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[Federal Register Volume 81, Number 115 (Wednesday, June 15, 2016)]
[Rules and Regulations]
[Pages 38957-38963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14103]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0969; FRL-9947-71-Region 5]

Indiana; Ohio; Disapproval of Interstate Transport Requirements 
for the 2008 Ozone NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is disapproving 
elements of State Implementation Plan (SIP) submissions from Indiana 
and Ohio regarding the infrastructure requirements of section 110 of 
the Clean Air Act (CAA) for the 2008 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 is adequate to meet the state's responsibilities 
under the CAA. This action pertains specifically to infrastructure 
requirements concerning interstate transport provisions, for which Ohio 
and Indiana made SIP submissions that, among other things, certified 
that their existing SIPs were sufficient to meet the interstate 
transport infrastructure SIP requirements for the 2008 ozone NAAQS.

DATES: This final rule is effective on July 15, 2016.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2011-0969. All documents in the docket are listed on 
the 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 
through www.regulations.gov or please contact the person identified in 
the ``For Further Information Contact'' section for additional 
availability information.

FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-9401, arra.sarah@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 of these SIP submissions?
II. What action did EPA propose on the SIP submissions?
III. What is our response to comments received on the proposed 
rulemaking?
IV. What action is EPA taking?
V. Statutory and Executive Order Reviews.

I. What is the background of these SIP submissions?

    This rulemaking addresses CAA section 110(a)(2)(D)(i) requirements 
in two infrastructure SIP submissions addressing the applicable 
infrastructure requirements with respect to the 2008 ozone NAAQS: A 
December 12, 2011, submission from the Indiana Department of 
Environmental Management (IDEM), clarified in a May 24, 2012, letter; 
and a December 27, 2012, submission from the Ohio Environmental 
Protection Agency (Ohio EPA).
    The requirement for states to make a SIP submission of this type 
arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), 
states must make SIP submissions ``within 3 years (or such shorter 
period as the Administrator may prescribe) after the promulgation of a 
national primary ambient air quality standard (or any revision 
thereof),'' and these SIP submissions are to provide for the 
``implementation, maintenance, and enforcement'' of such NAAQS. The 
statute directly imposes on states the duty to make these SIP 
submissions, and the requirement to make the submissions is not 
conditioned upon EPA's taking any action other than promulgating a new 
or revised NAAQS. Section 110(a)(2) includes a list of specific 
elements that ``[e]ach such plan'' submission must address. EPA 
commonly refers to such state plans as ``infrastructure SIPs.''
    This rulemaking takes action on three CAA section 110(a)(2)(D)(i) 
requirements of these submissions. In particular, section 
110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any 
source or other type of emissions activity in one state from 
contributing significantly to nonattainment of the NAAQS (``prong 
one''), or interfering with maintenance of the NAAQS (``prong two''), 
by any another state. Section 110(a)(2)(D)(i)(II) requires that 
infrastructure SIPs include provisions prohibiting any source or other 
type of emissions activity in one

[[Page 38958]]

state from interfering with measures required to prevent significant 
deterioration (PSD) of air quality (``prong three'') and to protect 
visibility (``prong four'') in another state. This rulemaking addresses 
prongs one, two, and four of this CAA section. The majority of the 
other infrastructure elements were approved in rulemakings on April 29, 
2015 (80 FR 23713) for Indiana; and October 16, 2014 (79 FR 62019) for 
Ohio.

