![[logo] US EPA](https://webarchive.library.unt.edu/eot2008/20090510214135im_/http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}
Determination of Attainment, Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Indiana; Redesignation of the South Bend-Elkhart 8-Hour Ozone Nonattainment Area to Attainment
[Federal Register: July 19, 2007 (Volume 72, Number 138)] [Rules and Regulations] [Page 39577-39579] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr19jy07-10] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R05-OAR-2006-0305; FRL-8440-3] Determination of Attainment, Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Indiana; Redesignation of the South Bend-Elkhart 8-Hour Ozone Nonattainment Area to Attainment AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: On May 30, 2006, the Indiana Department of Environmental Management (IDEM) submitted a request to EPA for approval of the redesignation of St. Joseph and Elkhart Counties to attainment of the 8-hour ozone National Ambient Air Quality Standard (NAAQS) and of an ozone maintenance plan for St. Joseph and Elkhart Counties as revisions to the Indiana State Implementation Plan (SIP). On April 18, 2007, EPA proposed to approve this submission. Today, EPA is approving Indiana's request and corresponding SIP revision. In so doing, EPA is making a determination that St. Joseph and Elkhart Counties have attained the 8- hour ozone NAAQS. This determination is based on three years of complete, quality-assured ambient air quality monitoring data for the 2003-2005 ozone seasons that demonstrate that the 8-hour ozone NAAQS has been attained in the area. In addition, quality-assured monitoring data for 2006 show that the area continues to attain the standard. Finally, EPA is approving, for purposes of transportation conformity, the motor vehicle emission budgets (MVEBs) for the year 2020 that are contained in the 14-year 8-hour ozone maintenance plan for St. Joseph and Elkhart Counties. DATES: This final rule is effective on July 19, 2007. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2006-0305. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through 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 Federal holidays. We recommend that you telephone Steven Rosenthal, Environmental Engineer, at (312) 886-6052 before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6052, rosenthal.steven@epa.gov. SUPPLEMENTARY INFORMATION: In the following, whenever ``we,'' ``us,'' or ``our'' are used, we mean the United States Environmental Protection Agency. Table of Contents I. What Is the Background for This Rule? II. What Comments Did We Receive on the Proposed Action? III. What Are Our Final Actions? IV. Statutory and Executive Order Review I. What Is the Background for This Rule? The background for today's action is discussed in detail in EPA's April 18, 2007 proposal (72 FR 19413). In that rulemaking, we noted that, under EPA regulations at 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth- highest daily maximum 8-hour average ozone concentrations is less than or equal to 0.08 ppm. (See 69 FR 23857 (April 30, 2004) for further information). The data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90%, and no single year has less than 75% data completeness, as determined in accordance with Appendix I of Part 50. Under the Clean Air Act (CAA), EPA may redesignate nonattainment areas to attainment if sufficient complete, quality-assured data are available to determine that the area has attained the standard and that it meets the other CAA redesignation requirements in section 107(d)(3)(E). On May 30, 2006, Indiana submitted a request for the redesignation of St. Joseph and Elkhart Counties to attainment for the 8-hour ozone standard. The request included three years of complete, quality-assured data for the period of 2003 through 2005, indicating the 8-hour NAAQS for ozone had been achieved. The data satisfy the applicable CAA requirements discussed above. The April 18, 2007, proposed rule provides a detailed discussion of how Indiana met these requirements. 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. (69 FR 23951, April 30, 2004). South Coast Air Quality Management Dist. v. EPA, 472 F.3d 882 (D.C.Cir. 2006). On June 8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No. 04-1201, in response to several petitions for rehearing, the D.C. Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the Act as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1- hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006, decision that EPA had improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) Section 185 penalty fees for 1-hour severe or extreme nonattainment areas; (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 toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; and, (4) certain transportation conformity requirements for certain types of Federal actions. The June 8 decision clarified that the Court's reference to conformity requirements was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations. For the reasons set forth in the proposal, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and does [[Page 39578]] not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006, and June 8, 2007, decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests. With respect to the requirement for transportation conformity under the 1-hour standard, the Court in its June 8 decision clarified that for those areas with 1-hour motor vehicle emissions budgets in their maintenance plans, anti-backsliding requires only that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93. II. What Comments Did We Receive on the Proposed Action? EPA provided a 30-day review and comment period. The only comment that we received was from a resident of Elkhart, Indiana, who stated that the redesignation recognized the region's efforts to improve air quality. III. What Are Our Final Actions? EPA is taking several related actions. First, EPA is making a determination that St. Joseph and