41698 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 

This document provides early 

notification of our specific plans and 

actions for this program. 

Accessible Format: Individuals with 

disabilities can obtain this document in 

an accessible format (e.g., braille, large 

print, audiotape, or compact disc) on 

request to the program contact person 

listed under FOR FURTHER INFORMATION

CONTACT. 

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Dated: July 8, 2013. 

Deborah S. Delisle, 

Assistant Secretary for Elementary and 

Secondary Education. 

[FR Doc. 2013–16668 Filed 7–10–13; 8:45 am] 

BILLING CODE 4000–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R05–OAR–2009–0839; FRL–9832–3] 

Approval and Promulgation of Air 

Quality Implementation Plans; Indiana; 

Redesignation of the Indianapolis Area 

to Attainment of the 1997 Annual 

Standard for Fine Particulate Matter 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving Indiana’s 

request to redesignate the Indianapolis, 

Indiana nonattainment area (Hamilton, 

Hendricks, Johnson, Marion, and 

Morgan Counties) to attainment for the 

1997 annual National Ambient Air 

Quality Standard (NAAQS or standard) 

for fine particulate matter (PM2.5) 

because the request meets the statutory 

requirements for redesignation under 

the Clean Air Act (CAA). The Indiana 

Department of Environmental 

Management (IDEM) submitted this 

request to EPA on October 20, 2009, and 

supplemented it on May 31, 2011, 

January 17, 2013, and March 18, 2013. 

EPA’s approval involves several related 

actions. EPA is making a determination 

that the Indianapolis area has attained 

the 1997 annual PM2.5 standard. EPA is 

approving, as a revision to the Indiana 

State Implementation Plan (SIP), the 

state’s plan for maintaining the 1997 

annual PM2.5 NAAQS through 2025 in 

the area. EPA is approving the 

comprehensive emissions inventories 

submitted by IDEM for Nitrogen Oxides 

(NOX), Sulfur Dioxide (SO2), primary 

PM2.5, Volatile Organic Compounds 

(VOC), and ammonia as meeting the 

requirements of the CAA. Finally, EPA 

finds adequate and is approving 

Indiana’s NOX and PM2.5 Motor Vehicle 

Emission Budgets (MVEBs) for 2015 and 

2025 for the Indianapolis area. 

DATES: This final rule is effective July 

11, 2013. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2009–0839. All 

documents in the docket are listed in 

the www.regulations.gov index. 

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, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in 

www.regulations.gov or in hard copy at 

the Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone 

Kathleen D’Agostino, Environmental 

Engineer, at (312) 886–1767 before 

visiting the Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Kathleen D’Agostino, Environmental 

Engineer, Attainment Planning and 

Maintenance Section, Air Programs 

Branch (AR–18J), Environmental 

Protection Agency, Region 5, 77 West 

Jackson Boulevard, Chicago, Illinois 

60604, (312) 886–1767, 

dagostino.kathleen@epa.gov. 

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 the actions? 

II. What actions is EPA taking? 

III. What is EPA’s response to comments? 

IV. Why is EPA taking these actions? 

V. Final Action 

VI. Statutory and Executive Order Reviews 

I. What is the background for the 

actions? 

On October 20, 2009, IDEM submitted 

its request to redesignate the 

Indianapolis, Indiana nonattainment 

area (Hamilton, Hendricks, Johnson, 

Marion, and Morgan Counties) to 

attainment for the 1997 annual PM2.5

NAAQS, and for EPA approval of the 

SIP revision containing an emissions 

inventory and a maintenance plan for 

the area. IDEM supplemented its 

submission on May 31, 2011, January 

17, 2013, and March 18, 2013. On 

September 27, 2011, EPA published 

proposed (76 FR 59599) and direct final 

(76 FR 59512) rules making a 

determination that the Indianapolis area 

is attaining the 1997 annual PM2.5

standard and that the area has met the 

requirements for redesignation under 

section 107(d)(3)(E) of the CAA. EPA 

subsequently received adverse 

comments on the direct final rule and 

withdrew it on November 27, 2011 (76 

FR 70361). The proposal was not 

withdrawn. EPA published a 

supplemental proposal on April 8, 2013 

(78 FR 20856). EPA received an adverse 

comment on the supplemental proposal. 