II. What action did EPA propose on the SIP submissions?

    The proposed rulemaking associated with today's final action was 
published on March 16, 2016 (81 FR 14025).
    In that action, EPA proposed to disapprove the portions of Ohio's 
December 27, 2012 SIP submission addressing prongs one, two, and four 
of CAA section 110(a)(2)(D)(i). In proposing to disapprove the SIP 
submission as to prongs one and two, EPA noted several deficiencies in 
Ohio's submission: (1) Ohio's SIP submission lacks any technical 
analysis evaluating or demonstrating whether emissions in each state 
impact air quality in other states with respect to the 2008 ozone 
NAAQS; (2) Ohio's SIP does not demonstrate how certain state programs 
and rules provide sufficient controls on emissions to address 
interstate transport for the 2008 ozone NAAQS; (3) Ohio's submission 
relied on the state's implementation of the Clean Air Interstate Rule 
(CAIR), which was not designed to address interstate transport with 
respect to the 2008 ozone standard and which is no longer being 
implemented; and (4) EPA recently released technical data which 
contradicts the state's conclusion that its SIP contained adequate 
provisions to address interstate transport with respect to the 2008 
ozone NAAQS.
    In proposing to disapprove the Ohio SIP submission as to prong 
four, EPA explained that there are two ways in which a state may 
satisfy its visibility transport obligations: (1) A fully approved 
regional haze SIP, or (2) a demonstration that emissions within its 
jurisdiction do not interfere with other air agencies' plans to protect 
visibility. Ohio's SIP submission relied on the State's regional haze 
SIP to satisfy its visibility transport requirements under CAA section 
110(a)(2)(i)(II). However, Ohio does not have a fully approved regional 
haze SIP in place because its obligations are satisfied in part by 
EPA's Cross-State Air Pollution Rule (CSAPR) based regional haze 
Federal Implementation Plan (FIP). Ohio also did not provide an 
alternate demonstration that its emissions would not interfere with 
plans to protect visibility in other states.
    EPA also proposed to disapprove the portions of Indiana's December 
12, 2011 SIP submission addressing prongs one, two, and four of CAA 
section 110(a)(2)(D)(i). In proposing to disapprove the SIP submission 
as to prongs one and two, EPA noted several deficiencies in Ohio's 
submission: (1) Indiana's SIP submission lacks any technical analysis 
evaluating or demonstrating whether emissions in each state impact air 
quality in other states with respect to the 2008 ozone NAAQS; (2) 
Indiana's SIP submission relied on the state's participation on the 
CSAPR trading program, which was not designed to address interstate 
transport with respect to the 2008 ozone standard; (3) the state failed 
to cite any other rules currently being implemented by the state that 
are part of Indiana's approved SIP or that are being submitted as part 
of the state's SIP submission to address interstate transport for the 
2008 ozone NAAQS; and (4) EPA recently released technical data which 
contradicts the state's conclusion that its SIP contained adequate 
provisions to address interstate transport with respect to the 2008 
ozone NAAQS.
    In proposing to disapprove the Indiana SIP submission as to prong 
four, EPA noted that Indiana's SIP submission relies on its regional 
haze SIP to satisfy the state's visibility transport obligations. 
However, Indiana does not have a fully approved regional haze SIP in 
place because its obligations are satisfied in part by EPA's CSAPR-
based regional haze FIP. Indiana also did not provide an alternate 
demonstration that its emissions would not interfere with plans to 
protect visibility in other states.

III. What is our response to comments received on the proposed 
rulemaking?

    EPA received four comments during the comment period, which ended 
on April 15, 2016. A synopsis of the comments contained in these 
letters and EPA's responses, are provided below.

