
[Federal Register Volume 76, Number 139 (Wednesday, July 20, 2011)]
[Rules and Regulations]
[Pages 43175-43180]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17739]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2009-0805; FRL-9435-8]


Approval of Air Quality Implementation Plans; Indiana and Ohio; 
Disapproval of Interstate Transport State Implementation Plan Revision 
for the 2006 24-hour PM2.5 NAAQS

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to its authority under the Clean Air Act (CAA), EPA 
is taking final action to disapprove the portions of submittals by the 
Indiana Department of Environmental Management (IDEM) and the Ohio 
Environmental Protection Agency (Ohio EPA) that pertain to requirements 
in the CAA to address interstate transport for the 2006 24-hour fine 
particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS). EPA is not, however, currently taking action on the remainder 
of the State Implementation Plan (SIP) submittals from IDEM and Ohio 
EPA concerning other basic or ``Infrastructure'' elements required 
under the CAA. The proposed rule associated with this final action was 
published on February 4, 2011. The effect of this action will be an 
obligation for EPA to promulgate a Federal Implementation Plan (FIP) 
for Indiana and Ohio no later than two years from the date of 
disapproval. The Transport Rule, when final, is the FIP that EPA 
intends to implement for Indiana and Ohio.

DATES: This final rule is effective on August 19, 2011.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R05-OAR-2009-0805. All documents in the docket are listed in 
the http://www.regulations.gov index. Although listed in the index, 
some information is not publicly available, e.g., Confidential Business 
Information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, will be 
publicly-available only in hard copy. Publicly-available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the U.S. Environmental 
Protection Agency, Region 5, Air and Radiation Division, 77 West 
Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. We recommend that you telephone Andy Chang at (312) 886-0258 
before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Andy Chang, Environmental Engineer, 
Attainment Planning and Maintenance Section, Air Programs Branch (AR-
18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson 
Boulevard, Chicago, Illinois 60604, (312) 886-0258, chang.andy@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What is the background for this action?
II. What is our response to comments received on the notice of 
proposed rulemaking?
III. What action is EPA taking?
IV. Statutory and Executive Order Reviews

I. What is the background for this action?

    Section 110(a)(1) of the CAA requires states to submit basic or 
``Infrastructure'' SIPs to address a new or revised NAAQS within three 
years after promulgation of such standards, or within such shorter 
period as EPA may prescribe. As provided by section 110(k)(2) of the 
CAA, within twelve months of a determination that a submitted SIP is 
complete under 110(k)(1) of the CAA, the Administrator shall act on the 
plan. As authorized in section 110(k)(3) of the CAA, where portions of 
the state submittals are severable, within that twelve-month period EPA 
may approve the portions of the submittals that meet the requirements 
of the CAA, take no action on certain portions of the submittals, and 
disapprove the portions of the submittals that do not meet the 
requirements of the CAA. When the deficient provisions are not 
severable from all of the submitted provisions, EPA must propose 
disapproval of the submittals, consistent with section 110(k)(3) of the 
CAA.
    Section 110(a)(2) of the CAA lists the elements that such new 
Infrastructure SIPs must address, as applicable, including section 
110(a)(2)(D)(i), which pertains to interstate transport of certain 
emissions, also known as the CAA ``good neighbor'' provisions.
    On December 18, 2006, EPA revised the 24-hour average 
PM2.5 primary and secondary NAAQS from 65 micrograms per 
cubic meter ([micro]g/m\3\) to 35 [micro]g/m\3\ (see, 71 FR 61144).\1\ 
On September 25, 2009, EPA issued its ``Guidance on SIP Elements 
Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine 
Particle (PM2.5) National Ambient Air Quality Standards 
(NAAQS)'' (2009 Guidance). EPA developed the 2009 Guidance for States 
making submissions to meet the requirements of section 110, including 
110(a)(2)(D)(i) for the revised 2006 24-hour PM2.5 NAAQS.
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    \1\ The rule for the revised PM2.5 NAAQS was signed 
by the Administrator and publically disseminated on September 21, 
2006. Because EPA did not prescribe a shorter period for 110(a) SIP 
submittals, these submittals for the 2006 24-hour PM2.5 
NAAQS were due on September 21, 2009, three years from the September 
21, 2006 signature date.
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    As identified in the 2009 Guidance, the ``good neighbor'' 
provisions in section 110(a)(2)(D)(i) require each state to submit a 
SIP that prohibits emissions that adversely affect another state in the