II. What actions is EPA taking? 

EPA is making a determination that 

the Indianapolis area has attained and 

continues to attain the 1997 annual 

PM2.5 standard, that the area has 

attained this standard by its applicable 

attainment date of April 5, 2010, and 

that the area meets the requirements for 

redesignation under section 107(d)(3)(E) 

of the CAA. EPA proposed this 

determination based on monitoring data 

showing attainment of the standard for 

the 2006–2008, 2007–2009, and 2008– 

2010 time periods. Quality-assured, 

certified monitoring data for 2011 show 

that the area continues to attain the 

standard, with a 2009–2011 design 

value of 13.1 mg/m3 (see http:// 

www.epa.gov/pm/2012/ 

20092011table.pdf). Monitoring data 

that are now available for 2012 have 

been certified and are consistent with 

continued attainment as well (see 

http://www.epa.gov/ttn/airs/airsaqs/). 

Because the area continues to attain 

the standard and meets all other 

requirements for redesignation under 

CAA section 107(d)(3)(E), EPA is 

approving the request from Indiana to 

change the legal designation of the 

Indianapolis area from nonattainment to 


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Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 41699 

1Fine particulates directly emitted by sources 

and not formed in a secondary manner through 

chemical reactions or other processes in the 

atmosphere. 

2NOX and SO2 are precursors for fine particulates 

through chemical reactions and other related 

processes in the atmosphere. 

3 ‘‘Significant’’ emissions rates are listed in 326 

IAC 2–2–1(ww). 

4See September 4, 1992 memorandum from John 

Calcagni entitled ‘‘Procedures for Processing 

Requests to Redesignate Areas to Attainment,’’ 

(‘‘Calcagni Memorandum’’) at 4 and 8–9. 

5Most gasoline sold in Indiana prior to January 

2006 had a sulfur content of about 500 ppm. 

attainment for the 1997 annual PM2.5

NAAQS. 

EPA is taking several actions related 

to Indiana’s PM2.5 redesignation request, 

as discussed below. 

EPA is approving, pursuant to CAA 

section 175A, Indiana’s 1997 annual 

PM2.5 maintenance plan for the 

Indianapolis area as a revision to the 

Indiana SIP (such approval being one of 

the CAA criteria for redesignation to 

attainment status). The maintenance 

plan is designed to keep the 

Indianapolis area in attainment of the 

1997 annual PM2.5 NAAQS through 

2025. 

EPA is approving, pursuant to CAA 

section 172(c)(3), both the 2006 

emission inventories for primary PM2.5,1

NOX, and SO2,2 and the 2007/2008 

emission inventories for VOC and 

ammonia. These emission inventories 

satisfy the requirement in section 

172(c)(3) of the CAA for a 

comprehensive, current emission 

inventory. 

Finally, for transportation conformity 

purposes EPA finds adequate and is 

approving Indiana’s NOX and PM2.5

MVEBs for 2015 and 2025 for the 

Indianapolis area. 

III. What is EPA’s response to 

comments? 

EPA received adverse comments on 

the September 27, 2011, proposal from 

Robert Ukeiley, on behalf of both 

Midwest Environmental Defense Center 

Inc. and two citizens. Valley Watch 

joined these comments. EPA received an 

adverse comment on the April 8, 2013, 

supplemental proposal from Thomas 

Cmar of Earthjustice on behalf of Sierra 

Club. A summary of the comments 

received, and EPA’s responses, follow. 

Comment: The commenter contends 

that Indiana does not have an adequate 

prevention of significant deterioration 

(PSD) program. He further asserts that 

the PSD program is part of the SIP that 

an area being redesignated needs to 

have to ensure that the area will stay in 

attainment. As a result, the commenter 

takes the position that EPA cannot 

approve the redesignation request 

because Indiana does not have an 

adequate PM2.5 PSD program. The 

commenter bases his conclusion that 

Indiana’s PSD program is inadequate for 

PM2.5 on the fact that the program does 

not contain specific ‘‘significant 

emission rates’’ 3 for PM2.5 and its 

precursors, and that the program does 

not include PM2.5 increments. 

Response: On October 29, 2012, EPA 

approved revisions to Indiana’s PSD 

SIP. Specifically, EPA approved changes 

to 326 Indiana Administrative Code 

(IAC) 2–2–1(ss), ‘‘Regulated NSR 

pollutant,’’ that explicitly identify SO2

and NOX as precursors to PM2.5 that will 

be evaluated in NSR permit contexts. 

EPA also approved revisions to the 

definition of ‘‘Significant’’ at 326 IAC 2– 

2–1(ww)(1)(F) to identify the significant 

emissions rates for primary PM2.5, and 

SO2 and NOX as its precursors, 

consistent with the 2008 NSR Rule. 

