Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 43175 

1The rule for the revised PM2.5 NAAQS was 

signed by the Administrator and publically 

disseminated on September 21, 2006. Because EPA 

did not prescribe a shorter period for 110(a) SIP 

submittals, these submittals for the 2006 24-hour 

PM2.5 NAAQS were due on September 21, 2009, 

three years from the September 21, 2006 signature 

date. 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart II—North Carolina 

■ 2. Section 52.1781 is amended by 

adding paragraph (g), to read as follows: 

§ 52.1781 Control strategy: Sulfur oxides 

and particulate matter. 

* * * * * 

(g) Disapproval. EPA is disapproving 

portions of North Carolina’s 

Infrastructure SIP for the 2006 24-hour 

PM2.5 NAAQS addressing interstate 

transport, specifically with respect to 

section 110(a)(2)(D)(i)(I). 

[FR Doc. 2011–18000 Filed 7–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0046; FRL–9318–1] 

Approval and Promulgation of 

Implementation Plans; State of 

California; Interstate Transport of 

Pollution; Significant Contribution to 

Nonattainment and Interference With 

Maintenance Requirements 

Correction 

In rule document 2011–14480 

appearing on pages 34872–34876, in the 

issue of Wednesday, June 15, 2011, 

make the following correction: 

On page number 34872, in the second 

column, in the Environmental 

Protection Agency document, the 

subject is corrected to appear as above. 

[FR Doc. C1–2011–14480 Filed 7–19–11; 8:45 am] 

BILLING CODE 1505–01–D 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2009–0805; FRL–9435–8] 

Approval of Air Quality Implementation 

Plans; Indiana and Ohio; Disapproval 

of Interstate Transport State 

Implementation Plan Revision for the 

2006 24-hour PM2.5 NAAQS 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: Pursuant to its authority 

under the Clean Air Act (CAA), EPA is 

taking final action to disapprove the 

portions of submittals by the Indiana 

Department of Environmental 

Management (IDEM) and the Ohio 

Environmental Protection Agency (Ohio 

EPA) that pertain to requirements in the 

CAA to address interstate transport for 

the 2006 24-hour fine particle (PM2.5) 

National Ambient Air Quality Standards 

(NAAQS). EPA is not, however, 

currently taking action on the remainder 

of the State Implementation Plan (SIP) 

submittals from IDEM and Ohio EPA 

concerning other basic or 

‘‘Infrastructure’’ elements required 

under the CAA. The proposed rule 

associated with this final action was 

published on February 4, 2011. The 

effect of this action will be an obligation 

for EPA to promulgate a Federal 

Implementation Plan (FIP) for Indiana 

and Ohio no later than two years from 

the date of disapproval. The Transport 

Rule, when final, is the FIP that EPA 

intends to implement for Indiana and 

Ohio. 

DATES: This final rule is effective on 

August 19, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2009–0805. All 

documents in the docket are listed in 

the http://www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

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 http:// 

www.regulations.gov or in hard copy at 

the U.S. 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 Andy Chang at (312) 

886–0258 before visiting the Region 5 

office. 

FOR FURTHER INFORMATION CONTACT: 

Andy Chang, Environmental Engineer, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

U.S. Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–0258, 

chang.andy@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 this action? 

II. What is our response to comments 

received on the notice of proposed 

rulemaking? 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. What is the background for this 

action? 

Section 110(a)(1) of the CAA requires 

states to submit basic or ‘‘Infrastructure’’ 

SIPs to address a new or revised 

NAAQS within three years after 

promulgation of such standards, or 

within such shorter period as EPA may 

prescribe. As provided by section 

110(k)(2) of the CAA, within twelve 

months of a determination that a 

submitted SIP is complete under 

110(k)(1) of the CAA, the Administrator 

shall act on the plan. As authorized in 

section 110(k)(3) of the CAA, where 

portions of the state submittals are 

severable, within that twelve-month 

period EPA may approve the portions of 

the submittals that meet the 

requirements of the CAA, take no action 

on certain portions of the submittals, 

and disapprove the portions of the 

submittals that do not meet the 

requirements of the CAA. When the 

deficient provisions are not severable 

from all of the submitted provisions, 

EPA must propose disapproval of the 

submittals, consistent with section 

110(k)(3) of the CAA. 

Section 110(a)(2) of the CAA lists the 

elements that such new Infrastructure 

SIPs must address, as applicable, 

including section 110(a)(2)(D)(i), which 

pertains to interstate transport of certain 

emissions, also known as the CAA 

‘‘good neighbor’’ provisions. 