[[Page 43176]]

ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four 
distinct requirements related to the impacts of interstate transport. 
The SIP must prevent sources in the state from emitting pollutants in 
amounts which will: (1) Contribute significantly to nonattainment of 
the NAAQS in other states; (2) interfere with maintenance of the NAAQS 
in other states; (3) interfere with provisions to prevent significant 
deterioration of air quality in other states; or (4) interfere with 
efforts to protect visibility in other states.
    In the 2009 Guidance, EPA indicated that SIP submissions from 
states pertaining to the ``significant contribution'' and ``interfere 
with maintenance'' requirements of section 110(a)(2)(D)(i) should 
contain adequate provisions to prohibit air pollutant emissions from 
within the state that contribute significantly to nonattainment or 
interfere with maintenance of the NAAQS in any other state. EPA further 
indicated that the state's submission should explain whether or not 
emissions from the state have this impact and, if so, address the 
impact. EPA stated that the state's conclusion should be supported by 
an adequate technical analysis. EPA recommended the various types of 
information that could be relevant to support the state SIP submission, 
such as information concerning emissions in the state, meteorological 
conditions in the state and the potentially impacted states, monitored 
ambient concentrations in the state, and air quality modeling. 
Furthermore, EPA indicated that states should address the ``interfere 
with maintenance'' requirement independently, which requires an 
evaluation of impacts on areas of other states that are meeting the 
2006 24-hour PM2.5 NAAQS, not merely areas designated 
nonattainment. Lastly, in the 2009 Guidance, EPA stated that states 
could not rely on the Clean Air Interstate Rule (CAIR) to comply with 
the section 110(a)(2)(D)(i) requirements for the 2006 24-hour 
PM2.5 NAAQS because CAIR does not address this NAAQS.
    EPA promulgated CAIR on May 12, 2005 (see, 70 FR 25162). CAIR 
required states to reduce emissions of sulfur dioxide and nitrogen 
oxides that significantly contribute to, and interfere with maintenance 
of the 1997 NAAQS for PM2.5 and/or ozone in any downwind 
state. CAIR was intended to provide states covered by the rule with a 
mechanism to satisfy their section 110(a)(2)(D)(i)(I) obligations to 
address significant contribution to downwind nonattainment and 
interference with maintenance in another state with respect to the 1997 
ozone and PM2.5 NAAQS. Many states adopted the CAIR 
provisions and submitted SIPs to EPA to demonstrate compliance with the 
CAIR requirements in satisfaction of their 110(a)(2)(D)(i)(I) 
obligations for those two pollutants.
    EPA was sued by a number of parties on various aspects of CAIR, and 
on July 11, 2008, the U.S. Court of Appeals for the District of 
Columbia Circuit issued its decision to vacate and remand both CAIR and 
the associated CAIR FIPs in their entirety. North Carolina v. EPA, 531 
F.3d 836 (DC Cir. 2008). However, in response to EPA's petition for 
rehearing, the Court issued an order remanding CAIR to EPA without 
vacating either CAIR or the CAIR FIPs. North Carolina v. EPA, 550 F.3d 
1176 (DC Cir. 2008). The Court thereby left CAIR in place in order to 
``temporarily preserve the environmental values covered by CAIR'' until 
EPA replaces it with a rule consistent with the Court's opinion. Id. at 
1178. The Court directed EPA to ``remedy CAIR's flaws'' consistent with 
its July 11, 2008 opinion, but declined to impose a schedule on EPA for 
completing that action. Id.
    In order to address the judicial remand of CAIR, EPA has proposed a 
new rule to address interstate transport pursuant to section 
110(a)(2)(D)(i)(I), the ``Federal Implementation Plans to Reduce 
Interstate Transport of Fine Particulate Matter and Ozone'' (Transport 
Rule).\2\ As part of the proposed Transport Rule, EPA specifically 
examined the section 110(a)(2)(D)(i)(I) requirement that emissions from 
sources in a state must not ``significantly contribute to 
nonattainment'' and ``interfere with maintenance'' of the 2006 24-hour 
PM2.5 NAAQS by other states. The modeling performed for the 
final Transport Rule shows that both Indiana and Ohio significantly 
contribute to nonattainment or interfere with maintenance of the 2006 
24-hour PM2.5 NAAQS in downwind areas.\3\
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    \2\ See ``Federal Implementation Plans to Reduce Interstate 
Transport of Fine Particulate Matter and Ozone; Proposed Rule,'' 75 
FR 45210 (August 2, 2010).
    \3\ The modeling for the final Transport Rule can be found as 
technical support documents in the docket folder for this action.
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    IDEM and Ohio EPA made submittals on October 20, 2009, and 
September 4, 2009, respectively, that were intended to demonstrate 
satisfaction of all Infrastructure SIP elements for the 2006 24-hour 
PM2.5 NAAQS. Both States relied predominantly on their 
respective EPA-approved CAIR regulations to meet the interstate 
transport requirements of section 110(a)(2)(D)(i)(I). Indiana further 
committed to amend its rule once the Federal CAIR is amended or 
replaced.

