[Federal Register Volume 72, Number 74 (Wednesday, April 18, 2007)]
[Proposed Rules]
[Pages 19413-19424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7347]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2006-0305; FRL-8301-8]
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
Nonattainment Area to Attainment for Ozone
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: On May 30, 2006, the Indiana Department of Environmental
Management (IDEM) submitted a request for EPA approval of a
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 a
revision to the Indiana State Implementation Plan (SIP). Today, EPA is
proposing to approve Indiana's request and corresponding SIP revision.
EPA is also proposing to approve the Volatile Organic Compounds (VOC)
and Nitrogen Oxides (NOX) Motor Vehicle Emission Budgets
(MVEBs) for these Counties, as supported by the ozone maintenance plan
for this area, for purposes of transportation conformity
determinations.
DATES: Comments must be received on or before May 18, 2007.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2006-0305, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Fax: (312) 886-5824.
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.
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. Such deliveries
are only accepted during the Regional Office's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information. The Regional Office's official hours of operation
are Monday through Friday, 8:30 AM to 4:30 PM, excluding Federal
holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2006-0305. 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 information that you
consider to be CBI, or otherwise protected, through www.regulations.gov
or e-mail. The 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
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.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hardcopy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hardcopy 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.
It is recommended 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-18),
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-6052, [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean the EPA. This supplementary
information section is arranged as follows:
I. What Action Is EPA Proposing to Take?
II. What Is the Background for This Action?
III. What Are the Criteria for Redesignation to Attainment?
IV. What Are EPA's Analyses of the State's Requests and What Are the
Bases for EPA's Proposed Action?
V. Has Indiana Adopted Acceptable Motor Vehicle Emissions Budgets
for the End of the 14-Year Maintenance Plan Which Can Be Used To
Support Transportation Conformity Determinations?
VI. What Is the Effect of EPA's Proposed Action?
VII. Statutory and Executive Order Reviews
I. What Action is EPA Proposing to Take?
We are proposing to take several related actions for St. Joseph and
Elkhart Counties. First, we are proposing to determine that St. Joseph
and Elkhart Counties have attained the 8-hour ozone NAAQS based on air
quality for the period of 2003 through 2005. Second, we are proposing
to approve Indiana's ozone maintenance plan for St. Joseph and Elkhart
Counties as a revision of the Indiana SIP. The maintenance plan is
designed to keep St. Joseph and Elkhart Counties in attainment of the
8-hour ozone standard through 2020. As supported by and consistent with
the ozone maintenance plan, we are also proposing to approve the 2020
VOC and NOX MVEBs for St. Joseph and Elkhart Counties for
transportation conformity purposes. Finally, we are proposing to
approve the request from the State of Indiana to change the designation
of St. Joseph and Elkhart Counties from nonattainment to attainment of
the 8-hour ozone NAAQS. We have determined that the State and St.
Joseph and Elkhart Counties have met the requirements for redesignation
to attainment under section 107(d)(3)(E) of the Clean Air Act (CAA).
[[Page 19414]]
II. What Is the Background for This Action?
A. General Background Information
EPA has determined that ground-level ozone is detrimental to human
health. On July 18, 1997, EPA promulgated an 8-hour ozone NAAQS of 0.08
parts per million parts of air (0.08 ppm) (80 parts per billion (ppb))
(62 FR 38856).\1\ This 8-hour ozone standard replaced a prior 1-hour
ozone NAAQS, which had been promulgated on February 8, 1979 (44 FR
8202), and which was revoked on June 15, 2005 (69 FR 23858).
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\1\ This standard is violated in an area when any ozone monitor
in the area (or in its impacted downwind environs) records 8-hour
ozone concentrations with an average of the annual fourth-highest
daily maximum 8-hour ozone concentrations over a three-year period
equaling or exceeding 85 ppb. 40 CFR 50.10.
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Ground-level ozone is not emitted directly by sources. Rather,
emitted NOX and VOC react in the presence of sunlight to
form ground-level ozone along with other secondary compounds.
NOX and VOC are referred to as ``ozone precursors.'' Control
of ground-level ozone concentrations is achieved through controlling
VOC and NOX emissions.
The CAA required EPA to designate as nonattainment any area that
violated the 8-hour ozone NAAQS. The Federal Register notice
promulgating these designations and classifications was published on
April 30, 2004 (69 FR 23857).
The CAA contains two sets of provisions--subpart 1 and subpart 2--
that address planning and emission control requirements for
nonattainment areas. Both are found in title I, part D of the CAA.
Subpart 1 contains general, less prescriptive requirements for all
nonattainment areas for any pollutant governed by a NAAQS. Subpart 2
contains more specific requirements for certain ozone nonattainment
areas, and applies to ozone nonattainment areas classified under
section 181 of the CAA.
In the April 30, 2004 designation rulemaking, EPA divided 8-hour
ozone nonattainment areas into the categories of subpart 1
nonattainment (``basic'' nonattainment) and subpart 2 nonattainment
(``classified'' nonattainment). EPA based this division on the area's
8-hour ozone design values (i.e., on the three-year averages of the
annual fourth-highest daily maximum 8-hour ozone concentrations at the
worst-case monitoring sites in the areas) and on their 1-hour ozone
design values (i.e., on the fourth-highest daily maximum 1-hour ozone
concentrations over the three-year period at the worst-case monitoring
sites in the areas).\2\ EPA classified 8-hour ozone nonattainment areas
with 1-hour ozone design values equaling or exceeding 121 ppb as
subpart 2, classified nonattainment areas. EPA classified all other 8-
hour nonattainment areas as subpart 1, basic nonattainment areas. The
basis for area classification was defined in a separate April 30, 2004
final rule (the Phase 1 implementation rule) (69 FR 23951).
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\2\ The 8-hour ozone design value and the 1-hour ozone design
value for each area were not necessarily recorded at the same
monitoring site. The worst-case monitoring site for each ozone
concentration averaging time was considered for each area.
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Emission control requirements for classified nonattainment areas
are linked to area classifications. Areas with more serious ozone
pollution problems are subject to more prescribed requirements and
later attainment dates. The prescribed emission control requirements
are designed to bring areas into attainment by their specified
attainment dates.
In the April 30, 2004, ozone designation/classification rulemaking,
EPA designated St. Joseph and Elkhart Counties as a subpart 1 basic
nonattainment area for the 8-hour ozone NAAQS. EPA based designation on
ozone data collected during the 2001-2003 period.
On May 30, 2006, the State of Indiana requested redesignation of
St. Joseph and Elkhart Counties to attainment of the 8-hour ozone NAAQS
based on ozone data collected in these Counties from 2003-2005.
B. What Is the Impact of the December 22, 2006 United States Court of
Appeals Decision Regarding EPA's Phase 1 Implementation Rule?
1. Summary of Court Decision
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). The
Court held that certain provisions of EPA's Phase I Rule were
inconsistent with the requirements of the Clean Air Act. The Court
rejected EPA's reasons for implementing the 8-hour standard in
nonattainment areas under Subpart 1 in lieu of subpart 2 of Title I,
part D of the Act. The Court also held that EPA 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 conformity requirements for certain types of Federal
actions. The Court upheld EPA's authority to revoke the 1-hour standard
provided there were adequate anti-backsliding provisions.
