[Federal Register: October 22, 2007 (Volume 72, Number 203)]
[Rules and Regulations]
[Page 59480-59488]
[DOCID:fr22oc07-4]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 97

[EPA-R05-OAR-2007-0140; FRL-8481-4]

Limited Approval of Implementation Plans of Indiana: Clean Air
Interstate Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is promulgating a limited approval of a revision to the
Indiana State Implementation Plan (SIP) submitted on February 28, 2007.
This revision incorporates provisions related to the implementation of
EPA's Clean Air Interstate Rule (CAIR), promulgated on May 12, 2005,
and subsequently revised on April 28, 2006, and December 13, 2006, and
the CAIR Federal Implementation Plans (CAIR FIP) concerning
SO2, NOX annual, and NOX ozone season
emissions for the State of Indiana, promulgated on April 28, 2006, and
subsequently revised December 13, 2006. EPA is not making any changes
to the CAIR FIP. It is, however, to the extent EPA approves Indiana's
SIP revision, amending the appropriate appendices in the CAIR FIP
trading rules simply to note that approval.
    On September 20, 2007, Indiana requested that EPA act on a portion
of the February 28, 2007, submittal as an ``abbreviated SIP.''
Consequently, EPA is approving this abbreviated SIP revision, which
addresses: The

applicability provisions for the NOX ozone season trading
program and supporting definitions of terms; the methodology to be used
to allocate NOX annual and ozone season NOX
allowances and supporting definitions of terms; the compliance
supplement pool (CSP) provisions for the NOX annual trading
program; and provisions for SO2 and NOX opt-in
units, all under the CAIR FIP.

DATES: This direct final rule is effective December 21, 2007 without
further notice, unless EPA receives adverse comment by November 21,
2007. If EPA receives such comments, it will publish a timely
withdrawal of the direct final rule in the Federal Register and inform
the public that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2007-0140, by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for

submitting comments.
    2. E-mail<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail: John M. Mooney, Chief, Criteria Pollutant Section, Air
Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West
Jackson Boulevard, Chicago, Illinois 60604.
    5. Hand Delivery: John M. Mooney, Chief, Criteria Pollutant
Section, Air Programs Branch (AR-18J), U.S. Environmental Protection
Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such
deliveries are only accepted during the Regional Office normal hours of
operation, and special arrangements should be made for deliveries of
boxed information. The Regional Office official hours of business are
Monday through Friday, 8:30 a.m. to 4:30 p.m. excluding Federal
holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2007-0140. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information provided,

unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through http://www.regulations.gov or e-

mail, information that you consider to be CBI or otherwise protected.
The http://www.regulations.gov Web site is an ``anonymous access'' system,

which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov,

your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters and any form of
encryption and should be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the electronic docket are listed in the
http://www.regulations.gov index. Although listed in the index, some

information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in http://www.regulations.gov or

in hard copy at the 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 legal holidays. We recommend that you telephone John
Paskevicz, Engineer, at<PHONE_NUMBER>, before visiting the Region 5
office.

FOR FURTHER INFORMATION CONTACT: John Paskevicz, Engineer, Criteria
Pollutant Section, Air Programs Branch (AR-18J), Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Action Is EPA Taking?
II. What Is the Regulatory History of CAIR and the CAIR FIPs?
III. What Are the General Requirements of CAIR and the CAIR FIPs?
IV. What Are the Types of CAIR SIP Submittals?
V. Analysis of Indiana's CAIR SIP Submittal
    A. State Budgets for Allowance Allocations
    B. CAIR Cap-and-Trade Programs
    C. Applicability Provisions for Non-EGU NOX SIP Call Sources
    D. NOX Allowance Allocations
    E. Allocation of Allowances From Compliance Supplement Pool
    F. Individual Opt-In Units
VI. Final Action
VII. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

CAIR SIP Approval

    EPA is approving a revision to Indiana's SIP, submitted on February
28, 2007, that would modify the application of certain provisions of
the CAIR FIPs concerning SO2, NOX annual, and
NOX ozone season emissions. (As discussed more fully below,
this less comprehensive CAIR SIP is termed an ``abbreviated SIP.'')
Indiana is subject to the CAIR FIP that implements the CAIR
requirements by requiring certain Electric Generating Units (EGUs) to
participate in the EPA-administered Federal CAIR SO2,
NOX annual, and NOX ozone season cap-and-trade
programs. The SIP revision provides a methodology for allocating
NOX allowances for the NOX annual and
NOX ozone season trading programs. The CAIR FIPs provide
that this methodology will be used to allocate NOX
allowances to sources in Indiana, instead of the federal allocation
methodology otherwise provided in the FIPs. The SIP revision also
provides a methodology for allocating the compliance supplement pool
allowances in the CAIR NOX annual trading program, expands
the applicability provisions of the CAIR NOX ozone season
trading program, and allows for individual units not otherwise subject
to the CAIR trading programs to opt into such trading programs under
the opt-in provisions of the CAIR FIP. Consistent with the flexibility
provided in the FIP, these provisions will also be used to replace or
supplement, as appropriate, the corresponding provisions in the CAIR
FIP for Indiana. EPA is not making any changes to the CAIR FIP, but is
amending to the extent EPA approves Indiana's SIP revision, the
appropriate appendices in the CAIR FIP trading rules simply to note
that approval.

II. What Is the Regulatory History of CAIR and the CAIR FIPs?

    EPA published CAIR on May 12, 2005 (70 FR 25162). In this rule, EPA
determined that 28 States and the District of Columbia contribute
significantly to nonattainment and interfere with maintenance of the
national ambient air quality standards (NAAQS) for fine particles
(PM2.5) and/or 8-hour ozone in downwind States in the
eastern part of the country. As a result, EPA required those upwind

States to revise their SIPs to include control measures that reduce
emissions of SO2, which is a precursor to PM2.5
formation, and/or NOX, which is a precursor to both ozone
and PM2.5 formation. For jurisdictions that contribute
significantly to downwind PM2.5 nonattainment, CAIR sets
annual State-wide emission reduction requirements (i.e., budgets) for
SO2 and annual State-wide emission reduction requirements
for NOX. Similarly, for jurisdictions that contribute
significantly to 8-hour ozone nonattainment, CAIR sets State-wide
emission reduction requirements for NOX for the ozone season
(May 1st to September 30th). Under CAIR, States may implement these
emission budgets by participating in the EPA-administered cap-and-trade
programs or by adopting any other control measures that the State shows
will result in compliance with the applicable SO2 and
NOX budgets.
    CAIR explains to subject States what must be included in SIPs to
address the requirements of section 110(a)(2)(D) of the Clean Air Act
(CAA) with regard to interstate transport with respect to the 8-hour
ozone and PM2.5 NAAQS. EPA made national findings on April
25, 2005 (70 FR 21147), effective May 25, 2005, that the States had
failed to submit SIPs meeting the requirements of section 110(a)(2)(D).
The SIPs were due in July 2000, three years after the promulgation of
the 8-hour ozone and PM2.5 NAAQS. These findings started a
two-year clock for EPA to promulgate a FIP to address the requirements
of section 110(a)(2)(D). Under CAA section 110(c)(1), EPA may issue a
FIP anytime after such findings are made and must do so within two
years unless a SIP revision correcting the deficiency is approved by
EPA before the FIP is promulgated.
    On April 28, 2006, EPA promulgated FIPs for all States covered by
CAIR in order to ensure the emissions reductions required by CAIR are
achieved on schedule. Each CAIR State is subject to the FIPs until the
State fully adopts, and EPA approves, a SIP revision meeting the
requirements of CAIR. The CAIR FIPs require certain EGUs to participate
in the EPA-administered CAIR SO2, NOX annual, and
NOX ozone-season model trading programs, as appropriate. The
CAIR FIP SO2, NOX annual, and NOX
ozone season trading programs impose essentially the same requirements
as, and are integrated with, the respective CAIR SIP trading programs.
The integration of the CAIR FIP and SIP trading programs means that
these trading programs will work together to create effectively a
single trading program for each regulated pollutant (SO2,
NOX annual, and NOX ozone season) in all States
covered by the CAIR FIP or SIP trading program for that pollutant. The
CAIR FIPs also allow States to submit abbreviated SIP revisions that,
if approved by EPA, will automatically replace or supplement the
corresponding CAIR FIP provisions (e.g., the methodology for allocating
NOX allowances to sources in the State), while the CAIR FIP
remains in place for all other provisions.
    On April 28, 2006, EPA published two more CAIR-related final rules
that added the States of Delaware and New Jersey to the list of States
subject to CAIR for PM2.5 and announced EPA's final
decisions on reconsideration of five issues without making any
substantive changes to the CAIR requirements.

