[Federal Register Volume 79, Number 200 (Thursday, October 16, 2014)]
[Rules and Regulations]
[Pages 62035-62042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-24493]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2011-0888; FRL-9917-61-Region 5]


Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Infrastructure SIP Requirements for the 2008 Lead NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking final 
action to approve elements of a state implementation plan (SIP) 
submission by Indiana regarding the infrastructure requirements of 
sections 110(a)(1) and (2) of the Clean Air Act (CAA) for the 2008 lead 
(Pb) 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 are adequate to meet the 
state's responsibilities under the CAA. The proposed rulemaking 
associated with today's final action was published on August 19, 2013, 
and EPA received one comment letter during the comment period, which 
ended on September 18, 2013. The concerns raised in this letter, as 
well as EPA's responses, will be addressed in this final action.

DATES: This final rule is effective on November 17, 2014.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2011-0888. All documents in the docket are listed in 
the 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 www.regulations.gov or

[[Page 62036]]

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 Sarah Arra at (312) 886-9401 before visiting the Region 5 
office.

FOR FURTHER INFORMATION CONTACT: Sarah Arra, Environmental Scientist, 
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) 886-9401, <a href="/cdn-cgi/l/email-protection#42233030236c312330232a022732236c252d34"><span class="__cf_email__" data-cfemail="066774746728756774676e4663766728616970">[email protected]</span></a>.

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 this SIP submission?
    A. What does this rulemaking address?
    B. Why did the state make this SIP submission?
    C. What is the scope of this rulemaking?
II. What is our response to comments received on the proposed 
rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background of this SIP submission?

A. What does this rulemaking address?

    This rulemaking addresses a December 12, 2011, submission from the 
Indiana Department of Environmental Management (IDEM) intended to meet 
the applicable infrastructure SIP requirements for the 2008 Pb NAAQS.

B. Why did the state make this SIP submission?

    Under sections 110(a)(1) and (2) of the CAA, states are required to 
submit infrastructure SIPs to ensure that their SIPs provide for 
implementation, maintenance, and enforcement of the NAAQS, including 
the 2008 Pb NAAQS. These submissions must contain any revisions needed 
for meeting the applicable SIP requirements of section 110(a)(2), or 
certifications that their existing SIPs for Pb already meet those 
requirements.
    EPA has highlighted this statutory requirement in multiple guidance 
documents, including the most recent guidance document entitled 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and (2)'' issued on September 
13, 2013.

C. What is the scope of this rulemaking?

    EPA is acting upon the SIP submission Indiana that addresses the 
infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for 
the 2008 Pb NAAQS. The requirement for states to make SIP submissions 
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 has historically referred to these SIP submissions made for the 
purpose of satisfying the requirements of CAA sections 110(a)(1) and 
110(a)(2) as ``infrastructure SIP'' submissions. Although the term 
``infrastructure SIP'' does not appear in the CAA, EPA uses the term to 
distinguish this particular type of SIP submission from submissions 
that are intended to satisfy other SIP requirements under the CAA, such 
as ``nonattainment SIP'' or ``attainment plan SIP'' submissions to 
address the nonattainment planning requirements of part D of title I of 
the CAA, ``regional haze SIP'' submissions required by EPA rule to 
address the visibility protection requirements of CAA section 169A, and 
nonattainment new source review (NNSR) permit program submissions to 
address the permit requirements of CAA, title I, part D.
    This rulemaking will not cover three substantive areas that are not 
integral to acting on a state's infrastructure SIP submission: (i) 
existing provisions related to excess emissions during periods of 
start-up, shutdown, or malfunction (``SSM'')at sources, that may be 
contrary to the CAA and EPA's policies addressing such excess 
emissions; (ii) existing provisions related to ``director's variance'' 
or ``director's discretion'' that purport to permit revisions to SIP 
approved emissions limits with limited public process or without 
requiring further approval by EPA, that may be contrary to the CAA 
(collectively referred to as ``director's discretion''); and, (iii) 
existing provisions for Prevention of Significant Deterioration (PSD) 
programs that may be inconsistent with current requirements of EPA's 
``Final NSR Improvement Rule,'' 67 FR 80186 (December 31, 2002), as 
amended by 72 FR 32526 (June 13, 2007) (``NSR Reform''). Instead, EPA 
has the authority to address each one of these substantive areas in 
separate rulemaking. A detailed rationale, history, and interpretation 
related to infrastructure SIP requirements can be found in our May 13, 
2014, proposed rule entitled, ``Infrastructure SIP Requirements for the 
2008 Lead NAAQS'' in the section, ``What is the scope of this 
rulemaking?'' (see 79 FR 27241 at 27242--27245).
    In addition, on a portion of section 110(a)(2)(J)--visibility 
protection. EPA is also not acting on section 110(a)(2)(I)--
Nonattainment Area Plan or Plan Revisions Under Part D, in its 
entirety. The rationale for not acting on elements of these 
requirements was included in EPA's August 19, 2013, proposed rulemaking 
or discussed below in today's response to comments.