On December 18, 2006, EPA revised 

the 24-hour average PM2.5 primary and 

secondary NAAQS from 65 micrograms 

per cubic meter (μg/m3) to 35 μg/m3

(see, 71 FR 61144).1 On September 25, 

2009, EPA issued its ‘‘Guidance on SIP 

Elements Required Under Sections 

110(a)(1) and (2) for the 2006 24-Hour 

Fine Particle (PM2.5) National Ambient 

Air Quality Standards (NAAQS)’’ (2009 

Guidance). EPA developed the 2009 

Guidance for States making submissions 

to meet the requirements of section 110, 

including 110(a)(2)(D)(i) for the revised 

2006 24-hour PM2.5 NAAQS. 

As identified in the 2009 Guidance, 

the ‘‘good neighbor’’ provisions in 

section 110(a)(2)(D)(i) require each state 

to submit a SIP that prohibits emissions 

that adversely affect another state in the 


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2See ‘‘Federal Implementation Plans to Reduce 

Interstate Transport of Fine Particulate Matter and 

Ozone; Proposed Rule,’’ 75 FR 45210 (August 2, 

2010). 

3The modeling for the final Transport Rule can 

be found as technical support documents in the 

docket folder for this action. 

ways contemplated in the statute. 

Section 110(a)(2)(D)(i) contains four 

distinct requirements related to the 

impacts of interstate transport. The SIP 

must prevent sources in the state from 

emitting pollutants in amounts which 

will: (1) Contribute significantly to 

nonattainment of the NAAQS in other 

states; (2) interfere with maintenance of 

the NAAQS in other states; (3) interfere 

with provisions to prevent significant 

deterioration of air quality in other 

states; or (4) interfere with efforts to 

protect visibility in other states. 

In the 2009 Guidance, EPA indicated 

that SIP submissions from states 

pertaining to the ‘‘significant 

contribution’’ and ‘‘interfere with 

maintenance’’ requirements of section 

110(a)(2)(D)(i) should contain adequate 

provisions to prohibit air pollutant 

emissions from within the state that 

contribute significantly to 

nonattainment or interfere with 

maintenance of the NAAQS in any other 

state. EPA further indicated that the 

state’s submission should explain 

whether or not emissions from the state 

have this impact and, if so, address the 

impact. EPA stated that the state’s 

conclusion should be supported by an 

adequate technical analysis. EPA 

recommended the various types of 

information that could be relevant to 

support the state SIP submission, such 

as information concerning emissions in 

the state, meteorological conditions in 

the state and the potentially impacted 

states, monitored ambient 

concentrations in the state, and air 

quality modeling. Furthermore, EPA 

indicated that states should address the 

‘‘interfere with maintenance’’ 

requirement independently, which 

requires an evaluation of impacts on 

areas of other states that are meeting the 

2006 24-hour PM2.5 NAAQS, not merely 

areas designated nonattainment. Lastly, 

in the 2009 Guidance, EPA stated that 

states could not rely on the Clean Air 

Interstate Rule (CAIR) to comply with 

the section 110(a)(2)(D)(i) requirements 

for the 2006 24-hour PM2.5 NAAQS 

because CAIR does not address this 

NAAQS. 

EPA promulgated CAIR on May 12, 

2005 (see, 70 FR 25162). CAIR required 

states to reduce emissions of sulfur 

dioxide and nitrogen oxides that 

significantly contribute to, and interfere 

with maintenance of the 1997 NAAQS 

for PM2.5 and/or ozone in any 

downwind state. CAIR was intended to 

provide states covered by the rule with 

a mechanism to satisfy their section 

110(a)(2)(D)(i)(I) obligations to address 

significant contribution to downwind 

nonattainment and interference with 

maintenance in another state with 

respect to the 1997 ozone and PM2.5

NAAQS. Many states adopted the CAIR 

provisions and submitted SIPs to EPA to 

demonstrate compliance with the CAIR 

requirements in satisfaction of their 

110(a)(2)(D)(i)(I) obligations for those 

two pollutants. 

EPA was sued by a number of parties 

on various aspects of CAIR, and on July 

11, 2008, the U.S. Court of Appeals for 

the District of Columbia Circuit issued 

its decision to vacate and remand both 

CAIR and the associated CAIR FIPs in 

their entirety. North Carolina v. EPA, 

531 F.3d 836 (DC Cir. 2008). However, 

in response to EPA’s petition for 

rehearing, the Court issued an order 

remanding CAIR to EPA without 

vacating either CAIR or the CAIR FIPs. 

North Carolina v. EPA, 550 F.3d 1176 

(DC Cir. 2008). The Court thereby left 

CAIR in place in order to ‘‘temporarily 

preserve the environmental values 

covered by CAIR’’ until EPA replaces it 

with a rule consistent with the Court’s 

opinion. Id. at 1178. The Court directed 

EPA to ‘‘remedy CAIR’s flaws’’ 

consistent with its July 11, 2008 

opinion, but declined to impose a 

schedule on EPA for completing that 

action. Id. 