III. What Are the General Requirements of CAIR and the CAIR FIPs?

    CAIR establishes State-wide emission budgets for SO2 and
NOX and is to be implemented in two phases. The first phase
of NOX reductions starts in 2009 and continues through 2014,
while the first phase of SO2 reductions starts in 2010 and
continues through 2014. The second phase of reductions for both
NOX and SO2 starts in 2015 and continues
thereafter. CAIR requires States to implement the budgets by either:
(1) Requiring EGUs to participate in the EPA-administered cap-and-trade
programs: or, (2) adopting other control measures of the State's
choosing and demonstrating that such control measures will result in
compliance with the applicable State SO2 and NOX
budgets. The May 12, 2005, and April 28, 2006, CAIR promulgations
provide model rules that States must adopt (with certain limited
changes, if desired) if they want to participate in the EPA-
administered trading programs.
    With two exceptions, only States that choose to meet the
requirements of CAIR through methods that exclusively regulate EGUs are
allowed to participate in the EPA-administered trading programs. One
exception is for States that adopt the opt-in provisions of the model
rules to allow non-EGUs individually to opt into the EPA-administered
trading programs. The other exception is for States that include all
non-EGUs from their NOX SIP Call trading programs in their
CAIR NOX ozone season trading programs.

IV. What Are the Types of CAIR SIP Submittals?

    States have the flexibility to choose the type of control measures
they will use to meet the requirements of CAIR. EPA anticipates that
most States will choose to meet the CAIR requirements by selecting an
option that requires EGUs to participate in the EPA-administered CAIR
cap-and-trade programs. For such States, EPA has provided two
approaches for submitting and obtaining approval for CAIR SIP
revisions. States may submit full SIP revisions that adopt the model
CAIR cap-and-trade rules. If approved, these SIP revisions will fully
replace the CAIR FIPs. Alternatively, States may submit abbreviated SIP
revisions. These SIP revisions will not replace the CAIR FIPs; however,
the CAIR FIPs provide that, when approved, the provisions in these
abbreviated SIP revisions will be used instead of or in conjunction
with, as appropriate, the corresponding provisions of the CAIR FIP
(e.g., the NOX allowance allocation methodology).
    An abbreviated SIP revision may establish certain applicability and
allowance allocation provisions that, as provided by CAIR FIPs, will be
used instead of or in conjunction with the corresponding provisions in
the CAIR FIP rules in that State. Specifically, the abbreviated SIP
revisions may:
    1. Include NOX SIP Call trading sources that are not
EGUs under CAIR in the CAIR FIP NOX ozone season trading
program;
    2. Provide for allocation of NOX annual or ozone season
allowances by the State, rather than the Administrator, and using a
methodology chosen by the State;
    3. Provide for allocation of NOX annual allowances from
the CSP by the State, rather than by the Administrator, and using the
State's choice of allowed, alternative methodologies; and/or
    4. Allow units that are not otherwise CAIR units to opt
individually into the CAIR FIP cap-and-trade programs under the opt-in
provisions in the CAIR FIP rules.
    With approval of an abbreviated SIP revision, the CAIR FIP remains
in place, as tailored to sources in the State by that approved SIP
revision.
    In some situations, EPA determines that a SIP submission does not
fully meet all applicable CAA requirements but that the submission
nonetheless strengthens the implementation plan. In such cases, EPA
uses its ``limited approval'' authority under Sections 110(k)(3) and
301(a) of the Act to adopt regulations that are considered necessary to
further air quality. Abbreviated SIP revisions can be submitted in lieu
of, or as part of, full CAIR SIP revisions. States may want to
designate part of their full SIP as an abbreviated SIP for EPA to act
on first

when the timing of the State's submission might not provide EPA with
sufficient time to approve the full SIP prior to the deadline for
recording NOX allocations. This will help ensure that the
elements of the trading programs where flexibility is allowed are
implemented according to the State's decisions. Submission of an
abbreviated SIP revision does not preclude future submission of a full
CAIR SIP revision. In this case, although the February 28, 2007,
submittal from Indiana was submitted as a full SIP revision, by a
letter dated September 20, 2007, the State requested that certain
portions be approved as an abbreviated SIP revision.

V. Analysis of Indiana's CAIR SIP Submittal

A. State Budgets for Allowance Allocations

    The CAIR NOX annual and ozone season budgets were
developed from historical heat input data for EGUs. Using these data,
EPA calculated annual and ozone season regional heat input values,
which were multiplied by 0.15 lb/mmBtu, for phase 1, and 0.125 lb/
mmBtu, for phase 2, to obtain regional NOX budgets for 2009-
2014 and for 2015 and thereafter, respectively. EPA derived the State
NOX annual and ozone season budgets from the regional
budgets using State heat input data adjusted by fuel factors.
    The CAIR State SO2 budgets were derived by discounting
the tonnage of emissions authorized by annual allowance allocations
under the Acid Rain Program under title IV of the CAA. Under CAIR, each
allowance allocated in the Acid Rain Program for the years in phase 1
of CAIR (2010 through 2014) authorizes 0.50 ton of SO2
emissions in the CAIR trading program, and each Acid Rain Program
allowance allocated for the years in phase 2 of CAIR (2015 and
thereafter) authorizes 0.35 ton of SO2 emissions in the CAIR
trading program.
    The CAIR FIPs established the budgets for Indiana as 108,935 tons
(for 2009-2014) and 90,779 tons (for 2015 and thereafter) for
NOX annual emissions, 55,729 tons (for 2009-2014) and 49,050
tons (for 2015 and thereafter) for NOX ozone season
emissions, and 254,599 tons (for 2009-2014) and 178,219 tons (for 2015
and thereafter) for SO2 emissions. The NOX ozone
season budget properly reflects the inclusion of NOX SIP
Call trading program units that are brought into the CAIR
NOX ozone season trading program, as discussed below.
Indiana's SIP revision, approved in this action, sets these budgets as
the total amounts of allowances available for allocation for each year
under the EPA-administered cap-and-trade programs under the CAIR FIP.

B. CAIR Cap-and-Trade Programs

     CAIR NOX annual and ozone-season FIPs both largely
mirror the structure of the NOX SIP Call model trading rule
in 40 CFR part 96, subparts A through I. While the provisions of the
NOX annual and ozone-season FIPs are similar, there are some
differences. For example, the NOX annual FIP (but not the
NOX ozone season FIP) provides for a CSP, which is discussed
below and under which allowances may be awarded for early reductions of
NOX annual emissions. As a further example, the
NOX ozone season FIP reflects the fact that the CAIR
NOX ozone season trading program replaces the NOX
SIP Call trading program after the 2008 ozone season and is coordinated
with the NOX SIP Call program. The NOX ozone
season FIP provides incentives for early emissions reductions by
allowing banked, pre-2009 NOX SIP Call allowances to be used
for compliance in the CAIR NOX ozone-season trading program.
In addition, States have the option of continuing to meet their
NOX SIP Call requirement by participating in the CAIR
NOX ozone season trading program and including all their
NOX SIP Call trading sources in that program.
    The provisions of the CAIR SO2 FIP are also similar to
the provisions of the NOX annual and ozone season FIPs.
However, the SO2 FIP is coordinated with the ongoing Acid
Rain SO2 cap-and-trade program under CAA title IV. The
SO2 FIP uses the title IV allowances for compliance, with
each allowance allocated for 2010-2014 authorizing only 0.50 ton of
emissions and each allowance allocated for 2015 and thereafter
authorizing only 0.35 ton of emissions. Banked title IV allowances
allocated for years before 2010 can be used at any time in the CAIR
SO2 cap-and-trade program, with each such allowance
authorizing one ton of emissions. Title IV allowances are to be freely
transferable among sources covered by the Acid Rain Program and sources
covered by the CAIR SO2 cap-and-trade program.
    EPA used the CAIR model trading rules as the basis for the trading
programs in the CAIR FIPs. The CAIR FIP trading rules are virtually
identical to the CAIR model trading rules, with changes made to account
for Federal rather than State implementation. The CAIR model
SO2, NOX annual, and NOX ozone season
trading rules and the respective CAIR FIP trading rules are designed to
work together as integrated SO2, NOX annual, and
NOX ozone season trading programs.
    Indiana is subject to the CAIR FIPs for ozone and PM2.5,
and the CAIR FIP trading programs for SO2, NOX
annual, and NOX ozone season apply to sources in Indiana.
Consistent with the flexibility it gives to States, the CAIR FIPs
provide that States may submit abbreviated SIP revisions that will
replace or supplement, as appropriate, certain provisions of the CAIR
FIP trading programs. The February 28, 2007, submission from Indiana is
such an abbreviated SIP revision.