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

    The public comment period for EPA's proposal to disapprove the 
portions of the submittals from Indiana and Ohio addressing the 
requirements of section 110(a)(2)(D)(i)(I) closed on March 7, 2011. 
Indiana and Ohio each submitted a comment letter to EPA, and a synopsis 
of their comments, as well as EPA's response to each comment, is 
discussed below.
    Comment 1: EPA fails to recognize that Indiana was one of a few 
states that submitted its Infrastructure SIP, and wrongly implies the 
State was negligent in addressing its CAA requirements. EPA cannot 
disapprove Indiana's SIP primarily for its reliance on CAIR. There is 
no way for Indiana or Ohio to cure EPA's failure to have all of the 
underlying Federal requirements in place for the states to meet the 
transport provision requirements for section 110(a)(2)(D). Although 
Indiana understands that the CAIR program cannot be defined as 
permanent and enforceable for SIP purposes, the Transport Rule is not 
yet final, and was not proposed until after the Infrastructure SIP 
deadline. Therefore, Indiana believes its Infrastructure SIP is 
adequate and contains provisions to address all requirements of Section 
110(a)(2)(D). CAIR was the only option states could rely upon at the 
time the SIPs were due, and Indiana made it clear within its submittal 
that it would adopt the requirements of the replacement rule for CAIR 
in a timely manner.
    Response 1: EPA recognizes the State's timely efforts in submitting 
its Infrastructure SIP for the 2006 24-hour PM2.5 NAAQS. 
However, as outlined in EPA's proposed action, Indiana's portion of the 
Infrastructure SIP in addressing section 110(a)(2)(D)(i)(I) is 
inadequate and must therefore be disapproved.
    States were provided with the 2009 Guidance detailing the required 
elements of an approvable Infrastructure SIP. Specific to the 
requirements of section 110(a)(2)(D)(i)(I), EPA indicated in the 2009 
Guidance that a state's submittal should contain adequate provisions to 
prohibit air pollutant emissions from within the state that contribute 
significantly to nonattainment or interfere with maintenance of the 
NAAQS in any other state. EPA further indicated that the state's 
submission should explain