In order to address the judicial 

remand of CAIR, EPA has proposed a 

new rule to address interstate transport 

pursuant to section 110(a)(2)(D)(i)(I), the 

‘‘Federal Implementation Plans to 

Reduce Interstate Transport of Fine 

Particulate Matter and Ozone’’ 

(Transport Rule).2 As part of the 

proposed Transport Rule, EPA 

specifically examined the section 

110(a)(2)(D)(i)(I) requirement that 

emissions from sources in a state must 

not ‘‘significantly contribute to 

nonattainment’’ and ‘‘interfere with 

maintenance’’ of the 2006 24-hour PM2.5

NAAQS by other states. The modeling 

performed for the final Transport Rule 

shows that both Indiana and Ohio 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 2006 24-hour PM2.5

NAAQS in downwind areas.3

IDEM and Ohio EPA made submittals 

on October 20, 2009, and September 4, 

2009, respectively, that were intended 

to demonstrate satisfaction of all 

Infrastructure SIP elements for the 2006 

24-hour PM2.5 NAAQS. Both States 

relied predominantly on their respective 

EPA-approved CAIR regulations to meet 

the interstate transport requirements of 

section 110(a)(2)(D)(i)(I). Indiana further 

committed to amend its rule once the 

Federal CAIR is amended or replaced. 

II. What is our response to comments 

received on the notice of proposed 

rulemaking? 

The public comment period for EPA’s 

proposal to disapprove the portions of 

the submittals from Indiana and Ohio 

addressing the requirements of section 

110(a)(2)(D)(i)(I) closed on March 7, 

2011. Indiana and Ohio each submitted 

a comment letter to EPA, and a synopsis 

of their comments, as well as EPA’s 

response to each comment, is discussed 

below. 

Comment 1: EPA fails to recognize 

that Indiana was one of a few states that 

submitted its Infrastructure SIP, and 

wrongly implies the State was negligent 

in addressing its CAA requirements. 

EPA cannot disapprove Indiana’s SIP 

primarily for its reliance on CAIR. There 

is no way for Indiana or Ohio to cure 

EPA’s failure to have all of the 

underlying Federal requirements in 

place for the states to meet the transport 

provision requirements for section 

110(a)(2)(D). Although Indiana 

understands that the CAIR program 

cannot be defined as permanent and 

enforceable for SIP purposes, the 

Transport Rule is not yet final, and was 

not proposed until after the 

Infrastructure SIP deadline. Therefore, 

Indiana believes its Infrastructure SIP is 

adequate and contains provisions to 

address all requirements of Section 

110(a)(2)(D). CAIR was the only option 

states could rely upon at the time the 

SIPs were due, and Indiana made it 

clear within its submittal that it would 

adopt the requirements of the 

replacement rule for CAIR in a timely 

manner. 

Response 1: EPA recognizes the 

State’s timely efforts in submitting its 

Infrastructure SIP for the 2006 24-hour 

PM2.5 NAAQS. However, as outlined in 

EPA’s proposed action, Indiana’s 

portion of the Infrastructure SIP in 

addressing section 110(a)(2)(D)(i)(I) is 

inadequate and must therefore be 

disapproved. 

States were provided with the 2009 

Guidance detailing the required 

elements of an approvable Infrastructure 

SIP. Specific to the requirements of 

section 110(a)(2)(D)(i)(I), EPA indicated 

in the 2009 Guidance that a state’s 

submittal should contain adequate 

provisions to prohibit air pollutant 

emissions from within the state that 

contribute significantly to 

nonattainment or interfere with 

maintenance of the NAAQS in any other 

state. EPA further indicated that the 

state’s submission should explain 


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4Further, as explained above and in the 

Transport Rule proposal, 75 FR 45210 (August 2, 

2010), the DC Circuit in North Carolina v. EPA 

found that EPA’s quantification of States’ 

significant contribution and interference with 

maintenance in CAIR was improper, and remanded 

the rule to EPA. CAIR remains in effect only 

temporarily. 

whether or not emissions from the state 

have this impact and, if so, address the 

impact. EPA stated that the state’s 

conclusion should be supported by an 

adequate technical analysis. IDEM did 

not provide a technical analysis in its 

submittal, but instead relied primarily 

on its approved CAIR regulations to 

address the requirements of section 

110(a)(2)(D)(i)(I) with respect to the 

2006 24-hour PM2.5 NAAQS. In the 

proposed rulemaking, EPA provided 

rationale for why other programs 

already implemented, and cited by 

Indiana in its October 20, 2009 

submittal, e.g., the NOx SIP Call, stack 

height requirements, and acid 

deposition control regulations, are not 

sufficient to meet the requirements of 

section 110(a)(2)(D)(i)(I). 

