[Federal Register Volume 68, Number 7 (Friday, January 10, 2003)]
[Rules and Regulations]
[Pages 1370-1373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-282]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[IN148-1a; FRL-7436-2]


Redesignation and Approval and Promulgation of Indiana 
Implementation Plans

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is redesignating Lake County, Indiana, to attainment for 
particulate matter with a nominal aerodynamic diameter of 10 microns or 
less (PM10). EPA also approves Indiana's plan for continuing 
to attain the PM10 standards. Indiana requested these 
actions on September 25, 2002. In taking this action, EPA concludes 
that this area is meeting the national standards for PM10 
and has acceptable plans for assuring continued attainment.

DATES: This rule is effective on March 11, 2003, unless the EPA 
receives relevant adverse written comments by February 10, 2003. If EPA 
receives adverse comment, we will publish a timely withdrawal of the 
rule in the Federal Register and inform the public that the rule will 
not take effect.

ADDRESSES: Send comments to: J. Elmer Bortzer, Chief, Regulation 
Development Section, Air Programs Branch (AR-18J), United States 
Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, 
Illinois 60604.
    Copies of the State's submittal are available for inspection at the 
following address: (We recommend that you telephone John Summerhays at 
(312) 886-6067 before visiting the Region 5 Office.)
    U.S. Environmental Protection Agency, Region 5, Air and Radiation 
Division (AR-18J), 77 West Jackson Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT: John Summerhays, Regulation 
Development Section, Air Programs Branch (AR-18J), U.S. Environmental 
Protection Agency, Region 5, Chicago, Illinois 60604, (312) 886-6067.

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

I. Review of Redesignation Request
    A. Background
    B. Review Under Statutory Criteria
    1. Has the Area Attained the Standards?
    2. Has EPA Fully Approved the Applicable Implementation Plan?
    3. Is Attainment Due to Permanent and Enforceable Emission 
Reductions?
    4. Does the Maintenance Plan Assure Continued Attainment?
    5. Has the State Met the Requirements of Section 110 and Part D?
II. Rulemaking Action
III. Administrative Requirements

I. Review of Redesignation Request

A. Background

    On November 6, 1991, EPA published a nonattainment designation for 
northern Lake County for the PM10 standards as given in 
Title 40 of the Code of Federal Regulations Sec.  50.6 (40 CFR 
50.6).\1\ (See designations in 40 CFR 81.315.) These standards include 
a standard for annual average concentrations and a standard for 24-hour 
average concentrations. The area designated nonattainment included the 
cities of Gary, East Chicago, Hammond, and Whiting. On September 25, 
2002, Indiana requested that the PM10 designation in 40 CFR 
81.315 for this area in Lake County be changed from nonattainment to 
attainment. Included with this request were a summary of relevant air 
quality data, evidence of the opportunity for public review of this 
request (including a public hearing held July 18, 2002), and a 
discussion of how the various criteria for redesignation have been met.
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    \1\ EPA also set revised standards for PM10 as well 
as new standards for particles nominally 2.5 microns and smaller 
(PM2.5), promulgated on July 18, 1997, and codified at 40 
CFR 50.7. However, the Circuit Court of Appeals for the District of 
Columbia vacated the revised PM10 standards (American 
Trucking Assoc. v. EPA, 175 F.3d 1027). EPA has not promulgated 
designations for the revised PM10 standards. Today's 
action addresses the 1987 PM10 standards in 40 CFR 50.6, 
for which designations remain in effect in 40 CFR part 81.
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    Statutory criteria for redesignations from nonattainment to 
attainment are given in section 107(d)(3)(E) of the Clean Air Act. EPA 
may not promulgate such a redesignation unless: (i) The area has 
attained the applicable air quality standards, (ii) the area has a 
fully approved State Implementation Plan (SIP) under section 110(k) of 
the Act,

[[Page 1371]]

(iii) EPA has determined that the improvement in air quality in the 
area is due to permanent and enforceable emission reductions, (iv) EPA 
has determined that the maintenance plan for the area has met all of 
the requirements of section 175A of the Act, and (v) the state has met 
all requirements applicable to the area under section 110 and part D of 
the Act.
    EPA has issued a variety of relevant guidance memoranda 
interpreting the statutory criteria for redesignations and maintenance 
plans, most notably including a memorandum dated September 4, 1992, 
signed by the Director of EPA's Office of Air Quality Planning and 
Standards. In addition, regulations governing the evaluation of 
PM10 monitoring data are in appendix K to 40 CFR part 50.