A. Comments on the Ohio Disapproval for Prongs One and Two

    Comment 1: Ohio EPA commented that the proposed disapproval focuses 
on the state's duty to make a SIP submission addressing CAA section 
110(a)(2)(D), but contends that EPA has historically taken the lead in 
addressing transported emissions, citing several prior EPA rulemakings 
including the Oxides of Nitrogen (NOX) SIP Call, CAIR, and 
CSAPR. The state noted that meeting the bar that EPA has set with these 
rulemakings would be ``extremely resource intensive and require 
unprecedented multi-state collaboration,'' and is therefore best suited 
for EPA. Ohio EPA alleged that EPA's actions to develop these 
regulations are too late for the states to incorporate into their SIPs.
    The state further commented that EPA has provided insufficient 
guidance to states addressing the requirements of section 110(a)(2)(D) 
in their SIPs, and guidance that is provided is often ill-timed. Ohio 
EPA gave the example of guidance for the 2006 fine particulate matter 
(PM2.5) NAAQS that was released on September 25, 2009, four 
days after SIPs addressing this standard were due, which stated that 
the states could not rely on the CAIR. The state also noted that for 
the 2008 ozone standard, SIP submissions were due on March 12, 2011, 
and EPA guidance issued two years later on September 13, 2013 did not 
address section 110(a)(2)(D)(i)(I). The state also commented that under 
cooperative federalism, EPA should not only set standards, but provided 
the necessary information and technical assistance for the state to 
fulfil their CAA obligations. Ohio EPA commented that the proposal did 
not acknowledge the continued efforts to meet EPA requirements on a 
timely basis and alleged that they were being punished with a 
disapproval because of a consent decree in which they were not a party. 
The state contends that EPA engages in secretive ``sue and settle'' 
arrangements where EPA agrees to issue disapprovals that commit the 
states to actions or timeframes that are unreasonable. The state also 
contends that EPA must disapprove Ohio's SIP submission in order to 
impose a FIP. The state proposed that a better course of action under 
cooperative federalism would have been for EPA to have provided the 
necessary information and allowed the state the necessary time to 
submit an approvable SIP.
    Response 1: While EPA issued several previous Federal rulemakings 
addressing interstate transport obligations in eastern states with 
respect to ozone and fine particulate matter, the Supreme Court 
confirmed that the states have the first obligation to prepare and 
submit state plans that prohibit the appropriate levels of emissions 
that significantly contribute to nonattainment or interfere with 
maintenance of the NAAQS in other states. In EPA v. EME Homer City 
Generation, L.P., the Supreme Court clearly held that ``nothing in the 
statute places EPA under an obligation to provide specific metrics to 
States before they undertake to fulfill their good neighbor 
obligations.'' 134 S. Ct. 1584,

[[Page 38959]]