CAIR was promulgated before the 24- 

hour PM2.5 NAAQS were revised in 

2006 and does not address interstate 

transport with respect to the 2006 24- 

hour PM2.5 NAAQS.4 Thus, as EPA’s 

2009 Guidance explicitly notes, states 

cannot rely on CAIR to comply with 

section 110(a)(2)(D)(i)(I) for the 2006 24- 

hour PM2.5 NAAQS. Furthermore, SIPs 

can only rely on permanent emissions 

reductions, and because the Transport 

Rule in its final form will 

simultaneously replace and ‘‘remedy 

CAIR’s flaws,’’ CAIR will not provide 

permanent emissions reductions. In 

conclusion, the portions of Indiana’s 

submittal addressing the requirements 

of section 110(a)(2)(D)(i)(I) are 

inadequate, and cannot be approved. 

Contrary to Indiana’s assertion, CAIR 

was not the only option states could rely 

upon at the time Infrastructure SIPs 

were due. As reflected in the 2009 

Guidance, CAIR did not address the 

2006 24-hour PM2.5 NAAQS obligating 

states under CAA section 

110(a)(2)(D)(i)(I) to make the appropriate 

demonstration. However, the 2009 

Guidance did explain the type of 

technical analysis and justification 

necessary to make that demonstration. 

Indiana did not provide any technical 

analysis or justification in its October 

20, 2009 submittal to support any such 

demonstration. 

Comment 2: EPA should provide 

Indiana the opportunity to revise its 

Infrastructure SIP once the Transport 

Rule is completed, especially since 

there is no court-ordered deadline for 

EPA to act on this particular SIP 

submittal. 

Response 2: EPA is taking action to 

disapprove the portions of Indiana’s 

Infrastructure SIP submittal addressing 

the requirements of section 

110(a)(2)(D)(i)(I) under section 110(k)(2) 

and (3) of the CAA. This section of the 

CAA requires EPA to approve or 

disapprove a SIP within 12 months of 

its completeness determination. Under 

section 110(k), EPA was required to 

disapprove or approve Indiana’s 

Infrastructure SIP by April 20, 2011. 

Indiana has an opportunity to revise and 

submit a SIP at any time and is invited 

to do so following final promulgation of 

the Transport Rule and within the time 

provided by the CAA. 

Comment 3: EPA was not timely in 

developing the Transport Rule, which 

states expected to use when addressing 

the interstate transport requirements of 

the 2006 24-hour PM2.5 NAAQS. 

Therefore, states’ Infrastructure SIPs 

should not be disapproved at this time. 

Instead, EPA should delay action on the 

Infrastructure SIPs until states can 

revise them once the Transport Rule is 

finalized. EPA also stated that Indiana 

had failed to provide a modeling 

analysis. Did EPA expect an analysis 

from States when States knew that the 

proposed Transport Rule would 

adequately address the 2006 24-hour 

PM2.5 NAAQS? Why would Indiana, or 

any other State, do modeling or 

rulemaking in advance of the Transport 

Rule being proposed? 

Response 3: States must meet their 

statutory requirements by submitting 

SIPs with permanent and enforceable 

measures in a timely manner. 

Furthermore, all required documents 

and technical analyses should 

accompany the submittals. Lastly, as 

discussed in Response 2, above, section 

110(k)(2) and (3) required EPA to 

disapprove or approve Indiana’s 

Infrastructure SIP by April 2011. 

Comment 4: Indiana disagrees with 

EPA’s approach to address Section 

110(a)(2)(D) requirements by way of a 

FIP. A FIP will allow expedient 

implementation of emission reductions; 

however, many states prefer to develop 

SIPs to better fit their needs. A FIP is 

also contrary to the spirit of the CAA by 

unnecessarily limiting state authority. 

When the Transport Rule is finalized, 

Indiana will be issued a FIP by EPA for 

failing to develop an adequate 

Infrastructure SIP—a requirement that 

Indiana has already fulfilled. Indiana 

plans to incorporate the Transport Rule 

into a state rule and replace the 

transport component of section 

110(a)(2)(D) as expeditiously as 

possible, and does not believe that EPA 

needs to FIP Indiana in order for this 

action to occur in a timely manner. 

Response 4: In this action, EPA is 

disapproving only the portions of 

Indiana’s Infrastructure SIP for the 2006 

24-hour PM2.5 NAAQS that address the 

requirements of section 

110(a)(2)(D)(i)(I). Upon disapproval of 

Indiana’s submittal, EPA has a legal 

obligation, pursuant to the CAA, to 

promulgate a FIP. See Section 

110(c)(1)(B) of the CAA. Section 

110(a)(1) of the CAA requires states to 

submit SIPs that meet certain 

requirements within three years of 

promulgation of a NAAQS. These SIPs 

are required to contain, among other 

things, adequate provisions 

‘‘prohibiting, consistent with the 

provisions of this subchapter, any 

source or other type of emissions 

activity within the state from emitting 

any air pollutant in amounts which 

will—(I) contribute significantly to 

nonattainment in, or interfere with 

maintenance by, any other state with 

respect to any such national primary or 

secondary ambient air quality 

standard.’’ Section 110(a)(1) gives the 

Administrator authority to prescribe a 

period shorter than three years for the 

states to adopt and submit such SIPs, 

but does not give the Administrator 

authority to lengthen the time allowed 

for submission. 

