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ENVIRONMENTAL PROTECTION AGENCY
Environmental Protection Agency
CFR Citation: 40 CFR Parts 52 and 81
EPA ID: [EPA-R05-OAR-2006-0715; FRL-8310-9]
NOTICE: PROPOSED RULES
ACTION: Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas:
DOCUMENT ACTION: Proposed rule.
SUBJECT CATEGORY: Determination of Attainment, Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Indiana; Redesignation of the Clark and Floyd Counties 8-Hour Nonattainment Area to Attainment for Ozone
DATES: Comments must be received on or before June 7, 2007.
DOCUMENT SUMMARY: On November 15, 2006, the Indiana Department of Environmental
Management (IDEM) submitted a request to redesignate the Indiana
portion of the Louisville 8hour ozone National Ambient Air Quality
Standard (NAAQS) nonattainment area (Clark and Floyd Counties) to
attainment for the 8hour ozone NAAQS, and a request for EPA approval
of a 14year maintenance plan for Clark and Floyd Counties. Today, EPA
is making a determination that the Indiana portion of the Louisville 8
hour ozone nonattainment area has attained the 8hour ozone NAAQS. This
determination is based on three years of complete, qualityassured
ambient air quality monitoring data for the 20032005 ozone seasons
that demonstrate that the 8hour ozone NAAQS has been attained in the
area. EPA is proposing to approve the request to redesignate Clark and
Floyd Counties to attainment of the 8hour ozone standard based on its
determination that the Louisville 8hour ozone nonattainment area has
met the criteria for redesignation to attainment specified in the Clean
Air Act (CAA). EPA is also proposing to approve Indiana's maintenance
plan which adequately supports continued attainment through 2020 and,
for purposes of transportation conformity, the Volatile Organic
Compounds (VOC) and Nitrogen Oxides (NO
SUMMARY: Indiana,
SUPPLEMENTAL INFORMATION
Throughout this document whenever ``we,'' ``us,'' or ``our'' is used, we mean the EPA. This supplementary information section is arranged as follow: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 Redesignation Request and What Are the Bases for EPA's Proposed Action?
V. Has Indiana Adopted Acceptable Motor Vehicle Emissions Budgets for the End of the 14Year Maintenance Plan Which Can Be Used To Support 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 the Indiana
portion of the Louisville 8hour nonattainment area (Clark and Floyd
Counties). First, we are proposing to determine that Clark and Floyd
Counties have attained the 8hour 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 Clark and Floyd Counties as a
revision of the Indiana SIP. The maintenance plan is designed to keep
Clark and Floyd Counties in attainment of the 8hour ozone standard
through 2020 by ensuring that the VOC and NO
II. What Is the Background for This Action?
A. General Background Information
EPA has determined that groundlevel ozone is detrimental to human health. On July 18, 1997, EPA promulgated an 8hour ozone NAAQS of 0.08 parts per million parts of air (0.08 ppm) (80 parts per billion (ppb)) (62 FR 38856).\1\ This 8hour ozone standard replaced a prior 1hour ozone NAAQS, which had been promulgated on February 8, 1979 (44 FR 8202), and which was revoked on June 15, 2005 (69 FR 23858). \1\ This standard is violated in an area when any ozone monitor in the area (or in its impacted downwind environs) records 8hour ozone concentrations with an average of the annual fourthhighest daily maximum 8hour ozone concentrations over a threeyear period equaling or exceeding 85 ppb. 40 CFR 50.10.
Groundlevel ozone is not emitted directly by sources. Rather,
emitted NO
The CAA required EPA to designate as nonattainment any area that violated the 8hour 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 provisionssubpart 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 8hour
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
8hour ozone design values (i.e., on the threeyear averages of the
annual fourthhighest daily maximum 8hour ozone concentrations at the
worstcase monitoring sites in the areas) and on their 1hour ozone
design values (i.e., on the fourthhighest daily maximum 1hour ozone
concentrations over the threeyear period at the worstcase monitoring
sites in the areas).\2\ EPA classified 8hour ozone nonattainment areas
with 1hour ozone design values equaling or exceeding 121 ppb as [[Page 26059]]
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 explained in a separate April 30,
2004 final rule (the Phase 1 implementation rule) (69 FR 23951).