1601 (2014).\1\ While EPA has taken a different approach in some prior 
rulemakings by providing states with an opportunity to submit a SIP 
after EPA quantified the states' budgets (e.g., the NOX SIP 
Call and CAIR), the statute does not require such an approach.
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    \1\ ``Nothing in the Act differentiates the Good Neighbor 
Provision from the several other matters a State must address in its 
SIP. Rather, the statute speaks without reservation: Once a NAAQS 
has been issued, a State `shall' propose a SIP within three years, 
Sec.  7410(a)(1), and that SIP `shall' include, among other 
components, provisions adequate to satisfy the Good Neighbor 
Provision, Sec.  7410(a)(2).'' EPA v. EME Homer City Generation, 
L.P., 134 S. Ct. at 1600.
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    While EPA did not provide specific guidance regarding how states 
could satisfy their statutory obligation with respect to CAA section 
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS, EPA did 
provide information to assist states with developing or supplementing 
their SIP submissions. On January 22, 2015, EPA issued a memorandum 
providing preliminary modeling information regarding potential downwind 
air quality problems and levels of upwind state contributions. See 
Memorandum from Stephen D. Page to Regional Air Division Directors, 
Regions 1-10, ``Information on the Interstate Transport `Good Neighbor' 
Provision for the 2008 Ozone [NAAQS] under [CAA] Section 
110(a)(2)(D)(i)(I)'' (Jan. 22, 2015). As noted at proposal, EPA also 
provided updated modeling and contribution information in its August 4, 
2015 Notice of Data Availability. 80 FR 46271. While Ohio's December 
27, 2012 SIP was submitted prior to this information being provided, 
the state did not attempt to revise or supplement its SIP submission to 
address this information.
    Moreover, EPA does not agree that the states needed formal guidance 
to understand that it was inappropriate to rely on CAIR for purposes of 
satisfying the state's interstate transport obligations with respect to 
the 2008 ozone NAAQS. As noted earlier, CAIR was designed to address 
interstate transport with respect to the 1997 ozone NAAQS, not the more 
stringent 2008 ozone NAAQS, and in any event the rule is no longer 
being implemented by the states or EPA. More importantly, in North 
Carolina v. EPA, the D.C. Circuit held that CAIR was ``fundamentally 
flawed,'' 531 F.3d 896, 929 (D.C. Cir. 2008), in part because CAIR did 
not satisfy the statutory requirement to ``achieve[] something 
measurable towards the goal of prohibiting sources `within the State' 
from contributing to nonattainment or interfering with maintenance in 
`any other State.' '' Id. at 908. Accordingly, the D.C. Circuit held in 
EME Homer City Generation, L.P. v. EPA, ``when our decision in North 
Carolina deemed CAIR to be an invalid effort to implement the 
requirements of the good neighbor provision, that ruling meant that the 
initial approval of the CAIR SIPs was in error at the time it was 
done.'' 795 F.3d 118, 133 (2015). For these reasons, EPA cannot now 
approve an interstate transport SIP addressing any NAAQS based on the 
state's participation in CAIR.
    Finally, EPA disagrees that either the litigation regarding EPA's 
deadline to act on Ohio's SIP submission or EPA's proposed action to 
update CSAPR to address the 2008 ozone standard (CSAPR Update) have 
dictated the substance of EPA's action on Ohio's SIP with respect to 
prongs one and two. CAA section 110(k)(2) requires EPA to act on a 
state's SIP submission within one year after the submission is 
determined to be complete. Therefore, EPA's statutory obligation to act 
on Ohio's December 27, 2012 SIP submission was overdue. While EPA did 
enter into a consent decree with litigants in Sierra Club v. McCarthy, 
No. 4:14-cv-5091-YGR (N.D. Cal.), which raised claims regarding EPA's 
alleged failure to fulfill its mandatory duty to take action on Ohio's 
SIP under CAA section 110(k)(2), that agreement governs only the 
timetable on which EPA must act on the state's SIP submissions under 
CAA section 110(k)(2) and not the substance of EPA's action. As 
described earlier, EPA has evaluated Ohio's SIP submission on its 
merits and found that it is deficient for purposes of addressing the 
state's obligation pursuant to CAA section 110(a)(2)(D)(i)(I).
    Comment 2: A commenter cited comments that were submitted on the 
docket for the CSAPR Update rulemaking because the modeling used to 
support that rule is also being used in the disapproval Ohio's 
interstate transport SIP. The commenter stated that ``the comments 
detail legal problems and technical flaws with the modeling'' and 
asserted that EPA should not have acted on Ohio's SIP submission until 
the CSAPR Update was finalized and EPA had responded to the comments. 
The commenter disagreed with the need for EPA to take action on the 
submission at this time and stated that EPA should have issued a SIP 
call or asked the state for a supplemental submission instead of 
disapproving the December 27, 2012 SIP submission which was ``in 
accordance with what was required at the time''. The commenter noted 
that EPA's analysis was completed three years after the state's 
submission.
    Response 2: EPA disagrees with the commenter's conclusion that EPA 
is disapproving Ohio's SIP submission addressing prongs one and two 
based primarily on the modeling conducted to support the proposed CSAPR 
Update rulemaking. As noted earlier, states bear the primary 
responsibility to demonstrate that their plans contain adequate 
provisions to address the statutory interstate transport provisions, 
specifically to demonstrate that the plan properly prohibits emissions 
that will significantly contribute to nonattainment or interfere with 
maintenance of the NAAQS in downwind states. As described in the 
proposal and earlier in this notice, EPA has identified several ways in 
which Ohio's SIP submission fails to fulfill this obligation. In 
particular, EPA is disapproving Ohio's submission for its reliance on 
CAIR, which is legally invalid, and the lack of state rules identified 
in its submission that are sufficient to prohibit emissions that 
significantly contribute to nonattainment or interfere with maintenance 
of the standard in other states.
    While EPA cited the modeling conducted for the CSAPR Update as 
additional evidence that Ohio may significantly contribute to 
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in 
downwind states, we did not propose to make a specific finding of 
contribution or to quantify any specific emissions reduction 
obligation. Rather, the evaluation of whether emissions from Ohio 
significantly contribute to nonattainment or interfere with maintenance 
of the 2008 ozone NAAQS downwind, and if so what reductions are 
necessary to address that contribution, is being conducted in the 
context of the CSAPR Update rulemaking. Accordingly, EPA will consider 
timely-submitted comments regarding EPA's air quality modeling and 
various associated legal and policy decisions in finalizing that 
rulemaking. Moreover, it is inappropriate for the commenter to merely 
cite to or attach comments prepared for another rulemaking without 
identifying which portions of those comments are pertinent to this 
action. Without further explanation, EPA has no obligation to address 
comments prepared for the purpose of the CSAPR Update in the context of 
this rulemaking.
    EPA notes that the technical data discussed at proposal with 
respect to Ohio's potential contribution to downwind air quality 
problems is consistent with modeling previously conducted for trading 
programs