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

    The public comment period for EPA's proposed actions with respect 
to Indiana's satisfaction of the infrastructure SIP requirements for 
the 2008 Pb NAAQS closed on September 18, 2013. EPA received one 
comment letter, which was from the Sierra Club, and a synopsis of the 
comments contained in this letter and EPA's responses, are provided 
below.
    Comment 1: The Sierra Club states that on its face the CAA 
``requires I-SIPs to be adequate to prevent violations of the NAAQS.'' 
In support, the commenter quotes the language in section 110(a)(1) 
which requires states to adopt a plan for implementation, maintenance, 
and enforcement of the NAAQS and the language in section 110(a)(2)(A) 
which requires SIPs to include enforceable emissions limitations as may 
be necessary to meet the requirements of the CAA and which commenters 
claimed include the maintenance plan requirement. Sierra Club notes the 
CAA definition of emission limit and reads these provisions together to 
require ``enforceable emission limitations on source emissions 
sufficient to ensure maintenance of the NAAQS.''
    Response 1: EPA disagrees that section 110 must be interpreted in 
the manner suggested by Sierra Club. Section 110 is only one provision 
that is part of the complex structure governing implementation of the 
NAAQS program under the CAA, as amended in 1990, and it must be 
interpreted in the context of not only that structure, but also of the 
historical

[[Page 62037]]