C. Applicability Provisions for Non-EGU NOX SIP Call Sources

    In general, the CAIR FIP trading programs apply to any stationary,
fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion
turbine serving, at any time since the later of November 15, 1990, or
the start-up of the unit's combustion chamber, a generator with
nameplate capacity of more than 25 megawatt electrical (MWe) producing
electricity for sale.
    States have the option of bringing in, for the CAIR NOX
ozone season program only, those units in the State's NOX
SIP Call trading program that are not EGUs as defined under CAIR. EPA
advises States exercising this option to add the applicability
provisions in the State's NOX SIP Call trading rule for non-
EGUs to the applicability provisions in 40 CFR 97.304 in order to
include in the CAIR NOX ozone season trading program all
units required to be in the State's NOX SIP Call trading
program that are not already included under 40 CFR 97.304. Under this
option, the CAIR NOX ozone season program must cover all
large industrial boilers and combustion turbines, as well as any small
EGUs (i.e., units serving a generator with a nameplate capacity of 25
MWe or less) that the State currently requires to be in the
NOX SIP Call trading program.
    Consistent with the flexibility given to States in the CAIR FIP,
Indiana has chosen to expand the applicability provisions of the CAIR
NOX ozone season trading program to include non-EGUs in the
State's NOX SIP Call trading program. However, Indiana's
abbreviated SIP submission fails to cover all such units and to include
certain related definitions. As such, the SIP submission fails to meet
the requirements of 40 CFR 51.123(ee)(1), which requires a State that
chooses this option to expand the applicability provisions in a way
that brings into the CAIR NOX ozone season trading program
all units that are subject to the State's NOX SIP Call
trading program but are not covered by the applicability

provisions of the CAIR NOX ozone season FIP.
    Specifically, 326 IAC 24-3-1(a)(2) of Indiana's CAIR NOX
ozone season rule expands the CAIR applicability provisions to include,
as CAIR NOX ozone season units, NOX SIP Call
units not otherwise subject to the CAIR program that do not generate
electricity for sale (i.e., units defined as ``large affected units''
under 326 IAC 10-4-2(27)) but fails to bring into the CAIR program
NOX SIP Call units not otherwise subject to CAIR that do
generate electricity for sale (i.e., units defined as ``electric
generating units'' under 326 IAC 10-4-2(16)). In addition, 326 IAC 24-
3-1(b) of Indiana's rule applies to these ``large affected units'' the
exemptions established under the CAIR model rule for cogeneration units
and solid waste incineration units even though the State's
NOX SIP Call trading program lacks any such exemptions.
Moreover, Indiana's rule does not include certain definitions that are
necessary to apply the State's NOX SIP Call applicability
provisions and to apply other provisions of the State's rule to
NOX SIP Call units. The terms for which definitions are
missing, or for which different definitions than those currently in
Indiana's rule are needed, include: ``commence commercial operation,''
``electricity for firm sale to the electric grid,'' ``fossil-fuel-
fired,'' and ``unit''.
    In light of these deficiencies, EPA concludes that Indiana's
abbreviated SIP submission does not fully meet the requirements for
such submissions under CAIR. However, EPA finds that, despite these
deficiencies concerning applicability, Indiana's submission strengthens
the implementation plan for Indiana by bringing into the CAIR FIP
trading program units from the NOX SIP Call that would not
otherwise be covered by the requirements of the CAIR FIP and thereby
making progress toward meeting Indiana's obligation under the
NOX SIP Call to make NOX emission reductions.
    Under the NOX SIP Call, Indiana was required to make
certain emissions reductions. Indiana met this requirement by making
``large affected units'' under 326 IAC 10-4-2(27) and ``electric
generating units'' under 326 IAC 10-4-2(16) subject to the
NOX SIP Call trading program. Starting with the 2009 control
period, EPA will no longer administer the NOX SIP Call
trading program (i.e., the NOX Budget Trading Program),
which will therefore cease to exist. See 40 CFR 51.121(r)(1). With
EPA's termination of the NOX SIP Call trading program
starting with the 2009 ozone season, Indiana will need to take further
action to achieve the post-2009 reductions that would otherwise have
been achieved under the NOX SIP Call trading program by
those NOX SIP Call units that are not covered by the CAIR
FIP NOX ozone season rule. See 40 CFR 51.121(r)(2) and
51.123(bb)(1)(i). Consequently, Indiana will need to either bring all
those units into the CAIR NOX ozone season trading program
or adopt other controls that will achieve the necessary post-2009
reductions. Indiana's abbreviated SIP makes progress toward achieving
these needed reductions by bringing most, but not all, of such
NOX SIP Call units into the CAIR FIP NOX ozone
season trading program.
    EPA also notes that, as discussed below, despite having
deficiencies concerning NOX ozone season applicability,
Indiana's submission meets most of the requirements for abbreviated
SIPs. Moreover, while these deficiencies create the potential for
erroneous exclusion from the CAIR program of units that may meet the
NOX SIP Call applicability criteria in the future, EPA is
not aware of any existing NOX SIP Call units that would be
erroneously excluded from the CAIR program at the present time because
of these deficiencies. For these reasons and the additional reasons
discussed below, EPA is proposing a limited approval of Indiana's
abbreviated SIP submission.

D. NOX Allowance Allocations

    Under the NOX allowance allocation methodology in the
CAIR model trading rules and in the CAIR FIP, NOX annual and
ozone season allowances are allocated to units that have operated for
five years, based on heat input data from a three-year period that are
adjusted for fuel type by using fuel factors of 1.0 for coal, 0.6 for
oil, and 0.4 for other fuels. The CAIR model trading rules and the CAIR
FIP also provide a new unit set-aside from which units without five
years of operation are allocated allowances based on the units' prior
year emissions.
    The CAIR FIP provides States the flexibility to establish a
different NOX allowance allocation methodology that will be
used to allocate allowances to sources in the States if certain
requirements are met concerning the timing of submission of units'
allocations to the Administrator for recordation and the total amount
of allowances allocated for each control period. In adopting
alternative NOX allowance allocation methodologies, States
have flexibility with regard to:
    1. The cost to recipients of the allowances, which may be
distributed for free or auctioned;
    2. The frequency of allocations;
    3. The basis for allocating allowances, which may be distributed,
for example, based on historical heat input or electric and thermal
output; and
    4. The use of allowance set-asides and, if used, their size.
    Consistent with the flexibility given to States in the CAIR FIP,
Indiana has chosen to replace the provisions of the CAIR NOX
annual FIP concerning the allocation of NOX annual
allowances with its own methodology. Indiana has chosen to distribute
NOX annual allowances based on the methodology in the CAIR
FIP with some minor modifications. For example, the allocation
methodology in both the CAIR FIP and in Indiana's rule makes a
proportional allocation of allowances to individual EGUs based on
baseline heat input to the boiler or combustion turbine. However,
unlike the CAIR FIP methodology that uses a fixed baseline heat input
value based on five years of data, the Indiana rule updates the
baseline heat input information using the most current eight years of
data every six years. Indiana believes that the longer look back period
for the initial allocation (1998-2005) is more appropriate than the
timeframe in the CAIR FIP because many Indiana sources were installing
equipment to comply with the NOX SIP Call, thus making the
shorter time period in the CAIR FIP non-representative of normal
operations. Further, with the Indiana heat input baseline being updated
over time, retired units, no longer in operation and no longer part of
the State's inventory, would eventually stop receiving allowances.
    The Indiana rule also includes a new unit set-aside for the
NOX annual trading program. The annual trading program in
Indiana includes a new unit set-aside equal to 4.5 percent and 2.5
percent respectively for Phase I and Phase II unlike the CAIR FIP rule,
which provides for a new unit set-aside of 5 percent and three percent
for these periods. The one-half percent difference from the CAIR
NOX annual FIP is used to provide annual NOX
allowances for an energy efficiency and renewable (EE/RE) set-aside
consistent with the NOX SIP Call EE/RE program.
    Indiana's CAIR EE/RE program is intended to provide incentives for
EE/RE projects that reduce NOX emissions starting in 2009.
Applicants apply for allowances in one year, and the actual transfer of
allowances occurs after the year is over, based on the emission
reductions actually achieved. Half of any unallocated allowances for a
year in the set-aside will be allocated to the CAIR units, and the
other half of such