[[Page 38960]]

addressing interstate ozone transport such as CAIR (70 FR 25162), CSAPR 
(76 FR 48208), and the NOx SIP Call (63 FR 57356) showing that Ohio is 
frequently linked to downwind receptors. The modeling conducted to 
support the proposed CSAPR Update is the most recent technical 
information available to the Agency which still shows such linkages. 
Even absent this modeling data, Ohio's SIP submission is inadequate to 
address prongs one and two of CAA section 110(a)(2)(D)(i)(I) with 
respect to the 2008 ozone NAAQS.
    Comment 3: Ohio EPA also attached comments that were submitted for 
the proposal to update CSAPR to address the 2008 ozone NAAQS because, 
the state explained, the modeling is also being used to disapprove 
Ohio's SIP as to prongs one and two. The state commented that the 
attached comments point out ``significant errors and concerns in U.S. 
EPA's analyses regarding the [Notice of Data Availability] and 
transport updates'' and that ``it is ill-timed and erroneous for U.S. 
EPA to use these analyses as evidence that Ohio has not addressed its 
transport obligations.''
    Response 3: While EPA cited the modeling conducted for the CSAPR 
Update as additional evidence that Ohio may significantly contribute to 
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in 
downwind states, we did not propose to make a specific finding of 
contribution or to quantify any specific emissions reduction 
obligation. Rather, the evaluation of whether emissions from Ohio 
significantly contribute to nonattainment or interfere with maintenance 
of the 2008 ozone NAAQS downwind, and if so what reductions are 
necessary to address that contribution, is being conducted in the 
context of the CSAPR Update rulemaking. Accordingly, EPA will consider 
timely-submitted comments regarding EPA's air quality modeling and 
various associated legal and policy decisions in finalizing that 
rulemaking. Moreover, it is inappropriate for the commenter to merely 
cite to or attach comments prepared for another rulemaking without 
identifying which portions of those comments are pertinent to this 
action. Without further explanation, EPA has no obligation to address 
comments prepared for the purpose of the CSAPR Update in the context of 
this rulemaking.