B. Review Under Statutory Criteria

1. Has the Area Attained the Standards?
    Title 40 CFR part 50, appendix K provides for evaluating three 
years of representative monitoring data. Indiana monitors 
PM10 concentrations at numerous locations in Lake County. 
Detailed results of this monitoring are available in EPA's Air Quality 
System (AQS) and on the Internet at http://www.epa.gov/air/data/. 
Indiana's submittal summarizes these air quality data.
    For the most recent three calendar years, i.e., 1999 to 2001, 
Indiana collected PM10 air quality data at five monitoring 
locations, including locations in Gary, Hammond, and East Chicago, 
where emissions are highest and the highest concentrations are 
expected. All sites recorded annual average concentrations below the 
annual average standard in all three years. Four of the five sites also 
recorded no exceedances of the 24-hour standard and thus clearly meet 
this standard. However, the fifth site, located in Gary at 201 
Mississippi Street near the USX steel mill, recorded three exceedances 
in the 1999 to 2001 period. Thus, further analysis is necessary to 
determine whether this site meets the 24-hour standard.
    The procedures in appendix K to 40 CFR part 50 for assessing 
compliance with the 24-hour standard estimate the number of days per 
year that the site is expected to exceed the level of the standard (150 
micrograms per cubic meter). If a monitoring site collects complete 
information, the number of expected exceedances is simply equal to the 
number of measured exceedances. However, if data from a monitor are 
missing or inadequate for one or more days, these procedures provide 
for the assessment of the additional number (potentially fractional) of 
additional exceedances estimated to have occurred on unmonitored or 
inadequately monitored days. The number of expected exceedances is then 
the sum of the number of measured exceedances plus the additional 
inferred number of exceedances expected for unmonitored or inadequately 
monitored days. The number of expected exceedances is thus the likely 
total number of exceedances that a monitor would have recorded had it 
obtained complete data.
    Since PM10 concentrations often vary by season, appendix 
K provides for estimation of expected exceedances separately for each 
quarter year. A location is attaining the standard if the monitor has a 
three-year average number of expected exceedances (rounded to the 
nearest tenth) of 1.0 or less.
    The above Gary monitor recorded two exceedances in 1999, no 
exceedances in 2000, and one exceedance in 2001. The exceedances in 
1999 both occurred in the last quarter. The monitor at this site is a 
continuous instrument that records hourly average values. The data 
obtained were adequate (at least 18 hours per day) to be considered 
complete for every day during the quarter. Therefore, the number of 
expected exceedances for 1999 at this site is equal to the 2.0 measured 
exceedances. The year 2000 had 0.0 expected exceedances. For 2001, the 
monitor recorded one exceedance in the first quarter out of 87 days 
with adequate data; three days in the first quarter had either no data 
or insufficient data. This leads to an estimated exceedances of 1.03, 
which rounds to a 2001 expected exceedances value of 1.0. Average 
expected exceedances for 1999 to 2001 then is 1.0. Consequently, this 
site is attaining the standard. More generally, since the monitoring 
includes representation of the worst-case locations in Lake County, EPA 
concludes that all of Lake County is attaining the PM10 
standards.
2. Has EPA Fully Approved the Applicable Implementation Plan?
    The principal relevant element of the SIP required under Part D of 
Title I of the Clean Air Act for Lake County is a plan for attaining 
the particulate matter standards. Indiana submitted this attainment 
plan on June 16, 1993, with subsequent supplemental submittals. EPA 
approved this attainment plan on June 15, 1995, at 60 FR 31412. Indiana 
submitted separate rules addressing requirements for nonattainment area 
new source review; EPA approved these rules as satisfying applicable 
requirements on October 7, 1994, at 59 FR 51108. While Clean Air Act 
section 172(c)(9) identifies a requirement for contingency plans, EPA 
has concluded that areas that are attaining the standards need not 
submit such contingency plans. (See 57 FR 13564, published April 16, 
1992.) This reflects EPA's view that contingency plans under section 
172(c)(9) are designed to address the possibility of an area failing to 
achieve the expected air quality improvement, that the need for such 
plans no longer exists after an area attains the standard, and that an 
area that has attained the standard and has a maintenance plan can rely 
on the contingency plans in the maintenance plan to address any 
recurrence of violations. Thus, EPA concludes that it has approved all 
required SIP elements for the Lake County particulate matter 
nonattainment area.
3. Is Attainment Due to Permanent and Enforceable Emission Reductions?
    Indiana's SIP requires permanent emission reductions at a wide 
range of facilities including those facilities that Indiana's modeling 
has demonstrated to be the key contributors to prior air quality 
problems. The emission reductions result from installation of air 
pollution control equipment to capture and control particulate matter 
that was previously emitted. The reductions also result from ongoing 
measures to reduce emissions from plant roadways and storage piles. 
Enforceable emission limits adopted in Title 326 Indiana Administrative 
Code Article 6 and approved by EPA (as compiled at http://www.epa.gov/region5/air/sips/sips.htm) assure the permanence of these emission 
reductions. EPA thus concludes that permanent and enforceable emission 
reductions have enabled this county to attain the standards.
4. Does the Maintenance Plan Assure Continued Attainment?
    Under section 175A of the Clean Air Act, maintenance plans must 
demonstrate continued attainment of the standards for 10 years after 
the redesignation. Thus, Indiana demonstrated maintenance through 2012. 
This demonstration focused on industrial sources, especially steel 
mills, which were the predominant cause of prior nonattainment in Lake 
County. Indiana compiled estimates of industrial source emissions for 
1999 and anticipated emissions for 2012, projecting a 21 percent 
decline in emissions during that period. This indicates, in turn, that 
the area can be

