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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-8440-2]
NOTICE: RULES
ACTION: Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas:
DOCUMENT ACTION: Final 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 Ozone Nonattainment Area to Attainment
DATES: This final rule is effective on July 19, 2007.
DOCUMENT SUMMARY: On November 15, 2006, the Indiana Department of Environmental Management (IDEM) submitted a request to EPA for approval of the redesignation of the Indiana portion of the Louisville 8hour ozone National Ambient Air Quality Standard (NAAQS) nonattainment area (Clark and Floyd Counties) to attainment of the 8hour ozone NAAQS and of an ozone maintenance plan for Clark and Floyd Counties as revisions to the Indiana State Implementation Plan (SIP). On May 8, 2007, EPA proposed to approve this submission and no adverse comments have been received. Today, EPA is approving Indiana's request and corresponding SIP revision. In so doing, EPA is making a determination that the Indiana portion of the Louisville 8hour ozone NAAQS 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. In addition, qualityassured 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 years 2003 and 2020.
SUMMARY: Indiana,
SUPPLEMENTAL 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 May 8, 2007 proposal (72 FR 26057). In that rulemaking, we noted that, under EPA regulations at 40 CFR part 50, the 8hour ozone standard is attained when the 3year average of the annual fourthhighest daily maximum 8hour 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 CAA, EPA may redesignate nonattainment areas to attainment if sufficient complete, qualityassured 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 November 15, 2006, Indiana submitted a request for the redesignation of Clark and Floyd Counties to attainment for the 8hour ozone standard. The request included three years of complete, quality assured data for the period of 2003 through 2005, indicating the 8hour NAAQS for ozone had been achieved. The data satisfy the applicable CAA requirements discussed above. The May 8, 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. 041201, 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 8hour nonattainment areas, the 8hour attainment dates and the timing for emissions reductions needed for attainment of the 8hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8hour 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 antibacksliding 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 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; and (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. In addition, the June 8 decision clarified that the Court's reference to conformity requirements for antibacksliding purposes was limited to requiring the continued use of 1hour motor vehicle emissions budgets until 8hour budgets were available for 8hour conformity determinations. The Court thus clarified that 1hour conformity determinations are not required for antibacksliding purposes.
For the reasons set forth in the proposal, EPA does not believe that the
[[Page 39572]]
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 Act and longstanding policies regarding redesignation requests.
With respect to the requirement for transportation conformity under the 1hour standard, the Court in its June 8 decision clarified that for those areas with 1hour motor vehicle emissions budgets in their 1 hour maintenance plans, antibacksliding requires only that those 1 hour budgets must be used for 8hour conformity determinations until replaced by 8hour budgets. To meet this requirement, conformity determinations in such areas must continue to comply with the applicable requirements of EPA's conformity regulations at 40 CFR Part 93. The Court clarified that 1hour conformity determinations are not required for antibacksliding purposes.
II. What Comments Did We Receive on the Proposed Action?
EPA provided a 30day review and comment period and received no comments.
III. What Are Our Final Actions?
EPA is taking several related actions for the Indiana portion of
the Louisville 8hour nonattainment area (Clark and Floyd Counties).
First, EPA is making a determination that Clark and Floyd Counties have
attained the 8hour ozone standard. EPA is also approving the State's
request to change the legal designation of Clark and Floyd Counties
from nonattainment to attainment of the 8hour ozone NAAQS. Further,
EPA is approving Indiana's maintenance plan SIP revision for Clark and
Floyd Counties (such approval being one of the CAA criteria for
redesignation to attainment status). The maintenance plan is designed
to keep Clark and Floyd Counties in attainment of the 8hour ozone
NAAQS through 2020 by ensuring that the VOC and NO
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 30day 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 8hour 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 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 preexisting 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. 1044).
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. [[Page 39573]]
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 10, 2007.
Bharat Mathur,
Acting Regional Administrator, Region 5.
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows:
PART 52[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart PIndiana
2. Section 52.777 is amended by adding paragraph (ii) to read as follows:
Sec. 52.777 Control strategy: photochemical oxidants (hydrocarbons). * * * * *
(ii) ApprovalOn November 15, 2006, Indiana submitted a request to
redesignate the Indiana portion of the Louisville 8hour ozone
nonattainment area (Clark and Floyd 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 for the entire
Louisville area. The 2003 and 2020 motor vehicle emission budgets are
40.97 tons per day for VOC and 95.51 tons per day for NO
NO
PART 81[AMENDED]
1. The authority citation for part 81 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 81.315 is amended by revising the entry for Louisville, KY
FOR FURTHER INFORMATION CONTACT Steven Rosenthal, Environmental
Engineer, Criteria Pollutant Section, Air Programs Branch (AR18J),
U.S. Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604, (312) 8866052,
rosenthal.steven@epa.gov.
Common CFR Searches
14 CFR Part 39 40 CFR Part 52 14 CFR Part 71 33 CFR Part 165 50 CFR Part 679 26 CFR Part 1 40 CFR Part 180 47 CFR Part 73 50 CFR Part 17 33 CFR Part 117 44 CFR Part 67 50 CFR Part 648 14 CFR Part 97 33 CFR Part 100 40 CFR Part 63 50 CFR Part 622 26 CFR Part 301 39 CFR Part 111 40 CFR Part 300 50 CFR Part 660 44 CFR Part 65 40 CFR Parts 52 and 81 40 CFR Part 271 47 CFR Part 64 50 CFR Part 665 47 CFR Part 76 50 CFR Part 229 14 CFR Part 23 14 CFR Part 25 21 CFR Part 522