unallocated allowances will be retained by Indiana, and transferred to
the Indiana Office of Energy and Defense Development, to fund a grant
program for smaller scale EE/RE projects.
    Consistent with the flexibility given to States in the CAIR FIPs,
Indiana has chosen to replace the provisions of the CAIR NOX
ozone season FIP concerning allowance allocations with its own
methodology. Indiana will distribute NOX ozone season
allowances based upon the methodology in the CAIR FIP with some
changes. For example, Indiana's rule takes into account the fact that
allowances for the 2009 ozone season trading period have already been
allocated, and recorded by the Administrator, under Indiana's
NOX SIP Call trading program. This is the first year for
which allowances are allocated under the CAIR FIP NOX ozone
season trading rule. The Indiana rule provides that these 2009
NOX SIP Call allowances are the CAIR NOX ozone
season allowances for 2009, and thus no additional allocations for the
2009 ozone season for Indiana sources (except for CAIR NOX
ozone season opt-in units, as discussed below) will be made under the
CAIR NOX ozone season trading program. Consistent with this
provision of Indiana's rule, the Administrator, in operating the CAIR
NOX Ozone Season Tracking System, will treat each 2009
NOX SIP Call allowance issued by Indiana as usable for
compliance with the allowance-holding requirements of the CAIR
NOX Ozone Season Trading Program by any CAIR NOX
ozone season source that holds the allowance in the source's compliance
account as of the allowance transfer deadline, regardless of the State
in which the source is located.
    For control periods after 2009, Indiana's rule provides for the
allocation of new allowances for the CAIR NOX ozone season
program. For units covered by the CAIR NOX ozone season
program under the applicability provisions of the CAIR FIP, Indiana's
rule adopts an allocation methodology similar to that described above
concerning CAIR NOX annual allowance allocations. For
NOX SIP Call units brought into the CAIR trading program,
Indiana's rule adopts a methodology that allocates allowances based on
maximum design heat input as well as on baseline heat input. The
Indiana rule also provides separate new unit set-asides for units
covered by the applicability provisions in the CAIR FIP and for
NOX SIP Call units brought into the CAIR program.
    Further, Indiana included in its NOX ozone season
trading program an EE/RE set-aside program and a hardship set-aside for
NOX SIP Call units brought into the CAIR program. The
NOX ozone season EE/RE set-aside is similar to the
NOX annual EE/RE set-aside except that half of any
unallocated allowances for a year in the set-aside will be returned to
the NOX SIP Call units in the program, and the rest will go
to the grant program.
    EPA's limited approval of Indiana's abbreviated SIP will allow
implementation of the allocation methodologies selected by Indiana and,
in particular, Indiana's methodology to address the allowances already
issued, and recorded by the Administrator, in the NOX SIP
Call trading program for the 2009 ozone season.

E. Allocation of NOX Allowances From Compliance Supplement Pool

    The CAIR establishes a CSP to provide an incentive for early
reductions in NOX annual emissions. The CSP consists of
200,000 CAIR NOX annual allowances of vintage 2009 for the
entire CAIR region, and a State's share of the CSP is based upon the
projected magnitude of the emission reductions required by CAIR in that
State. States may distribute CSP allowances, one allowance for each ton
of early reduction, to sources that make NOX reductions
during 2007 or 2008 beyond what is required by any applicable State or
Federal emission limitation. States also may distribute CSP allowances
based upon a demonstration of need for an extension of the 2009
deadline for implementing emission controls.
    The CAIR annual NOX FIP establishes specific
methodologies for allocations of CSP allowances. States may choose an
allowed, alternative CSP allocation methodology to be used to allocate
CSP allowances to sources in the States.
    Consistent with the flexibility given to States in the CAIR FIP,
Indiana has chosen to modify the provisions of the CAIR NOX
annual FIP concerning the allocation of allowances from the CSP. The
CSP provision of the Indiana rule differs from the one included in the
CAIR NOX annual FIP by providing a mechanism for Indiana to
reserve allowances for all eligible units in advance of allocations to
provide some certainty to sources regarding the minimum amount of
allowances that will be available to them for early reduction credits.
Under Indiana's rule, an eligible unit is one that has or will have
post-combustion control equipment installed before December 31, 2008,
or, for all other units, one that is able to achieve a NOX
emission rate that is at least 10 percent lower than the heat input
weighted average NOX emission rate for 2003 through 2005,
excluding the ozone season of each year. Eligible units must be coal-
fired CAIR NOX units. The amount of reserved allowances
reflects the difference between the eligible unit's non-ozone season
emission rate in 2003-2005 and the unit's non-ozone season emission
rate in 2007 and 2008.
    Indiana also included an incentive for control configurations that
maximize mercury reduction co-benefits within the CSP program. The
intent of this option is to encourage new selective catalytic reduction
(SCR) installation and year-round SCR operation at units that have or
will have electrostatic precipitators (ESP) and flue gas
desulfurization (FGD) in 2007 and 2008. This option is offered to
sources because the above control configuration of SCR, ESP and FGD can
achieve up to 90 percent mercury reduction. The Indiana rule awards a
bonus to units that achieve reductions in excess of their reserved
allowances and, for units with SCR, ESP, and FGD, the bonus is 1.5
times the NOX reductions achieved. However, the State's rule
contains a limitation that precludes any eligible unit from receiving
CSP allowances in excess of the actual NOX reductions
achieved beyond the reserved amount.

F. Individual Opt-In Units

    The opt-in provisions of the CAIR FIP allow certain non-EGUs that
do not meet the applicability criteria for a CAIR trading program to
participate voluntarily in (i.e., opt into) the CAIR trading program. A
non-EGU may opt into one or more of the CAIR trading programs. In order
to qualify to opt into a CAIR trading program, a unit must vent all
emissions through a stack and be able to meet monitoring,
recordkeeping, and recording requirements of 40 CFR part 75. The owners
and operators seeking to make a choice to include a unit in a CAIR
trading program must apply for a CAIR opt-in permit. If the unit is
issued a CAIR opt-in permit, the unit becomes a CAIR unit, is allocated
allowances, and must meet the same allowance-holding and emissions
monitoring and reporting requirements as other units subject to the
CAIR trading program. The opt-in provisions provide methodologies for
allocating allowances for opt-in units, one that applies to opt-in
units in general and a second that allocates allowances only to opt-in
units that the owners and operators intend to re-power before January
1, 2015.
    States have several options concerning the opt-in provisions. The
rules for each of the CAIR FIP trading programs include opt-in
provisions that

are essentially the same as those in the respective CAIR SIP model
rules, except that the CAIR FIP opt-in provisions become effective in a
State only if the State's abbreviated SIP revision adopts opt-in
provisions as provided for in Sec.  51.123(p)(3). The State may adopt
the opt-in provisions entirely, or may adopt them but exclude one of
the allowance allocation methodologies. The State also has the option
of not adopting any opt-in provisions in the abbreviated SIP revision
and thereby providing for the CAIR FIP trading program to be
implemented in the State without the ability for units to opt into the
program.
    Consistent with the flexibility given to States in the FIP, Indiana
has chosen to allow non-EGUs meeting certain requirements to opt into
the CAIR NOX annual trading program, the CAIR NOX
ozone season trading program and the CAIR SO2 trading
program. The State has allowed both opt-in allocation methodologies for
each program as specified in 40 CFR part 97, subparts II, III, and
IIII. EPA notes that Indiana's abbreviated SIP includes opt-in
provisions for the CAIR NOX annual and ozone season and
SO2 programs that are essentially the same as the opt-in
provisions in the model rules for these programs and in the CAIR FIP.
The Indiana opt-in provisions include most, but not all, of the most
recent revisions that EPA made to the model rule and CAIR FIP opt-in
provisions. Indiana has indicated that it intends to submit a revised
full SIP that adopts all of the most recent revisions to the opt-in
provisions. Consequently, EPA considers Indiana's rule to include
provisions that are substantively identical to the opt-in provisions in
part 96 of this chapter. Thus, units in Indiana may opt into the CAIR
trading programs as provided for in subparts II, III, and IIII of the
CAIR FIP.

