AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to redesignate the Indianapolis area from nonattainment to attainment for the 2010 sulfur dioxide (SO₂) standard. The area consists of Perry and Wayne Townships in Marion County, Indiana. EPA is also proposing to approve Indiana's maintenance plan for this area.

DATES:

Comments must be received on or before May 30, 2019.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2017-0462 at http://www.regulations.gov, or via email to aburano.douglas@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/​dockets/​commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Samantha Panock, 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)353-8973, panock.samantha@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. Background

II. Redesignation Requirements

A. Determination of Attainment

B. Permanent and Enforceable Emission Reductions

C. Requirements for the Area Under Section 110 and Part D

D. Fully Approved SIP Under Section 110(k)

E. Maintenance Plan

III. What action is EPA taking?

IV. Statutory and Executive Order Reviews

I. Background

On June 22, 2010 (75 FR 35520), EPA published a revised primary SO₂ national ambient air quality standard (NAAQS) of 75 parts per billion (ppb), which is met at a monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour concentrations does not exceed 75 ppb. This NAAQS was codified at 40 CFR 50.4. On July 25, 2013 (78 FR 47191), EPA published its initial air quality designations for the SO₂ NAAQS based upon air quality monitoring data for calendar years 2009-2011. In that action, the Marion county area comprised of Perry and Wayne Townships was designated nonattainment for the SO₂ NAAQS (Indianapolis nonattainment area).

Indiana was required to submit a nonattainment State Implementation Plan (SIP) that meets the requirements of sections 172(c) and 191-192 of the Clean Air Act (CAA) and provide for attainment of the SO₂ NAAQS as expeditiously as practicable, but no later than April 4, 2015, which represents five years after the area was originally designated as nonattainment under the 2010 SO₂ NAAQS. SO₂ emissions from all sources within the nonattainment area totaled 24,021 tons in 2011, and 15,312 tons in 2015. Due to a variety of factors, there has been a significant, permanent and enforceable reduction in SO₂ emissions within the Indianapolis area. In addition, the area's SO₂ monitors' 3-year SO₂ design values ^[1] for 2014-2016 had fallen below the SO₂ NAAQS. Consequently, the Indiana Department of Environmental Management (IDEM) submitted a redesignation request on July 10, 2017. For the reasons set forth in this document, EPA is proposing to redesignate the area to attainment.

II. Redesignation Requirements

Under CAA section 107(d)(3)(E), there are five criteria which must be met before a nonattainment area may be redesignated to attainment.

1. EPA has determined that the relevant NAAQS has been attained in the area.

2. The applicable implementation plan has been fully approved by EPA under section 110(k).

3. EPA has determined that improvement in air quality is due to permanent and enforceable reductions in emissions resulting from the SIP, Federal regulations, and other permanent and enforceable reductions.

4. EPA has fully approved a maintenance plan, including a contingency plan, for the area under section 175A of the CAA.

5. The State has met all applicable requirements for the area under section 110 and part D.

A. Determination of Attainment

For redesignation of a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). As stated in the April 2014 “Guidance for 1-Hour SO₂ Nonattainment Area SIP Submissions,” for SO₂, there are two components needed to support an attainment determination: A review of representative air quality monitoring data, and a further analysis, generally requiring air quality modeling, to demonstrate that the entire area is attaining the applicable standard, based on current actual emissions or the fully implemented control strategy. Indiana has addressed both components.

Under EPA regulations at 40 CFR 50.17, the SO₂ standard is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations is less than or equal to 75 ppb, as determined in accordance with appendix T of 40 CFR part 50, at all relevant monitoring sites in the subject area. EPA has reviewed the ambient air monitoring data for the Indianapolis nonattainment area. The Indianapolis nonattainment area has two SO₂ monitoring sites located in Indianapolis—the Harding Street site and Washington Park site. This review addresses air quality data collected in the 2014-2017 period, which are the most recent quality assured data available. All data considered are complete, quality assured, certified, and recorded in EPA's Air Quality System database.

Table 1 shows the 2014-2016 and 2015-2017 design values for the Indianapolis nonattainment area. The 3-year average design values for the Harding Street and Washington Park monitoring sites for 2014-2016 are 58 ppb and 52 ppb, respectively. The 2015-2017 design values are 25 ppb and 20 ppb, respectively. All design values for 2014-2017 are below the SO₂ standard. Therefore, the Indianapolis SO₂ monitors clearly show attainment. Preliminary data for 2018 indicate that the area continues to attain the SO₂ standard.

Regarding the second component of the attainment determination, IDEM has performed extensive modeling of the Indianapolis nonattainment area to determine the effect of local and national emission control strategies on SO₂ and to demonstrate attainment of the SO₂ NAAQS.