evolution of that structure. In light of the revisions to section 110 
since 1970 and the later-promulgated and more specific planning 
requirements of the CAA, EPA interprets the requirement in section 
110(a)(2)(A) that the plan provide for ``implementation, maintenance 
and enforcement'' to mean that the infrastructure SIP must contain 
enforceable emission limits that will aid in attaining and/or 
maintaining the NAAQS and that the state demonstrate that it has the 
necessary tools to implement and enforce a NAAQS, such as adequate 
state personnel and an enforcement program. With regard to the 
requirement for emission limitations, EPA has interpreted this to mean 
that, for purposes of section 110, the state may rely on measures 
already in place to address the pollutant at issue or any new control 
measures that the state may choose to submit. As EPA stated in 
``Guidance on Infrastructure State Implementation Plan (SIP) Elements 
under Clean Air Act Sections 110(a)(1) and 110(a)(2),'' dated September 
13, 2013 (Infrastructure SIP Guidance), ``[t]he conceptual purpose of 
an infrastructure SIP submission is to assure that the air agency's SIP 
contains the necessary structural requirements for the new or revised 
NAAQS, whether by establishing that the SIP already contains the 
necessary provisions, by making a substantive SIP revision to update 
the SIP, or both. Overall, the infrastructure SIP submission process 
provides an opportunity . . . to review the basic structural 
requirements of the air agency's air quality management program in 
light of each new or revised NAAQS.'' Infrastructure SIP Guidance at p. 
2.
    Comment 2: Sierra Club also cites two excerpts from the legislative 
history of the CAA Amendments of 1970 claiming they support an 
interpretation that SIP revisions under CAA section 110 must include 
emissions limitations sufficient to show maintenance of the NAAQS in 
all areas of Indiana. Sierra Club also contends that the legislative 
history of the CAA supports the interpretation that infrastructure SIPs 
under section 110(a)(2) must include enforceable emission limitations, 
citing the Senate Committee Report and the subsequent Senate Conference 
Report accompanying the 1970 CAA.
    Response 2: The CAA, as enacted in 1970, including its legislative 
history, cannot be interpreted in isolation from the later amendments 
that refined that structure and deleted relevant language from section 
110 concerning demonstrating attainment. In any event, the two excerpts 
of legislative history the commenter cites merely provide that states 
should include enforceable emission limits in their SIPs; they do not 
mention or otherwise address whether states are required to include 
maintenance plans for all areas of the state as part of the 
infrastructure SIP.
    Comment 3: The commenter cites to 40 CFR 51.112(a), providing that 
each plan must ``demonstrate that the measures, rules, and regulations 
contained in it are adequate to provide for the timely attainment and 
maintenance of the [NAAQS].'' The commenter asserts that this 
regulation requires all SIPs to include emissions limits necessary to 
ensure attainment of the NAAQS. The commenter states that ``[a]lthough 
these regulations were developed before the Clean Air Act separated 
Infrastructure SIPs from nonattainment SIPs--a process that began with 
the 1977 amendments and was completed by the 1990 amendments--the 
regulations apply to I-SIPs.'' The commenter relies on a statement in 
the preamble to the 1986 action restructuring and consolidating 
provisions in part 51, in which EPA stated that ``[i]t is beyond the 
scope of th[is] rulemaking to address the provisions of Part D of the 
Act. . . .'' 51 FR 40656 (November 7, 1986).
    Response 3: The commenter's reliance on 40 CFR 51.112 to support 
its argument that infrastructure SIPs must contain emission limits 
