E7-255. Determination of Attainment, Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Indiana; Redesignation of the Allen County 8-hour Ozone Nonattainment Area to Attainment

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

On May 30, 2006, the Indiana Department of Environmental Management (IDEM), submitted a request to redesignate the Allen County, Indiana, (Fort Wayne) nonattainment area to attainment of the 8-hour ozone National Ambient Air Quality Standard (NAAQS). In this submittal, IDEM also requested EPA approval of an Indiana State Implementation Plan (SIP) revision containing a 14-year maintenance plan for Allen County. EPA is making a determination that the Allen County, Indiana ozone nonattainment area has attained the 8-hour ozone NAAQS. This determination is based on three years of complete, quality-assured ambient air quality monitoring data for the 2003-2005 ozone seasons that demonstrate that the 8-hour ozone NAAQS has been attained in the area. Quality-assured monitoring data for 2006 show that the area continues to attain the standard. EPA is also approving the request to redesignate the area to attainment for the 8-hour ozone standard. EPA's approval of the 8-hour ozone redesignation request is based on its determination that Allen County, Indiana has met the criteria for redesignation to attainment specified in the Clean Air Act (CAA). EPA is also approving as a SIP revision the State's maintenance plan for the area. Further, EPA is approving, for purposes of transportation conformity, the motor vehicle emission budgets (MVEBs) for the year 2020 that are contained in the 14-year, 8-hour ozone maintenance plan for Allen County.

DATES:

This final rule is effective on February 12, 2007.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2006-0399. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Steven Rosenthal, Environmental Engineer, at [phone] before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Steven Rosenthal, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,[phone], [e-mail].

SUPPLEMENTARY INFORMATION:

In the following, whenever “we,” “us,” or “our” are used, we mean the United States Environmental Protection Agency.

Table of Contents

I. What Is the Background for This Rule?

II. What Comments Did We Receive on the Proposed Action?

III. What Are Our Final Actions?

IV. Statutory and Executive Order Review

I. What Is the Background for This Rule?

Ground-level ozone is not emitted directly by sources. Rather, emissions of nitrogen oxides (NO_X) and volatile organic compounds (VOC) react in the presence of sunlight to form ground-level ozone. NO_X and VOC are referred to as precursors of ozone.

The CAA requires EPA to designate as nonattainment any area that is violating the 8-hour ozone NAAQS based on three consecutive years of air quality monitoring data. EPA designated Allen County as a nonattainment area in a Federal Register notice published on April 30, 2004, (69 FR 23857). The CAA contains two sets of provisions—subpart 1 and subpart 2—that address planning and control requirements for nonattainment areas. (Both are found in title I, part D.) Subpart 1 (which EPA refers to as “basic” nonattainment) contains general, less prescriptive, requirements for nonattainment areas for any pollutant—including ozone—governed by a NAAQS. Subpart 2 (which EPA refers to as “classified” nonattainment) provides more specific requirements for ozone nonattainment areas. Some areas are subject only to the provisions of subpart 1. Other areas are also subject to the provisions of subpart 2. Under EPA's 8-hour ozone implementation rule, signed on April 15, 2004, an area was classified under subpart 2 based on its 8-hour ozone design value (i.e., the 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration), if it had a 1-hour design value at or above 0.121 ppm (the lowest 1-hour design value in Table 1 of subpart 2). All other areas are covered under subpart 1, based upon their 8-hour design values. Allen County was originally designated as an 8-hour ozone nonattainment area by EPA on April 30, 2004, (69 FR 23857). At the same time EPA classified Allen County as a subpart 1 8-hour ozone nonattainment area, based on air quality monitoring data from 2001-2003.

Under EPA regulations at 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations (i.e., 0.084 ppm) 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 Appendix I of Part 50.

On May 30, 2006, Indiana submitted a request for redesignation of Allen County to attainment for the 8-hour ozone standard. The redesignation request included three years of complete, quality-assured data for the period of 2003 through 2005, indicating the 8-hour NAAQS for ozone had been achieved. The data satisfy the CAA requirements when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient complete, quality-assured data are available for the Administrator to determine that the area has attained the standard and the area meets the other CAA redesignation requirements in section 107(d)(3)(E).

