[Federal Register Volume 65, Number 91 (Wednesday, May 10, 2000)]
[Rules and Regulations]
[Pages 29959-29963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11423]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[IN 119-1a; FRL-6601-5]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; Indiana
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is approving a redesignation request submitted by the
State of Indiana. This action, which Indiana requested on March 2,
2000, redesignates Marion County (Indianapolis) to attainment of the
National Ambient Air Quality Standards (NAAQS) for lead. In addition,
EPA is also approving a maintenance plan for Marion County. The plan is
designed to ensure maintenance of the lead NAAQS for at least 10 years.
Indiana submitted the maintenance plan with the redesignation request.
DATES: This ``direct final'' rule is effective on July 10, 2000, unless
EPA receives adverse written comments by June 9, 2000. If EPA receives
an adverse written comment, EPA will publish a timely withdrawal of the
rule in the Federal Register and will inform the public that the rule
will not take effect.
ADDRESSES: You may send written comments to: J. Elmer Bortzer, Chief,
Regulation Development Section, Air Programs Branch (AR-18J),
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago,
Illinois 60604.
Copies of the revision request are available for inspection at the
following address: Environmental Protection Agency, Region 5, Air and
Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604.
(We recommend that you telephone Phuong Nguyen, Environmental
Scientist, at (312) 886-6701 before visiting the Region 5 office.)
FOR FURTHER INFORMATION CONTACT: Phuong Nguyen at (312) 886-6701.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we'',
``us'' or ``our'' are used we mean EPA. This supplemental information
section is organized as follows:
I. General Information
1. What action is EPA taking today?
2. Why is EPA taking this action?
3. What is the background of this action?
II. Evaluation of the Redesignation Request
1. What criteria did EPA use to review the redesignation
request?
2. Did Indiana satisfy these criteria for Marion County?
III. Maintenance Plan
What are the maintenance plan requirements and how does the
submission meet maintenance plan requirements?
IV. Final Rulemaking Action
What action is EPA taking?
V. Administrative Requirements
A. Executive Order 12866
B. Executive Order 13045
C. Executive Order 13084
D. Executive Order 13132
E. Regulatory Flexibility
F. Unfunded Mandates
G. Submission to Congress and the Comptroller General
H. National Technology Transfer and Advancement Act
I. Petitions For Judicial Review
I. General Information
1. What Action Is EPA Taking Today?
In this action, EPA is approving the lead redesignation request
submitted by the State of Indiana for Marion County. In addition, EPA
is also approving the lead maintenance plan for this County.
2. Why IS EPA Taking This Action?
EPA is taking this action because the redesignation request meets
the five applicable Clean Air Act (Act) criteria. EPA designated Marion
County as a nonattainment area for lead on November 6, 1991 (56 FR
56694). Marion County now, however, meets the lead NAAQS. Indiana
reported that there have been no exceedances documented in Marion
County at any monitoring site since the second quarter of 1994.
Therefore, the monitoring data show that the NAAQS for lead has been
attained in all portions of Marion County. The State has developed a
maintenance plan for keeping lead levels within the health-based air
quality standard for the next 10 years and beyond. This maintenance
plan requires the County to consider impacts of future activities on
air quality and to manage those activities.
3. What Is the Background for This Action?
On November 6, 1991, EPA designated a small portion of Franklin
Township, Marion County, Indiana as a primary nonattainment area for
the lead NAAQS (56 FR 56694). On the same date, EPA designated another
small portion of Wayne Township, in Marion County, Indiana as an
unclassifiable area for lead.
Section 191(a) of the Act requires that States containing areas
designated nonattainment for certain pollutants, including lead, submit
a revision to their State Implementation Plan (SIP) meeting the
requirements of part D, Title I of the Act, within 18 months of the
nonattainment designation.
Section 192(a) of the Act further provides that SIPs must provide
for attainment of the applicable NAAQS as expeditiously as practicable,
but no later than 5 years from the date of the nonattainment
designation.
