[Federal Register Volume 72, Number 138 (Thursday, July 19, 2007)]
[Rules and Regulations]
[Pages 39574-39576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13794]
[[Page 39574]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R05-OAR-2006-0459; FRL-8440-4]
Determination of Attainment, Approval and Promulgation of
Implementation Plans and Designation of Areas for Air Quality Planning
Purposes; Indiana; Redesignation of LaPorte County to Attainment for
Ozone
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 for EPA approval of redesignation
of LaPorte County to attainment of the 8-hour ozone National Ambient
Air Quality Standard (NAAQS). In this submittal, IDEM also requested
EPA approval of an Indiana State Implementation Plan (SIP) revision
containing a plan to maintain the ozone standard in LaPorte County
through 2020 and established 2020 motor vehicle Volatile Organic
Compounds (VOC) and Nitrogen Oxides (NOX) emission budgets
for LaPorte County. EPA is making a determination that LaPorte County,
Indiana has 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 LaPorte County. Quality
assured monitoring data for 2006 show that the area continues to attain
the ozone standard. EPA is approving, as a SIP revision, the State's
ozone maintenance plan for LaPorte County. As a result, Indiana has
satisfied the criteria for redesignation of LaPorte County to
attainment of the 8-hour ozone NAAQS, and EPA is approving Indiana's
ozone redesignation request for this area. Further, EPA is approving,
for purposes of transportation conformity, the motor vehicle emission
budgets (MVEBs) for VOC and NOX for the year 2020 that are
contained in the 8-hour ozone maintenance plan for this area.
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-2006-0459. 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 Edward Doty,
Environmental Scientist, at (312) 886-6057 before visiting the Region 5
office.
FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist,
Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S.
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois 60604, (312) 886-6057, [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. Impacts of Recent Court Decisions
IV. What Are Our Final Actions?
IV. Statutory and Executive Order Review
I. What Is the Background for This Rule?
The Clean Air Act (CAA) requires EPA to designate as nonattainment
any area that is violating the 8-hour ozone NAAQS based on three
consecutive years of air quality monitoring data. EPA designated
LaPorte County, Indiana as a nonattainment area for the 8-hour ozone
NAAQS in a Federal Register notice published on April 30, 2004 (69 FR
23857). At the same time, EPA classified LaPorte County as a subpart 2
moderate 8-hour ozone nonattainment area, based on quality assured air
quality data for the period of 2001-2003.
On May 30, 2006, Indiana submitted a request for redesignation of
LaPorte County to attainment of the 8-hour ozone NAAQS. Additional
supporting information was submitted on August 24, 2006. The
redesignation request included three years of complete, quality-assured
data for the period of 2003-2005, indicating attainment of the 8-hour
ozone NAAQS. The ozone data show attainment of the 8-hour ozone NAAQS
when the 3-year average of the annual fourth-highest daily maximum 8-
hour average ozone concentration is less than or equal to 0.08 parts
per million parts of air at all monitoring sites in an area. Under the
CAA, nonattainment areas may redesignated to attainment if sufficient
complete, quality-assured data are available for the Administrator to
determine that an area has attained the standard and if the area meets
other redesignation requirements in section 107(d)(3)(E) of the CAA. An
April 18, 2007, proposed rule (72 FR 19424) provides a discussion of
how LaPorte County and the State of Indiana met these requirements for
this area.
II. What Comments Did We Receive on the Proposed Action?
EPA provided a 30-day review and comment period on the April 18,
2007, proposed rule. No comments were received by the EPA regarding
this proposed rule.
III. Impacts of Recent Court Decisions
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 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 CAA as
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 8th decision left intact the Court's
rejection of EPA's reasons for implementing the 8-hour ozone 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 ozone standard and anti-backsliding provisions of the Phase 1 rule
that had not been successfully challenged. The June 8th decision
reaffirmed the December 22, 2006, decision that EPA had improperly
failed to retain four measures required for 1-hour ozone 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
[[Page 39575]]
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 CAA, on the contingency of an
area not making reasonable further progress toward attainment of the 1-
hour ozone NAAQS, or for failure to attain that NAAQS; and, (4) certain
transportation conformity requirements for certain types of Federal
actions. The June 8th decision clarified that the Court's reference to
conformity requirements was limited to requiring the continued use of
1-hour motor vehicle emissions budget 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 do 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 CAA and longstanding policies regarding redesignation
requests.
With respect to the 8-hour ozone standard, LaPorte County, which is
classified as a marginal nonattainment area under subpart 2, the June
8, 2007, opinion clarifies that the Court did not vacate the Phase 1
rule's provisions with respect to classifications for areas under
subpart 2. The Court's decision, therefore, upholds EPA's
classification for LaPorte County under subpart 2 for the 8-hour ozone
standard.
IV. What Are Our Final Actions?
EPA is taking several related actions. EPA is making a
determination that LaPorte County, Indiana has attained the 8-hour
ozone standard. EPA is approving Indiana's ozone maintenance plan as a
SIP revision for LaPorte County (such approval being one of the CAA
criteria for redesignation to attainment). The maintenance plan is
designed to keep LaPorte County in attainment of the 8-hour ozone NAAQS
through 2020. Because Indiana has met these and other prerequisites for
redesignation to attainment, EPA is approving the State's request to
change the legal designation of LaPorte County from nonattainment to
attainment of the 8-hour ozone NAAQS. In addition, and supported by and
consistent with the ozone maintenance plan, EPA is approving the 2020
VOC and NOX MVEBs for LaPorte County for transportation
conformity purposes. The 2020 MVEBs for LaPorte County are 3.40 tons
per day for VOC and 6.50 tons per day for NOX.
EPA finds that there is good cause for these actions to become
effective immediately upon publication because a delayed effective date
is unnecessary due to the nature of 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 this 8-hour ozone nonattainment area. 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 Clean Air Act 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.
[[Page 39576]]
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 approves a state rule implementing a
Federal Standard.
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 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 (gg) to read as
follows:
Sec. 52.777 Control strategy: Photochemical oxidants (hydrocarbons).
* * * * *
(gg) Approval--On May 30, 2006, Indiana submitted a request to
redesignate LaPorte County 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. The
maintenance plan establishes 2020 motor vehicle emission budgets for
LaPorte County of 3.40 tons per day for volatile organic compounds
(VOC) and 6.50 tons per day for oxides of nitrogen (NOX).
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 entries for LaPorte
County, Indiana: LaPorte County in the table entitled ``Indiana Ozone
(8-Hour Standard)'' to read as follows:
Sec. 81.315 Indiana.
* * * * *
Ohio Ozone
[8-hour standard]
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Designation \a\ Classification
Designated area ------------------------------------------------------------------------------
Date \1\ Type Date \1\ Type
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* * * * * * *
LaPorte Co., IN:
LaPorte County............... 8/20/07 Attainment...............
* * * * * * *
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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. E7-13794 Filed 7-18-07; 8:45 am]
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