[Federal Register Volume 63, Number 143 (Monday, July 27, 1998)]
[Rules and Regulations]
[Pages 40041-40044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19931]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[IN75; FRL-6129-7]
Approval and Promulgation of Implementation Plan; Indiana
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The United States Environmental Protection Agency (USEPA) is
approving Indiana's request to grant an exemption for the northwest
Indiana (Lake and Porter Counties) severe ozone nonattainment area from
the applicable Oxides of Nitrogen (NOX) transportation
conformity requirements. The USEPA proposed approval on January 6,
1998. The proposal was based on information the Indiana Department of
Environmental Management (IDEM) submitted to the USEPA as a State
Implementation Plan (SIP) revision request for an exemption under
section 182(b)(1) of the Clean Air Act (Act). The technical basis for
IDEM's request was the urban airshed modeling (UAM) conducted for an
attainment demonstration for the Lake Michigan Ozone Study (LMOS)
modeling domain.
DATES: This rule is effective August 26, 1998.
ADDRESSES: Copies of the SIP revision, public comments and USEPA's
responses are available for inspection at the following address: United
States Environmental Protection Agency, Region 5, 77 West Jackson
Boulevard, Chicago, Illinois 60604. (It is recommended that you
telephone Patricia Morris at (312) 353-8656 before visiting the Region
5 Office.)
FOR FURTHER INFORMATION CONTACT: Patricia A. Morris, Regulation
Development Section (AR-18J), Air Programs Branch, Air and Radiation
Division, United States Environmental Protection Agency, Region 5, 77
West Jackson Boulevard, Chicago, Illinois 60604, Telephone Number (312)
353-8656.
SUPPLEMENTARY INFORMATION:
I. Background
Clean Air Act section 176(c)(3)(A)(iii) requires, in order to
demonstrate conformity with the applicable SIP, that transportation
plans and Transportation Improvement Programs (TIPs) contribute to
emissions reductions in ozone and carbon monoxide nonattainment areas
during the period before control strategy SIPs are approved by USEPA.
This requirement is implemented in 40 CFR 93.119, which establishes
what is known as the ``build/no-build test.'' The conformity
requirements of 176(c)(3)(A) are more fully explained in the notice of
proposed rulemaking (63 FR 456, January 6, 1998).
On July 13, 1994, the States of Illinois, Indiana, Michigan, and
Wisconsin (the States) submitted to the USEPA a petition for an
exemption from the requirements of section 182(f) of the Clean Air Act
(Act). The States, acting through the Lake Michigan Air Directors
Consortium (LADCo), petitioned for an exemption from the Reasonably
Available Control Technology (RACT) and New Source Review (NSR)
requirements for major stationary sources of NOX. The
petition also asked for an exemption from the transportation and
general conformity requirements for NOX in all ozone
nonattainment areas in the Lake Michigan Modeling domain.
On March 6, 1995, the USEPA published a rulemaking proposing
approval of the NOX exemption petition for the RACT, NSR and
transportation and general conformity requirements. A number of
comments were received on the proposal. Several commenters argued that
NOX exemptions are provided for in two separate parts of the
Act, in sections 182(b)(1) and 182(f), but that the Act's
transportation conformity provisions in section 176(c)(3) explicitly
reference section 182(b)(1). In April 1995, the USEPA entered into an
agreement to change the procedural mechanism through which a
NOX exemption from transportation conformity would be
granted (EDF et al. v. USEPA, No. 94-1044, U.S. Court of Appeals, D.C.
Circuit). Instead of a petition under 182(f), transportation conformity
NOX exemptions for ozone nonattainment areas that are
subject to section 182(b)(1) now need to be submitted as a SIP revision
request. The northwest Indiana ozone nonattainment area is classified
as severe and, thus, is subject to section 182(b)(1). Thus, the
NOX waiver for transportation conformity would have been
granted in January 26, 1996, at the same time as the waiver for RACT,
NSR and general conformity except for the technical correction to
require a SIP revision request under 182(b)(1).