On July 12, 2012, IDEM submitted 

PM2.5 increments for approval into the 

Indiana SIP. EPA is currently in the 

process of taking action on this 

submission. While Indiana’s approved 

PSD SIP currently lacks PM2.5

increments, this does not prevent the 

program from addressing and helping to 

assure maintenance of the PM2.5

standard in accordance with CAA 

section 175A. A PSD increment is the 

maximum increase in concentration that 

is allowed to occur above a baseline 

concentration for a pollutant. Even in 

the absence of an approved PSD 

increment, Indiana’s PSD program 

prohibits air quality from deteriorating 

beyond the concentration allowed by 

the applicable NAAQS. See 326 IAC 2– 

2–5(a)(1). Thus Indiana’s PSD program 

is adequate for purposes of assuring 

maintenance of the 1997 annual PM2.5

standard as required by section 175A. 

For the reasons explained above, EPA 

concludes that the features of the PSD 

program in Indiana’s SIP do not detract 

from the program’s adequacy for 

purposes of maintenance of the standard 

and redesignation of the area. It is, 

therefore, sufficient for the purposes of 

maintaining the 1997 annual PM2.5

NAAQS in the Indianapolis area. 

Comment: The commenter claims that 

there has not been a sufficient showing 

that recent decreases in PM2.5

concentrations reflected in monitoring 

data are due to enforceable and 

permanent emission reductions. 

Response: In accordance with 

longstanding practice and policy,4

Indiana calculated the change in 

emissions between 2002, one of the 

years used to designate the area as 

nonattainment, and 2008, one of the 

years the Indianapolis area monitored 

attainment of the annual PM2.5 standard. 

See Tables 3, 4 and 5 at 76 FR 59518– 

59519. Because PM2.5 concentrations in 

the Indianapolis area are impacted by 

the transport of sulfates and nitrates, 

local controls as well as controls 

implemented in upwind areas are 

relevant to the improvement in air 

quality in the Indianapolis area. The 

change in emissions in upwind areas 

over this time period can be found in 

Table 6 at 76 FR 59519. The reduction 

in emissions and the corresponding 

improvement in air quality over this 

time period can be attributed to a 

number of permanent and enforceable 

regulatory control measures that the 

Indianapolis area and upwind areas 

have implemented in recent years and 

will continue to implement in the 

future. 

Reductions in fine particle precursor 

emissions have occurred statewide and 

in upwind areas as a result of several 

Federal mobile source control measures 

including: Tier 2 Emission Standards for 

Vehicles and Gasoline Sulfur Standards, 

the Heavy-Duty Diesel Engine Rule, the 

Nonroad Diesel Rule, and Nonroad 

Large Spark-Ignition Engine and 

Recreational Engine Standards. See 76 

FR 59517. 

The Tier 2 Emission Standards for 

Vehicles and the associated Gasoline 

Sulfur Standards were estimated to 

result in a 69 to 95 percent reduction in 

NOX emissions (depending on vehicle 

type) and a reduction in the sulfur 

content of gasoline to 30 parts per 

million (ppm).5 These Federal rules 

were phased in from 2004 to 2009. 

The Heavy-Duty Diesel Engine Rule 

reduced the highway diesel fuel sulfur 

content to 15 ppm, with the total 

program estimated to achieve a 90 

percent reduction in primary PM2.5

emissions and a 95 percent reduction in 

NOX emissions. This rule took effect in 

2007. 

The Nonroad Diesel Rule and the 

associated Gasoline Sulfur Standards 

are expected to reduce NOX and PM 

emissions from large nonroad diesel 

engines by over 90 percent and have 

reduced the sulfur content in nonroad 

diesel fuel by over 99 percent. The 

engine emission standards required by 

this rule are being phased in between 

2008 and 2014. 

The Nonroad Large Spark-Ignition 

Engine and Recreational Engine 

Standards are being phased in from 

2004 through 2012. Full implementation 

of these engine standards are projected 

to result in an overall 80 percent 

reduction in NOX emissions. 


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41700 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 

6On June 24, 2013, the Supreme Court granted 

certiorari and agreed to review the D.C. Circuit’s 

decision in EME Homer City. The Supreme Court’s 

grant of certiorari, by itself, does not alter the status 

of CAIR or CSAPR. At this time, CAIR remains in 

place. 

For all of the engine standards 

described above, some of the expected 

emissions reductions occurred during 

the 2008–2010 attainment period; 

however, additional reductions will 

continue to occur throughout the 

maintenance period as the fleet of older 

engines turns over. It should be noted, 

though, that the reduction in fuel sulfur 

content yielded an immediate reduction 

in sulfate particle emissions from all 

engines using the low-sulfur fuel. 