On March 23, 1994, the State submitted a revised rule (326 IAC 15)
and supplemented the submittal on September 21, 1994. EPA deemed the
submittal complete in a September 23, 1994 letter, and approved the
rule as part of the SIP on May 3, 1995 (60 FR 21717), fulfilling the
requirement of section 192(a).
On February 25, 1997, Refined Metals Corporation sent a letter to
the Indianapolis Environmental Resources Management Division (ERMD)
stating that all operations at its facility would cease on February 28,
1997. On March 13, 1997, the Indianapolis ERMD received a second letter
from the company requesting termination of its current operating
permit. The company also withdrew its title V permit application. The
Refined Metals facility was the only major lead source in the current
nonattainment portion of Marion County.
II. Evaluation of the Redesignation Request
1. What Criteria Did EPA Use to Review the Redesignation Request?
Section 107(d)(3)(E) of the Act, as amended in 1990, establishes
five requirements to be met before EPA may designate an area from
nonattainment to attainment. These are:
(A) The area has attained the applicable NAAQS.
(B) The area has a fully-approved SIP under section 110(k) of the
Act.
(C) The EPA has determined that the improvement in air quality in
the area is due to permanent and enforceable emission reductions.
(D) The EPA has determined that the maintenance plan for the area
has met all of the requirements of section 175A of the Act.
(E) The State has met all requirements applicable to the area under
section 110 and part D of the Act.
[[Page 29960]]
2. Did Indiana Satisfy These Criteria for Marion County?
A. Demonstrated Attainment of the NAAQS
Relevant agency guidance is provided in both an April 21, 1983,
document on ``Section 107 Designation Policy Summary,'' and a September
4, 1992, document on ``Procedures for processing requests to
redesignate areas to attainment.'' The April 21, 1983, memorandum
states that eight consecutive quarters of data showing lead NAAQS
attainment are required for redesignation. The September 4, 1992,
memorandum states that additional dispersion modeling is not required
in support of a lead redesignation request if there is an adequate
modeled attainment demonstration submitted and approved as part of the
implemented SIP, and there is no indication of an existing air quality
violation.
Indiana's March 2, 2000, submittal provided ambient monitoring data
showing that Marion County has met the lead NAAQS for the period 1995
to 1998. The most recent air quality data shows there has been no
exceedance reported in Marion County for the last 5 years (1995-1999).
Dispersion modeling is commonly used to demonstrate attainment of
the lead NAAQS. Indiana used the ISCLT2 model to predict lead
concentrations, as discussed in the May 3, 1995, Federal Register (60
FR 21717). Use of this analysis, in conjunction with information about
current emission levels, also indicates that the NAAQS has been
attained. No further dispersion modeling is needed for the County
redesignation. Indiana has also provided evidence that sources in this
County are complying with the specific limits in the SIP, 326 IAC 15-1-
2. The Indiana lead SIP rule applies to all significant stationary
sources of lead in the County. Based on this evidence, EPA concludes
that emissions are sufficiently low to assure attainment throughout the
area currently designated nonattainment.
B. Fully Approved SIP
The SIP for the area at issue must be fully approved under section
110(k) of the Act and must satisfy all requirements that apply under
that section.
EPA's guidance for implementing section 110 of the Act is contained
in the general preamble to title I (44 FR 20372, April 14, 1979; and 57
FR 13498, April 16, 1992). EPA has previously determined that the lead
SIP for Marion County, with limits in 326 IAC 15-1-2, meets the
requirements of section 110(a)(2)(D) and sections 191(a) and 192(a) of
the Act. Specifically, EPA approved the lead SIP for Marion County (in
326 IAC 15-1-2) on May 3, 1995 (60 FR 21717).
The current submittal provides for the control of both stack and
fugitive emissions by requiring revised emission limitations, improved
monitoring, building enclosures, an amended fugitive lead dust plan,
and contingency measures in the event that subsequent violations of the
lead NAAQS occur. The previous modeling showed that ambient air quality
in the vicinity of Refined Metals met the NAAQS, which is consistent
with the monitored lead concentration for this action. Given that the
major source in the area has shut down, emission levels are now well
below the levels shown in 1995 modeling to be sufficient to achieve the
NAAQS.
