Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations 38957 

Subpart B—Requests Initiated by the 

Postal Service To Modify the Product 

Lists 

■ 3. Revise the heading of subpart B to 

read as set forth above. 

■ 4. Revise § 3020.30 to read as follows: 

§ 3020.30 General. 

The Postal Service, by filing a request 

with the Commission, may propose a 

modification to the market dominant 

product list or the competitive product 

list. For purposes of this part, 

modification shall be defined as adding 

a product to a list, removing a product 

from a list, or moving a product from 

one list to the other list. 

Subpart C—Requests Initiated by 

Users of the Mail to Modify the Product 

Lists 

■ 5. Revise the heading of subpart C to 

read as set forth above. 

■ 6. Revise § 3020.50 to read as follows: 

§ 3020.50 General. 

Users of the mail, by filing a request 

with the Commission, may propose a 

modification to the market dominant 

product list or the competitive product 

list. For purposes of this part, 

modification shall be defined as adding 

a product to a list, removing a product 

from a list, or transferring a product 

from one list to the other list. 

Subpart D—Proposal of the 

Commission to Modify the Product 

Lists 

■ 7. Revise the heading of subpart D to 

read as set forth above. 

Subpart D—Proposal of the 

Commission to Modify the Product 

Lists 

■ 8. Revise § 3020.70 to read as follows: 

§ 3020.70 General. 

The Commission, of its own initiative, 

may propose a modification to the 

market dominant product list or the 

competitive product list. For purposes 

of this part, modification shall be 

defined as adding a product to a list, 

removing a product from a list, or 

transferring a product from one list to 

the other list. 

By the Commission. 

Stacy L. Ruble, 

Secretary. 

[FR Doc. 2016–14171 Filed 6–14–16; 8:45 am] 

BILLING CODE 7710–FW–P 

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. 

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 


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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 CSAPRbased 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 illtimed. 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, 


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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, § 7410(a)(1), and that SIP ‘shall’ 

include, among other components, provisions 

adequate to satisfy the Good Neighbor Provision, 

§ 7410(a)(2).’’ EPA v. EME Homer City Generation, 

L.P., 134 S. Ct. at 1600. 

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. 

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 


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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 


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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. 


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38962 Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations 

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 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

■ 2. In § 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: 

§ 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 Requirements for the 2008 ozone NAAQS.12/12/2011 6/15/2016, [insert Federal 

Register citation].

This action addresses the following CAA elements: 

110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), 

(L), and (M). 

* * * * * * * 


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Federal Register / Vol. 81, No. 115 / Wednesday, June 15, 2016 / Rules and Regulations 38963 

■ 3. In § 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: 

§ 52.1870 Identification of plan. 

* * * * * 

(e) * * * 

EPA-APPROVED OHIO NONREGULATORY AND QUASI-REGULATORY PROVISIONS

Title 

Applicable geographical or non-attainment area 

State date EPA approval Comments 

*******

Section 110(a)(2) infrastructure 

requirements for the 2008 

ozone NAAQS.

Statewide .................. 12/27/2012 6/15/2016, [insert 

Federal Register 

citation].

Addresses the following CAA elements: 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR PART 52 

[EPA–R02–OAR–2016–0316; FRL–9947–77– 

Region 2] 

Finding of Failure To Submit a State 

Implementation Plan; New Jersey; 

Interstate Transport Requirements for 

2008 8-Hour National Ambient Air 

Quality Standards for Ozone 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking final action 

finding that New Jersey has failed to 

submit an infrastructure State 

Implementation Plan (SIP) revision to 

satisfy certain interstate transport 

requirements of the Clean Air Act (CAA) 

with respect to the 2008 8-hour ozone 

national ambient air quality standard 

(NAAQS). Specifically, these 

requirements pertain to the obligation to 

prohibit emissions which significantly 

contribute to nonattainment, or interfere 

with maintenance, of the 2008 8-hour 

ozone NAAQS in other states. This 

finding of failure to submit establishes 

a 2-year deadline for the EPA to 

promulgate a Federal Implementation 

Plan (FIP) to address the interstate 

transport SIP requirements pertaining to 

the state’s significant contribution to 

nonattainment and interference with 

maintenance of the 2008 ozone NAAQS 

in other states unless, prior to the EPA 

promulgating a FIP, the state submits, 

and the EPA approves, a SIP that meets 

these requirements. 