On October 27, 1998 (63 FR 57356), 

EPA issued a SIP call under CAA 

section 110(k)(5), commonly referred to 

as the NOX SIP Call. This rule required 

the District of Columbia and 22 states to 

reduce emissions of NOX in order to 

comply with CAA section 

110(a)(2)(D)(i)(I)—the ‘‘good neighbor’’ 

provision of the CAA. Affected states 

were required to comply with Phase I of 

the SIP Call beginning in 2004, and 

Phase II beginning in 2007. Overall, 

sources covered by the NOX SIP Call 

reduced NOX emissions 62 percent 

between 2000 (prior to implementation 

of the NOX SIP call) and 2008. Emission 

reductions requirements from the NOX

SIP Call still exist. Most states that were 

subject to the NOX SIP Call, including 

Indiana, are now complying with those 

requirements through participation in 

the Clean Air Interstate Rule (CAIR) 

ozone-season NOX trading program. 

However, while EPA has acknowledged 

that participation in the CAIR ozoneseason NOX trading program is one 

acceptable way for states to meet their 

NOX SIP Call obligations, the NOX SIP 

Call obligations exist independent of 

CAIR and are independently permanent 

and enforceable. 

On May 12, 2005, EPA published 

CAIR, which requires significant 

reductions in emissions of SO2 and NOX

from electric generating units to limit 

the interstate transport of these 

pollutants and the ozone and fine 

particulate matter they form in the 

atmosphere. See 76 FR 70093. The D.C. 

Circuit initially vacated CAIR, North 

Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 

2008), but ultimately remanded the rule 

to EPA without vacatur to preserve the 

environmental benefits provided by 

CAIR, North Carolina v. EPA, 550 F.3d 

1176, 1178 (D.C. Cir. 2008). In response 

to the Court’s decision, EPA issued the 

Cross-State Air Pollution Rule (CSAPR) 

to address interstate transport of NOX

and SO2 in the eastern United States. 

See 76 FR 48208 (August 8, 2011). 

On December 30, 2011, the D.C. 

Circuit issued an order addressing the 

status of CSAPR and CAIR in response 

to motions filed by numerous parties 

seeking a stay of CSAPR pending 

judicial review. In that order, the Court 

stayed CSAPR pending resolution of the 

petitions for review of that rule in EME 

Homer City Generation, L.P. v. EPA (No. 

11–1302 and consolidated cases). The 

Court also indicated that EPA was 

expected to continue to administering 

CAIR. 

On August 21, 2012, the D.C. Circuit 

issued the decision in EME Homer City, 

to vacate and remand CSAPR and 

ordered EPA to continue administering 

CAIR ‘‘pending . . . development of a 

valid replacement.’’ EME Homer City at 

38.6 To the extent that attainment is due 

to emission reductions associated with 

CAIR, as explained in greater detail in 

the subsequent comment response, EPA 

is determining that those reductions are 

sufficiently permanent and enforceable 

for purposes of CAA sections 

107(d)(3)(E)(iii) and 175A. 

As directed by the D.C. Circuit, CAIR 

remains in place and enforceable until 

EPA promulgates a valid replacement 

rule to substitute for CAIR. Indiana’s SIP 

revision lists CAIR as a control measure 

that was adopted by the State in 2006 

and required compliance by January 1, 

2009. CAIR was thus in place and 

getting emission reductions when 

Indianapolis began monitoring 

attainment of the 1997 annual PM2.5

standard during the 2006–2008 time 

period. The quality-assured, certified 

monitoring data continues to show the 

area in attainment of the 1997 PM2.5

standard through 2011. 

Comment: The commenter urges EPA 

not to rely upon future emissions 

reductions from CAIR as permanent and 

enforceable for purposes of approving 

the Indianapolis redesignation and 

maintenance plan. The commenter 

argues that reliance on CAIR would be 

arbitrary, capricious, and contrary to 

law, because of the D.C. Circuit’s 

decision in North Carolina v. EPA, 

which found CAIR to be legally 

defective and remanded the rule to EPA. 

Thus, the commenter argues that CAIR 

is temporary. The commenter notes that 

EPA’s decision to rely on CAIR 

reductions as sufficiently permanent 

and enforceable for the purposes of the 

Indianapolis redesignation is a change 

in EPA’s position, and, contrary to 

EPA’s assertion, that decision is in 

tension with the D.C. Circuit’s order to 

replace CAIR as expeditiously as 

practicable in EME Homer City 

Generation, LLP v. EPA, 696 F.3d 7 (D.C. 

Cir. 2012). 

Furthermore, the commenter states 

that EPA has not provided ‘‘a specific 

analysis of the extent to which 

redesignation of the Indianapolis area to 

attainment and Indiana’s plan for 

maintaining that attainment status 

depend upon future emission 

reductions from CAIR.’’ The commenter 

argues that without such an analysis it 

is impossible to evaluate whether 

CAIR’s sunsetting and replacement by a 

different rule would have an impact on 

the attainment status of Indianapolis. 