This section sets forth EPA's views on the potential effect of the
Court's ruling on this redesignation action. For the reasons set forth
below, EPA does not believe that the Court's ruling alters any
requirements relevant to this redesignation action so as to preclude
redesignation, and does not prevent EPA from finalizing this
redesignation. EPA believes that the Court's decision, as it currently
stands or as it may be modified based upon any petition for rehearing
that has been filed, imposes no impediment to moving forward with
redesignation of this area to attainment, because in either
circumstance redesignation is appropriate under the relevant
redesignation provisions of the Act and longstanding policies regarding
redesignation requests.
2. Requirements Under the 8-Hour Standard
With respect to the 8-hour standard, the Court's ruling rejected
EPA's reasons for classifying areas under Subpart 1 for the 8-hour
standard, and remanded that matter to the Agency. Consequently, it is
possible that this area could, during a remand to EPA, be reclassified
under Subpart 2. Although any future decision by EPA to classify this
area under Subpart 2 might trigger additional future requirements for
the area, EPA believes that this does not mean that redesignation
cannot now go forward. This belief is based upon (1) EPA's longstanding
policy of evaluating requirements in accordance with the requirements
due at the time the request is submitted; (2) consideration of the
inequity of applying retroactively any requirements that might in the
future be applied; and, (3) the fact that the redesignation request
preceded even the earliest possible due dates of any requirements for
Subpart 2 areas.
First, at the time the redesignation request was submitted, St.
Joseph and Elkhart Counties were classified under Subpart 1 and were
obligated to meet Subpart 1 requirements. Under EPA's longstanding
interpretation of section 107(d)(3)(E) of the Clean Air Act, to
[[Page 19415]]
qualify for redesignation, states requesting redesignation to
attainment must meet only the relevant SIP requirements that came due
prior to the submittal of a complete redesignation request. September
4, 1992, Calcagni memorandum (``Procedures for Processing Requests to
Redesignate Areas to Attainment,'' Memorandum from John Calcagni,
Director, Air Quality Management Division) See also Michael Shapiro
Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7,
1995)(Redesignation of Detroit-Ann Arbor). See Sierra Club v. EPA, 375
F.3d 537 (7th Cir. 2004), which upheld this interpretation. See, e.g.
also 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St.
Louis).
Moreover, it would be inequitable to retroactively apply any new
SIP requirements that were not applicable at the time the request was
submitted. The D.C. Circuit has recognized the inequity in such
retroactive rulemaking, See Sierra Club v. Whitman, 285 F. 3d 63 (D.C.
Cir. 2002), in which the D.C. Circuit upheld a District Court's ruling
refusing to make retroactive an EPA determination of nonattainment that
was past the statutory due date. Such a determination would have
resulted in the imposition of additional requirements on the area. The
Court stated: ``Although EPA failed to make the nonattainment
determination within the statutory time frame, Sierra Club's proposed
solution only makes the situation worse. Retroactive relief would
likely impose large costs on the States, which would face fines and
suits for not implementing air pollution prevention plans in 1997, even
though they were not on notice at the time.'' Id. at 68. Similarly here
it would be unfair to penalize the area by applying to it for purposes
of redesignation additional SIP requirements under Subpart 2 that were
not in effect at the time it submitted its redesignation request.
For the reasons indicated above, EPA believes it would be
inequitable to evaluate a redesignation request based on Subpart 2
requirements that might apply in the future. But even if a future
Subpart 2 classification applied retroactively, the applicable
requirements for purposes of redesignation are only those that became
due prior to submission of the redesignation request. In the case of
St. Joseph and Elkhart Counties the redesignation request was submitted
on May 30, 2006, and thus preceded even the earliest possible due date
of requirements for areas classified under Subpart 2 effective June
2004. The earliest such submission date was June 15, 2006, for the
emissions statements requirement under section 182(a)(3)(B) and
emissions inventories under section 182(a)(1). Thus for this additional
reason alone these additional Subpart 2 requirements would not be
applicable for purposes of evaluating a redesignation request for this
area.
3. Requirements Under the 1-Hour Standard
With respect to the requirements under the 1-hour standard, St.
Joseph and Elkhart Counties were an attainment area subject to a Clean
Air Act section 175A maintenance plan under the 1-hour standard. The
Court's ruling does not impact redesignation requests for these types
of areas.
First, there are no conformity requirements that are relevant for
redesignation requests for any standard, including the requirement to
submit a transportation conformity SIP.\3\ Under longstanding EPA
policy, EPA believes that it is reasonable to interpret the conformity
SIP requirement as not applying for purposes of evaluating a
redesignation request under section 107(d) because state conformity
rules are still required after redesignation and Federal conformity
rules apply where state rules have not been approved. 40 CFR 51.390.
See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), upholding this
interpretation. See also 60 FR 62748 (Dec. 7, 1995) (Tampa, FL
redesignation). Federal transportation conformity regulations apply in
all States prior to approval of transportation conformity SIPs. The
one-hour ozone areas in Indiana were redesignated to attainment without
approved State Transportation Conformity regulations because the
Federal Regulations were in effect in Indiana. When challenged, these
1-hour ozone redesignations, which were approved without State
regulations, were upheld by the courts. See Wall v. EPA, 265 F.3d 426
(6th Cir. 2001). See also 60 FR 62748 (December 7, 1995) (Tampa,
Florida). Although Indiana does not have approved State transportation
conformity regulations, Indiana has developed memorandums of
understanding to address conformity consultation procedures which have
been signed by all parties involved in conformity. The Federal
transportation conformity regulations, which apply in Indiana, require
the approved 1-hour ozone budgets to be used for transportation
conformity purposes prior to 8-hour ozone budgets being approved.
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\3\ Clean Air Act section 176(c)(4)(E) currently requires States
to submit revisions to their SIPs to reflect certain Federal
criteria and procedures for determining transportation conformity.
Transportation conformity SIPs are different from the motor vehicle
emissions budgets that are established in control strategy SIPs and
maintenance plans.
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Second, with respect to the three other anti-backsliding provisions
for the 1-hour standard that the Court found were not properly
retained, St. Joseph and Elkhart Counties are an attainment area
subject to a maintenance plan for the 1-hour standard, and the NSR,
contingency measure (pursuant to section 172(c)(9) or 182(c)(9)) and
fee provision requirements no longer apply to an area that has been
redesignated to attainment of the 1-hour standard.
Thus the decision in South Coast should not alter requirements that
would preclude EPA from finalizing the redesignation of this area.
III. What Are the Criteria for Redesignation to Attainment?
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) of the CAA
allows for redesignation provided that: (1) The Administrator
determines that the area has attained the applicable NAAQS; (2) the
Administrator has fully approved an applicable state implementation
plan for the area under section 110(k) of the CAA; (3) the
Administrator determines that the improvement in air quality is due to
permanent and enforceable emission reductions resulting from
implementation of the applicable SIP, Federal air pollution control
regulations, and other permanent and enforceable emission reductions;
(4) the Administrator has fully approved a maintenance plan for the
area meeting the requirements of section 175A of the CAA; and, (5) the
state containing the area has met all requirements applicable to the
area under section 110 and part D of the CAA.
EPA provided guidance on redesignations in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990 on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). The two main policy guidelines affecting the review
of ozone redesignation requests are the following: ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992 (September 4, 1992 Calcagni memorandum); and,
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone National
Ambient Air Quality Standard,''
[[Page 19416]]
Memorandum from John S. Seitz, Director, Office of Air Quality Planning
and Standards, May 10, 1995. For additional policy guidelines used in
the review of ozone redesignation requests, see our proposed rule for
the redesignation of the Evansville, Indiana ozone nonattainment area
at 70 FR 53606 (September 9, 2005).