Section 110(c)(1) of the Act, in turn, 

requires EPA to promulgate FIPs if EPA 

has found that the state has failed to 

make a required submission or if EPA 

has disapproved a state submission or 

found it to be incomplete. Specifically, 

section 110(c)(1) requires EPA to 

promulgate a FIP within two years after 

the Administrator ‘‘(A) finds that a state 

has failed to make a required 

submission or finds that the plan or 

plan revision submitted by the state 

does not satisfy the minimum criteria 

established under subsection (k)(1)(A) of 

this section or (B) disapproves a state 

implementation plan submission in 

whole or in part.’’ The CAA uses 

mandatory language, finding that EPA 

shall promulgate a FIP at any time 

within 2 years after the actions 

identified 110(c)(1)(A) or 110(c)(1)(B) 

have occurred. EPA’s legal obligation to 

promulgate FIPs arises when those 

actions occur without regard to the 

underlying reason for the underlying 

SIP deficiency. The obligation to 

promulgate a FIP must be discharged by 

EPA unless two conditions are met: (1) 

The state corrects the deficiency; and (2) 

the Administrator approves the plan or 

plan revision, before the Administrator 

promulgates the FIP. 

Under this statutory scheme, EPA has 

authority and an obligation to 


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43178 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 

promulgate a FIP to correct a SIP 

deficiency if the actions identified in 

section 110(c)(1)(A) or (B) have been 

taken, and the two conditions identified 

in 110(c)(1) have not been met. The 

question of whether EPA has authority 

to promulgate any particular FIP, 

therefore, must be considered on a state 

specific basis. 

EPA disagrees with Indiana’s 

suggestion that the rule is inconsistent 

with the CAA because it does not give 

states time to develop, submit and 

receive EPA approval of SIPs before the 

FIP goes into effect. Section 110(a)(2) 

calls on states to submit SIPs that 

contain adequate provisions prohibiting 

the emissions proscribed by section 

110(a)(2)(D)(i)(I). However, when EPA 

has not received such SIP submission or 

has disapproved a SIP submission, it 

has an obligation created by section 

110(c)(1) to promulgate a FIP that meets 

the requirements of section 

110(a)(2)(D)(i)(I). EPA does not believe it 

has authority to adjust the deadlines 

established in the Act in order to give 

states additional time, after 

promulgation of the Transport Rule, to 

submit SIPs that comply with section 

110(a)(2)(D)(i)(I). Furthermore, EPA 

does not believe it has authority to alter 

the statutory requirement that it 

promulgate FIPs within two years of 

making a finding of failure to submit. 

EPA sought to discharge this duty with 

respect to the states covered by CAIR for 

the PM2.5 NAAQS by promulgating the 

CAIR; however, the Court found that 

rule unlawful and not sufficiently 

related to the statutory mandate of 

section 110(a)(2)(D)(i)(I). For this reason, 

EPA does not believe it could argue that 

the CAIR FIPs completely discharged its 

duty to promulgate FIPs with respect to 

the states whose section 

110(a)(2)(D)(i)(I) SIPs are disapproved. 

EPA is following the SIP process 

established in the statute. The 110(a) 

SIPs for the 2006 24-hour PM2.5 NAAQS 

were due in 2009. In each case, states 

were given the full 3 years to meet the 

requirement. The Transport Rule, when 

final, will provide the FIP to fulfill the 

requirement that was unmet by the 

states through SIPs. EPA is required to 

promulgate a FIP within two years of a 

state’s failure to have an approved SIP. 

States were in fact given the first chance 

to fulfill the requirement of Section 

100(a)(2)(D)(i)(I). EPA’s action is 

subsequent to the State’s opportunity to 

first fulfill the requirement. 

EPA has made every attempt to 

facilitate the transition between the 

requirements of CAIR and those of the 

Transport Rule. For future requirements, 

EPA will also make every effort to 

address transition issues. However, EPA 

cannot ignore its statutory obligations 

and therefore cannot ensure that no new 

requirements will be placed on the 

sources being regulated by this action. 

Every time a NAAQS is revised, there is 

a statutory obligation for states to 

submit SIPs to address certain CAA 

requirements. If states fail to meet the 

deadlines or submit incomplete or 

inadequate SIPs, EPA must act to ensure 

that the requirements are put into place. 