The commenter points out that a 

replacement rule may require a different 

distribution of reductions than CAIR, 

and states that the agency’s ‘‘implied 

promise’’ that a future replacement rule 

will be comparable to CAIR ‘‘does not 

withstand scrutiny in the absence of an 

area-specific analysis.’’ The commenter 

urges the agency to act quickly to 

promulgate a new rule to replace CAIR 

if it wants to rely on emission 

reductions in this context for purposes 

of redesignation. 

Response: EPA disagrees with the 

commenter that it is arbitrary, 

capricious, or contrary to law to approve 

the Indianapolis redesignation because 

CAIR cannot be relied upon in this 

context. Section 107(d)(3)(E) of the CAA 

sets out the requirements for 

redesignation, and states in relevant part 

that the Administrator must 

‘‘determine[] that the improvement in 

air quality is due to permanent and 

enforceable reductions in emissions 

resulting from implementation of the 

applicable implementation plan and 

applicable Federal air pollutant control 

regulations and other permanent and 

enforceable reductions.’’ 42 U.S.C. 

7407(d)(3)(E)(iii). 

EPA recognizes that the D.C. Circuit’s 

instruction in both North Carolina v. 

EPA, 550 F.3d 1176, 1178 (D.C. Cir. 

2008), and EME Homer City Generation 

L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), 

that CAIR must be replaced necessarily 

means that CAIR will at some point 

cease to be in effect. However, EPA 

disagrees that the Court’s instruction in 

those two cases forecloses the Agency 

and states from relying on CAIR for 

purposes such as redesignating an area 

from nonattainment to attainment. 

Subsection (iii) of section 107(d)(3)(E) is 

a backwards looking requirement; it 

requires that the attainment air quality 

in the area is ‘‘due to’’ permanent and 

enforceable emissions reductions. The 

purpose of this requirement is to ensure 

that in redesignating areas from 

nonattainment to attainment, EPA does 

not rely on ephemeral, temporarily 

improved air quality that results from 

circumstances such as temporary 

shutdowns of plants or reduced 


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emission rates because of slowed 

production. See ‘‘Procedures for 

Processing Requests to Redesignate 

Areas to Attainment,’’ Memorandum 

from John Calcagni, Director, Air 

Quality Management Division, 

September 4, 1992 (Calcagni 

memorandum) at 4. The structure of 

section 107(d)(3)(E)(iii) indicates that 

the CAA generally considers reductions 

resulting from SIPs and Federal 

regulations as permanent and 

enforceable. It references ‘‘other’’ 

reductions that are comparable to 

measures adopted into SIPs or Federally 

adopted regulations and can therefore 

also qualify as permanent and 

enforceable reductions, indicating that, 

in general, SIP reductions and 

reductions from Federal regulations are 

the types of reductions that the CAA 

views in the first instance as having the 

requisite permanence and enforceability 

for purposes of redesignation. 

EPA acknowledges that prior to the 

EME Homer City decision, it did not rely 

solely on CAIR to meet section 

107(d)(3)(E)(iii)’s requirements, but 

rather the combination of CAIR being in 

place through the time period of the 

area coming into attainment, with 

CSAPR achieving similar or greater 

emission reductions in the area in 2012 

and beyond. See, e.g., Approval and 

Promulgation of Implementation Plans 

and Designation of Areas for Air Quality 

Planning Purposes; Kentucky; 

Redesignation of the Kentucky Portion 

of the Cincinnati-Hamilton 1997 Annual 

Fine Particulate Matter Nonattainment 

Area to Attainment, 76 FR 65458, 65460 

(Oct. 21, 2011); Regional Haze: 

Revisions to Provisions Governing 

Alternatives to Source-Specific Best 

Available Retrofit Technology (BART) 

Determinations, Limited SIP 

Disapprovals, and Federal 

Implementation Plans, 77 FR 33642, 

33645 (June 7, 2012). It is not 

unreasonable or arbitrary for the agency 

to reassess its position about whether 

the reductions of CAIR alone can be 

considered sufficiently permanent and 

enforceable for purposes of 

redesignation, in light of the D.C. 

Circuit’s vacatur of CSAPR in EME 

Homer City and related decision that 

EPA should continue administering 

CAIR. 

Contrary to the commenters’ 

assertions, EPA’s decision to rely on 

CAIR for purposes of redesignating the 

Indianapolis area is not in tension with 

the Court’s instruction in EME Homer 

City to act expeditiously on remand. 

EME Homer City, 696 F.3d at 38 n.35. 