\2\ The 8hour ozone design value and the 1hour ozone design
value for each area were not necessarily recorded at the same
monitoring site. The worstcase monitoring site for each ozone concentration averaging time was considered for each area.
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 the Louisville nonattainment area, including Clark and Floyd Counties as a subpart 1 basic nonattainment area for the 8hour ozone NAAQS. EPA based the designation on ozone data collected during the 20012003 period.
On November 15, 2006, the State of Indiana requested redesignation of Clark and Floyd Counties to attainment of the 8hour ozone NAAQS based on ozone data collected in these counties from 20032005. 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 1 Rule were inconsistent with the requirements of the Clean Air Act. The Court rejected EPA's reasons for implementing the 8hour 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 1hour nonattainment areas under the antibacksliding provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1hour nonattainment classification; (2) Section 185 penalty fees for 1hour 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 1hour 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 1hour standard provided there were adequate antibacksliding 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 8Hour Standard
With respect to the 8hour standard, the Court's ruling rejected EPA's reasons for classifying areas under Subpart 1 for the 8hour 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 State submissions in accordance with the requirements due at the time the request is submitted; and, (2) consideration of the inequity of applying retroactively any future requirements.
First, at the time the redesignation request was submitted, Clark and Floyd Counties (and the entire Louisville area) 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 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, 1246566 (March 7, 1995) (Redesignation of DetroitAnn 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 DC Circuit has recognized the inequity in such retroactive rulemaking, See Sierra Club v. Whitman, 285 F.3d 63 (DC Cir. 2002), in which the DC 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. 3. Requirements Under the 1Hour Standard
With respect to the requirements under the 1hour standard, Clark and Floyd Counties were attainment areas subject to a Clean Air Act section 175A maintenance plan under the 1hour 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
[[Page 26060]]
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 1hour 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 1hour 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, it has developed memoranda of
understanding, signed by all parties involved in conformity, to address
conformity consultation procedures. 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 8hour ozone budgets being approved.
\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.
Second, with respect to the three other antibacksliding provisions for the 1hour standard that the Court found were not properly retained, Clark and Floyd Counties are attainment areas subject to a maintenance plan for the 1hour 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 1hour 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,'' 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 Redesignation Request and What Are the Bases for EPA's Proposed Action?
EPA is proposing to: (1) Determine that Clark and Floyd Counties
have attained the 8hour ozone standard; (2) approve the ozone
maintenance plan for Clark and Floyd Counties and the VOC and
NO
A. Louisville Has Attained the 8Hour Ozone NAAQS
For ozone, an area may be considered to be attaining the 8hour
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 qualityassured 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 fourthhigh daily maximum 8hour 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 threeyear period must not exceed the ozone standard.
Based on an ozone data rounding convention described in 40 CFR part 50,
appendix I, the 8hour 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 qualityassured 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.
\4\ The worstcase monitoring sitespecific ozone design value in the area or in its affected downwind environs.
Indiana submitted ozone monitoring data for the April through
September ozone seasons from 2003 to 2005 for the Indiana and Kentucky
portions of the Louisville nonattainment area. This data has been
quality assured by Indiana and Kentucky and is recorded in AQS. The 4th
high averages are summarized in Table 1, in which the values are in ppm ozone.
Table 1.4th high values in ppm ozone.