Elkhart Counties have attained the 8- hour ozone standard. EPA is also approving the State's request to change the legal designation of St. Joseph and Elkhart Counties from nonattainment to attainment of the 8-hour ozone NAAQS. Further, EPA is approving Indiana's maintenance plan SIP revision for St. Joseph and Elkhart Counties (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep St. Joseph and Elkhart Counties in attainment for ozone through 2020. Finally, as supported by and consistent with the ozone maintenance plan, EPA is approving the 2020 volatile organic content and oxides of nitrogen MVEBs for St. Joseph and Elkhart Counties for transportation conformity purposes. In accordance with 5 U.S.C. 553(d), EPA finds that there is good cause for these actions to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule ``grants or recognizes an exemption or relieves a restriction,'' and section 553(d)(3) which allows an effective date less than 30 days after publication ``as otherwise provided by the agency for good cause found and published with the rule.'' The purpose of the 30-day waiting period prescribed in 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the State of planning requirements for these 8-hour ozone nonattainment areas. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these actions to become effective on the date of publication of these actions. IV. Statutory and Executive Order Review Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a ``significant regulatory action'' and, therefore, is not subject to review by the Office of Management and Budget. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use Because it is not a ``significant regulatory action'' under Executive Order 12866 or a ``significant energy action,'' this action is also not subject to Executive Order 13211, ``Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). Regulatory Flexibility Act This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(E) of the CAA does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Unfunded Mandates Reform Act Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000). Executive Order 13132: Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Redesignation is an action that merely affects the status of a geographical area, and does not impose any new requirements on sources, or allows a state to avoid adopting or implementing additional requirements, and does not alter the relationship or distribution of power and responsibilities established in the Clean Air Act. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This rule also is not subject to Executive Order 13045 ``Protection of Children from Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), because it is not economically significant. National Technology Transfer Advancement Act 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 [[Page 39579]] 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. Redesignation is an action that affects the status of a geographical area but does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. Paperwork Reduction Act This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Congressional Review Act The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). Under Section 307(b)(1) of the 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 September 17, 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 force its requirements. (See Section 307(b)(2).) List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Volatile organic compounds. 40 CFR Part 81 Air pollution control, Environmental protection, National parks, Wilderness areas. Dated: July 5, 2007. Bharat Mathur, Acting Regional Administrator, Region 5. • Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows: PART 52--[AMENDED] • 1. The authority citation for part 52 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart P--Indiana • 2. Section 52.777 is amended by adding paragraph (hh) to read as follows: Sec. 52.777 Control strategy: photochemical oxidants (hydrocarbons). * * * * * (hh) Approval--On May 30, 2006, Indiana submitted a request to redesignate St. Joseph and Elkhart Counties to attainment of the 8-hour ozone National Ambient Air Quality Standard. As part of the redesignation request, the State submitted a maintenance plan as required by section 175A of the Clean Air Act. Elements of the section 175 maintenance plan include a contingency plan and an obligation to submit a subsequent maintenance plan revision in eight years as required by the Clean Air Act. Also included were motor vehicle emission budgets to determine transportation conformity in St. Joseph and Elkhart Counties. The 2020 motor vehicle emission budgets are 6.64 tons per day for volatile organic compounds and 7.73 tons per day for oxides of nitrogen. PART 81--[AMENDED] • 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. • 2. Section 81.315 is amended by revising the entry for South Bend- Elkhart, IN: Elkhart and St. Joseph Counties in the table entitled ``Indiana Ozone (8-Hour Standard)'' to read as follows: Sec. 81.315 Indiana. * * * * * Indiana Ozone [8-hour standard] -------------------------------------------------------------------------------------------------------------------------------------------------------- Designation \a\ Classification Designated area --------------------------------------------------------------------------------------------------------------- Date \1\ Type Date\1\ Type -------------------------------------------------------------------------------------------------------------------------------------------------------- * * * * * * * South Bend-Elkhart, IN: 7/19/07 Attainment............................... Elkhart County..................... St. Joseph County.................. * * * * * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- \a\ Includes Indian Country located in each county or area, except as otherwise specified. \1\ This date is June 15, 2004, unless otherwise noted. [FR Doc. E7-13797 Filed 7-18-07; 8:45 am] BILLING CODE 6560-50-P