B. Comments on the Indiana Disapproval for Prongs One and Two

    Comment 4: The commenter gave a summary of the regulatory history 
of CSAPR and the overlapping timeline of the IDEM submission. The 
commenter alleged that ``EPA was uncertain about the scope of the air 
transport law, and therefore cannot be certain about its proposed 
disapproval of the Indiana infrastructure SIP.''
    Response 4: In evaluating Indiana's SIP submission with respect to 
prongs one and two of the interstate transport provisions of the 
statute, EPA has identified several clear deficiencies in the state's 
analysis. In particular, EPA noted that the state relied on 
participation in CSAPR, which does not address interstate transport 
with respect to the 2008 ozone NAAQS, and failed to otherwise provide 
any technical analysis to support its conclusion that the state had 
satisfied its statutory obligation. The commenter has identified no 
legal uncertainty underlying these bases for EPA's disapproval of 
Indiana's SIP.
    Comment 5: The commenter cites to a comment from Connecticut on an 
older rulemaking in which Connecticut requests further reductions of 
upwind emissions to address nonattainment concerns in Connecticut. The 
commenter gave an overview of the Reasonably Available Control 
Technology (RACT) plan developed by Connecticut looking at feasible 
local controls to address air quality in the nonattainment area 
including Connecticut. The commenter concluded that because there are 
further local controls available to address the nonattainment area, and 
any attempt to impose reduction obligations on upwind states such as 
Indiana without addressing these controls first would result in over-
control by the upwind states.
    Response 5: This action is not determining what, if any, emission 
reductions sources in Indiana may need to achieve in order to address 
the state's interstate transport obligation with respect to the 2008 
ozone NAAQS. Instead, EPA is evaluating the state's interstate 
transport SIP to determine whether the current submission satisfies the 
statutory obligations at CAA section 110(a)(2)(D)(i)(I). As noted 
earlier, Indiana's SIP contains several deficiencies that justify EPA's 
decision to finalize disapproval as to prongs one and two transport, as 
Indiana has failed to provide an adequate technical analysis 
demonstrating that the state's current SIP contains sufficient 
provisions to properly address interstate transport with respect to the 
2008 ozone NAAQS. Moreover, besides Connecticut, EPA's most recent 
technical analysis shows that emissions from Indiana contribute to 
projected air quality problems in Wisconsin, Kentucky, Maryland, 
Michigan, New Jersey, New York, Ohio, and Pennsylvania.
    Comment 6: A commenter alleged that ``EPA propose[d] disapproval, 
and its disagreement with IDEM's submission, rests in great part on the 
modeling and technical data that was used to support the CSAPR Update'' 
and that a contrary view suggests ``that there is no basis to conclude 
that Indiana would be expected to significantly contribute to the 
nonattainment of or interfere with the maintenance of the 2008 ozone 
NAAQS in 2017.''
    The following comments pertain to modeling conducted to support the 
proposed CSAPR Update and EPA's application of the modeling data in the 
proposed rule. The commenter first noted that a study prepared by 
Alpine Geophysics looked at ozone concentrations during a more recent 
time period. The comment alleged that the concentrations from this 
study were more appropriate because they reflected recent controls, 
economic factors, recent regulatory programs, and more consistent 
precipitation and temperature ranges. The commenter stated that using 
this data set resulted in all projected air quality problems (both 
nonattainment and maintenance receptors) being resolved in 2017 with 
the exception of those in Fairfield, Connecticut. The commenter notes 
that the proposed rulemaking does not find Indiana to be a significant 
contributor to the Fairfield, Connecticut monitor.
    The commenter also cited what they believe are legal and policy 
issues with the proposed CSAPR Update. The commenter alleged that EPA's 
reliance on modeled maximum design value for determining whether a 
state interferes with maintenance of the NAAQS downwind is inconsistent 
with the Supreme Court's 2014 decision, the D.C. Circuit's 2015 
decision in the EME Homer City litigation, the CAA. The commenter 
contends that this interpretation of that statutory obligation would 
result in unnecessary over-control. The commenter also alleged that 
EPA's approach to addressing maintenance concerns is applied 
differently in transport than it is in the context of redesignations.
    The commenter contends, based on the Alpine Geophysics report, that 
EPA inappropriately used grids in its modeling platform that include 
overwater receptors as well as land receptors, and further 
inappropriately selected to represent the monitor the highest 
concentration in the grid from an over the water location.
    The commenter further alleged that EPA using the latest version of 
the

[[Page 38961]]