C. Permanent and Enforceable Reductions in Emissions
Indiana, in its submission, cites four factors which it believes
helped the area attain the lead NAAQS. These are:
1. The permanent shutdown of the Refined Metals facility in the
nonattainment portion of the County;
2. Implementation of the federal initiative requiring the
elimination of lead in gasoline used by on-road mobile sources;
3. Compliance by Quemetco, Inc., with the lead SIP and the National
Emission Standards for Hazardous Air Pollutants (NESHAP) for secondary
lead smelters (40 CFR part 63, subpart X); and,
4. The permanent shutdown of four other facilities, which provided
a small additional decrease of lead emissions in this area.
D. Fully Approved Maintenance Plan
Section 175(A) of the Act requires states that submit a
redesignation request to include a maintenance plan to ensure that the
attainment of the NAAQS for any pollutant is maintained. The
maintenance plan is a SIP revision which provides for maintenance of
relevant NAAQS in the area for at least ten years after the approval of
a redesignation to attainment. Eight years after the redesignation,
States must submit a revised maintenance plan demonstrating attainment
for ten years following the initial ten-year period. To provide for the
possibility of future NAAQS violations, the maintenance plan must
contain contingency measures to assure that a state will promptly
correct any violation of the standard that occurs after redesignation.
The contingency provisions are to include a requirement that a state
will implement all measures for controlling the air pollutant of
concern that were contained in the SIP prior to redesignation.
The reductions discussed in section C above are permanent, and no
significant increases in lead emission are expected. Therefore, we
expect the area to remain in attainment. Additional discussion of the
maintenance plan is provided below.
E. Part D and Section 110
To be redesignated to attainment, section 107(d)(3)(E) requires
that an area must have met all applicable requirements of section
110(a)(2) and Part D of the Act. The EPA approved Indiana's previous
SIP submittal because it satisfied all of the applicable Federal
requirements (60 FR 21717). The submittal for Marion County also
satisfies the requirements of sections 191(a) and 192(a) of the Act by
providing the necessary elements to reach attainment of the lead NAAQS
no later than 5 years from the January 6, 1992, nonattainment
designation.
During 1994, an ambient monitor near the Refined Metals facility
recorded some lead standard violations, apparently due to the company's
failure to: keep the materials storage building under negative
pressure; operate its continuous opacity monitor and to provide valid
data for the M-1 baghouse; comply with the facility's lead dust control
program; and maintain sweeper operating records. The complete shutdown
of the Refined Metals facility on February 25, 1997, has eliminated
most of the area's lead emissions.
III. Maintenance Plan
What Are the Maintenance Plan Requirements and How Does the Submission
Meet Maintenance Plan Requirements?
Guidance on redesignations issued September 4, 1992 identified five
topics for maintenance plans to address:
A. The Attainment Inventory
The State needs to identify the sources of emissions in the area as
well as the emissions level sufficient to attain the lead NAAQS, and
include emissions during the period when the area attained the NAAQS.
The March 2, 2000, submittal identified the lead emissions from
major and minor permitted sources located in Marion County between
1985-1998. Indiana chose 1996 as the base year for the attainment
emission inventory because that year has extensive lead emission data
available.
[[Page 29961]]
B. Maintenance Demonstration
The State needs to demonstrate that future emissions will not
exceed the level established by the attainment inventory.
On December 6, 1994, the Indiana Department of Environmental
Management (IDEM) issued Refined Metals a notice of violation (Cause
Number A-2521). On January 10, 1995, the IDEM and Refined Metals signed
an agreed Order to Settle Cause Number A-2521. This agreement helped to
decrease lead emissions from 2 tons per year in 1985 to 0.0179100 tons
per year in 1996, and to eliminate all lead emissions entirely in 1997,
due to the permanent shutdown of the Refined Metals facility.