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whether or not emissions from the state have this impact and, if so, 
address the impact. EPA stated that the state's conclusion should be 
supported by an adequate technical analysis. IDEM did not provide a 
technical analysis in its submittal, but instead relied primarily on 
its approved CAIR regulations to address the requirements of section 
110(a)(2)(D)(i)(I) with respect to the 2006 24-hour PM2.5 
NAAQS. In the proposed rulemaking, EPA provided rationale for why other 
programs already implemented, and cited by Indiana in its October 20, 
2009 submittal, e.g., the NOx SIP Call, stack height 
requirements, and acid deposition control regulations, are not 
sufficient to meet the requirements of section 110(a)(2)(D)(i)(I).
    CAIR was promulgated before the 24-hour PM2.5 NAAQS were 
revised in 2006 and does not address interstate transport with respect 
to the 2006 24-hour PM2.5 NAAQS.\4\ Thus, as EPA's 2009 
Guidance explicitly notes, states cannot rely on CAIR to comply with 
section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM2.5 NAAQS. 
Furthermore, SIPs can only rely on permanent emissions reductions, and 
because the Transport Rule in its final form will simultaneously 
replace and ``remedy CAIR's flaws,'' CAIR will not provide permanent 
emissions reductions. In conclusion, the portions of Indiana's 
submittal addressing the requirements of section 110(a)(2)(D)(i)(I) are 
inadequate, and cannot be approved.
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    \4\ Further, as explained above and in the Transport Rule 
proposal, 75 FR 45210 (August 2, 2010), the DC Circuit in North 
Carolina v. EPA found that EPA's quantification of States' 
significant contribution and interference with maintenance in CAIR 
was improper, and remanded the rule to EPA. CAIR remains in effect 
only temporarily.
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    Contrary to Indiana's assertion, CAIR was not the only option 
states could rely upon at the time Infrastructure SIPs were due. As 
reflected in the 2009 Guidance, CAIR did not address the 2006 24-hour 
PM2.5 NAAQS obligating states under CAA section 
110(a)(2)(D)(i)(I) to make the appropriate demonstration. However, the 
2009 Guidance did explain the type of technical analysis and 
justification necessary to make that demonstration. Indiana did not 
provide any technical analysis or justification in its October 20, 2009 
submittal to support any such demonstration.
    Comment 2: EPA should provide Indiana the opportunity to revise its 
Infrastructure SIP once the Transport Rule is completed, especially 
since there is no court-ordered deadline for EPA to act on this 
particular SIP submittal.
    Response 2: EPA is taking action to disapprove the portions of 
Indiana's Infrastructure SIP submittal addressing the requirements of 
section 110(a)(2)(D)(i)(I) under section 110(k)(2) and (3) of the CAA. 
This section of the CAA requires EPA to approve or disapprove a SIP 
within 12 months of its completeness determination. Under section 
110(k), EPA was required to disapprove or approve Indiana's 
Infrastructure SIP by April 20, 2011. Indiana has an opportunity to 
revise and submit a SIP at any time and is invited to do so following 
final promulgation of the Transport Rule and within the time provided 
by the CAA.
    Comment 3: EPA was not timely in developing the Transport Rule, 
which states expected to use when addressing the interstate transport 
requirements of the 2006 24-hour PM2.5 NAAQS. Therefore, 
states' Infrastructure SIPs should not be disapproved at this time. 
Instead, EPA should delay action on the Infrastructure SIPs until 
states can revise them once the Transport Rule is finalized. EPA also 
stated that Indiana had failed to provide a modeling analysis. Did EPA 
expect an analysis from States when States knew that the proposed 
Transport Rule would adequately address the 2006 24-hour 
PM2.5 NAAQS? Why would Indiana, or any other State, do 
modeling or rulemaking in advance of the Transport Rule being proposed?
    Response 3: States must meet their statutory requirements by 
submitting SIPs with permanent and enforceable measures in a timely 
manner. Furthermore, all required documents and technical analyses 
should accompany the submittals. Lastly, as discussed in Response 2, 
above, section 110(k)(2) and (3) required EPA to disapprove or approve 
Indiana's Infrastructure SIP by April 2011.
    Comment 4: Indiana disagrees with EPA's approach to address Section 
110(a)(2)(D) requirements by way of a FIP. A FIP will allow expedient 
implementation of emission reductions; however, many states prefer to 
develop SIPs to better fit their needs. A FIP is also contrary to the 
spirit of the CAA by unnecessarily limiting state authority. When the 
Transport Rule is finalized, Indiana will be issued a FIP by EPA for 
failing to develop an adequate Infrastructure SIP--a requirement that 
Indiana has already fulfilled. Indiana plans to incorporate the 
Transport Rule into a state rule and replace the transport component of 
section 110(a)(2)(D) as expeditiously as possible, and does not believe 
that EPA needs to FIP Indiana in order for this action to occur in a 
timely manner.
    Response 4: In this action, EPA is disapproving only the portions 
of Indiana's Infrastructure SIP for the 2006 24-hour PM2.5 
NAAQS that address the requirements of section 110(a)(2)(D)(i)(I). Upon 
disapproval of Indiana's submittal, EPA has a legal obligation, 
pursuant to the CAA, to promulgate a FIP. See Section 110(c)(1)(B) of 
the CAA. Section 110(a)(1) of the CAA requires states to submit SIPs 
that meet certain requirements within three years of promulgation of a 
NAAQS. These SIPs are required to contain, among other things, adequate 
provisions ``prohibiting, consistent with the provisions of this 
subchapter, any source or other type of emissions activity within the 
state from emitting any air pollutant in amounts which will--(I) 
contribute significantly to nonattainment in, or interfere with 
maintenance by, any other state with respect to any such national 
primary or secondary ambient air quality standard.'' Section 110(a)(1) 
gives the Administrator authority to prescribe a period shorter than 
three years for the states to adopt and submit such SIPs, but does not 
give the Administrator authority to lengthen the time allowed for 
submission.
    Section 110(c)(1) of the Act, in turn, requires EPA to promulgate 
FIPs if EPA has found that the state has failed to make a required 
submission or if EPA has disapproved a state submission or found it to 
be incomplete. Specifically, section 110(c)(1) requires EPA to 
promulgate a FIP within two years after the Administrator ``(A) finds 
that a state has failed to make a required submission or finds that the 
plan or plan revision submitted by the state does not satisfy the 
minimum criteria established under subsection (k)(1)(A) of this section 
or (B) disapproves a state implementation plan submission in whole or 
in part.'' The CAA uses mandatory language, finding that EPA shall 
promulgate a FIP at any time within 2 years after the actions 
identified 110(c)(1)(A) or 110(c)(1)(B) have occurred. EPA's legal 
obligation to promulgate FIPs arises when those actions occur without 
regard to the underlying reason for the underlying SIP deficiency. The 
obligation to promulgate a FIP must be discharged by EPA unless two 
conditions are met: (1) The state corrects the deficiency; and (2) the 
Administrator approves the plan or plan revision, before the 
Administrator promulgates the FIP.
    Under this statutory scheme, EPA has authority and an obligation to