Monitor County 20032005 2003 2004 2005 2006
Charlestown, IN................... Clark................ 0.081 0.090 0.074 0.080 0.079 [[Page 26061]]
New Albany, IN.................... Floyd................ 0.079 0.086 0.071 0.079 0.076
WLKY, KY.......................... Jefferson............ 0.071 0.073 0.068 0.074 0.067
Watson, KY........................ Jefferson............ 0.076 0.075 0.070 0.085 0.077
Bates, KY......................... Jefferson............ 0.073 0.072 0.070 0.079 0.074
Shepherdsville, KY................ Bulitt............... 0.073 0.072 0.068 0.080 0.071
Buckner, KY....................... Oldham............... 0.082 0.082 0.076 0.089 0.083
These data show that the average fourthhigh daily maximum 8hour ozone concentrations for the monitoring sites in the Louisville area are all below the 85 ppb ozone standard violation cutoff. The data support the conclusion that the Louisville 8hour ozone nonattainment area (including Clark and Floyd Counties) did not experience a monitored violation of the 8hour ozone standard from 20032005. In addition, the surrounding counties in Indiana and Kentucky did not monitor nonattainment during the 20032005 period. As also noted in Table 1, the 8hour ozone NAAQS continued to be attained in the Louisville area through 2006.
Indiana has committed to continue ozone monitoring at the sites in
Clark and Floyd Counties. IDEM also commits to consult with the EPA
prior to making any changes in the existing monitoring network. In
summary, EPA believes that the data submitted by Indiana provide an
adequate demonstration that the Louisville area attains the 8hour ozone NAAQS.
B. Clark and Floyd 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 Clark and Floyd 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 subpart 1 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 Clark and Floyd Counties at the time the State submitted the final, complete ozone redesignation request for this area.
1. Clark and Floyd Counties Have Met All Applicable Requirements Under Section 110 and Part D of the CAA
The September 4, 1992 Calcagni memorandum describes EPA's 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, 1246512466 (March 7, 1995) (redesignation of DetroitAnn 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 1hour 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 (NO
[[Page 26062]]
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 5317453176, October 10, 1996 and 62 FR 24826, May 7, 1997); ClevelandAkronLoraine, 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 1hour 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 172176 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.
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 48524853 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 Clark and Floyd Counties prior to the State's November 15, 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 November 15, 2006. Therefore, none of the part D requirements are applicable to Clark and Floyd 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 Federallysupported 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 Federallysupported 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 Clark and Floyd 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 Clark and Floyd 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. Clark and Floyd Counties Have a Fully Approved Applicable SIP Under Section 110(k) of the CAA
EPA has fully approved the Indiana SIP for Clark and Floyd 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, 989990 (6th Cir. 1998), Wall v. EPA, 265 F.3d 426
[[Page 26063]]
(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 Clark and Floyd Counties
for purposes of redesignation. No Clark and Floyd County 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 1hour standard will be adequate for purposes of attaining
and maintaining the 8hour 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 Clark and Floyd 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 implementation of the SIP, Federal measures, and other Stateadopted measures have contributed to the observed air quality improvement in Clark and Floyd Counties.
In making this demonstration, the State has documented the changes
in VOC and NO
Table 2.VOC and NOX Emissions in Clark & Floyd Counties and
Louisville, All SourcesEmissions in Tons/Summer Day
Pollutant 2002 2003
VOCClark & Floyd............................ 32.69 29.26
NOXClark & Floyd............................ 57.59 51.76
VOCLouisville NA............................ 138.24 133.83
NOXLouisville NA............................ 247.46 238.76
The statewide NO
Table 3.NOX Emissions From Electric Generating Units in Indiana StatewideEmissions in Thousands of Tons per
Ozone Season
[AprilOctober]
Area 1999 2000 2001 2002 2003 2004 2005
Statewide................................. 149.8 133.9 136.1 114.0 99.3 66.6 55.5
The NO
VOC and NO
Besides the statewide VOC RACT rules and NO
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 phasein period, the following vehicle NO
[[Page 26064]]
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 Clark and Floyd Counties.