Integrated Planning Model would show great emissions reductions already 
in place therefore lowering projected concentrations in downwind 
states. The commenter also commented that that model did not include 
controls such as a Pennsylvania RACT rule and mobile source controls in 
the New England area that are needed to reduce concentrations at the 
Connecticut monitor. The commenter contended that EPA did not properly 
account for international emissions, and doing so would lead to the 
conclusion that Indiana is not contributing to the Connecticut monitor. 
The commenter concluded that using the alternate analysis by Alpine 
Geophysical eliminates attainment and maintenance issues at all the 
monitors except Connecticut and for the reasons summarized above, 
Indiana does not significantly contribute to that monitor.
    Response 6: EPA disagrees with the commenter's conclusion that EPA 
is disapproving Indiana's SIP submission addressing prongs one and two 
based primarily on the modeling conducted to support the proposed CSAPR 
Update rulemaking. As noted earlier, states bear the primary 
responsibility to demonstrate that their plans contain adequate 
provisions to address the statutory interstate transport provisions, 
specifically to demonstrate that the plan properly prohibits emissions 
that will significantly contribute to nonattainment or interfere with 
maintenance of the NAAQS in downwind states. As described in the 
proposal and earlier in this notice, EPA has identified several ways in 
which Indiana's SIP submission fails to fulfill this obligation. In 
particular, EPA is disapproving Indiana's submission for its reliance 
on CSAPR, which does not currently address the 2008 ozone standard, and 
the submission's lack of identified state rules that are sufficient to 
prohibit emissions that significantly contribute to nonattainment or 
interfere with maintenance of the standard in other states.
    While EPA cited the modeling conducted for the CSAPR Update as 
additional evidence that Indiana may significantly contribute to 
nonattainment or interfere with maintenance of the 2008 ozone NAAQS in 
downwind states, we did not propose to make a specific finding of 
contribution or to quantify any specific emissions reduction 
obligation. Rather, the evaluation of whether emissions from Indiana 
significantly contribute to nonattainment or interfere with maintenance 
of the 2008 ozone NAAQS downwind, and if so what reductions are 
necessary to address that contribution, is being conducted in the 
context of the CSAPR Update rulemaking. Accordingly, EPA will consider 
comments timely submitted to the Agency regarding EPA's air quality 
modeling and various associated legal and policy decisions in 
finalizing that rulemaking. While EPA appreciates the information 
provided by the commenter regarding EPA's identification of downwind 
air quality problems and Indiana's potential contribution to those 
areas, these data do not undermine EPA's primary bases for disapproving 
Indiana's SIP with respect to prongs one and two of CAA section 
110(a)(2)(D)(i)(I).
    EPA notes that the technical data discussed at proposal with 
respect to Indiana's potential contribution to downwind air quality 
problems is consistent with modeling previously conducted for trading 
programs addressing interstate ozone transport such as CAIR (70 FR 
25162), CSAPR (76 FR 48208), and the NOX SIP Call (63 FR 
57356) showing that Indiana is frequently linked to downwind receptors. 
The modeling conducted to support the proposed CSAPR Update is the most 
recent technical information available to the Agency which still shows 
such linkages. Even absent these modeling data, Indiana's SIP 
submission is inadequate to address prongs one and two of CAA section 
110(a)(2)(D)(i)(I) with respect to the 2008 ozone NAAQS.

C. Comments on Both the Indiana and Ohio Disapprovals for Prongs One 
and Two

    Comment 7: The Connecticut Department of Energy and Environmental 
Protection (DEEP) is supportive of the proposed disapprovals of Indiana 
and Ohio's SIP submissions addressing the prongs one and two transport 
obligations. DEEP encouraged EPA to finalize the disapproval quickly 
and propose and finalize a full transport remedy rather than waiting to 
couple the action with the 2015 ozone NAAQS. DEEP also encourages EPA 
to ``describe the implications of the disapproval with respect to each 
state's good neighbor SIP obligations and the proposed partial remedy 
provided by the [CSAPR] Update,'' and DEEP supports action by Indiana 
and Ohio towards resolving outstanding SIP obligations.
    Response 7: EPA is supportive of any actions taken by the states to 
resolve transport obligations. EPA will address further obligations for 
Ohio and Indiana in the final CSAPR Update rule.

D. Comments on Both the Indiana and Ohio Disapprovals for Prong Four

    Comment 8: Both commenters on Indiana's submission and Ohio's 
submission stated that the visibility portion should be approved, 
because reliance on CAIR as better than Best Available Retrofit 
Technology (BART) for electric generating units (EGUs) was consistent 
with CAA requirements at the time of both submissions. One commenter 
also stated that since CAIR is better than BART has been replaced with 
CSAPR is better than BART in the form a FIP, the requirements have been 
fully addressed, and this transport prong should be fully approved. The 
other commenter asserts that if EPA decides to finalize the 
disapproval, EPA should clarify that no further action is needed 
because of the FIP in place showing that for Ohio EGUs, CSAPR meets the 
BART requirements for regional haze. Ohio EPA also disagreed with EPA's 
proposed disapproval of prong four, because there is a FIP in place 
that satisfies Ohio's obligations.
    Response 8: Indiana and Ohio cannot rely on CAIR to satisfy their 
regional haze obligations, and by extension their prong four 
obligations, because neither the states nor EPA are currently 
implementing this program. Neither state has submitted an approvable 
regional haze SIP to replace its current reliance on CAIR; thus, both 
States have regional haze FIPs in place. However, as stated above, 
states cannot rely on FIPs to satisfy their prong four obligations. 
This is consistent with our approach for transport provisions and 
federally implemented PSD programs. EPA is not promulgating FIPs to 
address the states' prong four deficiencies in this action.