The transportation conformity requirements are found at sections
176(c)(2), (3), and (4) of the Act. The conformity requirements apply
on an areawide basis in all nonattainment and maintenance areas. The
USEPA's transportation conformity rule was amended on August 29, 1995
(60 FR 44762) to reference section 182(b)(1) rather than 182(f) as the
means for exempting areas subject to section 182(b)(1) from the
transportation conformity NOX requirements.
The May 24, 1996, SIP revision request from Indiana was submitted
to meet the requirements in accordance with 182(b)(1). Public hearings
on this SIP revision request were held on June 11, 1996.
In evaluating the 182(b) SIP revision request, the USEPA considered
whether additional NOX reductions would contribute to
attainment of the standard in the northwest Indiana severe ozone
nonattainment area and also in the downwind areas of the LMOS modeling
domain. The USEPA granted a NOX waiver for RACT, NSR, and
general conformity based on the submitted modeling on January 26, 1996,
(61 FR 2428). At the same time and using the same technical support
evaluation, the USEPA would have granted the transportation conformity
waiver but for the technical correction to grant the waiver under
182(b)(1) instead of 182(f). This rulemaking completes the efforts
under this technical correction.
On January 6, 1998, (63 FR 456), the USEPA proposed approval of
Indiana's request to grant an exemption for the northwest Indiana
severe ozone nonattainment area from the applicable NOX
transportation conformity requirements.
II. Public Comments
The USEPA received two sets of comments during the public comment
[[Page 40042]]
period, which ended on February 5, 1998. One set was in favor of the
USEPA proposal, and one set was critical. The following are the
critical comments on the proposal and USEPA's responses to the
comments:
Comment: Indiana has failed to establish a NOX budget
for the ozone nonattainment area. Indiana has yet to develop and submit
such a budget as required by November 1994. Until the attainment
demonstrations, encompassing verifiable and allocated (biogenic, point,
mobile, and area) NOX emission budgets, are submitted and
complete, any determination that required control strategies are not
necessary is premature and unfounded.
Response: Approval of the transportation conformity NOX
waiver does not eliminate the need for a NOX budget
determination. As described in the background section, the waiver
merely removes the requirement for the build/no-build test. It is
anticipated that in the future, Indiana will submit a NOX
transportation budget in its state implementation plan.
Comment: The NOX waiver technical documentation is
outdated, incomplete and inconsistent with USEPA's NOX SIP
call.
Response: USEPA's NOX SIP call proposal published
November 7, 1997, (62 FR 60317) is based on modeling conducted by the
Ozone Transport Assessment Group (OTAG). OTAG used information and
ozone episodes contributed by LADCo and the State of Indiana. USEPA's
NOX SIP call acknowledges the NOX ``disbenefit''
issue and specifically mentions the Lake Michigan states as an area
where the modeling shows a disbenefit. A ``disbenefit'' from
NOX is when reductions in NOX emissions create an
increase in the concentrations of ozone. USEPA's NOX SIP
call encourages local and regional modeling to determine the extent of
the NOX disbenefit; and the appropriate control strategies
to deal with the disbenefit. LADCo is currently conducting modeling to
refine the NOX disbenefit and the State of Indiana, in
cooperation with the other Lake Michigan states, intends to submit the
modeling and analysis in response to the SIP call. Thus, there is
nothing in the most recent modeling which contradicts the phenomenon of
the NOX disbenefit in the Lake Michigan area.
Comment: The Indiana submittal failed to demonstrate that low-level
NOX reductions in the northwest Indiana area would not
improve air quality. While the submittal did analyze domain-wide low-
level NOX reductions, no such analysis was performed for the
specific Indiana counties. The State of Indiana, in coordination with
LADCo, has the capabilities to model NOX emissions from
mobile sources in these counties. Therefore, USEPA should require such
a demonstration before taking final action on this rulemaking.
Response: The LADCo analysis demonstrated that across-the-board
reductions in NOX from point, area, and mobile sources
generally showed a ``disbenefit'' in many areas of the modeling domain.