``adequate to prohibit NAAQS violations'' and adequate or sufficient to 
ensure the maintenance of the NAAQS is not supported. As an initial 
matter, EPA notes and the commenter recognizes this regulatory 
provision was initially promulgated and ``restructured and 
consolidated'' prior to the CAA Amendments of 1990, in which Congress 
removed all references to ``attainment'' in section 110(a)(2)(A). In 
addition, it is clear on its face that 40 CFR 51.112 applies to plans 
specifically designed to attain the NAAQS. EPA interprets these 
provisions to apply when states are developing ``control strategy'' 
SIPs such as the detailed attainment and maintenance plans required 
under other provisions of the CAA, as amended in 1977 and again in 
1990, such as section 175A and 182. The commenter suggests that these 
provisions must apply to section 110 SIPs because in the preamble to 
EPA's action ``restructuring and consolidating'' provisions in part 51, 
EPA stated that the new attainment demonstration provisions in the 1977 
Amendments to the CAA were ``beyond the scope'' of the rulemaking. It 
is important to note, however, that EPA's action in 1986 was not to 
establish new substantive planning requirements, but rather to 
consolidate and restructure provisions that had previously been 
promulgated. EPA noted that it had already issued guidance addressing 
the new ``Part D'' attainment planning obligations. Also, as to 
maintenance regulations, EPA expressly stated that it was not making 
any revisions other than to re-number those provisions. Id. at 40657.
    Although EPA was explicit that it was not establishing requirements 
interpreting the provisions of new ``part D'' of the CAA, it is clear 
that the regulations being restructured and consolidated were intended 
to address control strategy plans. In the preamble, EPA clearly stated 
that 40 CFR 51.112 was replacing 40 CFR 51.13 (``Control strategy: 
SO<INF>X</INF> and PM (portion)''), 51.14 (``Control strategy: CO, HC, 
OX and NO<INF>2</INF> (portion)''), 51.80 (``Demonstration of 
attainment: Pb (portion)''), and 51.82 (``Air quality data 
(portion)''). Id. at 40660. Thus, the present-day 51.112 contains 
consolidated provisions that are focused on control strategy SIPs, and 
the infrastructure SIP is not such a plan.
    Comment 4: The commenter references two prior EPA rulemaking 
actions where EPA disapproved or proposed to disapprove SIPs, and 
claimed they were actions in which EPA relied on section 110(a)(2)(A) 
and 40 CFR 51.112 to reject infrastructure SIPs. The commenter first 
points to a 2006 partial approval and partial disapproval of revisions 
to Missouri's existing plan addressing the sulfur dioxide 
(SO<INF>2</INF>) NAAQS. In that action, EPA cited section 110(a)(2)(A) 
as a basis for disapproving a revision to the State plan on the basis 
that the State failed to demonstrate the SIP was sufficient to ensure 
maintenance of the SO<INF>2</INF> NAAQS after revision of an emission 
limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates 
the rules in a SIP are adequate to attain the NAAQS. Second, commenter 
cites a 2013 proposed disapproval of a revision to the SO<INF>2</INF> 
SIP for Indiana, where the revision removed an emission limit that 
applied to a specific emissions source at a facility in the State. EPA 
relied on 40 CFR 51.112(a) in proposing to reject the revision, stating 
that the State had not demonstrated that the emission limit was 
``redundant, unnecessary, or that its removal would not result in or 
allow an increase in actual SO<INF>2</INF> emissions.'' EPA further 
stated in that proposed disapproval that the State had not demonstrated 
that removal of the limit would not ``affect the validity of the 
emission rates used in the existing attainment demonstration.''
    Response 4: EPA does not agree that the two prior actions 
referenced by the commenter establish how EPA reviews