II. What Comments Did We Receive on the Proposed Action?

EPA provided a 30-day review and comment period on the direct final approval and proposal that were published in the Federal Register on August 30, 2006. The direct final approval was withdrawn as a result of comments received on September 4, 2006. Comments from a second commenter were received well after the close of the comment period, but are considered here. These comments, and EPA's responses, follow:

(1) Comment: More information is needed to determine if the air quality and enforceable emission reductions meet the requirements for redesignation. Preliminary summer 2006 data is now available. It cannot be determined from the data presented if enforceable emission reductions have taken place in Allen County.

Response: The Allen County redesignation is based upon air quality monitoring data for 2003-2005 that clearly establishes that the 8-hour ozone standard is being achieved. This air quality monitoring data is described in EPA's August 30, 2006 proposal at 71 FR 51491. Also, quality-assured 2006 data show continuing attainment. Using this 2006 data, the average of the 4th high values for the Leo and Ft. Wayne monitoring sites are 0.077 and 0.072 ppm, respectively. This is well below the violating level of 0.085 ppm.

As discussed in the direct final approval, EPA believes that Indiana has demonstrated that the observed air quality improvement in Allen County is due to permanent and enforceable emission reductions resulting from implementation of the SIP, Federal measures, and other state-adopted measures. See the discussion at 71 FR 51493-51494 and Tables 2 and 3. These include Statewide reasonably available control technology (RACT) rules, the Indiana NO_X SIP and acid rain control, tier 2 emission standards for vehicles and gasoline sulfur standards, and rules for both on and off-road diesel engines. Indiana has documented both reductions in VOC (4.88 tons/day) and NO_X (3.81 tons/day) emissions in Allen County between 2002 (a nonattainment year) and 2004 (an attainment year), and also that enforceable emission control requirements have been implemented in Allen County. These controls have contributed to the documented emission reductions. Therefore, we believe that they have caused and contributed to the observed air quality improvement. Finally, as noted above, 2006 data show continued attainment in Allen County.

(2) Comment: It appears that cold and wet summers caused the improvement in air quality. Doesn't the Cox/Chu model show that 2003-2005 was an unusual met period?

Response: EPA's redesignation policy requires the use of three years of air quality data to compensate for the variation in meteorological conditions and their effect on ozone levels. EPA did not consider the Cox/Chu model or any other model to account for year-to-year meteorological deviations. Consideration of such modeling is not required by EPA's redesignation policy.

(3) Comment: At the Leo site, 2003-2005 is the first period in the entire site's monitoring history that it did not violate the standard. However, it did have 8 exceedances over 84 ppb. This is more exceedances than 10 of its 17-year history. We know from the met analysis that was done that 2004 was an extremely unusual year with rain and the seventh coldest August on record.

Response: As discussed in detail in the Direct Final Notice, an area is considered to be in attainment of the 8-hour ozone standard if the 3-year average of the 4th high 8-hour ozone value, for each of the three years, is 84 ppb or lower. Therefore, to determine compliance with the standard, only the 4th high 8-hour ozone values are considered, not the number of exceedances. Also, three years of air quality data are used to allow for year-to-year variations in meteorology. The commenter provides no data supporting the contention that the “lower” ozone concentrations of 2004 completely dominated the 2003-2005 average or that the 2003-2005 period as a whole had ozone averages atypically influenced by meteorology compared to other three-year periods.

(4) Comment: EPA should delay redesignation until after the 2005-2007 air quality data is collected and enforceable reduction(s) are made.

Response: Delay of the redesignation is not necessary because Allen County is in attainment of the 8-hour ozone standard for 2003-2005. Quality-assured 2004-2006 data shows continued attainment and both the (ozone precursor) VOC and NO_X emissions will continue to decline through 2020, further decreasing peak ozone levels and maintaining ozone attainment. As discussed previously, EPA believes that Indiana has demonstrated that the observed air quality improvement in Allen County is due to permanent and enforceable emission reductions resulting from implementation of the SIP, Federal measures and other state-adopted measures.

(5) Comment: The commenter quotes John Stafford, Director, Community Research Institute, Indiana University Purdue University, Fort Wayne as saying: “From an employment perspective, it appears that northeast Indiana hit the low point of the downturn in the last three quarters of 2003 and the first quarter of 2004. In 2006, northeast Indiana should expect to see continued job growth, likely at a pace reflective of that for Indiana statewide. On the conservative end, additional 2,000 to 2,500 jobs to the Fort Wayne-Huntington-Auburn CSA should be very achievable.” The commenter concludes that it appears that reductions came from activity changes and not enforceable reductions.