Further, LADCo performed an analysis which focused on NOX
reductions from point sources. This analysis showed a small increase in
ozone formation. From this result, LADCo concluded that low level
NOX controls, i.e. mobile and area sources, would be
detrimental to air quality in the modeling domain. The LADCo analysis
is consistent with the USEPA NOX waiver policy which
requires consideration of modeling domain wide peak ozone
concentrations.
Comment: Indiana and Michigan counties now in violation of the
ozone NAAQS will benefit from low-level NOX emissions
reductions.
Response: Regional modeling is currently being conducted to
determine more precisely where NOX reductions give a
disbenefit. The OTAG modeling demonstrated that elevated and low-level
NOX reductions across many states will generally reduce
transported ozone. The USEPA NOX SIP call proposed on
November 7, 1997, proposed statewide budgets for NOX. The
State has the ability to decide what NOX reductions would be
most beneficial, after consideration of downwind benefits and local
disbenefits. The States are currently conducting additional modeling in
the Lake Michigan area to determine where NOX reductions are
most beneficial. It is premature to subject transportation sources in
Lake and Porter Counties to NOX reductions until this
additional modeling is completed and USEPA finalizes the SIP call
notice and Indiana submits its plan for NOX reductions.
Comment: USEPA's PM2.5 NAAQS requires an additional net
air quality benefit analysis.
Response: The USEPA timeline for implementation of the
PM2.5 NAAQS begins with setting up a monitoring network and
collecting data for several years before designating areas under the
new NAAQS. At this time, the USEPA does not know which areas will be
designated nonattainment for PM2.5, nor are there any
control strategies currently proposed for PM2.5. The
transportation conformity requirement is to enable attainment of the
one hour ozone standard. In this notice, USEPA is only waiving the
transportation conformity build/no-build test, which requires
reductions in NOX in ozone nonattainment areas.
Comment: The USEPA has failed to adequately consider the net
environmental benefits (such as acid rain reduction) of NOX
emissions reductions in Lake and Porter Counties.
Response: As stated above, the LADCo analysis demonstrated that
across the board reductions in NOX from point, area, and
mobile sources showed both benefits and disbenefits in the modeling
domain. Further, the transportation conformity rule does not require
the build/no-build test for NOX as an ozone precursor in
ozone nonattainment areas where the Administrator determines that
additional reductions of NOX would not contribute to
attainment of the National Ambient Air Quality Standard (NAAQS) for
ozone. A net benefit analysis for all environmental benefits is not
required since this requirement is specific to ozone nonattainment.
Comment: The USEPA and Indiana failed to perform the appropriate
environmental justice analysis. The USEPA has failed to consider the
spatial impact of where reductions could be anticipated and where
increases might occur with and without NOX conformity
compliance in northwest Indiana and southeast Chicago. The USEPA is
expected to address the full range of environmental implications
including: (1) Will the rulemaking increase already unacceptable levels
of air toxics in these communities? (2) Will this rulemaking increase
already unacceptable levels of fine particulate matter in these
communities? (3) Will the sprawl included by the proposal--or the
elevated speed limits allowed--disproportionately impact at-risk
populations? (4) Will this proposal further exacerbate the difficulty
of low income and unemployed citizens in the region commuting to
employment opportunities?
Response: As discussed in the January 6, 1998, proposed approval,
the role that NOX emissions play in producing ozone at any
given place and time is complex. Modeling shows that controlling low
level NOX in northwest Indiana could in fact increase ozone
concentrations in local urban areas particularly the minority areas in
Lake County, Indiana and southeast Chicago. This disbenefit is caused
by the reaction of nitrogen oxide with ozone, which locally reduces
ozone concentrations, and is referred to as ozone scavenging. Since
emissions of NOX from fuel combustion sources, whether
internal combustion engines or stationary combustion sources, such as
industrial boilers, contain significant
[[Page 40043]]
amounts of NO, it is expected that ozone concentrations immediately
downwind of such NOX sources will be reduced through ozone
scavenging. Therefore, reducing NOX emissions can lead to
increased ozone concentrations in the vicinity of the controlled
NOX emission sources, while causing a reduction in ozone
concentrations further downwind. Reducing NOX emissions in
VOC-limited areas (areas with low VOC emissions relative to
NOX emissions) may produce minimal ozone reductions or even
ozone increases. This pattern of NOX scavenging is
demonstrated in the LADCo modeling. Therefore, controlling low level
NOX in northwest Indiana could in fact increase ozone
concentrations in local urban areas particularly the minority areas in
Lake County, Indiana and southeast Chicago. This, in fact, is what the
LADCo modeling demonstrated.