A total of six sources were included in the SO₂ attainment demonstration and technical support document for the Indianapolis nonattainment area submitted to EPA for review and approval on October 2, 2015. These facilities are: (1) Belmont Advanced Wastewater Treatment Plant (formerly Indianapolis Sludge Incinerator), (2) Citizens Thermal (formerly Indianapolis Power & Light Company (IPL) Perry K), (3) IPL—Harding Street Generating Station, (4) Quemetco, (5) Rolls Royce Corporation (formerly Allison Gas Turbine Plant 5 and Plant 8), and (6) Vertellus Agriculture and Nutrition Specialties (formerly Reilly Industries and Reilly Tar and Chemical).

The American Meteorological Society/Environmental Protection Agency Regulatory Model (AERMOD version 14134) was the regulatory air quality model used for the 2010 SO₂ attainment demonstration modeling for the Indianapolis nonattainment area. Five years, 2008-2012, of surface meteorological data from the Indianapolis, IN National Weather Service (NWS) site was used in conjunction with five years of concurrent upper-air meteorological data from Lincoln, Illinois, which is approximately 200 miles west of Indianapolis.

Several Federal rulemakings established allowable limits for the six sources listed previously. These rulemakings include the Cross State Air Pollution Rule (CSAPR), Mercury and Air Toxics Standards (MATS), and National Emission Standards for Hazardous Air Pollutants for Major Sources (NESHAP): Industrial, Commercial, and Institutional Boilers and Process Heaters. These limits, which were adopted at 326 Indiana Administrative Code (IAC) 7-4-2.1, have been applied to the six sources.

The AERMOD modeling results for the Indianapolis nonattainment area showed a maximum 1-hour SO₂ concentration of 168.6 micrograms per cubic meter (μg/m3). When added to a background concentration value of 22.5 μg/m3, a total 1-hour SO₂ concentration of 191.1 μg/m3 is achieved. This is below the 1-hour SO₂ NAAQS of 75 ppb or 196.2 μg/m3 and, therefore, demonstrates attainment of the NAAQS for SO₂.

In summary, the monitored data show attainment for 2014-2017, and IDEM has demonstrated, via modeling, that sources within the area are not expected to cause future violations in the area because of the permanent and enforceable limits that apply to those sources. Therefore, EPA agrees that the Indianapolis nonattainment area is currently attaining the SO₂ NAAQS.

B. Permanent and Enforceable Emission Reductions

To support the redesignation of an area from nonattainment to attainment, section 107(d)(3)(E)(iii) of the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from the implementation of the attainment demonstration and applicable Federal air pollution control regulations as well as any other permanent and enforceable emission reductions. As previously stated, the reduction in emissions from the six sources in the area has led to a decrease in monitored levels. The controls and operational changes that were made by the six facilities, as well as unit retirements, resulted in emission reductions for the nonattainment area between the 2011 nonattainment base year and the 2015 attainment year.

Table 2 compares SO₂ emissions for all sources (i.e., EGU sources, non-EGU point sources, non-point sources (area), non-road sources, and on-road sources) for the 2011 nonattainment year and the 2015 attainment year for Marion County, Indiana where the Indianapolis nonattainment area is located. SO₂ emissions within Marion County declined by 36% between the nonattainment year (2011) and the attainment year (2015) resulting in attainment of the 2010 SO₂ NAAQS.

As indicated above, the six facilities identified in the attainment plan have reduced their emissions from the 2011 nonattainment year to the 2015 attainment year. Table 3, below, shows the reductions that took place from 2011 to 2015.

EPA agrees that the improvement in air quality in the nonattainment area is due to permanent and enforceable emission reductions, as described more fully in EPA's March 22, 2019 approval of Indiana's attainment demonstration [84 FR 10692]. In preparing its attainment plan, Indiana adopted revisions to the previously approved SO₂ at 326 IAC 7. These rule revisions were adopted by the Indiana Environmental Rules Board following established, appropriate public review procedures. In addition, the rule revisions provide unambiguous, permanent emission limits, expressed in lbs/hour of allowable SO₂ emissions, that, if exceeded by a source, would be clear grounds for an enforcement action.

Revised limits for the six facilities identified above (among others) are codified in 326 IAC 7, titled “Sulfur Dioxide Rules.” These are: “Compliance date” (326 IAC 7-1.1-3, which contains a compliance date of January 1, 2017), “Reporting requirements; methods to determine compliance” (7-2-1), “Marion County sulfur dioxide emission limitations” (7-4-2.1). The rules also include associated monitoring, testing, and recordkeeping and reporting requirements. For example, continuous emission monitoring will be conducted for assessing compliance with the 30-day average limits. Specifically, 326 IAC 7-1-9 is being replaced by 7-4-2.1 for Marion County. EPA finds these limits to be enforceable. Another summary of the limits is provided in EPA's March 22, 2019 approval of Indiana's attainment demonstration (84 FR 10692). The attainment plan also satisfies requirements for emission inventories, RACT/RACM, RFP, and contingency measures. Additionally, Indiana has previously addressed requirements regarding nonattainment area NSR rules. Therefore, EPA has determined that Indiana's SO₂ attainment plan meet the applicable requirements of CAA sections 110, 172, 191, and 192.