Response: Documentation was neither submitted supporting the above employment projections, nor their potential impact on emissions. As set forth above, EPA believes that the improvement in air quality was due to permanent and enforceable emission reductions. Furthermore, Indiana in its maintenance plan considered population and source growth when making its future year emission projections which show decreasing VOC and NO_X emissions, and continued attainment throughout the maintenance period. It should also be noted that Indiana's and 21 other states' electric generating unit NO_X emission control rules stemming from EPA's NO_X SIP Call have already been implemented, with additional NO_X emission reductions expected through 2007. More specifically for Indiana, Table 3 in the withdrawn direct final notice (at 71 FR 51494) shows that NO_X emissions have declined substantially from 1999 through 2005 from its electric generating units. Further, Tables 4 and 5 in the withdrawn direct final notice show that VOC and NO_X emissions in Allen County will continue to decline through 2020. In addition, the Clean Air Interstate Rule, to be implemented beginning in 2006, will further lower NO_X emissions in upwind areas, resulting in decreased ozone and ozone precursor transport into Allen County—also supporting maintenance of the ozone standard in Allen County.

(6) Comment: Another commenter asked EPA to reconsider the adequacy of the 8-hour ozone standard. The commenter stated her belief that the current standard was inadequate to protect Allen County's citizens. (It should be noted that EPA received this comment on October 30, 2006, well after the comment period closed on September 29, 2006.)

Response: The adequacy of the ozone standard is not at issue in this rulemaking, which is an action to redesignate an area pursuant to the current standard. EPA revised and promulgated the current ozone standard (0.08 ppm, measured over an 8-hour period) on July 18, 1997 (62 FR 38856). This standard was promulgated to better protect public health and is more stringent than the 1-hour ozone standard that was previously in effect. This comment, which was not specific to the Allen County redesignation request, would have more appropriately been submitted in response to the proposal of the existing 8-hour standard; it is not relevant with regard to whether Allen County is attaining the current standard, which is the subject of this redesignation action.

III. What Are Our Final Actions?

EPA is taking several related actions. EPA is making a determination that the Allen County nonattainment area has attained the 8-hour ozone standard. EPA is also approving the State's request to change the legal designation of the Allen County area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also approving Indiana's maintenance plan SIP revision for Allen County (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep Allen County in attainment for ozone for the next 14 years, through 2020. In addition, and supported by and consistent with the ozone maintenance plan, EPA is approving the 2020 VOC and NO_X MVEBs for Allen County for transportation conformity purposes.

IV. Statutory and Executive Order Review

Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget.

Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant energy action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

Regulatory Flexibility Act

This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(E) of the Clean Air Act does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 13132: Federalism

This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Redesignation is an action that merely affects the status of a geographical area, and does not impose any new requirements on sources, or allows a state to avoid adopting or implementing additional requirements, and does not alter the relationship or distribution of power and responsibilities established in the Clean Air Act.

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.

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 March 12, 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: January 3, 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 P—Indiana

2. Section 52.777 is amended by adding paragraph (ff) to read as follows:

§ 52.777

Control strategy: Photochemical oxidants (hydrocarbons).

* * * * *

(ff) Approval—On May 30, 2006, Indiana submitted a request to redesignate Allen County to attainment of the 8-hour ozone National Ambient Air Quality Standard. As part of the redesignation request, the State submitted a maintenance plan as required by section 175A of the Clean Air Act. Elements of the section 175 maintenance plan include a contingency plan and an obligation to submit a subsequent maintenance plan revision in eight years as required by the Clean Air Act. Also included were motor vehicle emission budgets to determine transportation conformity in Allen County. The 2020 motor vehicle emission budgets are 6.5 tons per day for VOC and 7.0 tons per day for NO_X.

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 Fort Wayne, IN: Allen County in the table entitled “Indiana Ozone (8-Hour Standard)” to read as follows:

§ 81.315

Indiana.

* * * * *

Indiana Ozone

[8-Hour standard]

Designated area	Designation a		Classification
	Date1	Type	Date	Type
*         *         *         *         *         *         *
Fort Wayne, IN: Allen County	2/12/07	Attainment
*         *         *         *         *         *         *
a Includes Indian Country located in each county or area, except as otherwise specified.
1 This date is June 15, 2004, unless otherwise noted.