[[Page 62038]]

infrastructure SIPs. It is clear from both the final Missouri rule and 
the now final Indiana rule that EPA was not reviewing initial 
infrastructure SIP submissions under section 110 of the CAA, but rather 
reviewing revisions that would make an already approved SIP designed to 
demonstrate attainment of the NAAQS less stringent. EPA's partial 
approval and partial disapproval of revisions to restrictions on 
emissions of sulfur compounds for the Missouri SIP addressed a control 
strategy SIP and not an infrastructure SIP (71 FR 12623). The Indiana 
action provides even less support for the commenter's position (78 FR 
78720). The review in that rule was of a completely different 
requirement than the 110(a)(2)(A) SIP. Rather, in that case, the State 
had an approved SO<INF>2</INF> attainment plan and was seeking to 
remove from the SIP, provisions relied on as part of the modeled 
attainment demonstration. EPA determined that the State had failed to 
demonstrate under section 110(l) of the CAA why the SIP revision would 
not result in increased SO<INF>2</INF> emissions and thus interfere 
with attainment of the NAAQS. Nothing in that rulemaking addresses the 
necessary content of the initial infrastructure SIP for a new or 
revised NAAQS. Rather, it is simply applying the clear statutory 
requirement that a state must demonstrate why a revision to an approved 
attainment plan will not interfere with attainment of the NAAQS.
    Comment 5: Sierra Club discusses several cases applying to the CAA 
which Sierra Club claims support their contention that courts have been 
clear that section 110(a)(2)(A) requires enforceable emissions limits 
in infrastructure SIPs to prevent violations of the NAAQS. Sierra Club 
first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), 
addressing the requirement for ``emission limitations'' and stating 
that emission limitations ``are specific rules to which operators of 
pollution sources are subject, and which if enforced should result in 
ambient air which meet the national standards.'' Sierra Club also cites 
to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d 
Cir. 1991) for the proposition that the CAA directs EPA to withhold 
approval of a SIP where it does not ensure maintenance of the NAAQS and 
Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), 
which quoted section 110(a)(2)(B) of the CAA of 1970. The commenter 
contends that the 1990 Amendments do not alter how courts have 
interpreted the requirements of section 110, quoting Alaska Dept. of 
Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn 
quoted section 110(a)(2)(A) of the CAA and also stated that ``SIPs must 
include certain measures Congress specified'' to ensure attainment of 
the NAAQS. The commenter also quotes several additional opinions in 
this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th 
Cir. 2012) (``The Clean Air Act directs states to develop 
implementation plans--SIPs--that `assure' attainment and maintenance of 
[NAAQS] through enforceable emissions limitations''); Hall v. EPA 273 
F.3d 1146, 1153 (9th Cir. 2001) (``Each State must submit a [SIP] that 
specif[ies] the manner in which [NAAQS] will be achieved and maintained 
within each air quality control region in the State''). The commenter 
also cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th 
Cir. 2000) for the proposition that EPA may not approve a SIP revision 
that does not demonstrate how the rules would not interfere with 
attainment and maintenance of the NAAQS.
    Response 5: None of the cases the commenter cites supports the 
commenter's contention that section 110(a)(2)(A) requires that 
infrastructure SIPs include detailed plans providing for attainment and 
maintenance of the NAAQS in all areas of the state, nor do they shed 
light on how section 110(a)(2)(A) may reasonably be interpreted. With 
the exception of Train, 421 U.S. 60, none of the cases the commenter 
cites concerned the interpretation of CAA section 110(a)(2)(A) (or 
section 110(a)(2)(B) of the pre-1990 Act). Rather, in the context of a 
challenge to an EPA action, revisions to a SIP that were required and 
approved as meeting other provisions of the CAA or in the context of an 
enforcement action, the court references section 110(a)(2)(A) (or 
section 110(a)(2)(B) of the pre-1990 CAA) in the background section of 
its decision.
    In Train, a case that was decided almost 40 years ago, the Court 
was addressing a state revision to an attainment plan submission made 
pursuant to section 110 of the CAA, the sole statutory provision at 
that time regulating such submissions. The issue in that case concerned 
whether changes to requirements that would occur before attainment was 
required were variances that should be addressed pursuant to the 
provision governing SIP revisions or were ``postponements'' that must 
be addressed under section 110(f) of the CAA of 1970, which contained 
prescriptive criteria. The court concluded that EPA reasonably 
interpreted section 110(f) not to restrict a state's choice of the mix 
of control measures needed to attain the NAAQS and that revisions to 
SIPs that would not impact attainment of the NAAQS by the attainment 
date were not subject to the limits of section 110(f). Thus the issue 
was not whether a section 110 SIP needs to provide for attainment or 
whether emissions limits are needed as part of the SIP; rather the 
issue was which statutory provision governed when the state wanted to 
revise the emission limits in its SIP if such revision would not impact 
attainment or maintenance of the NAAQS. To the extent the holding in 
the case has any bearing on how section 110(a)(2)(A) might be 
interpreted, it is important to realize that in 1975, when the opinion 
was issued, section 110(a)(2)(B) (the predecessor to section 
110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, 
a reference that was removed in 1990.
    The decision in Pennsylvania Dept. of Envtl. Resources was also 
decided based on the pre-1990 provision of the CAA. At issue was 
whether EPA properly rejected a revision to an approved plan where the 
inventories relied on by the state for the updated submission had gaps. 
The court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of 
EPA's disapproval, but did not provide any interpretation of that 
provision. Yet, even if the court had interpreted that provision, EPA 
notes that it was modified by Congress in 1990; thus, this decision has 
little bearing on the issue here.
    At issue in Mision Industrial, 547 F.2d 123, was the definition of 
``emissions limitation'' not whether section 110 requires the state to 
demonstrate how all areas of the state will attain and maintain the 
NAAQS as part of their infrastructure SIPs. The language from the 
opinion the commenter quotes does not interpret but rather merely 
describes section 110(a)(2)(A). The commenters do not raise any 
concerns about whether the measures relied on by the state in the 
infrastructure SIP are ``emissions limitations'' and the decision in 
this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 F.3d 
1174, the court was reviewing a Federal implementation plan that EPA 
promulgated after a long history of the state failing to submit an 
adequate state implementation plan. The court cited generally to 
section 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs 
should assure attainment and maintenance of NAAQS through emission 
limitations but this language was not part of the court's holding in 
the case. The commenter suggests that Alaska Dept. of Envtl. 
Conservation, 540 U.S. 461, stands for the proposition that