Even though EPA is planning to 

promulgate a FIP, the State still has the 

opportunity to submit a SIP that can 

tailor requirements to the specific needs 

and concerns of the State in order to 

meet the applicable state budgets. Prior 

to this action, states had ample time 

under the provisions of the CAA to 

develop and submit approvable SIPs 

and did not. No state affected by the 

Transport Rule has submitted a SIP to 

replace the emission reductions that 

were required by CAIR, despite the 

North Carolina opinion issued in 

December 2008 that clearly stated that 

CAIR did not adequately address 

110(a)(2)(D)(i)(I). While the remand left 

CAIR in place, resulting in the 

continued requirement that states and 

sources comply with it, states had the 

opportunity to develop replacement 

measures to ensure that 110(a)(2)(D)(i)(I) 

components of their SIPs would 

continue to be fulfilled in the future. 

Comment 5: Indiana has met the 2006 

24-hour PM2.5 NAAQS since the end of 

2007 and monitoring values continue to 

trend downward. Indiana does not 

significantly contribute to violations of 

the annual standard in downwind areas. 

Therefore, Indiana does not contribute 

to any violations of the 2006 24-hour 

PM2.5 NAAQS. EPA had not conducted 

a complete analysis on the contributions 

at the time the Infrastructure SIPs were 

due, nor did EPA give states a chance 

to provide comments on the analysis. 

Response 5: As discussed in the 

proposed disapproval, the modeling 

performed for the proposed Transport 

Rule shows that Indiana significantly 

contributes to nonattainment or 

interferes with maintenance of the 2006 

24-hour PM2.5 NAAQS in downwind 

areas. EPA has now completed the 

modeling for the final Transport Rule 

and, as indicated by the technical 

support documents for this action, 

Indiana in fact contributes to downwind 

nonattainment in another state or 

interferes with maintenance of the 2006 

24-hour PM2.5 NAAQS in another state. 

Comment 6: Modeling for the 

Transport Rule was based on the 1997 

annual PM2.5 NAAQS, not the 2006 24- 

hour PM2.5 NAAQS. Also, the base years 

used in the modeling are not reflective 

of emissions or monitoring data which 

show downward trends in more recent 

years that include benefits from CAIR. 

Response 6: The modeling performed 

by EPA for the final Transport Rule 

addresses both the 1997 annual PM2.5

NAAQS and the 2006 24-hour PM2.5

NAAQS. CAIR cannot be included in 

the analysis since it does not provide 

permanent emission reductions nor 

address the 2006 24-hour PM2.5 NAAQS. 

Comment 7: If EPA proceeds with its 

disapproval, and Indiana is not 

permitted to revise its Infrastructure SIP 

once the Transport Rule is finalized, 

EPA should properly characterize the 

circumstances surrounding its need to 

disapprove the submittal. 

Response 7: The circumstances 

surrounding EPA’s need to disapprove 

the portions of Indiana’s Infrastructure 

SIP submittal for the 2006 24-hour PM2.5

NAAQS that address the requirements 

of section 110(a)(2)(D)(i)(I) were 

discussed in the proposed disapproval. 

Additionally, Response 1, Response 3, 

and Response 4, above, reiterate the 

circumstances surrounding EPA’s need 

to disapprove the portion of Indiana’s 

Infrastructure SIP submittal for the 2006 

24-hour PM2.5 NAAQS that address the 

requirements of section 

110(a)(2)(D)(i)(I). Indiana has an 

opportunity to revise and submit a SIP 

at any time, and is invited to do so 

following final promulgation of the 

Transport Rule and within the time 

provided by the CAA. 

Response 8: EPA fails to acknowledge 

states’ efforts to meet their requirements 

on a timely basis. EPA should approve 

Ohio’s transport component of the 

Infrastructure SIP since the State 

submitted its SIP on time and in 

accordance with available guidance. 

Response 9: EPA recognizes Ohio’s 

timely efforts in submitting its 

Infrastructure SIP for the 2006 24-hour 

PM2.5 NAAQS. However, in a similar 

manner as described above in the 

response to Comment 1, above, the 

portions of Ohio’s submittal addressing 

the requirements of section 

110(a)(2)(D)(i)(I) with respect to the 

2006 24-hour PM2.5 NAAQS are 

inadequate, and must be disapproved. 

Comment 10: Instead of disapproving 

the portion of the SIP submittal at this 

time, EPA can issue a SIP deficiency 

notice and require a new SIP after the 

Transport Rule is finalized. 

Response 10: EPA disagrees with 

Ohio’s statement. EPA is taking action 

to disapprove the portions of Ohio’s 

submittal under section 110(k)(2) and 

(3) of the CAA. Under section 110(k) of 

the CAA, EPA had an obligation to 

approve or disapprove Ohio’s submittal 

by March 4, 2011. 


jlentini on DSK4TPTVN1PROD with RULES
Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 43179 

Comment 11: EPA believes that it 

must issue this disapproval to address 

the transport of emissions and pollution 

for the 2006 PM2.5 NAAQS through a 

FIP. The better course is to allow the 

states to develop their own SIP when 

adopting the Transport Rule. 