IV. What Are EPA's Analyses of the State's Requests and What Are the
Bases for EPA's Proposed Action?
EPA is proposing to: (1) Determine that St. Joseph and Elkhart
Counties have attained the 8-hour ozone standard; (2) approve the ozone
maintenance plan for St. Joseph and Elkhart Counties and the VOC and
NOX MVEBs supported by this maintenance plan; and, (3)
approve the redesignation of St. Joseph and Elkhart Counties to
attainment of the 8-hour ozone NAAQS. The bases for our proposed
determination and approvals follow.
A. St. Joseph and Elkhart Counties Have Attained the 8-Hour Ozone NAAQS
For ozone, an area may be considered to be attaining the 8-hour
ozone NAAQS if there are no violations of the NAAQS, as determined in
accordance with 40 CFR 50.10 and appendix I, based on the most recent
three complete, consecutive calendar years of quality-assured air
quality monitoring data at all ozone monitoring sites in the area and
in its nearby downwind environs. To attain this standard, the average
of the annual fourth-high daily maximum 8-hour average ozone
concentrations measured and recorded at each monitor (the monitoring
site's ozone design value) within the area and in its nearby downwind
environs over the three-year period must not exceed the ozone standard.
Based on an ozone data rounding convention described in 40 CFR part 50,
appendix I, the 8-hour standard is attained if the area's ozone design
value \4\ is 0.084 ppm (84 ppb) or lower. The data must be collected
and quality-assured in accordance with 40 CFR part 58, and must be
recorded in EPA's Air Quality System (AQS). The ozone monitors
generally should have remained at the same locations for the duration
of the monitoring period required to demonstrate attainment (for three
years or more). The data supporting attainment of the standard must be
complete in accordance with 40 CFR part 50, appendix I.
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\4\ The worst-case monitoring site-specific ozone design value
in the area or in its affected downwind environs.
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As part of the May 30, 2006, ozone redesignation request, IDEM
submitted ozone monitoring data indicating the top four daily maximum
8-hour ozone concentrations for each monitoring site in St. Joseph
County (the Potato Creek, Harris Township and South Bend ozone
monitoring sites) and Elkhart County (the Bristol ozone monitoring
site) for each year during the 2003-2005 period. These worst-case ozone
concentrations are part of the quality-assured ozone data that have
been entered into EPA's AQS. The annual fourth-high 8-hour daily
maximum ozone concentrations, along with their three-year averages are
summarized in Table 1.
Table 1.--Fourth-High 8-Hour Ozone Concentrations
[In parts per billion (ppb)]
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County Monitoring site 2003 2004 2005 Average
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Elkhart................................... Bristol..................... 87 77 86 83
St. Joseph................................ Potato Creek................ 81 73 78 77
St. Joseph................................ Harris Twp.................. 86 76 86 83
St. Joseph................................ South Bend.................. 82 72 84 79
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These data show that the average fourth-high daily maximum 8-hour
ozone concentrations for the monitoring sites in St. Joseph and Elkhart
Counties are all below the 85 ppb ozone standard violation cut-off. The
data support the conclusion that St. Joseph and Elkhart Counties did
not experience a monitored violation of the 8-hour ozone standard from
2003-2005. In addition, the surrounding counties in Indiana and
Michigan did not monitor nonattainment during the 2003-2005 period.
We also note that the 8-hour ozone NAAQS continued to be attained
in St. Joseph and Elkhart as well as the surrounding counties through
2006. Data in the AQS show that, in 2006, the Bristol, Potato Creek,
Harris TWP and South Bend monitors recorded daily maximum fourth-high
8-hour ozone concentrations of 67 ppb, 70 ppb, 70 ppb, and 61 ppb,
respectively.
The State has committed to continue ozone monitoring in this area
during the maintenance period, through 2020. IDEM commits to consult
with the EPA prior to making any changes in the existing monitoring
network. An adequate demonstration has therefore been made that St.
Joseph and Elkhart Counties have attained the 8-hour ozone NAAQS.
Therefore, we propose to find that St. Joseph and Elkhart Counties have
attained the 8-hour ozone standard.
B. St. Joseph and Elkhart Counties Have Met All Applicable Requirements
Under Section 110 and Part D of the CAA and the Area Has a Fully
Approved SIP Under Section 110(k) of the CAA
EPA has determined that Indiana has met all currently applicable
SIP requirements for St. Joseph and Elkhart Counties under section 110
of the CAA (general SIP requirements). EPA has determined that the
Indiana SIP meets currently applicable SIP requirements under part D of
title I of the CAA (requirements specific to basic and subpart 2 ozone
nonattainment areas). See section 107(d)(3)(E)(v) of the CAA. In
addition, EPA has determined that the Indiana SIP is fully approved
with respect to all applicable requirements. See section
107(d)(3)(E)(ii) of the CAA. In making these determinations, EPA
ascertained what requirements are applicable to the area, and
determined that the applicable portions of the SIP meeting these
requirements are fully approved under section 110(k) of the CAA. We
note that SIPs must be fully approved only with respect to currently
applicable requirements of the CAA, those CAA requirements applicable
to St. Joseph and Elkhart Counties at the time the State submitted the
final, complete ozone redesignation request for this area.
1. St. Joseph and Elkhart Counties Have Met All Applicable Requirements
Under Section 110 and Part D of the CAA
The September 4, 1992, Calcagni memorandum describes EPA's
[[Page 19417]]
interpretation of section 107(D)(3)(E) of the CAA. Under this
interpretation, to qualify for redesignation of an area to attainment,
the State and the area must meet the relevant CAA requirements that
come due prior to the State's submittal of a complete redesignation
request for the area. See also a September 17, 1993, memorandum from
Michael Shapiro, Acting Assistant Administrator for Air and Radiation,
``State Implementation Plan (SIP) Requirements for Areas Submitting
Requests for Redesignation to Attainment of the Ozone and Carbon
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or
After November 15, 1992'' and 66 FR 12459, 12465-12466 (March 7, 1995)
(redesignation of Detroit-Ann Arbor, Michigan to attainment of the 1-
hour ozone NAAQS). Applicable requirements of the CAA that come due
subsequent to the State's submittal of a complete redesignation request
remain applicable until a redesignation to attainment of the standard
is approved, but are not required as a prerequisite to redesignation.
See section 175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th
Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) redesignation of
the St. Louis/East St. Louis area to attainment of the 1-hour ozone
NAAQS.
General SIP requirements: Section 110(a) of title I of the CAA
contains the general requirements for a SIP, which include: enforceable
emission limitations and other control measures, means, or techniques;
provisions for the establishment and operation of appropriate devices
necessary to collect data on ambient air quality; and programs to
enforce the emission limitations. SIP elements and requirements are
specified in section 110(a)(2) of title I, part A of the CAA. These
requirements and SIP elements include, but are not limited to, the
following: (a) Submittal of a SIP that has been adopted by the State
after reasonable public notice and a hearing; (b) provisions for
establishment and operation of appropriate procedures needed to monitor
ambient air quality; (c) implementation of a source permit program; (d)
provisions for the implementation of new source part C requirements
(Prevention of Significant Deterioration (PSD)) and new source part D
requirements (New Source Review (NSR)); (e) criteria for stationary
source emission control measures, monitoring, and reporting; (f)
provisions for air quality modeling; and, (g) provisions for public and
local agency participation.