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promulgate a FIP to correct a SIP deficiency if the actions identified 
in section 110(c)(1)(A) or (B) have been taken, and the two conditions 
identified in 110(c)(1) have not been met. The question of whether EPA 
has authority to promulgate any particular FIP, therefore, must be 
considered on a state specific basis.
    EPA disagrees with Indiana's suggestion that the rule is 
inconsistent with the CAA because it does not give states time to 
develop, submit and receive EPA approval of SIPs before the FIP goes 
into effect. Section 110(a)(2) calls on states to submit SIPs that 
contain adequate provisions prohibiting the emissions proscribed by 
section 110(a)(2)(D)(i)(I). However, when EPA has not received such SIP 
submission or has disapproved a SIP submission, it has an obligation 
created by section 110(c)(1) to promulgate a FIP that meets the 
requirements of section 110(a)(2)(D)(i)(I). EPA does not believe it has 
authority to adjust the deadlines established in the Act in order to 
give states additional time, after promulgation of the Transport Rule, 
to submit SIPs that comply with section 110(a)(2)(D)(i)(I). 
Furthermore, EPA does not believe it has authority to alter the 
statutory requirement that it promulgate FIPs within two years of 
making a finding of failure to submit. EPA sought to discharge this 
duty with respect to the states covered by CAIR for the 
PM2.5 NAAQS by promulgating the CAIR; however, the Court 
found that rule unlawful and not sufficiently related to the statutory 
mandate of section 110(a)(2)(D)(i)(I). For this reason, EPA does not 
believe it could argue that the CAIR FIPs completely discharged its 
duty to promulgate FIPs with respect to the states whose section 
110(a)(2)(D)(i)(I) SIPs are disapproved.
    EPA is following the SIP process established in the statute. The 
110(a) SIPs for the 2006 24-hour PM2.5 NAAQS were due in 
2009. In each case, states were given the full 3 years to meet the 
requirement. The Transport Rule, when final, will provide the FIP to 
fulfill the requirement that was unmet by the states through SIPs. EPA 
is required to promulgate a FIP within two years of a state's failure 
to have an approved SIP. States were in fact given the first chance to 
fulfill the requirement of Section 100(a)(2)(D)(i)(I). EPA's action is 
subsequent to the State's opportunity to first fulfill the requirement.
    EPA has made every attempt to facilitate the transition between the 
requirements of CAIR and those of the Transport Rule. For future 
requirements, EPA will also make every effort to address transition 
issues. However, EPA cannot ignore its statutory obligations and 
therefore cannot ensure that no new requirements will be placed on the 
sources being regulated by this action. Every time a NAAQS is revised, 
there is a statutory obligation for states to submit SIPs to address 
certain CAA requirements. If states fail to meet the deadlines or 
submit incomplete or inadequate SIPs, EPA must act to ensure that the 
requirements are put into place.
    Even though EPA is planning to promulgate a FIP, the State still 
has the opportunity to submit a SIP that can tailor requirements to the 
specific needs and concerns of the State in order to meet the 
applicable state budgets. Prior to this action, states had ample time 
under the provisions of the CAA to develop and submit approvable SIPs 
and did not. No state affected by the Transport Rule has submitted a 
SIP to replace the emission reductions that were required by CAIR, 
despite the North Carolina opinion issued in December 2008 that clearly 
stated that CAIR did not adequately address 110(a)(2)(D)(i)(I). While 
the remand left CAIR in place, resulting in the continued requirement 
that states and sources comply with it, states had the opportunity to 