VI. Final Action

    EPA is approving Indiana's abbreviated CAIR SIP revision submitted
on February 28, 2007, as amended by letter of September 20, 2007.
Indiana is covered by the CAIR FIP, which requires participation in the
EPA-administered CAIR FIP cap-and-trade programs for SO2,
NOX annual, and NOX ozone season emissions. Under
this abbreviated SIP revision, Indiana adopts provisions for allocating
allowances under the CAIR FIP NOX annual and ozone season
trading programs. Indiana also adopts in the abbreviated SIP revision
provisions that establish a methodology for allocating allowances in
the CSP, and expands the applicability provisions for the CAIR FIP
NOX ozone season trading program. Indiana also allows units
to opt-in to the CAIR NOX annual, NOX ozone
season, and SO2 trading programs, and utilizes the two
methodologies set forth in the FIP for allocating allowances to such
units. Therefore, the opt-in provisions provided as an option in the
CAIR FIP trading programs (in parts 40 CFR part 97, subparts II, III
and IIII), will apply to units in Indiana. As provided for in the CAIR
FIPs, these provisions in the abbreviated SIP revision will replace or
supplement the corresponding provisions of the CAIR FIP in Indiana. EPA
is not proposing to make any changes to the CAIR FIP, but is proposing,
to the extent EPA approves Indiana's SIP revision, to amend the
appropriate appendices in the CAIR FIP trading rules simply to note
that approval.
    EPA is making limited approval of Indiana's abbreviated SIP
revision because, despite the deficiencies in the NOX ozone
season applicability provisions and related definitions that result in
the submission not meeting the requirements of CAIR in 40 CFR
51.123(ee)(1), the submission strengthens the implementation plan for
Indiana. (A detailed description of how these deficiencies can be
corrected is set forth in a technical support document that is included
in the docket of this rulemaking.) As discussed above, Indiana's SIP is
strengthened because it makes progress toward meeting Indiana's
emission reduction requirements under the NOX SIP Call. EPA
further believes that the limited approval is appropriate because
incorporation of Indiana's rules into the SIP will allow EPA to
implement the methodology selected by Indiana to address the allowances
for the 2009 ozone season that already have been allocated, and
recorded by the Administrator, under Indiana's NOX SIP Call
trading program.
    This limited approval incorporates the rules in the abbreviated SIP
revision into the SIP, including those provisions identified as
deficient. EPA notes that Indiana has indicated in its September 20,
2007, letter that it intends to submit revised elements of the full SIP
that address the above-described deficiencies related to applicability,
as well as some other issues concerning its current full SIP
submission. EPA intends to propose subsequently a limited disapproval
of the abbreviated SIP unless the deficiencies are corrected.

VII. Statutory and Executive Order Reviews

    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. For this
reason, 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). This action
merely approves State law as making progress toward meeting Federal
requirements and would impose no additional requirements beyond those
imposed by State law. Accordingly, the Administrator certifies that
this rule would 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.). Because this action approves pre-existing requirements
under State law and would 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).
    This rule also does not have tribal implications because it would
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 (65
FR 67249, November 9, 2000). This action also does not have Federalism
implications because it would 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 approves a State rule
making progress toward implementing a Federal standard and to amend the
appropriate appendices in the CAIR FIP trading rules to note that
approval. It does not alter the relationship or the distribution of
power and responsibilities established in the Clean Air Act. 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 would approve a State rule making progress toward
implementing a Federal Standard.
    In reviewing SIP submissions, EPA's role is to approve State
choices, provided that they meet the criteria of the Clean Air Act. 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 SIP submission
for failure to use VCS. It would thus be inconsistent with applicable
law for EPA, when it reviews a SIP submission, to use VCS in place of a
SIP submission that otherwise satisfies the provisions of the Clean Air
Act. 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.
This rule would not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
    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 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 21, 2007. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Electric
utilities, Incorporation by Reference, Intergovernmental relations,
Nitrogen oxides, Ozone, Particulate matter, Reporting and recordkeeping
requirements, Sulfur dioxide.

40 CFR Part 97

    Environmental protection, Air pollution control, Electric
utilities, Intergovernmental relations, Nitrogen oxides, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Sulfur
dioxide.

    Dated: September 27, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.

0
For the reasons set forth in the preamble, parts 52 and 97 of chapter 1
of title 40 of the Code of Federal Regulations are 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 52.770 is amended by adding paragraph (c)(185) to read as
follows:

Sec.  52.770  Identification of plan.

* * * * *
    (c) * * *
    (185) The Indiana Department of Environmental Management submitted
amendments on September 20, 2007 to the State Implementation Plan to
Control Emissions from electric generating units (EGU) and non-EGUs.
Rules affecting these units include: 326 Indiana Administrative Code
(IAC) 24-1-2, 326 IAC 24-1-8, 326 IAC 24-1-12, 326 IAC 24-2-11, 326 IAC
24-3-1, 326 IAC 24-3-2, 326 IAC 24-3-8 and 326 IAC 24-3-12
respectively.
    (i) Incorporation by reference. The following sections of the
Indiana Administrative Code (IAC) are incorporated by reference: 326
IAC 24-1-2(36) ``Control period''; 326 IAC 24-1-2(38) ``Energy
efficiency or renewable energy projects''; 326 IAC 24-1-2(60) ``Rated
energy efficiency''; 326 IAC 24-1-8 ``CAIR NOX allowance
allocations''; 326 IAC 24-1-12 ``CAIR NOX opt-in units'';
326 IAC 24-2-11 ``CAIR SO2 opt-in units''; 326 IAC 24-3-1
``Applicability''; 326 IAC 24-3-2(38) ``Energy efficiency or renewable
energy projects''; 326 IAC 24-3-2(49) ``Large affected unit''; 326 IAC
24-3-2(61) ``Rated energy efficiency''; 326 IAC 24-3-8 ``CAIR
NOX ozone season allowance''; and 326 IAC 24-3-12 ``CAIR
NOX ozone season opt-in units''. Approved by the Attorney
General January 12, 2007. Approved by the Governor January 23, 2007.
Filed with the Publisher January 26, 2007. Published on the Indiana
Register Web site February 28, 2007, Document Identification Number
(DIN): 20070221-IR-326050117FRA. Effective February 25, 2007.
* * * * *

PART 97--[AMENDED]

0
3. The authority citation for part 97 continues to read as follows:

    Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et
seq.

0
4. Appendix A to subpart EE is amended by adding in alphabetical order
the entry ``Indiana'' under paragraph 1. and 2. to read as follows:

Appendix A to Subpart EE of Part 97--States With Approved State
Implementation Plan Revisions Concerning Allocations

    1. * * *

Indiana

    2. * * *

Indiana

* * * * *

0
5. Appendix A to Subpart II of Part 97 is amended by adding in
alphabetical order the entry ``Indiana'' under paragraphs 1. and 2. to
read as follows:

Appendix A to Subpart II of Part 97--States With Approved State
Implementation Plan Revisions Concerning CAIR NOX Opt-In
Units

    1. * * *

Indiana

    2. * * *

Indiana

* * * * *

0
6. Appendix A to Subpart III of Part 97 is amended by adding in
alphabetical order the entry ``Indiana'' under paragraphs 1. and 2. to
read as follows:

Appendix A to Subpart III of Part 97--States With Approved State
Implementation Plan Revisions Concerning CAIR SO2 Opt-In
Units

    1. * * *

Indiana

    2. * * *

Indiana

* * * * *

0
7. Appendix A to Subpart EEEE of Part 97 is amended by adding in
alphabetical order the entry ``Indiana'' to read as follows:

Appendix A to Subpart EEEE of Part 97--States With Approved State
Implementation Plan Revisions Concerning Allocations

* * * * *

Indiana

* * * * *

0
8. Appendix A to Subpart IIII of Part 97 is amended by adding in
alphabetical order the entry ``Indiana'' under paragraphs 1. and 2. to
read as follows:

Appendix A to Subpart IIII of Part 97--States With Approved State
Implementation Plan Revisions Concerning CAIR NOX Ozone
Season Opt-In Units

    1. * * *

Indiana

    2. * * *

Indiana

* * * * *

[FR Doc. E7-20249 Filed 10-19-07; 8:45 am]

BILLING CODE 6560-50-P


[Federal Register Volume 82, Number 24 (Tuesday, February 7, 2017)]
[Notices]
[Pages 9567-9568]
[FR Doc No: 2017-02478]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2013-0677; FRL-9958-08]

Receipt of Information Under the Toxic Substances Control Act

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: EPA is announcing its receipt of information submitted
pursuant to a rule, order, or consent agreement issued under the Toxic
Substances Control Act (TSCA). As required by TSCA, this document
identifies each chemical substance and/or mixture for which information
has been received; the uses or intended uses of such chemical substance
and/or mixture; and describes the nature of the information received.
Each chemical substance and/or mixture related to this announcement is
identified in Unit I. under SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Kathy Calvo, Chemical Control
Division (7405M), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>; email
address<EMAIL_ADDRESS>    For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Chemical Substances and/or Mixtures

    Information received about the following chemical substance(s) and/
or mixture(s) is provided in Unit IV.: Octamethylcyclotetrasiloxane
(D4) (CASRN 556-67-2).

II. Authority

    Section 4(d) of TSCA (15 U.S.C. 2603(d)) requires EPA to publish a
notice in the Federal Register reporting the receipt of information
submitted pursuant to a rule, order, or consent agreement promulgated
under TSCA section 4 (15 U.S.C. 2603).

III. Docket Information

    A docket, identified by the docket identification (ID) number EPA-
HQ-OPPT-2013-0677, has been established for this Federal Register
document, which announces the receipt of the information. Upon EPA's
completion of its quality assurance review, the information received
will be added to the docket identified in Unit IV., which represents
the docket used for the TSCA section 4 rule, order, and/or consent
agreement. In addition, once completed, EPA reviews of the information
received will be added to the same docket. Use the docket ID number
provided in Unit IV. to access the information received and any
available EPA review.
    EPA's dockets are available electronically at http://www.regulations.gov or in person at the Office of Pollution Prevention
and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information
about the docket available at http://www.epa.gov/dockets.