As for the other environmental and social implications, this
rulemaking addresses NOX reduction for meeting the ozone
standard and merely waives the build/no-build reduction requirement for
transportation sources. NOX from the transportation plan is
not expected to increase significantly and thus will not increase air
toxics or fine particulates. It is through the transportation planning
process that transportation decisions are made.
This transportation conformity waiver is not expected to adversely
affect the transportation options of minority populations in northwest
Indiana. In fact, letters from IDEM and Indiana Department of
Transportation and the Northwestern Indiana Regional Planning
Commission indicate that the NOX transportation waiver, will
allow transportation planning to be simplified and allow federal
funding of transportation improvements to proceed.
Comment: The Indiana request utilizes the BEIS-I inventory for
biogenic emissions. OTAG concluded that the BEIS-II inventory is the
preferred inventory for UAM analyses.
Response: The BEIS-I was the approved and most appropriate biogenic
emissions inventory available to LADCo when the NOX modeling
analysis was performed. Any subsequent modeling performed by LADCo will
utilize the BEIS-II biogenic emissions inventory.
Comment: OTAG concluded that both elevated and low level
NOX reductions are effective in reducing ozone levels. These
conclusions were based extensively on OTAG modeling, and are
significant and relevant to USEPA's action on this rule. The modeling
clearly demonstrated the efficacy of reducing low-level (mobile source)
NOX in controlling ozone. The conclusions of the policy
group were that such reductions were cost effective, and beneficial to
reduce transport to downwind areas.
Response: It should be noted that OTAG concluded that States must
have the opportunity to conduct additional local and subregional
modeling to assess appropriate, type, and timing of controls. OTAG
further concluded that States can work together, in coordination with
USEPA, toward developing local SIPs including an evaluation of possible
local NOX disbenefits. In addition, OTAG modeling results
demonstrated a significant potential for NOX control
disbenefits in the Lake Michigan area.
Comment: OTAG concluded that disbenefit analyses found ozone
increases to be less frequent and severe than USEPA concluded based on
the July 13, 1994 LADCo 182(f) NOX waiver submittal.
Response: The OTAG fine grid analysis utilized a 12 km grid as
compared to the LADCo fine grid of 4 km. This disparity in fine grid
size can de-emphasize the NOX disbenefit at the local
urbanized area. OTAG concluded that some areas will experience local
NOX disbenefits at more frequent pronounced levels when
finer grids are considered.
Comment: In previous rulemakings on similar NOX waiver
requests, USEPA committed to incorporate the OTAG findings in future
USEPA rulemakings. OTAG recommendations are now complete, OTAG findings
are clear, and USEPA has validated these OTAG findings in proposing its
NOX SIP call. This proposal is inconsistent with and even
undermines the USEPA NOX SIP call.
Response: The summary of OTAG findings states that NOX
reductions decrease and increase ozone: decreases occur domain wide;
increases are confined to a few days in a few urban areas.
The USEPA's recently proposed regional NOX rulemaking
uses the OTAG findings to identify States which contribute
significantly to ozone problem areas in other states. In addition, the
proposed rulemaking establishes State wide NOX budgets for
the year 2007.
A section of the rulemaking also solicits comments on approaches
that can be used to address the disbenefit issue in areas such as Lake
Michigan. Subsequent modeling by the LADCo States will need to address
the disbenefit issue as it pertains to the NOX budget, ozone
transport, and attainment. It is premature at this time to require
NOX reductions from transportation sources in northwest
Indiana before completion of modeling, finalization of the
NOX SIP call and preparation of the State implementation
plan to address state NOX reductions.