C. Requirements for the Area Under Section 110 and Part D

As a criterion for redesignation of an area from nonattainment to attainment of a NAAQS, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (see section 107(d)(3)(E)(v) of the CAA). Indiana's submission meets section 110 and part D requirements. EPA approved Indiana's infrastructure SIP for SO₂ on August 3, 2015 (80 FR 48733). In this infrastructure SIP approval, EPA determined that Indiana's SIP meets the requirements of CAA section 110(a)(1) and 110(a)(2) and contains the basic program elements, such as an active enforcement program and permitting program.

With the redesignation request of July 10, 2017, Indiana submitted information addressing the SIP requirements under section 172 and part D. Indiana submitted an attainment inventory of the SO₂ emissions from sources in the nonattainment area on July 10, 2017. Indiana chose 2011 for its base year emissions inventory, as comprehensive emissions data was available and updated that year, which satisfies the 172(c)(3) requirements. The six facilities identified in the previous section were the main sources in the nonattainment area. Indiana did not create mobile source SO₂ emission budgets for the Indianapolis Nonattainment Area, which included Marion County, because SO₂ emissions from mobile sources were found to be an insignificant contributor to PM_2.5 in the nonattainment area. As such, transportation conformity is not of concern for the 2010 SO₂ NAAQS. (78 FR 41698).

Table 4 compares SO₂ emissions for all sources for the 2015 attainment year and the 2030 maintenance year for Marion County, Indiana. SO₂ emissions within Marion County are projected to decline by 56% between 2015 and 2030, primarily due to fuel switching (coal to natural gas) at EGU point sources. The decrease in emissions shown between the attainment year (2015) and the maintenance year (2030) in Table 4 illustrates that continued maintenance of the 2010 1-hour SO₂ NAAQS is expected.

Section 172(c)(1) requires nonattainment area SIPs to provide for the implementation of all reasonably available control measures (RACM) as expeditiously as practicable and to provide for attainment of the NAAQS. EPA's longstanding interpretation of the nonattainment planning requirements of section 172 is that once an area is attaining the NAAQS, those requirements are not applicable for purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be approved into the SIP before EPA can redesignate the area. In the 1992 General Preamble for Implementation of Title I, EPA set forth its interpretation of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard. See 57 FR 13498, 13564 (April 16, 1992). EPA noted that the requirements for reasonable further progress (RFP) and other measures designed to provide for attainment do not apply in evaluating redesignation requests because those nonattainment planning requirements “have no meaning” for an area that has already attained the standard. EPA's understanding of section 172 also forms the basis of its Clean Data Policy, which was articulated with regard to SO₂ in the April 2014 “Guidance for 1-Hour SO₂ Nonattainment Area SIP Submissions,” and suspends a State's obligation to submit most of the attainment planning requirements that would otherwise apply, including an attainment demonstration and planning SIPs to provide for RFP, RACM, and contingency measures under section 172(c)(9). Courts have upheld EPA's interpretation of section 172(c)(1) for “reasonably available” control measures and control technology as meaning only those controls that advance attainment, which precludes the need to require additional measures where an area is already attaining. NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d 155, 162 (D.C. Cir. 2002); Sierra Club v. EPA, 314 F.3d 735, 744 (5th Cir. 2002); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004).^[2] Therefore, because the Indianapolis nonattainment area has attained the SO₂ standard, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements for an attainment demonstration and RACM are not part of the “applicable implementation plan” required to have been approved prior to redesignation per CAA section 107(d)(3)(E)(ii). EPA believes that Indiana has satisfied the reasonably available control measures/reasonably available control techniques (RACM/RACT) requirement for this area.

The other section 172 requirements that are designed to help an area achieve attainment are the section 172(c)(2) requirement that nonattainment plans contain provisions promoting RFP, the requirement to submit the section 172(c)(9) contingency measures, and the section 172(c)(6) requirement for the SIP to contain control measures necessary to provide for attainment of the NAAQS. These are also not required to be approved as part of the “applicable implementation plan” for purposes of satisfying CAA section 107(d)(3)(E)(ii).

Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since Prevention of Significant Deterioration (PSD) requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a New Source Review (NSR) program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Indiana has demonstrated that the Indianapolis nonattainment area will be able to maintain the 2010 SO₂ NAAQS without part D NSR in effect, and therefore Indiana does not need to have a fully approved part D NSR program prior to approval of the redesignation request. Indiana's PSD program will become effective in the nonattainment area upon redesignation to attainment.

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes that the Indiana SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.

Section 176(c) of the CAA requires States to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability that EPA promulgated pursuant to its authority under the CAA. On June 4, 2010, Indiana submitted documentation establishing transportation conformity procedures in its SIP. EPA approved these procedures on August 17, 2010 (75 FR 50708). Moreover, EPA interprets the conformity SIP requirements as not applying for purposes of evaluating a redesignation request under section 107(d) because, like other requirements listed above, State conformity rules are still required after redesignation and Federal conformity rules apply where State rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding this interpretation); see also 60 FR 62748 (December 7, 1995) (redesignation of Tampa, Florida).

As discussed above, EPA is proposing to find that Indiana has satisfied all applicable requirements for purposes of redesignation of the Indianapolis nonattainment area under section 110 and part D of title I of the CAA.

D. Fully Approved SIP Under Section 110(k)

As a criterion for redesignation of an area from nonattainment to attainment of a NAAQS, the CAA requires that the state has a fully approved SIP under section 110(k) of the CAA (see section 107(d)(3)(E)(ii) of the CAA). SIPs must be fully approved only with respect to currently applicable requirements of the CAA. EPA has determined that Indiana has a fully approved SIP under section 110(k). As discussed above in section II.C., Indiana has submitted, and EPA has approved all applicable requirements under section 110 and part D of title I of the CAA. Indiana has implemented its SO₂ SIP regulations at 326 IAC 7-4-3, and Indiana maintains an active enforcement program to ensure ongoing compliance. Indiana's new source review/prevention of significant deterioration program will address emissions from new sources. Indiana's current SO₂ SIP rule for Marion County, which contains the Indianapolis SO₂ area, is codified at 326 IAC 7-4-3.

E. Maintenance Plan

CAA section 175A sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the nonattainment area is redesignated to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the ten years following the initial ten year period. To address the possibility of future 2010 SO₂ NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 2010 SO₂ NAAQS violations. Specifically, the maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan.

Indiana's July 10, 2017 redesignation request contains its maintenance plan, which Indiana has committed to review eight years after redesignation. Indiana submitted an attainment emission inventory which addresses current emissions and projections of future emissions for point, area, and mobile sources. Indiana has demonstrated that the area is attaining and is expected to maintain the SO₂ NAAQS. Indiana has committed to continue monitoring at its monitoring sites in accordance with the requirements of 40 CFR part 58. These data will be used to verify continued attainment. Indiana has the authority to adopt, implement and enforce any subsequent emissions control measures deemed necessary to correct any future SO₂ violations. Regarding contingency measures to implement in the case of a future violation of the 2010 SO₂ standard, Indiana provided a list of five potential measures for the sources within the nonattainment area, including requiring: Alternative fuel, SO₂ emissions add-on control technologies for existing emission units, reduced operating hours, SO₂ emission offsets for new and modified major sources and SO₂ emission offsets for new and modified minor sources.

Indiana commits to study SO₂ emission trends and identify areas of concern if the annual average 99th percentile maximum daily 1-hour SO₂ concentration of 79 ppb or greater occurs in a single year, or if a two year average of 76 ppb or greater occurs in the maintenance area. Indiana will adopt and implement corrective actions as necessary to address such trends of increasing emissions or ambient impacts. The public will have the opportunity to participate in the contingency measure implementation process. EPA proposes to find that Indiana's maintenance plan adequately addresses the five basic components necessary to maintain the SO₂ standard in the Indianapolis nonattainment area.

III. What action is EPA taking?

As requested by Indiana on July 10, 2017, EPA is proposing to redesignate the Indianapolis nonattainment area from nonattainment to attainment of the 2010 SO₂ NAAQS. Indiana has demonstrated that the area is attaining the SO₂ standard, and that the improvement in air quality is due to permanent and enforceable measures. EPA is also proposing to approve the maintenance plan that Indiana submitted to ensure that the area will continue to maintain the SO₂ standard.

IV. Statutory and Executive Order Reviews

Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 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:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
• 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.);
• 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);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• 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
• 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).

In addition, the SIP 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 and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

List of Subjects

40 CFR Part 52

• Environmental protection
• Air pollution control
• Incorporation by reference
• Intergovernmental relations
• Reporting and recordkeeping requirements
• Sulfur oxides

40 CFR Part 81

• Environmental protection
• Air pollution control
• National parks
• Wilderness areas

Footnotes