Indiana projected the annual lead emissions increase from 1996 to
2010 to account for the increase in production at remaining sources in
Marion County. The growth factors, which are contained in Enclosure C
to the March 2, 2000, submittal, were used to calculate the projected
growth in emissions from 1996 to 2010. Base on these factors, the
annual lead emissions are expected to increase by 8.56% by the year
2010, from 2.897 tons per year in 1996 to 3.145 tons per year in 2010.
The projected levels for the year 2010 will be considerably lower than
the actual 1990 total Marion County lead emissions (9.331 tons per
year). Therefore, even though other sources in the County are projected
to have a slight emission increase by 2010, the projected emission
levels are well below the levels needed to maintain the NAAQS.
C. Monitoring Network
The State must include provisions for continued operation of an
appropriate air quality monitoring network.
The Indianapolis ERMD commits to continue monitoring for lead in
Marion County at AIRS I.D. 18-097-0063 monitoring site and AIRS I.D.
18-097-0076 monitoring site located in the unclassifiable portion of
the County, which is adjacent to the Quemetco, Inc. facility.
D. Verification of Continued Attainment
The State must show how it will track and verify the progress of
the maintenance plan.
To verify future maintenance during the initial ten-year
maintenance period, the IDEM will re-evaluate the emissions inventory
once every three years. IDEM will re-evaluate the inventory based in
part on the annual NET update. Indiana will prepare a new inventory if
there is any new lead source growth or other changes from the initial
attainment inventory.
E. Contingency Plan
The maintenance plan must include contingency measures which ensure
prompt correction of any violation of the lead standards.
Future contingency measures for this area will include requiring
any proposed stationary sources of lead emissions to comply with all
applicable New Source Review provisions. The IDEM and the Indianapolis
ERMD will also closely monitor existing stationary sources of lead
emissions. These Agencies will use the two methods identified below to
develop the additional controls to assure future attainment of the
National Ambient Air Quality Standard for lead, if there is an
exceedance of the lead standard:
1. During routine inspections of permitted stationary sources, the
Indianapolis ERMD will evaluate any potential increases in lead
emissions at these facilities, and,
2. The IDEM and the Indianapolis ERMD will examine the annual point
source inventory for sources with increases in emissions and for any
new sources. Emissions reporting is required by the annual ``emission
statement'' reporting requirements found in 326 IAC 2-6.
EPA finds that these elements of Indiana's submittal satisfy
applicable maintenance plan requirements.
IV. Final Rulemaking Action
What Action Is EPA Taking?
EPA is approving Indiana's lead redesignation request, which was
submitted on March 2, 2000. In addition, EPA is also approving the
maintenance plan for Marion County, which was submitted with the
redesignation request, as adequately ensuring that the lead NAAQS will
be maintained.
The EPA is publishing this action without prior proposal because
EPA views this as a noncontroversial revision and anticipates no
adverse comments. However, in a separate document in this Federal
Register publication, the EPA is proposing to approve the SIP revision
should adverse written comments be filed. This action will be effective
without further notice unless EPA receives relevant adverse written
comment by June 9, 2000. Should the Agency receive such comments, it
will publish a final rule informing the public that this action will
not take effect. Any parties interested in commenting on this action
should do so at this time. If no such comments are received, the public
is advised that this action will be effective on July 10, 2000.
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget (OMB) has exempted this
regulatory action from Executive Order 12866, entitled ``Regulatory
Planning and Review.''
B. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it does
not involve decisions intended to mitigate environmental health or
safety risks.
C. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments, or EPA consults
with those governments. If EPA complies by consulting, Executive Order
13084 requires EPA to provide to the Office of Management and Budget,
in a separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's proposed rule does not significantly or uniquely affect the
communities of Indian tribal
[[Page 29962]]
governments. This action does not involve or impose any requirements
that affect Indian Tribes. Accordingly, the requirements of section
3(b) of Executive Order 13084 do not apply to this rule.
