pollutant-specific, such that the infrastructure SIP submission need only address the potential for interference with protection of visibility caused by the pollutant (including precursors) to which the new or revised NAAQS applies.

The 2013 Guidance lays out how a state's infrastructure SIP may satisfy prong 4. One way is via confirmation that the state has an approved regional haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. The regulations at 40 CFR 51.308 and 51.309 specifically require that a state participating in a regional planning process include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. A fully approved regional haze SIP will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility.

Alternatively, in the absence of a fully approved regional haze SIP, a state may meet the requirements of prong 4 through a demonstration in its infrastructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies' plans to protect visibility. Such an infrastructure SIP submission would need to include measures to limit visibility-impairing pollutants and ensure that the reductions conform with any mutually agreed upon regional haze RPGs for mandatory Class I areas in other states.

Through this action, EPA is proposing to approve the prong 4 portion of Indiana's infrastructure SIP submissions for the 2012 PM_2.5, 2010 NO₂, and 2010 SO₂ standards, and to convert EPA's disapproval of the prong 4 portion of Indiana's infrastructure SIP submission for the 2008 ozone NAAQS to an approval, as discussed in section IV of this action. All other applicable infrastructure SIP requirements for these SIP submissions have been or will be addressed in separate rulemakings. A brief background regarding the NAAQS relevant to this proposal is provided below.

1. 2006 and 2012 PM_2.5 NAAQS

On December 18, 2006, EPA revised the 24-hour average primary and secondary PM_2.5 NAAQS to 35 micrograms per cubic meter (μg/m³). See 71 FR 61144 (October 17, 2006). States were required to submit infrastructure SIP submissions for the 2006 PM_2.5 NAAQS to EPA no later than September 21, 2009. Indiana submitted infrastructure SIP submissions for the 2006 PM_2.5 NAAQS on October 20, 2009, June 25, 2012, July 12, 2012, and May 22, 2013. This proposed action only addresses the prong 4 element of those submissions. The other portions of Indiana's PM_2.5 infrastructure submissions have been previously addressed (78 FR 41311, July 10, 2013; 79 FR 18999, April 7, 2014; and 83 FR 64472, December 17, 2018).

On December 14, 2012, EPA revised the annual primary PM_2.5 NAAQS to 12 μg/m³. See 78 FR 3086 (January 15, 2013). States were required to submit infrastructure SIP submissions for the 2012 PM_2.5 NAAQS to EPA no later than December 14, 2015. Indiana submitted an infrastructure SIP submission for the 2012 PM_2.5 NAAQS on December 10, 2016. This proposed action only addresses the prong 4 element of that submission. The other portions of Indiana's December 10, 2016 PM_2.5 infrastructure submission have been previously addressed (83 FR 4595, February 1, 2018) or will be addressed in a separate action.

2. 2010 SO₂ NAAQS

On June 2, 2010, EPA revised the primary SO₂ NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. See 75 FR 35520 (June 22, 2010). States were required to submit infrastructure SIP submissions for the 2010 SO₂ NAAQS to EPA no later than June 2, 2013. Indiana submitted an infrastructure SIP submission for the 2010 1-hour SO₂ NAAQS on May 22, 2013. This proposed action only addresses the prong 4 element of that submission. The other portions of Indiana's May 22, 2013 SO₂ infrastructure submission have been previously addressed (80 FR 48733, August 14, 2015) or will be addressed in a separate action.

3. 2010 NO₂ NAAQS

On January 22, 2010, EPA promulgated a new 1-hour primary NAAQS for NO₂ at a level of 100 ppb, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474 (February 9, 2010). States were required to submit infrastructure SIP submissions for the 2010 NO₂ NAAQS to EPA no later than January 22, 2013. Indiana submitted infrastructure SIP submissions for the 2010 NO₂ NAAQS on January 15, 2013. This proposed action only addresses the prong 4 element of that submission. The other portions of Indiana's January 15, 2013, NO₂ infrastructure submission have been addressed in a previous EPA action (80 FR 48733, August 14, 2015).

4. 2008 Ozone NAAQS

On March 12, 2008, EPA revised the ozone NAAQS to 0.075 parts per million. See 73 FR 16436 (March 27, 2008). States were required to submit infrastructure SIP submissions for the 2008 ozone NAAQS to EPA no later than March 12, 2011. Indiana submitted an infrastructure SIP for the 2008 ozone NAAQS on December 12, 2011. On June 15, 2016, EPA disapproved the intrastate transport provisions of Indiana's 2008 ozone infrastructure submission, including the prong 4 element. See 81 FR 53309. This proposed action addresses the disapproval for prong 4 and proposes to convert it to a full approval. The other portions of Indiana's December 12, 2011 ozone infrastructure SIP submission have been addressed in a previous EPA action (80 FR 23713, April 29, 2015).