[[Page 62039]]

the 1990 CAA Amendments do not alter how courts interpret section 110. 
This claim is inaccurate. Rather, the court quoted section 
110(a)(2)(A), which, as noted previously, differs from the pre-1990 
version of that provision and the court makes no mention of the changed 
language. Furthermore, the commenter also quotes the court's statement 
that ``SIPs must include certain measures Congress specified'' but that 
statement specifically referenced the requirement in section 
110(a)(2)(C), which requires an enforcement program and a program for 
the regulation of the modification and construction of new sources. 
Notably, at issue in that case was the state's ``new source'' 
permitting program, not its infrastructure SIP.
    Two of the cases the commenter cites, Mich. Dept. of Envtl. 
Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 
110(l), the provision governing ``revisions'' to plans, and not the 
initial plan submission requirement under section 110(a)(2) for a new 
or revised NAAQS, such as the infrastructure SIP at issue in this 
instance. In those cases, the courts cited to section 110(a)(2)(A) 
solely for the purpose of providing a brief background of the CAA.
    Comment 6: The commenter asserted that Indiana's infrastructure SIP 
fails to meet the requirements of section 110(a)(2)(A) and section 
110(a)(2)(E) because IC 13-14-8-8 contains provisions that would allow 
the board to grant variances to rules when the rules would impose 
``undue hardships or burden.'' The commenter noted that EPA had cited 
IC 13-14-8 as one of IDEM's mechanisms for satisfying the requirements 
of section 110(a)(2)(A) and section 110(a)(2)(E), but contended that 
the variance provisions in IC 13-14-8-8 are too broad and vague to 
ensure that emission limits and controls are properly enforced, or to 
ensure that adequate legal authority is provided to carry out Indiana's 
SIP. Therefore, EPA cannot approve IC 13-14-8 to meet any requirements 
of section 110.
    Response 6: EPA disagrees the commenter's claim that Indiana's 
infrastructure SIP fails to meet the requirements of section 
110(a)(2)(A) and section 110(a)(2)(E). As an initial matter, IC 13-14-
8-8 is not a regulation that has been approved into the SIP. Thus, any 
variance granted by the state pursuant to this provision would not 
modify the requirements of the SIP. Furthermore, for a variance from 
the state to be approved into the SIP, a demonstration must be made 
under CAA section 110(l) showing that the revision does not interfere 
with any requirements of the act including attainment or maintenance of 
a NAAQS. We disagree that the existence of this provision as solely a 
matter of State law means that the State does not have adequate 
authority to carry out the implementation plan.
    Comment 7: The commenter asserted that EPA must disapprove 
Indiana's infrastructure SIP because it does not address the visibility 
provisions under section 110(a)(2)(D)(i)(II). The commenter noted that 
EPA's basis for proposing approval for the visibility protection 
provisions of section 110(a)(2)(D)(i)(II) was contingent upon EPA's 
claim that Indiana has an approved regional haze SIP. The commenter 
contended that Indiana's regional haze SIP was only partially approved 
and no action has been taken on issues addressing the Best Available 
Retrofit Technology requirements for EGUs. Therefore, the commenter 
believes that EPA must disapprove the visibility protection 
requirements found in section 110(a)(2)(D)(i)(II) for Indiana's 
infrastructure SIP.
    Response 7: Section 110(a)(2)(D)(i)(II) of the CAA requires that 
states have a SIP, or submit a SIP revision, containing provisions 
``prohibiting any source or other type of emission activity within the 
state from emitting any air pollutant in amounts which will . . . 
interfere with measures required to be included in the applicable 
implementation plan for any other State under part C [of the CAA] to 
protect visibility.'' States were required to submit a SIP by December 
2007 with measures to address regional haze--visibility impairment that 
is caused by the emissions of air pollutants from numerous sources 
located over a wide geographic area. Under the regional haze program, 
each State with a Class I area must submit a SIP with reasonable 
progress goals for each such area that provides for an improvement in 
visibility for the most impaired days and ensures no degradation of the 
best days.
    Because of the often significant impacts on visibility from the 
interstate transport of pollutants, we interpret the ``good neighbor'' 
provisions of section 110 of the CAA described above as requiring 
states to include in their SIPs measures to prohibit emissions that 
would interfere with the reasonable progress goals set to protect Class 
I areas in other states. This is consistent with the requirements in 
the regional haze program which explicitly require each State to 
address its share of the emission reductions needed to meet the 
reasonable progress goals for surrounding Class I areas. 64 FR 35714, 
35735 (July 1, 1999). States working together through a regional 
planning process are required to address an agreed upon share of their 
contribution to visibility impairment in the Class I areas of their 
neighbors. 40 CFR 51.308(d)(3)(ii). Indiana worked through a regional 
planning organization, the Midwest Regional Planning Organization 
(Midwest RPO), and consulted directly with other states to develop 
strategies to address regional haze in the Class I areas potentially 
affected by emissions from Indiana.
    The commenter is correct that EPA issued a limited disapproval of 
Indiana's regional haze SIP, but our limited disapproval was based on 
Indiana's reliance on the Clean Air Interstate Rule (CAIR) to satisfy 
certain requirements for controlling emissions of SO<INF>2</INF> and 
NO<INF>X</INF> from EGUs. EPA disagrees, however, with the commenter 
that because Indiana's regional haze SIP did not fully meet certain 
requirements for controlling emissions of SO<INF>2</INF> and 
NO<INF>X</INF>, EPA must disapprove its infrastructure SIP for Pb.
    Pb generally has an insignificant impact on visibility. According 
to the Memorandum from Mark Schmidt, Office of Air Quality Planning and 
Standards (OAQPS), when evaluating the extent that Pb could impact 
visibility, Pb-related visibility impacts were found to be 
insignificant (e.g., less than 0.10%) (``Ambient Pb's Contribution to 
Class 1 Area Visibility Impairment,'' June 17, 2011). There is no 
evidence in Indiana's regional haze SIP to indicate that emissions of 
Pb from sources in the state were anticipated to cause or contribute to 
visibility impairment in any Class I area. In addition, nothing in the 
Indiana regional haze SIP indicates that any state assumed (or 
requested) that Indiana would be making reductions in emission of Pb to 
improve visibility. As such, the reasonable progress goals for the 
Class I areas in nearby states do not reflect any assumptions regarding 
Pb emissions from Indiana. Given this, we conclude that the Indiana SIP 
contains adequate measures to ensure that emissions of Pb from sources 
in the State will not interfere with the reasonable progress goals of 
nearby Class I areas.
    Comment 8: The commenter asserted that EPA must disapprove 
Indiana's infrastructure SIP because it does not address the visibility 
protection provisions, as described above, for section 110(a)(2)(J). 
The commenter contended that EPA did not provide a rationale for why 
the visibility provisions in section 110(a)(2)(J) are not applicable to 
the 2008 Pb and 2008 ozone NAAQS.