develop replacement measures to ensure that 110(a)(2)(D)(i)(I) 
components of their SIPs would continue to be fulfilled in the future.
    Comment 5: Indiana has met the 2006 24-hour PM2.5 NAAQS 
since the end of 2007 and monitoring values continue to trend downward. 
Indiana does not significantly contribute to violations of the annual 
standard in downwind areas. Therefore, Indiana does not contribute to 
any violations of the 2006 24-hour PM2.5 NAAQS. EPA had not 
conducted a complete analysis on the contributions at the time the 
Infrastructure SIPs were due, nor did EPA give states a chance to 
provide comments on the analysis.
    Response 5: As discussed in the proposed disapproval, the modeling 
performed for the proposed Transport Rule shows that Indiana 
significantly contributes to nonattainment or interferes with 
maintenance of the 2006 24-hour PM2.5 NAAQS in downwind 
areas. EPA has now completed the modeling for the final Transport Rule 
and, as indicated by the technical support documents for this action, 
Indiana in fact contributes to downwind nonattainment in another state 
or interferes with maintenance of the 2006 24-hour PM2.5 
NAAQS in another state.
    Comment 6: Modeling for the Transport Rule was based on the 1997 
annual PM2.5 NAAQS, not the 2006 24-hour PM2.5 
NAAQS. Also, the base years used in the modeling are not reflective of 
emissions or monitoring data which show downward trends in more recent 
years that include benefits from CAIR.
    Response 6: The modeling performed by EPA for the final Transport 
Rule addresses both the 1997 annual PM2.5 NAAQS and the 2006 
24-hour PM2.5 NAAQS. CAIR cannot be included in the analysis 
since it does not provide permanent emission reductions nor address the 
2006 24-hour PM2.5 NAAQS.
    Comment 7: If EPA proceeds with its disapproval, and Indiana is not 
permitted to revise its Infrastructure SIP once the Transport Rule is 
finalized, EPA should properly characterize the circumstances 
surrounding its need to disapprove the submittal.
    Response 7: The circumstances surrounding EPA's need to disapprove 
the portions of Indiana's Infrastructure SIP submittal for the 2006 24-
hour PM2.5 NAAQS that address the requirements of section 
110(a)(2)(D)(i)(I) were discussed in the proposed disapproval. 
Additionally, Response 1, Response 3, and Response 4, above, reiterate 
the circumstances surrounding EPA's need to disapprove the portion of 
Indiana's Infrastructure SIP submittal for the 2006 24-hour 
PM2.5 NAAQS that address the requirements of section 
110(a)(2)(D)(i)(I). Indiana has an opportunity to revise and submit a 
SIP at any time, and is invited to do so following final promulgation 
of the Transport Rule and within the time provided by the CAA.
    Response 8: EPA fails to acknowledge states' efforts to meet their 
requirements on a timely basis. EPA should approve Ohio's transport 
component of the Infrastructure SIP since the State submitted its SIP 
on time and in accordance with available guidance.
    Response 9: EPA recognizes Ohio's timely efforts in submitting its 
Infrastructure SIP for the 2006 24-hour PM2.5 NAAQS. 
However, in a similar manner as described above in the response to 
Comment 1, above, the portions of Ohio's submittal addressing the 
requirements of section 110(a)(2)(D)(i)(I) with respect to the 2006 24-
hour PM2.5 NAAQS are inadequate, and must be disapproved.
    Comment 10: Instead of disapproving the portion of the SIP 
submittal at this time, EPA can issue a SIP deficiency notice and 
require a new SIP after the Transport Rule is finalized.
    Response 10: EPA disagrees with Ohio's statement. EPA is taking 
action to disapprove the portions of Ohio's submittal under section 
110(k)(2) and (3) of the CAA. Under section 110(k) of the CAA, EPA had 
an obligation to approve or disapprove Ohio's submittal by March 4, 
2011.