The D.C. Circuit in EME Homer City 

held that ‘‘a SIP logically cannot be 

deemed to lack a ‘‘required submission’’ 

before EPA quantifies the good neighbor 

obligation.’’ Id. at 32. Under this 

holding states have no obligation to 

submit ‘‘good neighbor’’ SIPs until EPA 

has quantified their ‘‘good neighbor’’ 

obligations and EPA may not 

promulgate a FIP to address such 

obligations until the Agency first 

quantifies the state’s obligations, and 

provides the state an opportunity to 

submit a plan consistent with that 

defined obligation. 696 F.3d at 28–37. 

The EME Homer City decision thus 

significantly lengthens the time it will 

take to get in place regulations to 

replace the remanded CAIR. Under the 

EME Homer City decision SIP 

provisions to replace CAIR could not go 

into effect until EPA has undertaken 

analysis and rulemaking to define states’ 

obligations in accordance with the other 

statutory requirements identified by the 

EME Homer City court, provided states 

adequate time to develop 

implementation plans consistent with 

the defined obligations, and EPA has 

reviewed and approved the SIP 

submissions in notice-and-comment 

rulemakings. Similarly, no FIP to 

replace CAIR could go into effect unless 

EPA found a state failed to submit a SIP 

within the time given to develop such 

implementation plans or disapproved 

such a SIP submittal. It is not 

unreasonable for EPA to determine that 

in light of these circumstances, CAIR 

will be in place for a significant amount 

of time. The commenter suggests that 

EPA may not redesignate Indianapolis 

until it has completed all of the steps 

required by EME Homer City to 

promulgate a replacement rule. EPA 

disagrees. As noted in the April 8, 2013, 

supplemental proposal (78 FR 20856), 

EPA believes that relying on CAIR 

emission reductions in order to 

redesignate the Indianapolis area, which 

has been attaining the NAAQS for many 

years and continues to maintain the 

standard, is precisely the type of 

‘‘reliance interest’’ that the D.C. Circuit 

was concerned about in ordering the 

agency to continue administering CAIR. 

EME Homer City, 696 F.3d at 38. 

EPA also disagrees that it must 

conduct the type of specific analysis 

requested by the commenter in order to 

approve Indianapolis’ maintenance plan 

under section 175A. Section 175A 

requires states to submit a maintenance 

plan that provides for the maintenance 

of the NAAQS for the relevant air 

pollutant for ten years following 

redesignation. 42 U.S.C. 7505a(a). In the 

April 8, 2013, supplemental proposal, 

EPA provided projected emissions of 

direct PM2.5, SO2, NOX, VOCs and 

ammonia in the Indianapolis area for 

the relevant maintenance period. See 78 

FR 20864, tbls. 1–4. Under its existing 

suite of control measures, including 

CAIR, Indianapolis is attaining the 1997 

PM2.5 NAAQS. Over the maintenance 

period, emissions for each pollutant and 

precursor are expected to further 

decrease in the Indianapolis area. EPA 

therefore does not believe that an ‘‘areaspecific analysis’’ as requested by the 

commenter is necessary or appropriate 

in order to redesignate the Indianapolis 

area. 

The anticipation that CAIR may be 

replaced during the maintenance period 

by another rule requiring upwind 

sources to reduce emissions does not 

require EPA to disapprove the 

redesignation request for Indianapolis 

currently before it. EPA’s longstanding 

interpretation of section 107(d)(3)(E) in 

the Calcagni Memorandum 

contemplates that some reductions 

required by existing control measures 

may be replaced in the future by other 

measures. Specifically, it states that ‘‘the 

State will be expected to maintain its 

implemented control strategy despite 

redesignation to attainment, unless such 

measures are shown to be unnecessary 

for maintenance or are replaced with 

measures that achieve equivalent 

reductions.’’ Calcagni Memorandum at 

10. As noted in the supplemental 

proposal, upon promulgation of the 

replacement rule for CSAPR and CAIR, 

EPA will review existing SIPs as 

appropriate, including maintenance 

plans, to identify whether discrepancies 

in emission reductions from the control 

measures will pose a threat to the 

maintenance of the NAAQS for that 

pollutant. Therefore, the commenter’s 

concern that a future replacement rule 

might not require the same reductions 

as CAIR is not a bar to approving 

Indiana’s redesignation request today. 

The commenter’s statement that ‘‘if EPA 

wants to rely on emissions reductions 

for a CAIR replacement rule to support 

the redesignation of areas such as 

Indianapolis and their maintenance 

plans, then EPA should move without 

delay to develop and promulgate a 

legally defensible rule to replace CAIR’’ 

misstates EPA’s position. EPA is not 

relying on emissions reductions from a 

CAIR replacement rule in approving the 

maintenance plan for Indianapolis. 