[[Page 62040]]

    Response 8: The visibility provisions in section 110(a)(2)(J) are 
not applicable to the 2008 Pb NAAQS for the following reason. Under 40 
CFR part 51 subpart P, implementing the visibility requirements of CAA 
title I, part C, states are subject to requirements for RAVI, new 
source review for possible impacts on air quality related values in 
Class I areas, and regional haze planning. Specific requirements 
stemming from these CAA sections are codified at 40 CFR 55 part 51, 
subpart P. However, when the EPA establishes or revises a NAAQS, these 
requirements under part C do not change. The EPA believes that there 
are no new visibility protection requirements under part C as a result 
of a revised NAAQS. Therefore, there are no newly applicable visibility 
protection obligations pursuant to Element J after the promulgation of 
a new or revised NAAQS.
    Comment 9: The commenter asserted that EPA must clarify two 
repealed regulations that were cited in the proposed rulemaking. 
Specifically, the commenter observed that EPA cited 326 IAC 11-5 as 
helping Indiana satisfy the requirements of section 110(a)(2)(G) 
``Emergency Powers'' and IC 13-4-8 which was cited to satisfy section 
110(a)(2)(H), ``Future SIP Revisions.''
    Response 9: EPA did not intend to engender any confusion with these 
citations. The commenter is correct in noting that 326 IAC 11-5 has 
been repealed. That rule was of little relevance to section 
110(a)(2)(G) and was incorrectly cited; the correct citation that was 
provided by IDEM is SIP-approved IAC 1-5, ``Alert Levels.'' In a 
similar manner, IDEM provided IC 13-14-8 as helping to meet the 
requirements under section 110(a)(2)(H), but EPA incorrectly cited IC 
13-4-8.
    Comment 10: The commenter asserted that EPA must disapprove 
portions of Indiana's infrastructure SIP for the 2008 Pb NAAQS 
addressing certain PM<INF>2.5</INF> requirements under section 
110(a)(2)(C). In particular, the commenter objected that Indiana has 
not codified the increments for areas designated Class I or Class III 
for PM<INF>2.5.</INF> The commenter noted that while Indiana does not 
have Class I or Class III areas, the increments for Class I and Class 
III areas are still a requirement to satisfy section 110(a)(2)(C). The 
commenter contends it is insufficient for EPA to ``hope'' that the 
state will adopt the increments if areas in the state are later 
redesignated to Class I or Class III, and therefore EPA must disapprove 
this section of Indiana's infrastructure SIP.
    Response 10: EPA disagrees with the commenter's view that Indiana's 
infrastructure SIP related to section 110(a)(2)(C) must be disapproved 
because the state has not codified the PM<INF>2.5</INF> increments for 
Class I and Class III areas as provided at 40 CFR 52.166(c) and 40 CFR 
52.21(c). As explained in the August 19, 2013 proposed approval, 
Indiana does not currently have any areas designated Class I or Class 
III for PM<INF>2.5</INF>. Accordingly, EPA does not consider the 
PM<INF>2.5</INF> increments for Class I and Class III areas to be 
necessary for the implementation of PSD permitting in Indiana at this 
time. In the event that areas in Indiana are one day classified as 
Class I or Class III, EPA expects IDEM to adopt these increments and 
submit them for incorporation into the SIP (see 78 FR 50360 at 50364). 
Section 40 CFR 51.166(g)(1) and 52.21(g)(1) specify that if a state 
seeks to have an area reclassified to either Class I or Class III, it 
must submit such a request as a revision to its SIP for approval by the 
EPA Administrator. Thus, no areas in Indiana can be reclassified to 
Class I or Class III without EPA approval, and the process of 
evaluating such a request for approval requires a notice-and-comment 
rulemaking process. The EPA and other interested parties can evaluate 
the adequacy of Indiana's PSD regulations as they apply to the proposed 
reclassified area at that time and, if necessary, initiate a process to 
cure any identified deficiency. However, at this time, EPA does not 
believe there to be an applicability gap for the PM<INF>2.5</INF> 
increments as they apply in the state of Indiana.

