[Federal Register Volume 74, Number 184 (Thursday, September 24, 2009)]
[Rules and Regulations]
[Pages 48662-48664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23044]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-R05-OAR-2009-0512; FRL-8961-9]
Approval and Promulgation of Air Quality Implementation Plans;
Indiana; Interim Final Determination That Lake and Porter Counties Are
Exempt From NOX RACT Requirements for Purposes of Staying Sanctions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Interim final rule.
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SUMMARY: In the Proposed Rules section of this Federal Register, EPA is
proposing approval of Indiana's request to exempt Lake and Porter
Counties from the Nitrogen Oxides (NOX) Reasonably Available
Control Technology (RACT) requirement under section 182(f) of the Clean
Air Act (CAA) for the 1997 eight-hour ozone standard based on a
proposed determination that the area has attained that standard. Based
on the proposed approval, EPA is making an interim final determination
by this action that, with respect to the NOX RACT
requirement, the State, contingent upon continued monitored attainment
of the 1997 eight-hour ozone National Ambient Air Quality Standard
(NAAQS), has corrected the deficiency which was the basis for a
sanctions clock. This action will defer the application of the new
source offset sanction, which would be imposed on September 24, 2009,
and defer the application of the highway funding sanction, which would
otherwise apply six months after imposition of the offset sanction.
Although this action is effective upon publication, EPA will take
comment on this interim final determination as well as on EPA's
proposed determination of attainment and proposed approval of the
State's requested NOX RACT waiver. EPA will publish a new
final action addressing sanctions at the time it takes further action
regarding the proposed determination of attainment and proposed
approval of the NOX waiver, taking into consideration any
comments on EPA's proposed action and this interim final action.
DATES: This interim final determination is effective on September 24,
2009. However, comments will be accepted until October 26, 2009.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0512, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Fax: (312) 692-2551.
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, 18th Floor, Chicago, Illinois 60604.
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 official hours of
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding
Federal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2009-0512. 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 http://www.regulations.gov or e-mail. The http://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 http://www.regulations.gov, your e-mail address will be
automatically captured and included as part of the comment
[[Page 48663]]
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, any form of encryption, and be free of
any defects and viruses.
Docket: All documents in the docket are listed in the http://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 hard copy.
Publicly available docket materials are available either electronically
in http://www.regulations.gov or in hard copy at the U.S. 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 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), Environmental
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago,
Illinois 60604, (312) 886-6057.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA. This supplementary information
section is arranged as follows:
I. Background
II. EPA Action
III. Statutory and Executive Order Reviews
I. Background
On March 17, 2008, EPA sent a letter to Thomas W. Easterly,
Commissioner, Indiana Department of Environmental Management (IDEM)
stating that, under section 179 of the CAA, EPA had determined that
Indiana failed to submit a State Implementation Plan (SIP) revision for
NOX RACT in Lake and Porter Counties. EPA formalized this
finding by taking final action in the Federal Register on March 24,
2008 (73 FR 15416), and that action started the sanctions process
outlined in section 179 of the CAA and 40 CFR 50.31. The two-to-one
(2:1) new source offset sanction was set to take effect on September
24, 2009, in Lake and Porter Counties as the result of the March 24,
2008, finding of failure to submit.
On June 5, 2009, IDEM submitted an ozone redesignation request for
Lake and Porter Counties, which included a petition pursuant to section
182(f) of the CAA to exempt Lake and Porter Counties from the
NOX RACT requirement. The petition is based on ambient air
monitoring data for 2006-2008 which shows that the Chicago-Gary-Lake
County, Illinois-Indiana (IL-IN) ozone nonattainment area is meeting
the 1997 eight-hour ozone NAAQS. In the Proposed Rules section of
today's Federal Register, EPA has proposed a determination that the
area has attained the 1997 eight-hour ozone NAAQS and has proposed
approval of the NOX RACT waiver request contingent on
continued monitored attainment of the 1997 eight-hour ozone NAAQS in
the Chicago-Gary-Lake County, IL-IN ozone nonattainment area and at the
Chiwaukee Prairie monitoring site in Kenosha County, Wisconsin (a peak
ozone downwind impact site for emissions originating in the Chicago-
Gary-Lake County, IL-IN area).
II. EPA Action
Based on the proposed approval of the NOX RACT waiver
request set forth in today's Federal Register, EPA believes that it is
more likely than not that Indiana (and Lake and Porter Counties) has
met the NOX RACT requirement under section 182(f) of the
CAA. Therefore, EPA is making this interim final determination finding
that the State, contingent on continued monitored attainment of the
ozone NAAQS, has corrected the deficiency of failing to submit
NOX RACT rules.
Because EPA has preliminarily determined that the State has
corrected the deficiency identified in EPA's promulgated finding of
failure to submit required NOX RACT rules for Lake and
Porter Counties, relief from sanctions should be provided as quickly as
possible. Therefore, EPA is invoking the good cause exception under the
Administrative Procedure Act (APA) in not providing an opportunity for
comment before this action takes effect (5 U.S.C. 553(b)(3)). However,
by this action EPA is providing the public with a chance to comment on
EPA's determination after the effective date, and EPA will consider any
comments received in determining whether to reverse this action.
EPA believes that notice-and-comment rulemaking before the
effective date of this action is impracticable and contrary to the
public interest. EPA has reviewed the State's NOX RACT
waiver petition, and, through its proposed action, is indicating that
it is more likely than not that the State has corrected the SIP
deficiency that started the sanctions clock for Lake and Porter
Counties. It is not in the public interest to initially impose
sanctions or to keep applied sanctions in place when the State has most
likely done all it can to correct the deficiency that triggered the
sanctions clock. Moreover, it would be impracticable to go through
notice-and-comment rulemaking on a finding that the State has corrected
the deficiency prior to the rulemaking approving the State's submittal.
Therefore, EPA believes that it is necessary to use the interim final
rulemaking process to defer the imposition of sanctions while EPA
completes its rulemaking process on the approvability of the State's
submittal. Furthermore, because this rule relieves a restriction, EPA
is providing that it will be effective upon publication. (5 U.S.C.
553(d)(1).)
III. Statutory and Executive Order Reviews
This action stays and defers Federal sanctions and imposes no
additional requirements.
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.
This action is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a
significant regulatory action.
The administrator certifies that this action 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.).
This rule 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).
This rule does not have tribal implications because it will not
have a substantial direct effect on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified by Executive Order 13175 (59
FR 22951, November 9, 2000).
[[Page 48664]]
This action 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 rule 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.
The requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply to
this rule because it imposes no standards.
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.).
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 to Congress and the Comptroller
General. However, section 808 provides that any rule for which the
issuing agency for good cause finds that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest, shall take effect at such time as the agency promulgating the
rule determines. 5 U.S.C. 808(2). EPA has made such a good cause
finding, including the reasons thereof, and established an effective
date of September 24, 2009. 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 rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by November 23, 2009. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this rule for the purpose of judicial review nor does
it extend the time within which petition for judicial review may be
filed, and shall not postpone the effectiveness of such rule or action.
This action may not be challenged later in proceedings to enforce its
requirements. (See section 307(b)(2).)
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental regulations, Nitrogen dioxide, Ozone,
Volatile organic compounds.
Dated: September 16, 2009.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. E9-23044 Filed 9-23-09; 8:45 am]
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