IV. Information Received

    As specified by TSCA section 4(d), this unit identifies the
information received by EPA: Octamethylcyclotetrasiloxane (D4) (CASRN
556-67-2).
    1. Chemical Use(s): D4 is used as an intermediate for silicone
copolymers and other chemicals. D4 is also used in industrial
processing applications as a solvent (which becomes part of a product
formulation or mixture), finishing agent, and an adhesive and sealant
chemical. It is also used for both consumer and commercial purposes in
paints and coatings, and plastic and rubber products and has consumer
uses in polishes, sanitation, soaps, detergents, adhesives, and
sealants.
    2. Applicable Rule, Order, or Consent Agreement: Enforceable
Consent Agreement for Environmental Testing for
Octamethylcyclotetrasiloxane (D4) (CASRN 556-67-2).
    3. Applicable docket ID number: The information received will be
added to docket ID number EPA-HQ-OPPT-2012-0209.
    4. Information Received: EPA received the following information:
Benthic Organism Sampling Summaries in WV, OR, KY, CO, and KS.

    Authority: 15 U.S.C. 2601 et seq.

    Dated: January 10, 2017.
Maria J. Doa,
Director, Chemical Control Division, Office of Pollution Prevention and
Toxics.
[FR Doc. 2017-02478 Filed 2-6-17; 8:45 am]
 BILLING CODE 6560-50-P


June 17, 2011

Dr. Steven Bradbury

Director, Office of Pesticide Programs

Ms. Joan Harrigan-Farrelly

Director, Antimicrobials Division

United States Environmental Protection Agency

Ariel Rios Building

1200 Pennsylvania Avenue, NW

Mail Code: 7501P

Washington, DC  20460

Re:  ACC Biocides Panel/CSPA Follow-Up Regarding Issues with Proposed
158W

Dear Dr. Bradbury and Ms. Harrigan-Farrelly:

I am writing on behalf of the American Chemistry Council Biocides Panel
(ACC or the Panel) and the Consumer Specialty Products Association
(CSPA) (together the associations) to thank you and your OPP colleagues
for meeting with representatives of the two associations on May 17.  We
very much appreciated your taking the time to discuss the regulated
community’s concerns regarding the 158W proposal.

We are writing to follow up on the meeting and provide you with more
complete information on the issues the Panel and CSPA consider most
important.  This letter and its attachments, as well as the items we
presented at the meeting, are premised upon or reference the
associations’ written comments on the Agency’s proposed Part 158W
rule.  Therefore, we request that you include this letter and its
attachments in the docket for this matter (EPA-HQ-OPP-2008-0110).

As explained at the meeting, the Panel and CSPA believe the issues
raised in our comments are so serious that the rule should be
re-proposed after EPA addresses these issues.  The two associations and
their members undertook an unprecedented effort to respond thoughtfully
and responsibly to the 158W proposal.  On April 6, 2009, the Panel
submitted a 66-page principal comment document, plus specific appendices
to address key issues and an economic analysis prepared by an expert
consulting organization NERA.  These comments express the Panel’s
comprehensive views on the issues with the proposal.  On April 6, 2009,
CSPA submitted 20 pages of comments, as well as supporting the Panel’s
comments.  In general, the Comments explain the reasons the 158W
Proposal was not sufficiently mature to progress to a final regulation
following the comment period.  Rather, so many questions and issues
required addressing that the Panel and CSPA concluded the proposal must
be re-issued for comment before being finalized.

The Panel’s concerns with the Proposal were so serious, that we made
multiple efforts to summarize our concerns in writing, explain them to
the Agency in person and offer to work on non-rulemaking projects that
would assist in allowing EPA to eventually issue a workable final
regulation.  Attachment 1 to this letter is a summary of many of the
most critical issues identified and explained in the Panel’s Comments
and during the subsequent meetings with OPP.  The summary contains
references to specific pages in the Comments addressing the issues,
where appropriate.  The Panel and CSPA urge you to carefully review this
summary and, if possible, their complete Comments, and then evaluate how
the issues raised are to be addressed by the Agency.  The associations
remain concerned that a final regulation, which does not make
substantial modifications to the approaches in the Proposal, may well be
unworkable and result in resources being wasted by both EPA and the
regulated community.  Moreover, finalizing such a rule, without
re-proposal, would deprive stakeholders of adequate notice and
opportunity to comment on significant portions of the eventual
regulation.

The associations respectfully submit that re-proposal of the Part 158W
data requirements is especially timely in light of the commands of
President Obama’s Executive Order 13563, “Improving Regulation and
Regulatory Review,” issued on January 18, 2011:

“Our regulatory system must protect public health, welfare, safety,
and our environment while promoting economic growth, innovation,
competitiveness, and job creation.  It must be based on the best
available science.  It must allow for public participation and an open
exchange of ideas.  It must promote predictability and reduce
uncertainty.  It must identify and use the best, most innovative and
least burdensome tools for achieving regulatory ends.  It must take into
account benefits and costs, both quantitative and qualitative.”

For the reasons summarized below, the Agency’s proposed Part 158W rule
will not meet the requirements of Executive Order 13563 – it will not
promote predictability and reduce uncertainty.

A.  Need for Re-proposal to Account for Developments since the Original
Proposal

During the two-and-a-half years since the Proposal was published,
additional information has become available which should be considered
in developing any final regulation.  Two principal examples are
summarized below.

Expansion of the Scope of “Food Contact” Analysis

As the Panel points out in its Comments, the Proposal does not clearly
articulate any standards for determining what uses triggers a food
analysis.  It has become apparent since the Proposal was issued that the
Agency will interpret this regulation to vastly increase the number of
antimicrobials regulated as food use.  This raises issues concerning the
clarity of the Proposal.

Equally important, EPA’s economic analysis does not even attempt to
address the increase in the burden on registrants and applicants that
this expansion of the need for “food contact” approvals will cause.
The burden will fall on a large number of active ingredients, increasing
the costs of registration as much as tenfold, from a “non-food”
package that might cost in the hundreds of thousands of dollars, to a
“food” data package that includes long-term studies and will cost
millions of dollars.

Beyond the burden on active ingredients, EPA must consider the huge
burden this expansion will impose on inert ingredients.  By expanding
the scope of uses requiring “food” review, EPA would effectively be
requiring tolerance petitions for an unknown number of inert ingredients
that would be impacted by a change in classification from non-food to
food use.  Industry sources estimate there are at least 900 fragrance
components that would require tolerances and there are likely many more
inert ingredients with other functions in formulations that also will
require tolerances.   In addition, there would be significant
transaction costs associated with the inevitable reformulation that
would occur as currently registered products are converted to food-use
status.  The Agency has not made any effort to estimate the additional
costs of studies or the reformulation transaction costs, but they would
be significant for both industry and the Agency, and must be addressed.

	Costs of Exposure Monitoring Studies

In the proposed 158W regulation, EPA estimated that a single dermal
exposure monitoring would cost $125,000 and that an inhalation exposure
study would cost $78,000, for a total of $203,000.  However, since the
Proposal, the Panel has now conducted several exposure monitoring
studies that are compliant with EPA’s regulation at 40 CFR Part 26 and
have undergone both internal EPA review and HSRB review.  A combined
dermal and inhalation exposure monitoring study that meets these
requirements averages $1.8 million.  This is well over an order of
magnitude increase in the cost estimate EPA used in its economic
analysis.  In addition, depending on use patterns of a registered or to
be registered pesticide, EPA will be asking registrants to provide
exposure data for one or more of potential 19 exposure scenarios.  The
Panel did not include any cost for these studies in the economic impact
analysis performed by NERA.  The increased costs to comply with human
subjects protection requirements may increase the cost of each
antimicrobial active ingredient registration, whether new or existing,
into the millions of dollars.  This dramatic increase in the burden on
registrants was not considered by EPA, but must be.

Similarly, the Panel cannot estimate the burdens on the Agency
associated with its reviews and interaction with the HSRB.  Nonetheless,
such activities require significant Agency resources.  Clearly, the
figures used in EPA’s analysis do not reflect the burdens that are
associated with the actual costs of conducting exposure monitoring
studies that meet Agency regulations.

B.  Follow-Up on Issues Discussed at the Meeting

During the May 17 meeting, there was significant discussion on the
following three issues raised in the Panel’s comments:

Non-Final and Inapplicable Guidelines

EPA/FDA Jurisdiction

Economic Impact of the Regulation

In addition to the description in the attached summary, the following
provides some additional specific information.