Response 11: In this action, EPA is 

disapproving only the portions of Ohio’s 

Infrastructure SIP for the 2006 24-hour 

PM2.5 NAAQS that address the 

requirements of section 

110(a)(2)(D)(i)(I). The full or partial 

disapproval of a SIP revision triggers the 

requirement under section 110(c) that 

EPA promulgate a FIP no later than two 

years from the date of the disapproval 

unless the state corrects the deficiency, 

and the Administrator approves the 

plan or plan revision before the 

Administrator promulgates such FIP. 

Ohio is welcome to submit a revised SIP 

for EPA approval that addresses the 

requirements of section 110(a)(2)(D)(i)(I) 

with respect to the 2006 24-hour PM2.5

NAAQS after the Transport Rule is 

finalized, and within the time provided 

by the CAA. 

III. What action is EPA taking? 

For the reasons discussed in the 

proposed rulemaking, EPA is taking 

final action to disapprove submittals 

from Indiana and Ohio intended to 

demonstrate that each respective State 

has adequately addressed the elements 

of section 110(a)(2)(D)(i)(I) of the CAA 

with regard to the 2006 24-hour PM2.5

NAAQS. This action pertains only to 

section 110(a)(2)(D)(i)(I); the States’ 

submittals for the remainder of the 2006 

24-hour PM2.5 NAAQS Infrastructure 

SIPs will be addressed in separate 

rulemakings. The effect of this action 

will be an obligation for EPA to 

promulgate a FIP for Indiana and Ohio 

no later than two years from the date of 

disapproval. The final Transport Rule is 

the FIP that EPA currently intends to 

promulgate for Indiana and Ohio. 

IV. Statutory and Executive Order 

Reviews 

Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ 

and, therefore, is not subject to review 

by the Office of Management and 

Budget. 

Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Because it is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866 or a ‘‘significant energy 

action,’’ this action is also not subject to 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). 

Regulatory Flexibility Act 

This action merely disapproves state 

law as meeting Federal requirements 

and imposes no additional requirements 

beyond those imposed by state law. 

Accordingly, the Administrator certifies 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.). 

Unfunded Mandates Reform Act 

Because this rule disapproves preexisting requirements under state law 

and does not impose any additional 

enforceable duty beyond that required 

by state law, it 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). 

Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(59 FR 22951, November 9, 2000). 

Executive Order 13132: Federalism 

This action also does not have 

Federalism implications because it does 

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, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This action merely 

disapproves a state rule implementing a 

Federal standard, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

CAA. 

Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This rule also is not subject to 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it approves a 

state rule implementing a Federal 

Standard. 

National Technology Transfer 

Advancement Act 

In reviewing state submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the CAA. In this context, in the absence 

of a prior existing requirement for the 

state to use voluntary consensus 

standards (VCS), EPA has no authority 

to disapprove a state submission for 

failure to use VCS. It would thus be 

inconsistent with applicable law for 

EPA, when it reviews a state 

submission, to use VCS in place of a 

state submission that otherwise satisfies 

the provisions of the CAA. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. 

Paperwork Reduction Act 

This rule does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

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 September 19, 2011. 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).) 


jlentini on DSK4TPTVN1PROD with RULES
43180 Federal Register / Vol. 76, No. 139 / Wednesday, July 20, 2011 / Rules and Regulations 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter. 

Dated: June 28, 2011. 

Susan Hedman, 

Regional Administrator, Region 5. 

40 CFR part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart P—Indiana 

■ 2. Section 52.776 is amended by 

adding paragraph (u), to read as follows: 

§ 52.776 Control strategy: Particulate 

matter. 

* * * * * 

(u) Disapproval. EPA is disapproving 

the portions of Indiana’s Infrastructure 

SIP for the 2006 24-hour PM2.5 NAAQS 

addressing interstate transport, 

specifically with respect to section 

110(a)(2)(D)(i)(I). 

Subpart KK—Ohio 

■ 3. Section 52.1880 is amended by 

adding paragraph (l), to read as follows: 

§ 52.1880 Control strategy: Particulate 

matter. 

* * * * * 

(l) Disapproval. EPA is disapproving 

the portions of Ohio’s Infrastructure SIP 

for the 2006 24-hour PM2.5 NAAQS 

addressing interstate transport, 

specifically with respect to section 

110(a)(2)(D)(i)(I). 