Rather, EPA is relying on CAIR, which 

is currently in place and will remain in 

place for a significant period of time, in 

approving the maintenance plan. EPA 

further notes that any rule promulgated 

to replace CAIR with respect to PM2.5

will need to ensure that the ‘‘good 

neighbor’’ provisions have been 


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41702 Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 

satisfied with regard to the 1997 annual 

PM2.5 NAAQS. 

IV. Why is EPA taking these actions? 

EPA has determined that the 

Indianapolis area has attained and 

continues to attain the 1997 annual 

PM2.5 NAAQS and that the area has 

attained this standard by its applicable 

attainment date of April 5, 2010. EPA 

has also determined that all other 

criteria have been met for the 

redesignation of the Indianapolis area 

from nonattainment to attainment of the 

1997 annual PM2.5 NAAQS and for 

approval of Indiana’s maintenance plan 

for the area. See CAA sections 

107(d)(3)(E) and 175A. The detailed 

rationale for EPA’s findings and actions 

is set forth in the proposed and direct 

final rulemakings of September 27, 2011 

(76 FR 59599 and 76 FR 59512), in the 

supplemental proposed rulemaking of 

April 8, 2013 (78 FR 20856) and in this 

final rulemaking. 

V. Final Action 

EPA is making a determination that 

the Indianapolis area has attained the 

1997 annual PM2.5 standard by its 

attainment date and that the area 

continues to attain the standard. EPA is 

determining that the area has met the 

requirements for redesignation under 

section 107(d)(3)(E) and 175A of the 

CAA. EPA is thus approving the request 

from Indiana to change the legal 

designation of the Indianapolis area 

from nonattainment to attainment for 

the 1997 annual PM2.5 NAAQS. EPA is 

also approving Indiana’s PM2.5

maintenance plan for the Indianapolis 

area as a revision to the Indiana SIP 

because the plan meets the requirements 

of section 175A of the CAA. EPA is 

approving 2006 emissions inventories 

for primary PM2.5, NOX, and SO2, and 

2007/2008 emission inventories for VOC 

and ammonia as satisfying the 

requirement in section 172(c)(3) of the 

CAA for a comprehensive, current 

emission inventory. Finally, EPA finds 

adequate and is approving 2015 and 

2025 primary PM2.5 and NOX MVEBs for 

the Indianapolis area. These MVEBs 

will be used in future transportation 

conformity analyses for the area. 

In accordance with 5 U.S.C. 553(d), 

EPA finds there is good cause for these 

actions to become effective immediately 

upon publication. This is because a 

delayed effective date is unnecessary 

due to the nature of a redesignation to 

attainment, which relieves the area from 

certain CAA requirements that would 

otherwise apply to it. The immediate 

effective date for this action is 

authorized under both 5 U.S.C. 

553(d)(1), which provides that 

rulemaking actions may become 

effective less than 30 days after 

publication if the rule ‘‘grants or 

recognizes an exemption or relieves a 

restriction,’’ and section 553(d)(3) 

which allows an effective date less than 

30 days after publication ‘‘as otherwise 

provided by the agency for good cause 

found and published with the rule.’’ 

The purpose of the 30-day waiting 

period prescribed in section 553(d) is to 

give affected parties a reasonable time to 

adjust their behavior and prepare before 

the final rule takes effect. Today’s rule, 

however, does not create any new 

regulatory requirements such that 

affected parties would need time to 

prepare before the rule takes effect. 

Rather, today’s rule relieves the State of 

planning requirements for this 8-hour 

ozone nonattainment area. For these 

reasons, EPA finds good cause under 5 

U.S.C. 553(d)(3) for these actions to 

become effective on the date of 

publication of these actions. 

VI. Statutory and Executive Order 

Reviews 

Under the CAA, redesignation of an 

area to attainment and the 

accompanying approval of a 

maintenance plan under section 

107(d)(3)(E) are actions that affect the 

status of a geographical area and do not 

impose any additional regulatory 

requirements on sources beyond those 

imposed by state law. A redesignation to 

attainment does not in and of itself 

create any new requirements, but rather 

results in the applicability of 

requirements contained in the CAA for 

areas that have been redesignated to 

attainment. Moreover, the Administrator 

is required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, these actions 

merely do not impose additional 

requirements beyond those imposed by 

state law and the CAA. For that reason, 

these actions: 

• Are not ‘‘significant regulatory 

actions’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Do not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Are certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Do not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Do not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Are not economically significant 

regulatory actions based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Are not significant regulatory 

actions subject to Executive Order 

13211 (66 FR 28355, May 22, 2001); 

• Are not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Do not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because a 

determinations of attainment is an 

action that affects the status of a 

geographical area and does not impose 

any new regulatory requirements on 

tribes, impact any existing sources of air 

pollution on tribal lands, nor impair the 

maintenance of ozone national ambient 

air quality standards in tribal lands. 