IV. What action is EPA taking?

    EPA is disapproving a portion of Indiana's December 12, 2011 
submission and Ohio's December 27, 2012 submission seeking to address 
the required infrastructure element under CAA section 110(a)(2)(D)(i) 
for the 2008 ozone NAAQS, specifically prongs one, two, and four. This 
disapproval triggers an obligation under CAA section 110(c) for EPA to 
promulgate a FIP no later than two years from the effective date of 
this disapproval, if EPA has not approved a SIP revision or revisions 
addressing the deficiencies identified in this action. This action is 
not tied to attainment planning requirements and therefore does not 
start any sanction clocks.

[[Page 38962]]

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Paperwork Reduction Act (PRA)

    This rule does not impose an information collection burden under 
the provisions of the PRA.

C. Regulatory Flexibility Act (RFA)

    The Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the RFA. In making this determination, the impact of concern is 
any significant adverse economic impact on small entities. An agency 
may certify that a rule will not have a significant economic impact on 
a substantial number of small entities if the rule relieves regulatory 
burden, has no net burden or otherwise has a positive economic effect 
on the small entities subject to the rule. This action merely proposes 
to disapprove state law as not meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect 
small governments. The action imposes no enforceable duty on any state, 
local or tribal governments or the private sector.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175. It will not have substantial direct effects on 
tribal governments. Thus, Executive Order 13175 does not apply to this 
rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because EPA does not believe the environmental health or safety risks 
addressed by this action present a disproportionate risk to children 
because it proposes to disapprove a state rule.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by 
this action will not have potential disproportionately high and adverse 
human health or environmental effects on minority, low-income or 
indigenous populations.

Congressional Review Act

    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 rule 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 August 15, 2016. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule 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, Ozone.

    Dated: June 3, 2016.
Robert A. Kaplan,
Acting Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

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

0
2. In Sec.  52.770 the table in paragraph (e) is amended by revising 
the entry for ``Section 110(a)(2) Infrastructure Requirements for the 
2008 Ozone NAAQS''. The amended text reads as follows:

Sec.  52.770  Identification of plan.

* * * * *
    (e) * * *

                       EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                 Title                   Indiana date          EPA approval                 Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure            12/12/2011  6/15/2016, [insert         This action addresses the
 Requirements for the 2008 ozone NAAQS.                  Federal Register           following CAA elements:
                                                         citation].                 110(a)(2)(A), (B), (C), (D),
                                                                                    (E), (F), (G), (H), (J),
                                                                                    (K), (L), and (M).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[[Page 38963]]

0
3. In Sec.  52.1870 the table in paragraph (e) is amended by revising 
the entry for ``Section 110(a)(2) infrastructure requirements for the 
2008 Ozone NAAQS''. The amended text reads as follows:

Sec.  52.1870  Identification of plan.

* * * * *
    (e) * * *

                         EPA-Approved Ohio Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                                     Applicable
                                   geographical or
             Title                 non-attainment      State date       EPA approval             Comments
                                        area
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2)                Statewide.........      12/27/2012  6/15/2016, [insert  Addresses the following
 infrastructure requirements                                          Federal Register    CAA elements:
 for the 2008 ozone NAAQS.                                            citation].          110(a)(2) (A) to (H)
                                                                                          and (J) to (M).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2016-14103 Filed 6-14-16; 8:45 am]
 BILLING CODE 6560-50-P
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