[Federal Register Volume 72, Number 138 (Thursday, July 19, 2007)]
[Rules and Regulations]
[Pages 39577-39579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13797]
[[Page 39577]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2006-0305; FRL-8440-3]
Determination of Attainment, Approval and Promulgation of
Implementation Plans and Designation of Areas for Air Quality Planning
Purposes; Indiana; Redesignation of the South Bend-Elkhart 8-Hour Ozone
Nonattainment Area to Attainment
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On May 30, 2006, the Indiana Department of Environmental
Management (IDEM) submitted a request to EPA for approval of the
redesignation of St. Joseph and Elkhart Counties to attainment of the
8-hour ozone National Ambient Air Quality Standard (NAAQS) and of an
ozone maintenance plan for St. Joseph and Elkhart Counties as revisions
to the Indiana State Implementation Plan (SIP). On April 18, 2007, EPA
proposed to approve this submission. Today, EPA is approving Indiana's
request and corresponding SIP revision. In so doing, EPA is making a
determination that St. Joseph and Elkhart Counties have attained the 8-
hour ozone NAAQS. This determination is based on three years of
complete, quality-assured ambient air quality monitoring data for the
2003-2005 ozone seasons that demonstrate that the 8-hour ozone NAAQS
has been attained in the area. In addition, quality-assured monitoring
data for 2006 show that the area continues to attain the standard.
Finally, EPA is approving, for purposes of transportation conformity,
the motor vehicle emission budgets (MVEBs) for the year 2020 that are
contained in the 14-year 8-hour ozone maintenance plan for St. Joseph
and Elkhart Counties.
DATES: This final rule is effective on July 19, 2007.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R05-OAR-2006-0305. All documents in the docket are listed on
the www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically through www.regulations.gov or in hard copy at the
Environmental Protection Agency, Region 5, Air and Radiation Division,
77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
Federal holidays. We recommend that you telephone Steven Rosenthal,
Environmental Engineer, at (312) 886-6052 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental
Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J),
U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 886-6052,
[email protected].
SUPPLEMENTARY INFORMATION: In the following, whenever ``we,'' ``us,''
or ``our'' are used, we mean the United States Environmental Protection
Agency.
Table of Contents
I. What Is the Background for This Rule?
II. What Comments Did We Receive on the Proposed Action?
III. What Are Our Final Actions?
IV. Statutory and Executive Order Review
I. What Is the Background for This Rule?
The background for today's action is discussed in detail in EPA's
April 18, 2007 proposal (72 FR 19413). In that rulemaking, we noted
that, under EPA regulations at 40 CFR part 50, the 8-hour ozone
standard is attained when the 3-year average of the annual fourth-
highest daily maximum 8-hour average ozone concentrations is less than
or equal to 0.08 ppm. (See 69 FR 23857 (April 30, 2004) for further
information). The data completeness requirement is met when the average
percent of days with valid ambient monitoring data is greater than 90%,
and no single year has less than 75% data completeness, as determined
in accordance with Appendix I of Part 50.
Under the Clean Air Act (CAA), EPA may redesignate nonattainment
areas to attainment if sufficient complete, quality-assured data are
available to determine that the area has attained the standard and that
it meets the other CAA redesignation requirements in section
107(d)(3)(E).
On May 30, 2006, Indiana submitted a request for the redesignation
of St. Joseph and Elkhart Counties to attainment for the 8-hour ozone
standard. The request included three years of complete, quality-assured
data for the period of 2003 through 2005, indicating the 8-hour NAAQS
for ozone had been achieved. The data satisfy the applicable CAA
requirements discussed above. The April 18, 2007, proposed rule
provides a detailed discussion of how Indiana met these requirements.
On December 22, 2006, the U.S. Court of Appeals for the District of
Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-
hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air
Quality Management Dist. v. EPA, 472 F.3d 882 (D.C.Cir. 2006). On June
8, 2007, in South Coast Air Quality Management Dist. v. EPA, Docket No.
04-1201, in response to several petitions for rehearing, the D.C.
Circuit clarified that the Phase 1 Rule was vacated only with regard to
those parts of the rule that had been successfully challenged.