[FR Doc. 2011–17739 Filed 7–19–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2011–0338; FRL–9435–7] 

Finding of Failure To Submit Section 

110 State Implementation Plans for 

Interstate Transport for the 2006 

National Ambient Air Quality 

Standards for Fine Particulate Matter 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: In this action, EPA is finding 

that Tennessee has failed to submit a 

State Implementation Plan (SIP) to 

satisfy the requirements of the Clean Air 

Act (CAA) with respect to the 2006 24- 

hour National Ambient Air Quality 

Standards (NAAQS) for fine particulate 

matter (24-hour PM2.5). Although 

Tennessee has submitted a SIP to 

address the requirements, the state 

subsequently withdrew that portion of 

its SIP submittal because it relied on the 

Clean Air Interstate Rule to address 

transport. This finding creates a 2-year 

deadline for the promulgation of a 

Federal Implementation Plan (FIP) by 

EPA. In a separate action, commonly 

referred to as the Transport Rule, EPA 

is finalizing a FIP for Tennessee to 

address these requirements. 

DATES: The effective date of this rule is 

August 19, 2011. 

FOR FURTHER INFORMATION CONTACT: 

General questions concerning this final 

rule should be addressed to Edgar 

Mercado, Office of Atmospheric 

Programs, Clean Air Markets Division, 

2400 Pennsylvania Avenue, Mail Code 

6204J, Washington, DC 20460; 

telephone (202) 343–9440; e-mail 

address: mercado.edgar@epa.gov. 

SUPPLEMENTARY INFORMATION: For 

questions related to Tennessee, please 

contact Richard A. Schutt, Chief, 

Regulatory Development Section, EPA 

Region IV, Sam Nun Atlanta Federal 

Center, 61 Forsyth Street, SW., 12th 

Floor, Atlanta, GA 30303. 

Table of Contents 

I. Background 

II. This Action 

III. Statutory and Executive Order Reviews 

A. Notice and Comment Under the 

Administrative Procedures Act (APA) 

B. Executive Order 12866: Regulatory 

Planning and Review 

C. Paperwork Reduction Act 

D. Regulatory Flexibility Act 

E. Unfunded Mandates Reform Act 

F. Executive Order 13132 (Federalism) 

G. Executive Order 13175 

H. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

I. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

J. National Technology Transfer and 

Advancement Act 

K. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

L. Congressional Review Act 

M. Judicial Review 

I. Background 

On October 17, 2006, EPA published 

a final rule revising the 24-hour 

standard for fine particulate matter 

(PM2.5) from 65 micrograms per cubic 

meter (μg/m3) to 35μg/m3. Section 

110(a)(1) of the CAA requires states to 

submit revised SIPs that provide for the 

implementation, maintenance, and 

enforcement of a new or revised 

standard within 3 years after 

promulgation of such standard, or 

within such shorter period as EPA may 

prescribe. Section 110(a)(2)(D)(i) 

contains four elements that revised SIPs 

must address. This findings notice 

addresses the first two elements which 

require each state to submit SIPs which 

contain adequate provisions to prohibit 

air pollution within the state that (1) 

contributes significantly to another 

state’s nonattainment of the NAAQS; or 

(2) interferes with another state’s 

maintenance of the NAAQS. Section 

110(a)(1) imposes the obligation upon 

states to make a SIP submission for a 

new or revised NAAQS, but the 

contents of that submission may vary 

depending upon the facts and 

circumstances. In particular, the data 

and analytical tools available at the time 

the state develops and submits the SIP 

for a new or revised NAAQS necessarily 

affects the content of the submission. 

States were required to have 

submitted complete SIPs that addressed 

the section 110(a)(2)(D)(i)(I) requirement 

related to interstate transport for the 

2006 24-hour PM2.5 NAAQS by 

September 21, 2009. On June 9, 2010, in 

a separate final rulemaking (75 FR 

32763), EPA found that 29 states and 

territories had not made a SIP submittal 

that addressed this requirement. 

Although Tennessee has submitted a 

SIP intended to address the Section 

110(a)(2)(D)(i) requirements, the state 

subsequently withdrew the Section 

110(a)(2)(D)(i) of its infrastructure SIP 

with respect to the 2006 24-hour PM2.5

NAAQS on December 2, 2010, because 

it relied on the Clean Air Interstate Rule. 

Although deficient to address the 

transport of pollution as highlighted in 

recent EPA air quality modeling to 

support the final Transport Rule, EPA 

acknowledges the State’s efforts in 

making this SIP submittal. In response 

to Tennessee’s withdrawal of the 

110(a)(2)(D)(i)(I) portions of its SIP 

because it relied on the Clean Air 

Interstate Rule, EPA is making a finding 

that Tennessee has failed to submit the 

required infrastructure SIP elements 

with respect to nonattainment or 

interference with maintenance of the 

2006 24-hour PM2.5 NAAQS. In 

accordance with Section 110(c)(1), this 

finding creates a 2-year deadline for the 

promulgation of a Federal 

Implementation Plan (FIP) by EPA 

unless, prior to promulgation of a FIP, 

the state makes a submission to meet 

and EPA approves such submission as 

meeting the attainment and 


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