SIP requirements and elements are discussed in the following EPA
documents: ``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992; ``State Implementation Plan
(SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,''
Memorandum from John Calcagni, Director, Air Quality Management
Division, October 28, 1992; and ``State Implementation Plan (SIP)
Requirements for Areas Submitting Requests for Redesignation to
Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air
Quality Standards (NAAQS) on or After November 15, 1992,'' Memorandum
from Michael H. Shapiro, Acting Assistant Administrator, September 17,
1993.
Section 110(a)(2)(D) of the CAA requires SIPs to contain certain
measures to prevent sources in one state from significantly
contributing to air quality problems in another state. To implement
this provision, EPA required states to establish programs to address
transport of air pollutants (NOX SIP call, Clean Air
Interstate Rule (CAIR)). EPA has also found, generally, that states
have not submitted SIPs under section 110(a)(1) of the CAA to meet the
interstate transport requirements of section 110(a)(2)(D)(i) of the CAA
(70 FR 21147, April 25, 2005). However, the section 110(a)(2)(D)
requirements for a state are not linked with a particular nonattainment
area's classification. EPA believes that the requirements linked with a
particular nonattainment area's classification are the relevant
measures to evaluate in reviewing a redesignation request. The
transport SIP submittal requirements, where applicable, continue to
apply to a state regardless of the designation of any one particular
area in the state.
These requirements should not be construed to be applicable
requirements for purposes of redesignation. In addition, the other
section 110 elements described above that are not connected with
nonattainment plan submissions and that are not linked with an area's
attainment status are also not applicable requirements for purposes of
redesignation. A state remains subject to these requirements after an
area is redesignated to attainment. We conclude that only the section
110 and part D requirements which are linked with an area's designation
and classification are the relevant measures in evaluating this aspect
of a redesignation request. This approach is consistent with EPA's
existing policy on applicability of conformity and oxygenated fuels
requirements for redesignation purposes, as well as with section 184
ozone transport requirements. See: Reading, Pennsylvania proposed and
final rulemakings (61 FR 53174-53176, October 10, 1996 and 62 FR 24826,
May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR
20458, May 7, 1996); and Tampa, Florida final rulemaking (60 FR 62748,
December 7, 1995). See also the discussion on this issue in the
Cincinnati, Ohio ozone redesignation (65 FR 37890, June 19, 2000), and
the Pittsburgh, Pennsylvania ozone redesignation (66 FR 50399, October
19, 2001). In addition, Indiana's response to the CAIR rule was due in
September 2006. Because this deadline had not yet passed when the State
submitted the final, complete redesignation request, the State's CAIR
submittal is also not an applicable requirement for redesignation
purposes.
It should be noted that section 110 elements not linked to the
area's nonattainment status are not applicable for purposes of
redesignation. Nonetheless, we also note that EPA has previously
approved provisions in the Indiana SIP addressing section 110 elements
under the 1-hour ozone standard. We have analyzed the Indiana SIP as
codified in 40 CFR part 52, subpart P and have determined that it is
consistent with the requirements of section 110(a)(2) of the CAA. The
SIP, which has been adopted after reasonable public notice and hearing,
contains enforceable emission limitations; requires monitoring,
compiling, and analyzing ambient air quality data; requires
preconstruction review of new major stationary sources and major
modifications of existing sources; provides for adequate funding,
staff, and associated resources necessary to implement its
requirements; and requires stationary source emissions monitoring and
reporting, and otherwise satisfies the applicable requirements of
section 110(a)(2).
Part D SIP requirements: EPA has determined that the Indiana SIP
meets applicable SIP requirements under part D of the CAA. Under part
D, an area's classification (marginal, moderate, serious, severe, and
extreme) indicates the requirements to which it will be subject.
Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth
the basic nonattainment area plan requirements applicable to all
nonattainment areas. Subpart 2 of part D, found in section 182 of the
CAA, establishes additional specific requirements depending on the
area's nonattainment classification.
[[Page 19418]]
Part D, subpart 1 requirements: For purposes of evaluating this
redesignation request, the applicable subpart 1 part D requirements for
all nonattainment areas are contained in sections 172(c)(1)-(9) and
176. A thorough discussion of the requirements of section 172 can be
found in the General Preamble for Implementation of Title I (57 FR
13498). (See also 68 FR 4852-4853 regarding a St. Louis ozone
redesignation notice of proposed rulemaking for a discussion of section
172 requirements.)
No requirements under part D of the CAA came due for St. Joseph and
Elkhart Counties prior to the State's May 30, 2006, submittal of a
complete redesignation request. For example, the requirement for an
ozone attainment demonstration, as contained in section 172(c)(1), was
not yet applicable, nor were the requirements for Reasonably Available
Control Measures (RACM) and Reasonably Available Control Technology
(RACT) (section 172(c)(1)), Reasonable Further Progress (RFP) (section
172(c)(2)), and attainment plan and RFP contingency measures (section
172(c)(9)). All of these required SIP elements are required for
submittal after May 30, 2006. Therefore, none of the part D
requirements are applicable to St. Joseph and Elkhart Counties for
purposes of redesignation.
Section 176 conformity requirements: Section 176(c) of the CAA
requires states to establish criteria and procedures to ensure that
Federally-supported or funded activities, including highway projects,
conform to the air planning goals in the applicable SIP. The
requirement to determine conformity applies to transportation plans,
programs, and projects developed, funded, or approved under Title 23
U.S.C. and the Federal Transit Act (transportation conformity) as well
as to all other Federally-supported or funded projects (general
conformity). State conformity SIP revisions must be consistent with
Federal conformity regulations that the CAA required the EPA to
promulgate.
In addition to the fact that part D requirements did not become due
prior to Indiana's submission of the complete ozone redesignation
request for St. Joseph and Elkhart Counties, and, therefore, are not
applicable for redesignation purposes, EPA has similarly concluded that
the conformity requirements do not apply for purposes of evaluating the
ozone redesignation request under section 107(d) of the CAA. In
addition, it is reasonable to interpret the conformity requirements as
not applying for purposes of evaluating the ozone redesignation request
under section 107(d) of the CAA because state conformity rules are
still required after redesignation of an area to attainment of a NAAQS
and Federal conformity rules apply where state rules have not been
approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001). See also 60 FR
62748 (December 7, 1995) (Tampa, Florida).
We conclude that the State and St. Joseph and Elkhart Counties have
satisfied all applicable requirements under section 110 and part D of
the CAA to the extent that the requirements apply for the purposes of
reviewing the State's ozone redesignation request.
2. St. Joseph and Elkhart Counties Have a Fully Approved Applicable SIP
Under Section 110(k) of the CAA
EPA has fully approved the Indiana SIP for St. Joseph and Elkhart
Counties under section 110(k) of the CAA for all applicable
requirements. EPA may rely on prior SIP approvals in approving a
redesignation request (See the September 4, 1992 John Calcagni
memorandum, page 3, Southwestern Pennsylvania Growth Alliance v.