II. What is EPA's analysis of how Indiana addressed regional haze and prong 4 of the infrastructure SIP requirements?

Indiana submitted infrastructure SIPs for the following NAAQS: 2012 annual PM_2.5 (December 10, 2016); 2006 24-hour average PM_2.5 (October 20, 2009; June 25, 2012; July 12, 2012; and May 22, 2013); 2010 NO₂ (January 15, 2013); 2010 SO₂ (May 22, 2013); and 2008 ozone (December 12, 2011) which relied on the State having a fully approved regional haze SIP to satisfy its prong 4 requirements. However, EPA had not previously fully approved Indiana's regional haze SIP. As discussed earlier in this action, the Agency issued a limited disapproval of the State's original regional haze plan on June 7, 2012, due to its reliance on CAIR, which also triggered the requirement for EPA to promulgate a FIP in Indiana utilizing CSAPR. To correct the deficiencies in its regional haze SIP and obtain approval of the aforementioned infrastructure SIPs that rely on the regional haze SIP, the State submitted a SIP revision on November 27, 2017, to replace reliance on CAIR with reliance on CSAPR.

As noted above, EPA determined that CSAPR remains “better than BART,” given the changes to CSAPR's scope in response to the D.C. Circuit's remand. Because the Agency has finalized the “CSAPR remains better-than-BART” rulemaking, EPA is proposing to approve the regional haze portion of the State's November 27, 2017 SIP revision and convert EPA's previous action on Indiana's regional haze SIP from a limited approval/limited disapproval to a full approval. Specifically, EPA's finds that this portion of Indiana's November 27, 2017 SIP revision satisfies the SO₂ and NO_X BART requirements for EGUs formerly subject to CAIR. Because a state may satisfy prong 4 requirements through a fully approved regional haze SIP, EPA is also proposing to approve the prong 4 portion of Indiana's 2006 and 2012 PM_2.5 submissions; 2010 NO₂ submissions; and the 2010 SO₂ submission. EPA is also proposing to convert EPA's disapproval of the prong 4 portions of Indiana's 2008 ozone infrastructure submission to an approval.

III. Proposed Action

EPA is proposing to take the following actions: (1) Approve the portion of Indiana's November 27, 2017 SIP submittal seeking to change from reliance on CAIR to reliance on CSAPR for certain regional haze requirements; (2) convert EPA's limited approval/limited disapproval of Indiana's January 14, 2011 and March 10, 2011 regional haze SIP to a full approval; (3) withdraw the FIP provisions that address the limited disapproval; (4) approve the visibility prong of Indiana's infrastructure SIP submittals for the 2012 and 2006 PM_2.5, 2010 NO₂, and 2010 SO₂ NAAQS; and (5) convert EPA's disapproval of the visibility portion of Indiana's infrastructure SIP submittal for the 2008 ozone NAAQS to an approval.

All other applicable infrastructure requirements for the infrastructure SIP submissions have been or will be addressed in separate rulemakings.

IV. 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);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.
• 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 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 dioxide
• Particulate matter
• Reporting and recordkeeping requirements
• Sulfur oxides
• Volatile organic compounds

Dated: May 2, 2019.

Cheryl L. Newton,

Acting Regional Administrator, Region 5.

Footnotes

1.  CAIR created regional cap-and-trade programs to reduce SO₂ and NO_X emissions in 27 eastern states (and the District of Columbia), including Indiana, that contributed to downwind nonattainment or interfered with maintenance of the 1997 8-hour ozone NAAQS or the 1997 PM_2.5 NAAQS.

2.  CSAPR requires 28 eastern states to limit their statewide emissions of SO₂ and/or NO_X in order to mitigate transported air pollution unlawfully impacting other states' ability to attain or maintain four NAAQS: The 1997 ozone NAAQS, the 1997 annual PM_2.5 NAAQS, the 2006 24-hour PM_2.5 NAAQS, and the 2008 8-hour ozone NAAQS. The CSAPR emissions limitations are defined in terms of maximum statewide “budgets” for emissions of annual SO₂, annual NO_X, and/or ozone-season NO_X by each covered state's large EGUs. The CSAPR state budgets are implemented in two phases of generally increasing stringency, with the Phase 1 budgets applying to emissions in 2015 and 2016 and the Phase 2 budgets applying to emissions in 2017 and later years.

3.  Legal challenges to the CSAPR-Better-than-BART rule from state, industry, and other petitioners are pending. Utility Air Regulatory Group v. EPA, No. 12-1342 (D.C. Cir. filed August 6, 2012).

4.  EPA has promulgated FIPs relying on CSAPR participation for BART purposes for Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia, 77 FR at 33654, and Nebraska, 77 FR 40150, 40151 (July 6, 2012), and Texas 82 FR 48324 (October 17, 2017). EPA has approved Minnesota's, Wisconsin's, and Alabama's SIPs relying on CSAPR participation for BART purposes. See 77 FR 34801 (June 12, 2012) for Minnesota, 77 FR 46952 (August 7, 2012) for Wisconsin, and 82 FR 47393 (October 12, 2017) for Alabama.