Therefore, the Phase 1 Rule provisions related to classifications for
areas currently classified under subpart 2 of Title I, part D of the
Act as 8-hour nonattainment areas, the 8-hour attainment dates and the
timing for emissions reductions needed for attainment of the 8-hour
ozone NAAQS remain effective. The June 8 decision left intact the
Court's rejection of EPA's reasons for implementing the 8-hour standard
in certain nonattainment areas under subpart 1 in lieu of subpart 2. By
limiting the vacatur, the Court let stand EPA's revocation of the 1-
hour standard and those anti-backsliding provisions of the Phase 1 Rule
that had not been successfully challenged. The June 8 decision
reaffirmed the December 22, 2006, decision that EPA had improperly
failed to retain four measures required for 1-hour nonattainment areas
under the anti-backsliding provisions of the regulations: (1)
Nonattainment area New Source Review (NSR) requirements based on an
area's 1-hour nonattainment classification; (2) Section 185 penalty
fees for 1-hour severe or extreme nonattainment areas; (3) measures to
be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act,
on the contingency of an area not making reasonable further progress
toward attainment of the 1-hour NAAQS, or for failure to attain that
NAAQS; and, (4) certain transportation conformity requirements for
certain types of Federal actions. The June 8 decision clarified that
the Court's reference to conformity requirements was limited to
requiring the continued use of 1-hour motor vehicle emissions budgets
until 8-hour budgets were available for 8-hour conformity
determinations.
For the reasons set forth in the proposal, EPA does not believe
that the Court's rulings alter any requirements relevant to this
redesignation action so as to preclude redesignation, and does
[[Page 39578]]
not prevent EPA from finalizing this redesignation. EPA believes that
the Court's December 22, 2006, and June 8, 2007, decisions impose no
impediment to moving forward with redesignation of this area to
attainment, because even in light of the Court's decisions,
redesignation is appropriate under the relevant redesignation
provisions of the Act and longstanding policies regarding redesignation
requests.
With respect to the requirement for transportation conformity under
the 1-hour standard, the Court in its June 8 decision clarified that
for those areas with 1-hour motor vehicle emissions budgets in their
maintenance plans, anti-backsliding requires only that those 1-hour
budgets must be used for 8-hour conformity determinations until
replaced by 8-hour budgets. To meet this requirement, conformity
determinations in such areas must comply with the applicable
requirements of EPA's conformity regulations at 40 CFR part 93.
II. What Comments Did We Receive on the Proposed Action?
EPA provided a 30-day review and comment period. The only comment
that we received was from a resident of Elkhart, Indiana, who stated
that the redesignation recognized the region's efforts to improve air
quality.
III. What Are Our Final Actions?
EPA is taking several related actions. First, EPA is making a
determination that St. Joseph and Elkhart Counties have attained the 8-
hour ozone standard. EPA is also approving the State's request to
change the legal designation of St. Joseph and Elkhart Counties from
nonattainment to attainment of the 8-hour ozone NAAQS. Further, EPA is
approving Indiana's maintenance plan SIP revision for St. Joseph and
Elkhart Counties (such approval being one of the CAA criteria for
redesignation to attainment status). The maintenance plan is designed
to keep St. Joseph and Elkhart Counties in attainment for ozone through
2020. Finally, as supported by and consistent with the ozone
maintenance plan, EPA is approving the 2020 volatile organic content
and oxides of nitrogen MVEBs for St. Joseph and Elkhart Counties for
transportation conformity purposes.
In accordance with 5 U.S.C. 553(d), EPA finds that there is good
cause for these actions to become effective immediately upon
publication. This is because a delayed effective date is unnecessary
due to the nature of a redesignation to attainment, which relieves the
area from certain CAA requirements that would otherwise apply to it.
The immediate effective date for this action is authorized under both 5
U.S.C. 553(d)(1), which provides that rulemaking actions may become
effective less than 30 days after publication if the rule ``grants or
recognizes an exemption or relieves a restriction,'' and section
553(d)(3) which allows an effective date less than 30 days after
publication ``as otherwise provided by the agency for good cause found
and published with the rule.'' The purpose of the 30-day waiting period
prescribed in 553(d) is to give affected parties a reasonable time to
adjust their behavior and prepare before the final rule takes effect.
Today's rule, however, does not create any new regulatory requirements
such that affected parties would need time to prepare before the rule
takes effect. Rather, today's rule relieves the State of planning
requirements for these 8-hour ozone nonattainment areas. For these
reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for these
actions to become effective on the date of publication of these
actions.
IV. Statutory and Executive Order Review
Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and, therefore, is
not subject to review by the Office of Management and Budget.
Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Because it is not a ``significant regulatory action'' under
Executive Order 12866 or a ``significant energy action,'' this action
is also not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355, May 22, 2001).
Regulatory Flexibility Act
This action merely approves state law as meeting Federal
requirements and imposes no additional requirements beyond those
imposed by state law. Redesignation of an area to attainment under
section 107(d)(3)(E) of the CAA does not impose any new requirements on
small entities. Redesignation is an action that affects the status of a
geographical area and does not impose any new regulatory requirements
on sources. Accordingly, the Administrator certifies that this rule
will not have a significant economic impact on a substantial number of
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.).
Unfunded Mandates Reform Act
Because this rule approves pre-existing requirements under state
law and does not impose any additional enforceable duty beyond that
required by state law, it does not contain any unfunded mandate or
significantly or uniquely affect small governments, as described in the
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
This rule also does not have tribal implications because it will
not have a substantial direct effect on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
Executive Order 13132: Federalism
This action also does not have Federalism implications because it
does not have substantial direct effects on the states, on the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government, as specified in Executive Order 13132 (64 FR 43255, August
10, 1999). Redesignation is an action that merely affects the status of
a geographical area, and does not impose any new requirements on
sources, or allows a state to avoid adopting or implementing additional
requirements, and does not alter the relationship or distribution of
power and responsibilities established in the Clean Air Act.
Executive Order 13045: Protection of Children From Environmental Health
and Safety Risks
This rule also is not subject to Executive Order 13045 ``Protection
of Children from Environmental Health Risks and Safety Risks'' (62 FR
19885, April 23, 1997), because it is not economically significant.
National Technology Transfer Advancement Act
In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
state to use voluntary consensus
[[Page 39579]]
standards (VCS), EPA has no authority to disapprove a SIP submission
for failure to use VCS. It would thus be inconsistent with applicable
law for EPA, when it reviews a SIP submission, to use VCS in place of a
SIP submission that otherwise satisfies the provisions of the Clean Air
Act. Redesignation is an action that affects the status of a
geographical area but does not impose any new requirements on sources.
Thus, the requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under Section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by September 17, 2007. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review, nor does it extend the time within which a petition for
judicial review may be filed, and shall not postpone the effectiveness
of such rule or action. This action may not be challenged later in
proceedings to force its requirements. (See Section 307(b)(2).)
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Nitrogen dioxide, Ozone, Particulate matter, Volatile
organic compounds.
40 CFR Part 81
Air pollution control, Environmental protection, National parks,
Wilderness areas.
Dated: July 5, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
0
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart P--Indiana
0
2. Section 52.777 is amended by adding paragraph (hh) to read as
follows:
Sec. 52.777 Control strategy: photochemical oxidants (hydrocarbons).
* * * * *
(hh) Approval--On May 30, 2006, Indiana submitted a request to
redesignate St. Joseph and Elkhart Counties to attainment of the 8-hour
ozone National Ambient Air Quality Standard. As part of the
redesignation request, the State submitted a maintenance plan as
required by section 175A of the Clean Air Act. Elements of the section
175 maintenance plan include a contingency plan and an obligation to
submit a subsequent maintenance plan revision in eight years as
required by the Clean Air Act. Also included were motor vehicle
emission budgets to determine transportation conformity in St. Joseph
and Elkhart Counties. The 2020 motor vehicle emission budgets are 6.64
tons per day for volatile organic compounds and 7.73 tons per day for
oxides of nitrogen.
PART 81--[AMENDED]
0
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Section 81.315 is amended by revising the entry for South Bend-
Elkhart, IN: Elkhart and St. Joseph Counties in the table entitled
``Indiana Ozone (8-Hour Standard)'' to read as follows:
Sec. 81.315 Indiana.
* * * * *
Indiana Ozone
[8-hour standard]
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Designation \a\ Classification
Designated area ---------------------------------------------------------------------------------------------------------------
Date \1\ Type Date\1\ Type
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* * * * * * *
South Bend-Elkhart, IN: 7/19/07 Attainment...............................
Elkhart County.....................
St. Joseph County..................
* * * * * * *
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\a\ Includes Indian Country located in each county or area, except as otherwise specified.
\1\ This date is June 15, 2004, unless otherwise noted.
[FR Doc. E7-13797 Filed 7-18-07; 8:45 am]
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