Browner, 144 F.3d 984, 989-990 (6th Cir. 1998), Wall v. EPA, 265 F.3d
426 (6th Cir. 2001)), plus any additional measures it may approve in
conjunction with a redesignation action. See 68 FR 25426 (May 12,
2003). Since the passage of the CAA of 1970, Indiana has adopted and
submitted, and EPA has fully approved, provisions addressing the
various required SIP elements applicable to St. Joseph and Elkhart
Counties for purposes of redesignation. No St. Joseph and Elkhart
Counties SIP provisions are currently disapproved, conditionally
approved, or partially approved. As indicated above, EPA believes that
the section 110 elements not connected with nonattainment plan
submissions and not linked to the area's nonattainment status are not
applicable requirements for purposes of review of the State's
redesignation request. EPA has concluded that the section 110 SIP
submission approved under the 1-hour standard will be adequate for
purposes of attaining and maintaining the 8-hour standard. EPA also
believes that since the part D requirements did not become due prior to
Indiana's submission of a final, complete redesignation request, they
also are not applicable requirements for purposes of redesignation.
C. The Air Quality Improvement in St. Joseph and Elkhart Counties Is
Due to Permanent and Enforceable Reductions in Emissions From
Implementation of the SIP and Applicable Federal Air Pollution Control
Regulations and Other Permanent and Enforceable Emission Reductions
EPA believes that the State of Indiana has demonstrated that the
observed air quality improvement in St. Joseph and Elkhart Counties is
due to permanent and enforceable emission reductions resulting from
implementation of the SIP, Federal measures, and other State-adopted
measures.
In making this demonstration, the State has documented the changes
in VOC and NOX emissions from anthropogenic (man-made or
man-based) sources in St. Joseph and Elkhart Counties between 1996 and
2004 and the statewide NOX emissions from Electric
Generating Units (EGUs) from 1999 to 2005. St. Joseph and Elkhart
Counties were monitored in violation of the 8-hour ozone NAAQS during
the period of 1997 through 1999 and in attainment with the NAAQS during
the period of 2003 through 2005. The total VOC and NOX
emissions for St. Joseph and Elkhart Counties for various years during
the period of 1996 through 2004 are given in Table 2.
Table 2.--VOC and NOX Emissions in St. Joseph and Elkhart Counties, All Sources
[Emissions in tons/summer day]
----------------------------------------------------------------------------------------------------------------
Pollutant 1996 1999 2002 2004
----------------------------------------------------------------------------------------------------------------
VOC........................................................ 127.88 113.82 89.18 85.98
NOX........................................................ 91.21 74.63 63.4 63.16
----------------------------------------------------------------------------------------------------------------
The statewide NOX emissions for EGUs from 1999-2005 are
given in Table 3. below.
[[Page 19419]]
Table 3.--NOX Emissions from Electric Generating Units in Indiana Statewide
[Emissions in thousands of tons per ozone season (April-October)]
----------------------------------------------------------------------------------------------------------------
Area 1999 2000 2001 2002 2003 2004 2005
----------------------------------------------------------------------------------------------------------------
Statewide................... 149.8 133.9 136.1 114.0 99.3 66.6 55.5
----------------------------------------------------------------------------------------------------------------
The NOX and VOC emissions for St. Joseph and Elkhart
Counties and the statewide EGU NOX emissions have decreased
from 1999, an 8-hour standard violation years, to 2004 and 2005 (for
EGUs), attainment years. IDEM notes that statewide NOX
emissions have declined significantly as a result of the implementation
of the Indiana NOX SIP (in response to EPA's NOX
SIP call) and acid rain control regulations, both of which led to
permanent, enforceable emission reductions.
VOC and NOX emissions have declined between 1999 and
2004 as a result of enforceable emission reductions. As required by
Section 172 of the CAA, Indiana in the mid-1990s promulgated rules
requiring RACT for emissions of VOCs. Statewide RACT rules have applied
to all new sources locating in Indiana since that time and include the
following VOC rules: 326 Indiana Administrative Code (IAC) 8-1-6 (Best
Available Control Technology (BACT) for non-specific sources); 326 IAC
8-2 (surface coating emission limitations); 326 IAC (organic solvent
degreasing operations); 326 IAC 8-4 (petroleum sources); and, 326 IAC
8-5 (miscellaneous sources). The VOC emission reductions resulting from
the implementation of these VOC emission control rules are permanent
and enforceable.
Besides the statewide VOC RACT rules and NOX emission
control requirements, other Federal emission reduction requirements
have resulted in decreased ozone precursor emissions in St. Joseph and
Elkhart Counties and will produce future emission reductions that will
support maintenance of the ozone standard in St. Joseph and Elkhart
Counties. These emission reduction requirements include the following:
Tier 2 Emission Standards for Vehicles and Gasoline Sulfur
Standards. These emission control requirements result in lower
emissions from new cars and light duty trucks, including sport utility
vehicles. The Federal rules are being phased in between 2004 and 2009.
The EPA has estimated that, by the end of the phase-in period, the
following vehicle NOX emission reductions will occur:
passenger cars (light duty vehicles) (77 percent); light duty trucks,
minivans, and sports utility vehicles (86 percent; and larger sports
utility vehicles, vans, and heavier trucks (69 to 95 percent). VOC
emission reductions are also expected to range from 12 to 18 percent,
depending on vehicle class, over the same period. Although some of
these emission reductions have already occurred by the 2004 attainment
year, most of these emission reductions will occur during the
maintenance period for St. Joseph and Elkhart Counties.
Heavy-Duty Diesel Engines. In July 2000, EPA issued a final rule to
control the emissions from highway heavy duty diesel engines, including
low-sulfur diesel fuel standards. These emission reductions are being
phased in between 2004 and 2007. This rule is expected to result in a
40 percent decrease in NOX emissions from heavy duty diesel
vehicle.
Non-Road Diesel Rule. Issued in May, 2004, this rule generally
applies to new stationary diesel engines used in certain industries,
including construction, agriculture, and mining. In addition to
affecting engine design, this rule includes requirements for cleaner
fuels. This rule is expected to reduce NOX emissions from
these engines by up to 90 percent, and to significantly reduce
particulate matter and sulfur emissions from these engines in addition
to the NOX emission reduction. This rule did not affect 2004
emissions from these sources, but will limit emissions from new engines
beginning in 2008.
Indiana commits to maintain all existing emission control measures
that affect St. Joseph and Elkhart Counties after this area is
redesignated to attainment of the 8-hour ozone NAAQS. All changes in
existing rules affecting St. Joseph and Elkhart Counties and new rules
subsequently needed to provide for the maintenance of the 8-hour ozone
NAAQS in St. Joseph and Elkhart Counties will be submitted to the EPA
for approval as SIP revisions.
D. St. Joseph and Elkhart Counties Have a Fully Approvable Ozone
Maintenance Plan Pursuant to Section 175A of the CAA
In conjunction with its request to redesignate St. Joseph and
Elkhart Counties to attainment of the ozone NAAQS, Indiana submitted a
SIP revision request to provide for maintenance of the 8-hour ozone
NAAQS in St. Joseph and Elkhart Counties for at least 10 years after
the redesignation of this area to attainment of the 8-hour ozone NAAQS.