HeavyDuty Diesel Engines. In July 2000, EPA issued a final rule to
control the emissions from highway heavy duty diesel engines, including
lowsulfur 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 NO
NonRoad 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. It is expected to reduce NO
Indiana commits to maintain all existing emission control measures
that affect Clark and Floyd Counties after this area is redesignated to
attainment of the 8hour ozone NAAQS. All changes in existing rules
affecting Clark and Floyd Counties and new rules subsequently needed to
provide for the maintenance of the 8hour ozone NAAQS in Clark and
Floyd Counties will be submitted to the EPA for approval as SIP revisions.
D. Clark and Floyd Counties Have a Fully Approvable Ozone Maintenance Plan Pursuant to Section 175A of the CAA
In conjunction with its request to redesignate Clark and Floyd Counties to attainment of the ozone NAAQS, Indiana submitted a SIP revision request to provide for maintenance of the 8hour ozone NAAQS in Clark and Floyd Counties for at least 10 years after the redesignation of this area to attainment of the 8hour 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 of
VOC and NO
2. Demonstration of Maintenance
IDEM prepared comprehensive VOC and NO
As part of the November 15, 2006, redesignation request submittal,
IDEM included a requested revision to the SIP to incorporate a 14year
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
8hour ozone NAAQS by documenting current and projected VOC and
NO
\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 the Louisville area).
Table 4 specifies the VOC emissions in Clark and Floyd Counties and
the entire nonattainment area for 2003, 2011 and 2020. IDEM chose 2020
as a projection year to meet the 10year 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 2011 as an interim year to demonstrate that VOC
and NO
Table 5, similar to Table 4, specifies the NO
Table 4.Attainment Year (2003) and Projected VOC Emissions in Clark
and Floyd Counties and Entire Nonattainment Area [Tons per summer day]
Year Source sector
2003 2011 2020 Point:
Clark and Floyd.................... 4.17 6.61 7.14
Louisville NA...................... 36.62 39.28 39.85 Area:
Clark and Floyd.................... 11.94 12.77 14.59
Louisville NA...................... 35.07 36.93 40.02 OnRoad Mobile:
Clark and Floyd.................... 9.60 6.12 3.98
Louisville NA...................... 40.97 25.69 16.89 OffRoad Mobile:
Clark and Floyd.................... 3.55 2.35 2.20
Louisville NA...................... 21.17 15.87 15.28 Total:
Clark and Floyd.................... 29.26 27.85 27.91
Louisville NA...................... 133.83 117.77 112.04
Table 5.Attainment Year and Projected NOX Emissions in Clark and Floyd Counties and Entire Nonattainment Area
[Tons per summer day]
Year Source sector
2003 2011 2020 Point:
Clark and Floyd.................... 24.26 27.29 28.66
Louisville NA...................... 99.73 78.95 75.97 Area:
Clark and Floyd.................... 1.60 1.71 1.80
Louisville NA...................... 2.53 2.67 2.79 OnRoad Mobile:
Clark and Floyd.................... 20.27 10.20 4.15
Louisville NA...................... 95.51 47.53 19.62 OffRoad Mobile:
Clark and Floyd.................... 5.63 4.43 3.49
Louisville NA...................... 41.01 34.77 27.88 Total:
Clark and Floyd.................... 51.77 43.63 38.10
Louisville NA...................... 238.79 163.92 126.26
IDEM also notes that the State's EGU NO
Based upon the data in Table 4, VOC emissions in Clark and Floyd
Counties are projected to decline by about 5% between 2003 and 2020 and
VOC emissions in the entire nonattainment area are projected to decline
by 16%. Based upon the data in Table 5, NO
Based on the projected VOC and NO
3. Monitoring Network
IDEM commits to continue operating and maintaining an approved ozone monitoring network in Clark and Floyd Counties in accordance with 40 CFR part 58 through the 14year maintenance period. This will allow the confirmation of the maintenance of the 8hour ozone standard in this area and the triggering of contingency measures if needed. 4. Verification of Continued Attainment
Continued attainment of the 8hour ozone NAAQS in Clark and Floyd [[Page 26066]]
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 8hour ozone standard in Clark
and Floyd 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
NO
5. 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 8hour 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) fourthhigh monitored daily peak 8hour ozone concentration of 89
ppb (or greater) occurs at any monitor in Clark and Floyd Counties, or a 2year averaged annual fourthhigh daily peak 8hour ozone
concentration of 85 ppb or greater occurs at any monitor in Clark or
Floyd 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 8hour ozone standard is monitored at any of the monitors in the maintenance area (when a 3year average annual fourthhigh monitored daily peak 8hour ozone concentration of 85 ppb or higher is recorded at any such monitor). In this situation, IDEM will determine the additional emission control measures needed to assure future attainment of the 8hour 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 are adequate to return the area to attainment.