III. What action is EPA taking?

    For the reasons discussed in our August 19, 2013, proposed 
rulemaking and in the above responses to public comments, EPA is taking 
final action to approve, as proposed, Indiana's infrastructure SIPs for 
the 2008 Pb NAAQS. In EPA's August 19, 2013, proposed rulemaking for 
these infrastructure SIPs, we also proposed to approve Indiana's 
satisfaction of the state board requirements contained in section 128 
of the CAA, as well as certain PSD requirements obligated by EPA's 
October 20, 2010, final rule on the ``Prevention of Significant 
Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers 
(PM<INF>2.5</INF>)--Increments, Significant Impact Levels (SILs) and 
Significant Monitoring Concentration (SMC)'' (2010 NSR Rule). The final 
approvals for each of the above requirements were published in the 
Federal Register on December 24, 2013 (see 78 FR 77599, state board 
requirements), July 2, 2014 (see 79 FR 37646, 2010 NSR Rule 
requirements) and August 11, 2013 (see 79 FR 46709, 2010 NSR Rule 
requirements, continued). EPA also proposed rulemaking on the 2008 
ozone NAAQS and will be taking final action in a separate rulemaking. 
In today's rulemaking, we are taking final action on only the 
infrastructure SIP requirements for the 2008 Pb NAAQS. Our final 
actions by element of section 110(a)(2) and NAAQS, are contained in the 
table below.

------------------------------------------------------------------------
                                                               2008 Pb
                          Element                               NAAQS
------------------------------------------------------------------------
(A): Emission limits and other control measures............            A
(B): Ambient air quality monitoring and data system........            A
(C)1: Enforcement of SIP measures..........................            A
(C)2: PSD Provisions for Pb and ozone......................            A
(C)3: PM2.5 precursors and PM2.5/PM10 condensables for PSD.            A
(C)4: PM2.5 increments for PSD.............................            A
(C)5: GHG permitting thresholds in PSD regulations.........            A
(D)1: Contribute to nonattainment/interfere with                       A
 maintenance of NAAQS......................................
(D)2: PSD..................................................           **
(D)3: Visibility Protection................................            A
(D)4: Interstate Pollution Abatement.......................            A
(D)5: International Pollution Abatement....................            A
(E)1: Adequate resources...................................            A
(E)2: State boards.........................................            A
(F): Stationary source monitoring system...................            A
(G): Emergency power.......................................            A
(H): Future SIP revisions..................................            A
(I): Nonattainment area plan or plan revisions under part D           NA
(J)1: Consultation with government officials...............            A
(J)2: Public notification..................................            A
(J)3: PSD..................................................           **
(J)4: Visibility protection (Regional Haze)................            +
(K): Air quality modeling and data.........................            A
(L): Permitting fees.......................................            A
(M): Consultation and participation by affected local                  A
 entities..................................................
------------------------------------------------------------------------

    In the table above, the key is as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
A.............................  Approve.
NA............................  No Action/Separate Rulemaking.
D.............................  Disapprove.
+.............................  Not relevant in these actions.
**............................  Previously discussed in element (C).
------------------------------------------------------------------------

IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations.

[[Page 62041]]

42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, 
EPA's role is to approve state choices, provided that they meet the 
criteria of the CAA. Accordingly, this action merely approves state law 
as meeting Federal requirements and does not impose additional 
requirements beyond those imposed by state law. For that reason, this 
action:
    <bullet> Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
    <bullet> does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
    <bullet> is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
    <bullet> 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);
    <bullet> does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
    <bullet> is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
    <bullet> is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
    <bullet> is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
    <bullet> does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    This rule is not approved to apply on any Indian reservation land 
or in any other area where EPA or an Indian tribe has demonstrated that 
a tribe has jurisdiction. In those areas of Indian country, the rule 
does not have tribal implications as specified by Executive Order 13175 
(65 FR 67249, November 9, 2000), nor will it impose substantial direct 
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this action and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by December 15, 2014. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action 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, Lead, Reporting and 
recordkeeping requirements.

    Dated: September 30, 2014.
Susan Hedman,
Regional Administrator, Region 5.
    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

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

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

0
2. Amend Sec.  52.770, paragraph (e) table by adding an entry in 
alphabetical order for ``Section 110(a)(2) Infrastructure Requirements 
for the 2008 Lead NAAQS'' to read as follows:


Sec.  52.770  Identification of plan.

* * * * *
    (e) * * *

 
                       EPA-Approved Indiana Nonregulatory and Quasi-Regulatory Provisions
----------------------------------------------------------------------------------------------------------------
                 Title                   Indiana date          EPA approval                 Explanation
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Section 110(a)(2) Infrastructure            12/12/2011  10/16/2014, [INSERT        This action addresses the
 Requirements for the 2008 Lead NAAQS.                   FEDERAL REGISTER           following CAA elements:
                                                         CITATION].                 110(a)(2)(A), (B), (C),
                                                                                    (D)(i)(I), (D)(i)(II),
                                                                                    (D)(ii), (E), (F), (G), (H),
                                                                                    (J), (K), (L), and (M).
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 62042]]

[FR Doc. 2014-24493 Filed 10-15-14; 8:45 am]
BILLING CODE 6560-50-P


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