1. What Is Required in an Ozone Maintenance Plan?
Section 175A of the CAA sets forth the required elements of air
quality maintenance plans for areas seeking redesignation from
nonattainment to attainment of a NAAQS. Under section 175A, a
maintenance plan must demonstrate continued attainment of the
applicable NAAQS for at least 10 years after the Administrator approves
the redesignation to attainment. Eight years after the redesignation,
the State must submit a revised maintenance plan which demonstrates
maintenance of the standard for 10 years following the initial 10 year
maintenance period. To address the possibility of future NAAQS
violations, the maintenance plan must contain such contingency
measures, with a schedule for implementation, as EPA deems necessary,
to assure prompt correction of any future NAAQS violations. The
September 4, 1992, John Calcagni memorandum provides additional
guidance on the content of maintenance plans. An ozone maintenance plan
should, at minimum, address the following items: (1) The attainment VOC
and NOX emissions inventories; (2) a maintenance
demonstration showing maintenance for the 10 years of the maintenance
period; (3) a commitment to maintain the existing monitoring network;
(4) factors and procedures to be used for verification of continued
attainment; and, (5) a contingency plan to prevent and/or correct a
future violation of the NAAQS.
2. What Are the Attainment Emission Inventories for St. Joseph and
Elkhart Counties?
IDEM prepared comprehensive VOC and NOX emission
inventories for St. Joseph and Elkhart Counties, including point
(significant stationary sources), area (smaller and widely-distributed
stationary sources), mobile on-road, and mobile non-road sources for
2004 (the base year/attainment year). To develop the attainment year
emission inventories, IDEM used the following approaches and sources of
data:
[[Page 19420]]
Area Sources--Area source VOC and NOX emissions were
projected from Indiana's 2002 periodic emissions inventory, which was
previously submitted to the EPA.
Mobile On-Road Sources--Mobile source emissions were calculated
using the MOBILE6 emission factor model and traffic data (vehicle miles
traveled, vehicle speeds, and vehicle type and age distributions)
extracted from the region's travel-demand model.
Point Source Emissions--2004 point source emissions were compiled
using IDEM's 2004 annual emissions statement database and the 2005 EPA
Air Markets acid rain emissions inventory database.
Mobile Non-Road Emissions--Non-road mobile source emissions were
estimated by the EPA and documented in the 2002 National Emissions
Inventory (NEI). IDEM used these emissions estimates along with growth
factors to grow the non-road mobile source emissions to 2004. To
address concerns about the accuracy of some of the emissions for
various source categories in EPA's non-road emissions model, the Lake
Michigan Air Directors Consortium (LADCO) contracted with several
companies to review the base data used by the EPA and to make
recommendations for corrections to the model. Emissions were estimated
for commercial marine vessels and railroads. Recreational motorboat
population and spatial surrogates (used to assign emissions to each
county) were updated. The populations for the construction equipment
category were reviewed and updated based on surveys completed in the
Midwest, and the temporal allocation for agricultural sources was also
updated. Based on these and other updates, the EPA provided a revised
non-road estimation model, which was used for the 2004 projected non-
road mobile source emissions.
The 2004 attainment year VOC and NOX emissions for St.
Joseph and Elkhart Counties are summarized along with the 2010 and 2020
projected emissions for these counties in Tables 4 and 5, below. They
confirm that the State has acceptably derived and documented the
attainment year VOC and NOX emissions for St. Joseph and
Elkhart Counties.
3. Demonstration of Maintenance
As part of the May 30, 2006, redesignation request submittal, IDEM
included a requested revision to the SIP to incorporate a 13-year ozone
maintenance plan which is consistent with the requirements under
section 175A of the CAA. Included in the maintenance plan is a
maintenance demonstration. This demonstration shows maintenance of the
8-hour ozone NAAQS by documenting current and projected VOC and
NOX emissions and by documenting photochemical modeling
results that support maintenance of the standard in this area.\5\
---------------------------------------------------------------------------
\5\ The attainment year can be any of the three consecutive
years in which the area has clean (below violation level) air
quality data (2003, 2004, or 2005 for St. Joseph and Elkhart
Counties).
---------------------------------------------------------------------------
Table 4 specifies the VOC emissions in St. Joseph and Elkhart
Counties for 2004, 2010, and 2020. IDEM chose 2020 as a projection year
to meet the 10-year minimum maintenance projection requirement,
allowing several years for the State to complete its adoption of the
ozone redesignation request and ozone maintenance plan and for the EPA
to approve the redesignation request and maintenance plan. IDEM also
chose 2010 as an interim year to demonstrate that VOC and
NOX emissions will remain below the attainment levels
throughout the 10-year maintenance period.
Table 5, similar to Table 4, specifies the NOX emissions
in St. Joseph and Elkhart Counties for 2004, 2010, and 2020. Together,
Tables 4 and 5 and the photochemical modeling results demonstrate that
St. Joseph and Elkhart Counties should remain in attainment of the 8-
hour ozone NAAQS between 2004 and 2020, for more than 10 years after
EPA is expected to approve the redesignation of St. Joseph and Elkhart
Counties to attainment of the 8-hour ozone NAAQS.
Table 4.--Attainment Year (2004) and Projected VOC Emissions in St.
Joseph and Elkhart Counties
[Tons per summer day]
------------------------------------------------------------------------
Year
Source sector --------------------------------------
2004 2010 2020
------------------------------------------------------------------------
Point............................ 25.63 29.16 39.78
Area............................. 29.43 31.15 35.20
On-Road Mobile................... 17.52 11.56 6.64
Off-Road Mobile.................. 13.40 10.47 8.06
--------------------------------------
Total........................ 85.98 82.34 89.68
------------------------------------------------------------------------
Table 5.--Attainment Year and Projected NOX Emissions in St. Joseph and
Elkhart Counties
[Tons per summer day]
------------------------------------------------------------------------
Year
Source sector --------------------------------------
2004 2010 2020
------------------------------------------------------------------------
Point............................ 6.36 6.32 7.17
Area............................. 7.13 7.54 7.98
On-Road Mobile................... 30.11 19.29 7.73
Off-Road Mobile.................. 19.56 14.06 9.78
--------------------------------------
Total........................ 63.16 47.21 32.66
------------------------------------------------------------------------
[[Page 19421]]
IDEM also notes that the State's EGU NOX emission
control rules stemming from EPA's NOX SIP call, implemented
beginning in 2004, and CAIR will further lower NOX emissions
in upwind areas, resulting in decreased ozone and ozone precursor
transport into St. Joseph and Elkhart Counties (the State did not
project the emission decreases resulting from CAIR and did not document
future NOX emissions in upwind Counties). This will also
support maintenance of the ozone standard in St. Joseph and Elkhart
Counties.
Based upon the data in Table 5, NOX emissions in St.
Joseph and Elkhart Counties are projected to decline by more than 48%
between 2004 and 2020, but VOC emissions are projected to increase by a
modest 4.3% during that period. This slight increase in VOC emissions,
however, is more than offset by the significant local and regional
decreases in NOX emissions to occur during the same
timeframe. This offsetting of an increase in VOC emissions with
NOX emission reductions is consistent with EPA's December
1993 NOX Substitution Policy (which specifies that a
percentage basis, rather than a mass basis, is used for equivalency
calculations) which was transmitted under cover of a December 15, 1993,
memorandum from John Seitz, (then) Director, Office of Air Quality
Planning and Standards, as clarified in an August 5, 1994, memorandum
also from John Seitz, titled ``Clarification of Policy for Nitrogen
Oxides Substitution.'' As discussed in Indiana's submittal, EPA
modeling shows that existing national emission control measures have
brought St. Joseph and Elkhart Counties into attainment of the 8-hour
NAAQS. Rulemakings to be implemented in the next several years will
provide even greater assurance that air quality will continue to meet
the standard in the future. Modeling for the NOX SIP call,
Heavy Duty Engine Rule, Highway Diesel Fuel and Tier II/Low Sulfur Fuel
Rule, and CAIR shows that future year design values for St. Joseph and
Elkhart Counties through 2020 will continue to show attainment of the
ozone standard, with modeled future ozone design values well below
0.085 ppm.