DATES: This rule is effective on July 15, 

2016. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–R02–OAR–2016–0316. All 

documents in the docket are listed on 

the www.regulations.gov Web site. 

FOR FURTHER INFORMATION CONTACT: 

Kenneth Fradkin, Environmental 

Protection Agency, 290 Broadway, 25th 

Floor, New York, NY 10007–1866, (212) 

637–3702, or by email at 

Fradkin.Kenneth@epa.gov. 

SUPPLEMENTARY INFORMATION: Section 

553 of the Administrative Procedures 

Act, 5 United States Code (U.S.C.) 

553(b)(3)(B), provides that, when an 

agency for good cause finds that notice 

and public procedure are impracticable, 

unnecessary or contrary to the public 

interest, the agency may issue a rule 

without providing notice and an 

opportunity for public comment. The 

EPA has determined that there is good 

cause for making this rule final without 

prior proposal and opportunity for 

comment because no significant EPA 

judgment is involved in making a 

finding of failure to submit SIPs, or 

elements of SIPs, required by the CAA, 

where states have made no submittals, 

or incomplete submittals, to meet the 

requirement by the statutory date. Thus, 

notice and public procedure are 

unnecessary. The EPA finds that this 

constitutes good cause under 5 U.S.C. 

553(b)(3)(B). 

Table of Contents 

I. Background 

II. Final Action 

III. Statutory and Executive Order Reviews 

I. Background 

Section 110(a) of the CAA imposes an 

obligation upon states to submit SIPs 

that provide for the implementation, 

maintenance and enforcement of a new 

or revised NAAQS within 3 years 

following the promulgation of that 

NAAQS. Section 110(a)(2) lists specific 

requirements that states must meet in 

these SIP submissions, as applicable. 

The EPA refers to this type of SIP 

submission as the ‘‘infrastructure’’ SIP 

because the SIP ensures that states can 

implement, maintain and enforce the air 

standards. Within these requirements, 

section 110(a)(2)(D)(i) contains 

requirements to address interstate 

transport of NAAQS pollutants. A SIP 

revision submitted for this sub-section 

is referred to as an ‘‘interstate transport 

SIP.’’ In turn, section 110(a)(2)(D)(i)(I) 

requires that such a plan contain 

adequate provisions to prohibit 

emissions from the state that will 

contribute significantly to 

nonattainment of the NAAQS in any 

other state (‘‘prong 1’’) or interfere with 

maintenance of the NAAQS in any other 

state (‘‘prong 2’’). Interstate transport 

prongs 1 and 2, also called the ‘‘good 

neighbor’’ provisions, are the 

requirements relevant to this findings 

notice. 

Pursuant to CAA section 110(k)(1)(B), 

the EPA must determine no later than 6 

months after the date by which a state 

is required to submit a SIP whether a 

state has made a submission that meets 

the minimum completeness criteria 

established in CAA section 110(k)(1)(A). 

The EPA refers to the determination that 

a state has not submitted a SIP 

submission that meets the minimum 

completeness criteria as a ‘‘finding of 

failure to submit.’’ If the EPA finds a 

state has failed to submit a SIP to meet 

its statutory obligation to address 

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

110(c)(1) the EPA has not only the 

authority, but the obligation, to 

promulgate a FIP within 2 years to 

address the CAA requirement. This 

finding therefore starts a 2-year clock for 

promulgation by the EPA of a FIP, in 

accordance with CAA section 110(c)(1), 

unless prior to such promulgation the 

state submits, and the EPA approves, a 

submittal from the state to meet the 

requirements of CAA section 

110(a)(2)(D)(i)(I). The EPA notes this 


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