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. 

These actions are not ‘‘major rules’’ 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 September 9, 2013. Filing a 

petition for reconsideration by the 

Administrator of this final rule does not 

affect the finality of these actions for the 


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Federal Register / Vol. 78, No. 133 / Thursday, July 11, 2013 / Rules and Regulations 41703 

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. These actions may 

not be challenged later in proceedings to 

enforce their requirements. (See section 

307(b)(2).) 

List of Subjects 

40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter. 

40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Wilderness areas. 

Dated: June 26, 2013. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR Parts 52 and 81 are amended 

as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. Section 52.776 is amended by 

adding paragraphs (v)(2) and (w)(2) to 

read as follows: 

§ 52.776 Control strategy: Particulate 

matter. 

* * * * * 

(v) * * * 

(2) The Indianapolis area (Hamilton, 

Hendricks, Johnson, Marion and Morgan 

Counties), as submitted on October 20, 

2009, and supplemented on May 31, 

2011, January 17, 2013, and March 18, 

2013. The maintenance plan establishes 

2015 motor vehicle emissions budgets 

for the Indianapolis area of 853.76 tpy 

for primary PM2.5 and 25,314.49 tpy for 

NOX and 2025 motor vehicle emissions 

budgets of 460.18 tpy for primary PM2.5

and 13,368.60 tpy for NOX. 

(w) * * * 

(2) Indiana’s 2006 NOX, primary 

PM2.5, and SO2 emissions inventories 

and 2007/2008 VOC and ammonia 

emission inventories, as submitted on 

October 20, 2009 and supplemented on 

May 31, 2011 and March 18, 2013, 

satisfy the emission inventory 

requirements of section 172(c)(3) of the 

Clean Air Act for the Indianapolis area. 

* * * * * 

PART 81—DESIGNATION OF AREAS 

FOR AIR QUALITY PLANNING 

PURPOSES 

■ 3. The authority citation for part 81 

continues to read as follows: 

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

■ 4. Section 81.315 is amended by 

revising the entry for Indianapolis, IN in 

the table entitled ‘‘Indiana PM2.5

(Annual NAAQS)’’ to read as follows: 

§ 81.315 Indiana. 

* * * * * 

INDIANA PM2.5 (ANNUAL NAAQS) 

Designated area 

Designation a

Date 1 Type 

*******

Indianapolis, IN: 

Hamilton County ................................................................................................................................................ 7/11/2013 Attainment. 

Hendricks County .............................................................................................................................................. 7/11/2013 Attainment. 

Johnson County ................................................................................................................................................. 7/11/2013 Attainment. 

Marion County ................................................................................................................................................... 7/11/2013 Attainment. 

Morgan County .................................................................................................................................................. 7/11/2013 Attainment. 

* * * * * * * 

a Includes Indian Country located in each county or area, except as otherwise specified. 

1This date is 90 days after January 5, 2005, unless otherwise noted. 

* * * * * 

[FR Doc. 2013–16478 Filed 7–10–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 80 

[EPA–HQ–OAR–2011–0542; FRL–9822–7] 

RIN 2060–AR85 

Regulation of Fuels and Fuel 

Additives: Additional Qualifying 

Renewable Fuel Pathways Under the 

Renewable Fuel Standard Program; 

Final Rule Approving Renewable Fuel 

Pathways for Giant Reed (Arundo 

Donax) and Napier Grass (Pennisetum 

Purpureum) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This final rule approves 

pathways for production of renewable 

fuel from giant reed (Arundo donax) 

and napier grass (Pennisetum 

purpureum) as feedstocks. These 

pathways are for cellulosic biofuel, for 

purposes of the Renewable Fuel 

Standard Program (RFS), under Clean 

Air Act (CAA) as amended by the 

Energy Independence and Security Act 

of 2007 (EISA). EPA has determined that 

renewable fuel made from napier grass 

and giant reed meet the greenhouse gas 

(GHG) reduction requirements for 

cellulosic biofuel under the 

requirements of the RFS program. In 

response to comments on the proposal 

concerning the potential for these crops 

to behave as invasive species, EPA is 

adopting additional registration, 

recordkeeping, and reporting 

requirements that were developed to 

address the potential for GHG emissions 

related to these concerns. Approval of 


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