Based on the comparison of the projected emissions and the
attainment year emissions, and photochemical modeling results, we
conclude that IDEM has successfully demonstrated that the 8-hour ozone
standard should be maintained in St. Joseph and Elkhart Counties. We
believe that this is especially likely given the expected impacts of
the NOX SIP call and CAIR. As noted by IDEM, this conclusion
is further supported by the fact that other states in the eastern
portion of the United States are expected to further reduce regional
NOX emissions through implementation of their own
NOX emission control rules for EGUs and other NOX
sources and through implementation of CAIR, reducing ozone and
NOX transport into St. Joseph and Elkhart Counties.
4. Monitoring Network
IDEM commits to continue operating and maintaining an approved
ozone monitoring network in St. Joseph and Elkhart Counties in
accordance with 40 CFR part 58 through the 13-year maintenance period.
This will allow the confirmation of the maintenance of the 8-hour ozone
standard in this area and the triggering of contingency measures if
needed.
5. Verification of Continued Attainment
Continued attainment of the 8-hour ozone NAAQS in St. Joseph and
Elkhart Counties depends on the State's efforts toward tracking
applicable indicators during the maintenance period. The State's plan
for verifying continued attainment of the 8-hour ozone standard in St.
Joseph and Elkhart Counties consists, in part, of a plan to continue
ambient ozone monitoring in accordance with the requirements of 40 CFR
part 58. In addition, IDEM will periodically revise and review the VOC
and NOX emissions inventories for St. Joseph and Elkhart
Counties to assure that emissions growth is not threatening the
continued attainment of the 8-hour ozone standard in this area. Revised
emission inventories for this area will be prepared for 2005, 2008, and
2011 as necessary to comply with the emission inventory reporting
requirements established in the CAA. The revised emissions will be
compared with the 2004 attainment emissions and the 2020 projected
maintenance year emissions to assure continued maintenance of the ozone
standard.
6. Contingency Plan
The contingency plan provisions of the CAA are designed to result
in prompt correction or prevention of violations of the NAAQS that
might occur after redesignation of an area to attainment of the NAAQS.
Section 175A of the CAA requires that a maintenance plan include such
contingency measures as EPA deems necessary to assure that the State
will promptly correct a violation of the NAAQS that might occur after
redesignation. The maintenance plan must identify the contingency
measures to be considered for possible adoption, a schedule and
procedure for adoption and implementation of the selected contingency
measures, and a time limit for action by the State. The State should
also identify specific indicators to be used to determine when the
contingency measures need to be adopted and implemented. The
maintenance plan must include a requirement that the State will
implement all measures with respect to control of the pollutant(s) that
were controlled in the SIP before the redesignation of the area to
attainment. See section 175A(d) of the CAA.
As required by section 175A of the CAA, Indiana commits to review
its Maintenance Plan eight years after redesignation and to adopt and
expeditiously implement any necessary corrective actions (or
contingency measures). Contingency measures to be considered will be
selected from a comprehensive list of measures deemed appropriate and
effective at the time the selection is made. The contingency plan has
two levels of actions/responses depending on whether a violation of the
8-hour ozone standard is only threatened (Warning Level Response) or
has actually occurred (Action Level Response).
A Warning Level Response will be prompted whenever an annual (1-
year) fourth-high monitored daily peak 8-hour ozone concentration of 89
ppb (or greater) occurs at any monitor in St. Joseph and Elkhart
Counties, or a 2-year averaged annual fourth-high daily peak 8-hour
ozone concentration of 85 ppb or greater occurs at any monitor in St.
Joseph and Elkhart Counties. A Warning Level Response will consist of a
study to determine whether the monitored ozone level indicates a trend
toward higher ozone levels or whether emissions are increasing,
threatening a future violation of the ozone NAAQS. The study will
evaluate whether the trend, if any, is likely to continue, and, if so,
the emission control measures necessary to reverse the trend, taking
into consideration the ease and timing of implementation, as well as
economic and social considerations. Implementation of necessary
controls will take place as expeditiously as possible, but in no event
later than 12 months from the conclusion of the most recent ozone
season. If new emission controls are needed to reverse the adverse
ozone trend, the procedures for emission control selection under the
Action Level Response will be followed.
An Action Level Response will be triggered when a violation of the
8-hour ozone standard is monitored at any of the monitors in St. Joseph
and Elkhart
[[Page 19422]]
Counties (when a 3-year average annual fourth-high monitored daily peak
8-hour ozone concentration of 85 ppb or higher is recorded at any
monitor in St. Joseph and Elkhart Counties). In this situation, IDEM
will determine the additional emission control measures needed to
assure future attainment of the 8-hour ozone NAAQS. IDEM will focus on
emission control measures that can be implemented within 18 months from
the close of the ozone season in which the ozone standard violation is
monitored.
Adoption of any additional emission control measures prompted by
either of the two response levels will be subject to the necessary
administrative and legal processes dictated by State law. This process
will include publication of public notices, providing the opportunity
for a public hearing, and other measures required by Indiana law for
rulemaking by State environmental boards. If a new emission control
measure is already promulgated and scheduled for implementation at the
Federal or State level, and that emission control measure is determined
to be sufficient to address the air quality problem or adverse trend,
additional local emission control measures may be determined to be
unnecessary. IDEM will submit to the EPA an analysis to demonstrate
that the proposed emission control measures or existing emission
control measures are adequate to provide for future attainment of the
8-hour ozone NAAQS in St. Joseph and Elkhart Counties.
Contingency measures contained in the maintenance plan are those
emission controls or other measures that the State may choose to adopt
and implement to correct existing or possible air quality problems in
St. Joseph and Elkhart Counties. These include, but are not limited to,
the following:
i. Lower Reid vapor pressure gasoline requirements;
ii. Broader geographic applicability of existing emission control
measures;
iii. Tightened RACT requirements on existing sources covered by EPA
Control Technique Guidelines (CTGs) issued in response to the 1999 CAA
amendments;
iv. Application of RACT to smaller existing sources;
v. Vehicle Inspection and Maintenance (I/M);
vi. One or more Transportation Control Measure (TCM) sufficient to
achieve at least a 0.5 percent reduction in actual area-wide VOC
emissions, to be selected from the following:
A. Trip reduction programs, including, but not limited to,
employer-based transportation management plans, area-wide rideshare
programs, work schedule programs, and telecommuting;
B. Transit improvement;
C. Traffic flow improvements; and,
D. Other new or innovative transportation measures not yet in
widespread use that affect State and local governments as deemed
appropriate;
vii. Alternative fuel and diesel retrofit programs for fleet
vehicle operations;
viii. Controls on consumer products consistent with those adopted
elsewhere in the United States;
ix. VOC or NOX emission offsets for new or modified
major sources;
x. VOC or NOX emission offsets for new or modified minor
sources;
xi. Increased ratio of emission offsets required for new sources;
and,
xii. VOC or NOX emission controls on new minor sources
(with VOC or NOX emissions less than 100 tons per year).