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 Clark and Floyd 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 1990 CAA amendments;
iv. Application of RACT to smaller existing sources;
v. Vehicle Inspection and Maintenance;
vi. One or more Transportation Control Measures sufficient to achieve at least a 0.5 percent reduction in actual areawide VOC emissions, to be selected from the following:
A. Trip reduction programs, including, but not limited to,
employerbased transportation management plans, areawide 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 NO
x. VOC or NO
xi. Increased ratio of emission offsets required for new sources; and,
xii. VOC or NO
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 County to attainment of the 8hour ozone NAAQS. The revision will contain Indiana's plan
[[Page 26067]]
for maintaining the 8hour ozone standard for 10 years beyond the first 10year period after redesignation.
V. Has Indiana Adopted Acceptable Motor Vehicle Emissions Budgets for
the End of the 14Year Maintenance Plan Which Can Be Used to Support Conformity Determinations?
A. How Are the Motor Vehicle Emission Budgets Developed and What Are
the Motor Vehicle Emission Budgets for Clark and Floyd 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 onroad 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 and the State has the option of setting budgets for other years in 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, rateofprogress 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 the 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 8Hour Ozone and
PM
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 30day 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.
EPA, through this rulemaking, is proposing to approve the MVEBs for use to determine transportation conformity in the Louisville 8hour ozone area because EPA has determined that the budgets are consistent with the control measures in the SIP and that Louisville can maintain attainment of the 8hour ozone NAAQS for the relevant required 14year period with mobile source emissions at the levels of the MVEBs.
The MVEBs in the maintenance plan are for the entire Louisville
area, which includes the Kentucky areas (Bullitt, Jefferson and Oldham
Counties), in addition to Clark and Floyd Counties in Indiana. Through
the transportation consultation process, it was decided that the best
way to maintain the mobile source emissions for the area would be to
set budgets for the entire area rather than each individual State.
There is one Metropolitan Planning Organization for the entire area
(the Kentuckiana Regional Planning and Development Agency). The
transportation network modeling and transportation conformity
determinations are conducted for the entire Louisville area. The
transportation conformity regulations allow States to decide in
consultation with the transportation partners, to determine budgets for
the entire area or for each state. The transportation conformity
budgets are listed in the Table below. MVEBs are proposed for both the
2020 year or last year of the maintenance plan and also for the 2003 year which is an attainment year.
Louisville KYIN 8Hour Ozone Regional Motor Vehicle Emissions Budgets (Tons per day)
2003 2020
VOC................................................... 40.97 22.92
NOX................................................... 95.51 29.46
Kentucky and Indiana have jointly chosen to allocate a portion of
the available safety margin to the 2020 MVEBs. This allocation is 6.03
tpd for VOC and 9.84 tpd for NO
These budgets are the same as the budgets that have been submitted by the State of Kentucky for the entire Louisville area and have been discussed by the transportation partners for the Louisville area.
Through this rulemaking, EPA is proposing to approve the 2003 and 2020 MVEBs for the interstate Louisville 8hour ozone area for use to determine transportation conformity because EPA has determined that the interstate Louisville area maintains the standard with emissions at the levels of the budgets. If EPA approves the 20
FOR FURTHER INFORMATION CONTACT Steven Rosenthal, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR18), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 8866052, rosenthal.steven@epa.gov.
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