[[Page 43179]]

    Comment 11: EPA believes that it must issue this disapproval to 
address the transport of emissions and pollution for the 2006 
PM2.5 NAAQS through a FIP. The better course is to allow the 
states to develop their own SIP when adopting the Transport Rule.
    Response 11: In this action, EPA is disapproving only the portions 
of Ohio's Infrastructure SIP for the 2006 24-hour PM2.5 
NAAQS that address the requirements of section 110(a)(2)(D)(i)(I). The 
full or partial disapproval of a SIP revision triggers the requirement 
under section 110(c) that EPA promulgate a FIP no later than two years 
from the date of the disapproval unless the state corrects the 
deficiency, and the Administrator approves the plan or plan revision 
before the Administrator promulgates such FIP. Ohio is welcome to 
submit a revised SIP for EPA approval that addresses the requirements 
of section 110(a)(2)(D)(i)(I) with respect to the 2006 24-hour 
PM2.5 NAAQS after the Transport Rule is finalized, and 
within the time provided by the CAA.

III. What action is EPA taking?

    For the reasons discussed in the proposed rulemaking, EPA is taking 
final action to disapprove submittals from Indiana and Ohio intended to 
demonstrate that each respective State has adequately addressed the 
elements of section 110(a)(2)(D)(i)(I) of the CAA with regard to the 
2006 24-hour PM2.5 NAAQS. This action pertains only to 
section 110(a)(2)(D)(i)(I); the States' submittals for the remainder of 
the 2006 24-hour PM2.5 NAAQS Infrastructure SIPs will be 
addressed in separate rulemakings. The effect of this action will be an 
obligation for EPA to promulgate a FIP for Indiana and Ohio no later 
than two years from the date of disapproval. The final Transport Rule 
is the FIP that EPA currently intends to promulgate for Indiana and 
Ohio.

IV. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review by the Office of Management and Budget.

Executive Order 13211: Actions That Significantly Affect Energy Supply, 
Distribution, or Use

    Because it is not a ``significant regulatory action'' under 
Executive Order 12866 or a ``significant energy action,'' this action 
is also not subject to Executive Order 13211, ``Actions Concerning 
Regulations That Significantly Affect Energy Supply, Distribution, or 
Use'' (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

    This action merely disapproves state law as meeting Federal 
requirements and imposes no additional requirements beyond those 
imposed by state law. Accordingly, the Administrator certifies that 
this rule will not have a significant economic impact on a substantial 
number of small entities under the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.).

Unfunded Mandates Reform Act

    Because this rule disapproves pre-existing requirements under state 
law and does not impose any additional enforceable duty beyond that 
required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (59 
FR 22951, November 9, 2000).

Executive Order 13132: Federalism

    This action also does not have Federalism implications because it 
does not have substantial direct effects on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132 (64 FR 43255, August 
10, 1999). This action merely disapproves a state rule implementing a 
Federal standard, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA.

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

    This rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), because it approves a state rule implementing a 
Federal Standard.

National Technology Transfer Advancement Act

    In reviewing state submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the CAA. In this 
context, in the absence of a prior existing requirement for the state 
to use voluntary consensus standards (VCS), EPA has no authority to 
disapprove a state submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a state 
submission, to use VCS in place of a state submission that otherwise 
satisfies the provisions of the CAA. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply.

Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 
et seq.).

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by September 19, 2011. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purposes of judicial review nor does 
it extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

[[Page 43180]]

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Particulate matter.

    Dated: June 28, 2011.
Susan Hedman,
Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

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

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

Subpart P--Indiana

0
2. Section 52.776 is amended by adding paragraph (u), to read as 
follows:


Sec.  52.776  Control strategy: Particulate matter.

* * * * *
    (u) Disapproval. EPA is disapproving the portions of Indiana's 
Infrastructure SIP for the 2006 24-hour PM2.5 NAAQS 
addressing interstate transport, specifically with respect to section 
110(a)(2)(D)(i)(I).

Subpart KK--Ohio

0
3. Section 52.1880 is amended by adding paragraph (l), to read as 
follows:


Sec.  52.1880  Control strategy: Particulate matter.

* * * * *
    (l) Disapproval. EPA is disapproving the portions of Ohio's 
Infrastructure SIP for the 2006 24-hour PM2.5 NAAQS 
addressing interstate transport, specifically with respect to section 
110(a)(2)(D)(i)(I).

[FR Doc. 2011-17739 Filed 7-19-11; 8:45 am]
BILLING CODE 6560-50-P