IV. USEPA Action
In this final action, USEPA is approving the transportation
conformity NOX waiver SIP revision for the State of Indiana.
In light of the modeling completed thus far and considering the
importance of the Ozone Transport Assessment Group process and
attainment plan modeling efforts the USEPA notes that it may reexamine
the impact of this NOX waiver as future modeling becomes
available. In the near future, USEPA intends to require appropriate
States to submit SIP measures to achieve emissions reductions of ozone
precursors needed to prevent significant transport of ozone. The USEPA
will evaluate the States' submitted SIP measures and available refined
modeling to determine whether the NOX waiver should remain
in place, or whether USEPA will require a new plan revision.
The USEPA also reserves the right to require NOX
emission controls for transportation sources under section 110(a)(2)(D)
of the Act if future ozone modeling demonstrates that such controls are
needed to achieve the ozone standard in downwind areas.
Nothing in this action should be construed as permitting, allowing
or establishing a precedent for any future request for revision to any
SIP. Each request for revision to the SIP shall be considered
separately in light of specific technical, economic, and environmental
factors and in relation to relevant statutory and regulatory
requirements.
V. Administrative Requirements
A. Executive Order 12866
The Office of Management and Budget has exempted this regulatory
action from Executive Order 12866 review.
B. Executive Order 13045
This final rule is not subject to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks,'' because it is not an ``economically significant'' action under
Executive Order 12866.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not
[[Page 40044]]
have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions.
This final rule will not have a significant impactr on a
substantial number of small entities because SIP approvals under
section 110 and subchapter I, part D of the Act do not create any new
requirements, but simply approve requirements that the State is already
imposing. Therefore, because the Federal SIP approval does not impose
any new requirements, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
Moreover, due to the nature of the Federal-State relationship under the
Act, preparation of a flexibility analysis would constitute Federal
inquiry into the economic reasonableness of the State action. The Clean
Air Act forbids EPA to base its actions concerning SIPs on such
grounds. Union Electric Co. v. EPA., 427 U.S. 246, 256-66 (1976); 42
U.S.C. 7410(a)(2).
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must undertake various actions
in association with any proposed or final rule that includes a Federal
mandate that may result in estimated costs to state, local, or tribal
governments in the aggregate; or to the private sector, of $100 million
or more. This federal action does not impose any new federal
requirements. Accordingly, no additional costs to state, local, or
tribal governments, or the private sector, result from this action.
E. Submission to Congress and the Comptroller General
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. This action is not
a ``major rule'' as defined by 5 U.S.C. 804(2). This rule will be
effective.
F. Petitions for Judicial Review
Under section 307(b)(1) of the Act, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by September 25, 1998. 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 enforce its
requirements (see section 307(b)(2)).
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Intergovernmental
relations, Oxides of Nitrogen, Ozone, Transportation-air quality
planning, Transportation conformity.
Authority: 42 U.S.C. 7401-7671q.
Dated: July 15, 1998.
David A. Ullrich,
Acting Regional Administrator.
Part 52, 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. 7401-7671q.
Subpart P--Indiana
2. Section 52.777 is amended by adding paragraph (t) to read as
follows:
Sec. 52.777 Control strategy: Photochemical Oxidants (hydrocarbons).
* * * * *
(t) Approval--On May 24, 1996, the Indiana Department of
Environmental Management submitted a revision to the ozone State
Implementation Plan for Lake and Porter Counties. The submittal
pertained to a plan for the implementation of the Federal
transportation conformity requirements in accordance with 40 CFR part
51 subpart T--Conformity to State or Federal Implementation Plans of
Transportation Plans, Programs, and Projects Developed, Funded or
Approved Under Title 23 U.S.C. or the Federal Transit Act.
* * * * *
[FR Doc. 98-19931 Filed 7-24-98; 8:45 am]
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