	Non-Final and Inapplicable Guidelines

At the meeting, the Panel and CSPA identified guidelines that are not
final, not available, or inapplicable to antimicrobials.  The Panel and
CSPA remain very concerned about the great number of guidelines that are
referred to in the proposal that are not available in final, usable
form.  We discuss these issues in Panel comments at pages 16-20.  To
ensure OPP has current information, we have prepared updated materials
identifying guidelines that are not available and examples of those that
are inapplicable.  These are included here as Attachment 2 (inapplicable
guidelines) and Attachment 3 (missing guidelines).  For example, the
Panel’s comments point out that there are no product performance
guidelines for textiles, and that the entire 850 series was proposed in
1996 and never finalized.  FIFRA requires EPA to issue test guidelines
and the Agency has adopted a process, including public comment, for
doing so.  The Proposal even stated in four instances that relevant
guidelines will be issued before the 158W rule is finalized.  These
guidelines should all be issued through that process before being
referred to in a regulation.  Similarly, the terrestrial and aquatic
metabolism studies (OPPTS 835.4100 through 835.4400) are based on
guidelines that refer specifically to agricultural uses, referring, for
example, to crop and non-crop areas.  There is inadequate guidance to
apply these to antimicrobials.

EPA/FDA Jurisdiction

As we also mentioned at the meeting, the 158W Proposal does not
acknowledge the statutory division of jurisdiction with FDA over
antimicrobials with food contact uses, leading to duplicative and
potentially inconsistent agency reviews.  See ACC Comments at pp. 31-39.
 EPA does not have the authority under either FIFRA or FFDCA to review
or change the terms of an FDA food additive approval.  However, in the
preamble to the proposed 158W, EPA asserts that it can require
antimicrobial pesticides with only 409 food uses to meet the
requirements of FFDCA 408.  For example, EPA asserts that “additional
studies are needed even for the lower exposures for which FDA
historically would not have required data.”  In effect, EPA is
asserting that the scope of FFDCA 408 includes all antimicrobial
pesticides.  This position is contrary to EPA policies and practices
regarding conventional pesticides and biopesticides, and EPA has failed
to provide any basis for its new position.  See ACC Comments at page 35.

Under this interpretation, EPA will re-review and approve the same
chemicals for the same uses that FDA already has cleared, require
extensive additional data for its reviews, and subject all uses of
pesticides to the FFDCA safety standard regardless of whether any food
uses subject to Section 408 exist.  This creates a host of practical
problems, including waste of government resources, potential for
inconsistent decisions, waste of regulated parties’ resources, and
deterrence of applications for new generation products.  Therefore,
clarification is needed on the regulation of food-use antimicrobial
pesticides before this rule is finalized.

Economic Impact of the Regulation

EPA’s economic impact analysis, which was published with the proposal,
was premised on an incomplete view of the true costs of the regulation.
The Panel submitted an analysis prepared by NERA, which indicates costs
in the approximately $90 million per year range -- far greater than
EPA’s estimates.  See ACC Comments at pp. 53-58 and Appendix J.  In
addition, as described above (see sections Expansion of Scope of “Food
Contact” Analysis and Costs for Exposure Monitoring Studies) and
unknown costs and the risk of applicants and registrants having to
repeat rejected studies because of non-existing guidelines, it has
become clear that additional costs of the regulation will increase the
cost of the rule even beyond the NERA estimates.  Thus, the actual
annual costs of the proposal are likely to exceed the $100 million
threshold for “economically significant” rules under EO 12866.

 * * * *

We hope this information is helpful to you in deciding how to proceed
with respect to the 40 CFR Part 158 Subpart W Proposal.  For the reasons
set forth above, in its Comments and in the attached documents, the
Panel and CSPA urge you to develop a mature and responsive document and
re-propose it for public comment.  The Panel and CSPA also urge OPP to
promptly remedy the shortcomings in the infrastructure necessary to
support any antimicrobials data requirements regulation, including
publishing mammalian and ecological risk assessment guidance, issuing
test guidelines through the process the Agency has established, and
taking a fresh and fair look at the economic impact of the provisions in
any final regulation.  The Panel and CSPA are willing to devote
resources to working with EPA in these areas, in a transparent public
process.

Sincerely,

Hasmukh C. Shah, Ph.D.	Brigid Klein

Manager, Biocides Panel	Vice President and General Counsel

American Chemistry Council	Consumer Specialty Products Association

Attachments

Steven Bradbury, Ph.D. and Joan Harrigan-Farrelly

June 17, 2011

Page   PAGE  5  of   NUMPAGES   5


[Federal Register: May 27, 2009 (Volume 74, Number 100)]
[Rules and Regulations]
[Page 25153-25156]
[DOCID:fr27my09-4]

=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2009-0133; FRL-8909-6]

Approval and Promulgation of Air Quality Implementation Plans;
California; Determination of Attainment of the 1-Hour Ozone Standard
for the Ventura County Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: On April 15, 2009, the California Air Resources Board (CARB)
requested that EPA find that the Ventura County ozone nonattainment
area has attained the revoked 1-hour ozone National Ambient Air Quality
Standard (NAAQS). After a review of this submission and of the relevant
monitoring data, EPA is making such a finding.
    Because the area has attained the 1-hour standard by the applicable
attainment date, the area is not subject to the requirement to
implement contingency measures for failure to attain the standard by
its attainment date. In addition, EPA finds that the area is not
subject to the Clean Air Act penalty fee requirements for severe and
extreme ozone nonattainment areas that have not attained the 1-hour
standard by the applicable attainment date.

DATES: This rule is effective on July 27, 2009 without further notice,
unless EPA receives adverse comments by June 26, 2009. If we receive
such comments, we will publish a timely withdrawal in the Federal
Register to notify the public that this direct final rule does not take
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2009-0133, by one of the following methods:
    1. http://www.regulations.gov. Follow the on-line instructions for
submitting comments.
    2. E-mail<EMAIL_ADDRESS>    3. Fax:<PHONE_NUMBER>.
    4. Mail or Delivery: Greg Nudd (AIR-2), U.S. Environmental
Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA
94105-3901.
    Instructions: Direct your comments to Docket ID No. EPA-R09-OAR-
2009-0133. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless a comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment.

Electronic files should avoid the use of special characters, any form
of encryption, and be free of any defects or viruses.
    Docket: The index to the docket for this action is available
electronically at http://www.regulations.gov and in hard copy at EPA
Region IX, 75 Hawthorne Street, San Francisco, California. While all
documents in the docket are listed in the index, some information may
be publicly available only at the hard copy location (e.g. copyrighted
material), and some may not be publicly available at either location
(e.g. confidential business information). To inspect the hard copy
materials, please schedule an appointment during normal business hours
with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Greg Nudd, Environmental Engineer, EPA
Region IX,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What Is the Background for This Action?
II. How Does the SCAQMD Decision Regarding EPA's 8-Hour Phase 1
Ozone Implementation Rule Affect This Action?
III. Attainment Finding
IV. What Action Is EPA Taking?
V. Statutory and Executive Order Reviews

I. What Is the Background for This Action?

    Under section 107(d)(1)(C) of the Clean Air Act (CAA), the Ventura
County, California area was designated nonattainment for the 1-hour
ozone NAAQS by operation of law upon enactment of the 1990 CAA
Amendments. Under section 181(a) of the CAA, each ozone area designated
nonattainment under section 107(d) was also classified by operation of
law as ``marginal,'' ``moderate,'' ``serious,'' ``severe-15,''
``severe-17,'' or ``extreme,'' depending on the severity of the area's
air quality problem and the number of years to reach attainment from
the time of the CAA Amendments.
    The ozone design value for an area, which characterizes the
severity of the air quality problem, is represented by the highest
ozone design value at any of the individual ozone monitoring sites in
the area. Table 1 in section 181(a) of the CAA provides the design
value ranges for each nonattainment classification. Ozone nonattainment
areas with design values between 0.180 parts per million (ppm) and
0.190 ppm for the three-year period, 1987-1989, were classified as
severe-15. Because the Ventura County, California area's 1988 ozone
design value fell between 0.180 and 0.190 ppm, this area was classified
as severe-15 nonattainment for the 1-hour ozone NAAQS. These
nonattainment designations and classifications were codified in title
40 of the Code of Federal Regulations (CFR) part 81 (see 56 FR 56994,
November 6, 1991).
    Under section 182(c) of the CAA, states containing areas that were
classified as severe-15 nonattainment were required to submit State
Implementation Plans (SIPs) to provide for certain emission controls,
to show progress toward attainment, and to provide for attainment of
the ozone NAAQS as expeditiously as practicable, but no later than
November 15, 2005. The State of California included plans for bringing
Ventura County into attainment with the 1-hour ozone standard in their
1994 State Implementation Plan (SIP) revision that EPA approved on
January 8, 1997 (62 FR 1150). Specifically, EPA approved the Ventura
1994 ozone SIP with respect to the Act's requirements for emission
inventories, control measures, modeling, demonstrations of 15% Rate of
Progress (ROP), post-1996 ROP and attainment of the 1-hour ozone
standard.
    In 1997, EPA adopted a new 8-hour ozone NAAQS. One of the
implementation rules for the standard, referred to as the Phase 1
Implementation Rule, was published on April 30, 2004 (69 FR 23951), and
addressed how requirements that applied in an area for the 1-hour ozone
NAAQS would apply in the transition from the 1-hour standard to the 8-
hour standard. Challenges to this rule were decided in South Coast Air
Quality Management District v. EPA, 472 F.3d 882 (DC Cir. 2006)
(SCAQMD), rehearing denied 489 F.3d 1245, which we considered in this
action.