D. Executive Order 13132
Federalism (64 FR 43255, August 10, 1999) revokes and replaces
Executive Orders 12612 (Federalism) and 12875 (Enhancing the
Intergovernmental Partnership). Executive Order 13132 requires EPA to
develop an accountable process to ensure ``meaningful and timely input
by State and local officials in the development of regulatory policies
that have federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This rule will 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, because it
merely approves a state rule implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule.
E. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
This rule will not have a significant impact on a substantial
number of small entities because SIP approvals under section 110 and
subchapter I, part D of the Clean Air Act do not create any new
requirements but simply approve requirements that the State is already
imposing. Therefore, because the Federal SIP approval does not create
any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under
the Clean Air Act, preparation of flexibility analysis would constitute
Federal inquiry into the economic reasonableness of state action. The
Clean Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co., versus U.S. EPA, 427 U.S. 246, 255-66
(1976); 42 U.S.C. 7410(a)(2).
F. Unfunded Mandates
Under sections 202 of the Unfunded Mandates Reform Act of 1995
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA
must prepare a budgetary impact statement to accompany any proposed or
final rule that includes a Federal mandate that may result in estimated
costs to State, local, or tribal governments in the aggregate; or to
the private sector, of $100 million or more. Under section 205, EPA
must select the most cost-effective and least burdensome alternative
that achieves the objectives of the rule and is consistent with
statutory requirements. Section 203 requires EPA to establish a plan
for informing and advising any small governments that may be
significantly or uniquely impacted by the rule.
EPA has determined that the approval action proposed does not
include a Federal mandate that may result in estimated costs of $100
million or more to either State, local, or tribal governments in the
aggregate, or to the private sector. This Federal action proposes to
approve pre-existing requirements under State or local law, and imposes
no new requirements. Accordingly, no additional costs to State, local,
or tribal governments, or to the private sector, result from this
action.
G. Submission to Congress and the Comptroller General
The Congressional Review Act, 5 U.S.C. section 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.
section 804(2). This rule will be effective July 10, 2000 unless EPA
receives adverse written comments by June 9, 2000.
H. National Technology Transfer and Advancement Act
Section 12 of the National Technology Transfer and Advancement Act
(NTTAA) of 1995 requires Federal agencies to evaluate existing
technical standards when developing a new regulation. To comply with
NTTAA, EPA must consider and use ``voluntary consensus standards''
(VCS) if available and applicable when developing programs and policies
unless doing so would be inconsistent with applicable law or otherwise
impractical.
The EPA believes that VCS are inapplicable to this action. Today's
action does not require the public to perform activities conducive to
the use of VCS.
I. Petitions for Judicial Review
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 July 10, 2000. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)
[[Page 29963]]
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Lead, Reporting and recordkeeping requirements.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: April 20, 2000.
Francis X. Lyons,
Regional Administrator, Region 5.
For the reasons stated in the preamble, title 40, Chapter I of the
Code of Federal Regulation are 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 52.797 is amended by removing the introductory text and
adding paragraph (d) to read as follows:
Sec. 52.797 Control strategy: Lead.
* * * * *
(d) On March 2, 2000, Indiana submitted a maintenance plan for
Marion County as part of its request to redesignate the County to
attainment of the lead standard.
* * * * *
PART 81--[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart C--Section 107 Attainment Status Designations
2. The table in Sec. 81.315 entitled ``Indiana Lead'' is amended to
read as follows:
Sec. 81.315 Indiana.
* * * * *
Indiana--Lead
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Designation Classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date Type Date Type
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Marion County (Part)--Part of Franklin July 10, Attainment...............................
Township: Thompson Road on the south; 2000
Emerson Avenue on the west; Five Points
Road on the East; and Troy Avenue on
the north.
Marion County (Part)--Part of Wayne July 10, Attainment...............................
Township: Rockville Road on the north; 2000
Girls School Road on the east;
Washington Street on the south; and
Bridgeport Road on the west.
Rest of State Not Designated............
* * * * * * *
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* * * * *
[FR Doc. 00-11423 Filed 5-9-00; 8:45 am]
BILLING CODE 6560-50-P