7. Provisions for a Future Update of the Ozone Maintenance Plan
As required by section 175A(b) of the CAA, the State commits to
submit to the EPA an update of the ozone maintenance plan eight years
after redesignation of the Counties to attainment of the 8-hour ozone
NAAQS. The revision will contain Indiana's plan for maintaining the 8-
hour ozone standard for 10 years beyond the first 10-year period after
redesignation.
V. Has Indiana Adopted Acceptable Motor Vehicle Emissions Budgets for
the End of the 14-Year Maintenance Plan Which Can Be Used To Support
Transportation Conformity Determinations?
A. How Are the Motor Vehicle Emission Budgets Developed and What Are
the Motor Vehicle Emission Budgets for St. Joseph and Elkhart Counties?
Under the CAA, states are required to submit, at various times, SIP
revisions and ozone maintenance plans for applicable areas (for ozone
nonattainment areas and for areas seeking redesignations to attainment
of the ozone standard or revising existing ozone maintenance plans).
These emission control SIP revisions (e.g., reasonable further progress
and attainment demonstration SIP revisions), including ozone
maintenance plans, must create MVEBs based on on-road mobile source
emissions allocated to highway and transit vehicle use that, together
with emissions from other sources in the area, will provide for
attainment or maintenance of the ozone NAAQS.
Under 40 CFR part 93, MVEBs for an area seeking a redesignation to
attainment of the NAAQS are established for the last year of the
maintenance plan. The MVEBs serve as ceilings on emissions from an
area's planned transportation system. The MVEB concept is further
explained in the preamble to the November 24, 1993, transportation
conformity rule (58 FR 62188). The preamble also describes how to
establish the MVEBs in the SIP and how to revise the MVEBs if needed.
Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the SIP that addresses emissions from cars
and trucks. Conformity to the SIP means that transportation activities
will not cause new air quality standard violations, or delay timely
attainment of the NAAQS. If a transportation plan does not conform,
most new transportation projects that would expand the capacity of
roadways cannot go forward. Regulations at 40 CFR part 93 set forth
EPA's policy, criteria, and procedures for demonstrating and assuring
conformity of transportation activities to a SIP.
When reviewing SIP revisions containing MVEBs, including attainment
strategies, rate-of-progress plans, and maintenance plans, EPA must
affirmatively find that the MVEBs are ``adequate'' for use in
determining transportation conformity. Once EPA affirmatively finds the
submitted MVEBs to be adequate for transportation conformity purposes,
the MVEBs are used by state and Federal agencies in determining whether
proposed transportation projects conform to the SIPs as required by
section 176(c) of the CAA. EPA's substantive criteria for determining
the adequacy of MVEBs are specified in 40 CFR 93.118(e)(4).
EPA's process for determining adequacy of MVEBs consists of three
basic steps: (1) Providing public notification of a SIP submission; (2)
providing the public the opportunity to comment on the MVEBs during a
public comment period; and, (3) making a finding of adequacy. The
process of determining the adequacy of submitted SIP MVEBs was
initially outlined in EPA's May 14, 1999, guidance, ``Conformity
Guidance on Implementation of March 2, 1999, Conformity Court
Decision.'' This guidance was finalized in the Transportation
Conformity Rule Amendments for the ``New 8-Hour Ozone and PM2.5
National Ambient Air Quality Standards and Miscellaneous Revisions for
Existing Areas: Transportation Conformity Rule Amendments--Response to
Court
[[Page 19423]]
Decision and Additional Rule Change'' published on July 1, 2004 (69 FR
40004). EPA follows this guidance and rulemaking in making its adequacy
determinations.
The Transportation Conformity Rule, in 40 CFR section 93.118(f),
provides for MVEB adequacy findings through two mechanisms. First, 40
CFR 93.118(f)(1) provides for posting a notice to the EPA conformity
Web site at: http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm and providing a 30-day public comment period. Second, a
mechanism is described in 40 CFR 93.118(f)(2) which provides that EPA
can review the adequacy of an implementation plan MVEB simultaneously
with its review of the implementation plan itself.
The St. Joseph and Elkhart Counties 14-year maintenance plan
contains VOC and NOX MVEBs for 2020. EPA has reviewed the
submittal and the VOC and NOX MVEBs for St. Joseph and
Elkhart Counties and finds that the MVEBs meet the adequacy criteria in
the Transportation Conformity Rule. The 30-day comment period for
adequacy will be the same as the comment period for approval of the
budgets and maintenance plan. Any and all comments on the adequacy or
approvability of the budgets should be submitted during the comment
period stated in the DATES section of this notice.
EPA, through this rulemaking, is proposing to approve the MVEBs for
use to determine transportation conformity in St. Joseph and Elkhart
Counties because EPA has determined that the budgets are consistent
with the control measures in the SIP and that St. Joseph and Elkhart
Counties can maintain attainment of the 8-hour ozone NAAQS for the
relevant required 13-year period with mobile source emissions at the
levels of the MVEBs. IDEM has determined the 2020 MVEBs for St. Joseph
and Elkhart Counties to be 6.64 tons per day for VOC and 7.73 tons per
day for NOX.
B. Are the MVEBs Approvable?
The VOC and NOX MVEBs for St. Joseph and Elkhart
Counties are approvable because they provide for continued maintenance
of the 8-hour ozone standard through 2020.
VI. What Is the Effect of EPA's Proposed Action?
Approval of the redesignation request would change the official
designation of St. Joseph and Elkhart Counties for the 8-hour ozone
NAAQS, found at 40 CFR part 81, from nonattainment to attainment. It
would also incorporate into the Indiana SIP a plan for maintaining the
ozone NAAQS through 2020. The maintenance plan includes contingency
measures to remedy possible future violations of the 8-hour ozone
NAAQS, and establishes MVEBs of 6.64 tons per day for VOC and 7.73 tons
per day for NOX.
VII. Statutory and Executive Order Reviews
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, September 30, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget.
Paperwork Reduction Act
This proposed 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.).
Regulatory Flexibility Act
This proposed action merely proposes to approve state law as
meeting Federal requirements and imposes no additional requirements
beyond those imposed by state law. Accordingly, the Administrator
certifies that this proposed 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 proposes to approve 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 13132: Federalism
This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). This action merely proposes to approve 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.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
This proposed 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 (65 FR 67249, November 9, 2000).
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This proposed 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.
Executive Order 13211: Actions That Significantly Affect Energy Supply,
Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant regulatory 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).
National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use
technical standards that are developed or adopted by voluntary
consensus to carry out policy objectives, so long as such standards are
not inconsistent with applicable law or otherwise impractical. In
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the Clean Air Act. Absent a
prior existing requirement for the state to use voluntary consensus
standards, EPA has no authority to disapprove a SIP submission for
failure to use such standards, and it would thus be inconsistent with
applicable law for EPA to use voluntary consensus standards in place of
a program submission that otherwise satisfies the provisions of the
Clean Air Act. Therefore, the requirements of section 12(d) of the
NTTAA do not apply.
[[Page 19424]]
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.
40 CFR Part 81
Air pollution control, Environmental protection, National parks,
Wilderness areas.
Dated: April 6, 2007.
Walter W. Kovalick,
Acting Regional Administrator, Region 5.
[FR Doc. E7-7347 Filed 4-17-07; 8:45 am]
BILLING CODE 6560-50-P