II. How Does the SCAQMD Decision Regarding EPA's 8-Hour Phase 1 Ozone
Implementation Rule Affect This Action?

    On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. SCAQMD v. EPA, 472 F.3d 882. On June 8, 2007, in
response to several petitions for clarification and rehearing, the DC
Circuit clarified that the Phase 1 Rule was vacated only with regard to
those parts of the rule that had been successfully challenged. 489 F.3d
1245. With respect to the challenges to the anti-backsliding provisions
of the rule, the Court vacated three provisions that would have allowed
States to remove from the SIP or to not adopt three SIP obligations
related to the 1-hour ozone standard once the 1-hour ozone standard was
revoked: (1) Nonattainment area new source review (NSR) requirements
based on an area's 1-hour nonattainment classification; (2) section 185
penalty fees for severe or extreme 1-hour ozone nonattainment areas
that fail to attain the 1-hour ozone standard by the 1-hour ozone
attainment date; and (3) measures to be implemented pursuant to section
172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not
making reasonable further progress (RFP) toward attainment of the 1-
hour NAAQS or for failure to attain that NAAQS. The Court clarified
that 1-hour ozone conformity determinations are not required for anti-
backsliding purposes.
    Thus, the provisions waiving these three requirements, which were
specified in 40 CFR 51.905(e), were vacated by the Court. As a result
of the vacatur, States must continue to meet the obligations for 1-hour
ozone NSR; 1-hour ozone contingency measures; and, for severe and
extreme areas, the obligations related to a section 185 fee program.
EPA has issued a proposed rule that would remove the vacated provisions
of 40 CFR 51.905(e) and that addresses treatment of contingency
measures for failure to attain or make reasonable further progress
toward attainment of the 1-hour standard. See 74 FR 2936, January 16,
2009 (proposed rule); 74 FR 7027, February 12, 2009 (notice of public
hearing and extension of comment period). EPA is developing a proposed
rule to address treatment of 1-hour NSR and section 185 fees for
failure to attain the 1-hour standard.
    We address below how the 1-hour ozone obligations that currently
continue to apply as a result of the Court's vacatur of the waiver
provisions are treated where EPA makes a determination that the area
attained the 1-hour ozone standard by its attainment date.

III. Attainment Finding

    In 1991, the Ventura County, California area was classified as
severe-15 for the 1-hour ozone NAAQS. An area is considered to have
attained the 1-hour ozone NAAQS if there are no violations of the
standard, as determined in accordance with the regulation codified at
40 CFR 50.9 and the related regulatory appendix, 40 CFR Part 50,
Appendix H, based on three consecutive calendar years of complete,
quality-assured monitoring data. A violation occurs when the ozone air
quality monitoring data show greater than one (1.0) average expected

exceedance per year at any site in the area. An exceedance occurs when
the maximum hourly ozone concentration during any day exceeds 0.124
ppm. In accordance with 40 CFR part 58, the data should be collected
and quality-assured and recorded in the Air Quality System so that they
are available to the public for review.
    The finding of attainment for the Ventura County, California area
is based on an analysis of 1-hour ozone air quality data from 2003-
2005. Table 1 summarizes these data.

  Table 1--Average Number of Ozone Expected Exceedance Days per Year by Monitors in Ventura County, California
                                                   (2003-2005)
----------------------------------------------------------------------------------------------------------------
                                                                                Average number
                                                                                of expected
             Monitor                  Site ID          2003            2004            2005         exceedances
                                                                                (2003-2005)
----------------------------------------------------------------------------------------------------------------
Thousand Oaks...................     06-111-0007             0.0             0.0             0.0             0.0
Piru............................     06-111-0009             0.0             0.0             0.0             0.0
Ojai............................     06-111-1004             1.0             0.0             0.0             0.3
Simi Valley.....................     06-111-2002             1.0             0.0             0.0             0.3
Ventura.........................     06-111-2003             0.0             0.0             0.0             0.0
El Rio..........................     06-111-3001             0.0             0.0             0.0             0.0
----------------------------------------------------------------------------------------------------------------

    Based on the monitoring data summarized in Table 1, the EPA finds
that the Ventura County, California area attained the 1-hour ozone
NAAQS by its attainment date of November 15, 2005.

  Table 2--Average Number of Ozone Expected Exceedance Days per Year by Monitors in Ventura County, California
                                                   (2006-2008)
----------------------------------------------------------------------------------------------------------------
                                                                                Average number
                                                                                of expected
             Monitor                  Site ID          2006            2007            2008         exceedances
                                                                                (2003-2005)
----------------------------------------------------------------------------------------------------------------
Thousand Oaks...................     06-111-0007             0.0             0.0             0.0             0.0
Piru............................     06-111-0009             0.0             0.0             0.0             0.0
Ojai............................     06-111-1004             0.0             0.0             0.0             0.0
Simi Valley.....................     06-111-2002             1.0             0.0             0.0             0.3
Ventura.........................     06-111-2003             0.0             0.0             0.0             0.0
El Rio..........................     06-111-3001             0.0             0.0             0.0             0.0
----------------------------------------------------------------------------------------------------------------

    Based on the monitoring summarized in Table 2, the EPA finds that
the Ventura County, California area continues to attain the 1-hour
ozone NAAQS.

IV. What Action Is EPA Taking?

    EPA is determining that the Ventura County, California area
attained the 1-hour ozone standard by its attainment date, November 15,
2005.
    The data summary presented in Table 1 demonstrates that there was
less than one expected exceedance of the 1-hour ozone standard in
Ventura County averaged over the 3 years 2003 to 2005. Because the area
attained the 1-hour standard by the applicable attainment date, the
area is not subject to the requirement to implement contingency
measures for failure to attain the standard by its attainment date. As
such, even if the area subsequently lapses into nonattainment, it would
not be required to implement the contingency measures for failure to
attain the standard by its attainment date.
    Section 185(a) of the CAA states that a severe or extreme ozone
nonattainment area must implement a program to impose fees on certain
stationary sources of air pollution if the area ``has failed to attain
the national primary ambient air quality standard for ozone by the
applicable attainment date.'' Consequently, if such an area has
attained the standard as of its applicable attainment date, even if it
subsequently lapses into nonattainment, the area would not be required
to implement a section 185 fee program. Because EPA is determining that
the Ventura County, California area attained the 1-hour standard by its
applicable attainment date, we conclude that the area is not subject to
the requirements of section 185 for the 1-hour standard. Accordingly,
we also determine that the State is not required to submit a SIP under
Section 182(d)(3) of the CAA to implement a section 185 program for the
1-hour standard in this area.

V. 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. 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 Order
12866 (58 FR 51735, October 4, 1993);
     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, this rule does not have tribal implications as
specified by Executive Order 13175 (59 FR 22951, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
Reference, Intergovernmental relations, Ozone.

    Dated: May 14, 2009.
Jane Diamond,
Acting Regional Administrator, Region IX.

0
Part 52, chapter I, title 40 of the Code of Federal Regulations 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 F--California

0
2. A new Sec.  52.282 is added to read as follows:

Sec.  52.282  Control strategy and regulations: Ozone.

    (a) Attainment determination. EPA has determined that the Ventura
County severe 1-hour ozone nonattainment area attained the 1-hour ozone
NAAQS by the applicable attainment date of November 15, 2005. EPA also
has determined that the Ventura County severe 1-hour ozone
nonattainment area is not subject to the requirements of section 185 of
the Clean Air Act (CAA) for the 1-hour standard and that the State is
not required to submit a SIP under Section 182(d)(3) of the CAA to
implement a section 185 program for the 1-hour standard in this area.
In addition, the requirements of section 172(c)(9) (contingency
measures) for the 1-hour standard do not apply to the area.
    (b) [Reserved]

 [FR Doc. E9-12135 Filed 5-26-09; 8:45 am]

BILLING CODE 6560-50-P