[[Page 1372]]

expected to continue to attain the standards over the next 10 years.
    In addition, the attainment plan that EPA approved in 1995 
constitutes further evidence that Lake County can be expected to 
maintain the standards. This plan reflected maximum allowable 
emissions. By relying on an inventory of maximum allowable emissions 
from the most significant sources of particulate matter emissions in 
the area, the attainment plan demonstrated that the area would achieve 
and maintain attainment even if the sources operated at maximum 
capacity. This suggests that Lake County can be expected to maintain 
the standards permanently unless background impacts, particularly from 
area sources such as home heating and motor vehicles, increase 
significantly. Trends in home heating emissions can be deduced from 
trends in population, which in Lake County has essentially remained 
unchanged in the last five years and can be expected to remain 
essentially unchanged in the next 10 years as well. Motor vehicle 
emissions can be expected to decline, particularly as a result of new 
regulations reducing sulfur content of motor fuels and requiring lower 
emissions from both gasoline and diesel vehicles. Background 
concentrations of PM10 transported into the area can also be 
expected to decline as a result of sulfur dioxide emission reductions 
from the acid rain program. These factors suggest that Lake County can 
be expected to maintain the standards through 2012 and beyond.
    Maintenance plans must include contingency measures in case 
violations of the air quality standards unexpectedly arise. Indiana has 
adopted a rule for contingency planning in 326 Indiana Administrative 
Code 6-1-11.2, which EPA approved on October 11, 2002, at 67 FR 63268. 
This rule provides two levels of response, depending on the severity of 
the air quality problem. A ``Level II'' response occurs when a year's 
second high concentration in the area exceeds 140 micrograms per cubic 
meter. In this case, the State would assess what controls need to be 
implemented to avoid violations of the standard. A ``Level I'' response 
occurs when a violation occurs (excluding circumstances where the 
violation is attributable to an exceptional event, malfunction, or 
noncompliance). In this case, the State assesses the origins of the 
violation and adopts any necessary control measures within 18 months. 
EPA believes that these provisions satisfy the requirements for 
contingency measures as part of Indiana's maintenance plan for 
particulate matter for Lake County.
    Maintenance plans must also include commitments to continued air 
quality monitoring and to submittal of a reassessment of maintenance in 
8 years. Indiana commits in its submittal to continue monitoring 
PM10 concentrations in accordance with its current 
monitoring plan. The core elements of Indiana's maintenance plan are 
permanent and will likely assure permanent maintenance, but the State 
nevertheless explicitly committed to submit the necessary additional 
maintenance plan in 8 years.
    EPA's guidance memorandum of September 4, 1992, identifies various 
additional recommended features of maintenance plans. Many of these 
recommended features are not germane to pollutants like PM10 
in areas like Lake County that have plans showing attainment even with 
key sources emitting their maximum allowable emissions. Indiana 
nevertheless included these features in its maintenance plan.
    EPA's guidance states that ``The State should develop an attainment 
emission inventory to identify the level of emissions in the area which 
is sufficient to attain the NAAQS.'' (Section 5a) Attainment for 
PM10 in Lake County is assured not by limiting total 
emissions for the area to one specific level, but rather by defining 
allowable emissions for each location in the area and assuring that 
emissions for each location are at or below the allowable levels. Thus, 
the best ``attainment emission inventory'' for Lake County is the 
inventory of allowable emissions that Indiana used in its modeled 
attainment demonstration. Nevertheless, Indiana also provided estimates 
of more recent actual emissions.
    Indiana has complied with the ``Maintenance Demonstration and 
Monitoring Network'' requirements of EPA's guidance of September 4, 
1992 (sections 5b and c), as addressed above. Indiana satisfied the 
``Verification of Continued Attainment'' requirement (section 5d) by 
periodically examining the air quality data that it will continue to 
collect. Finally, Indiana has satisfied the ``Contingency Plan'' 
requirements (section 5e), as addressed above. Thus, Indiana has 
satisfied all requirements for this maintenance plan.
5. Has the State Met the Requirements of Section 110 and Part D?
    As noted in the rulemaking on Indiana's particulate matter plan 
cited above, published on June 15, 1995, at 60 FR 31412, Indiana has 
met the requirements of section 110 and Part D with respect to 
particulate matter planning in Lake County. That rulemaking focused on 
Indiana's plan for attaining the particulate matter standards in Lake 
County, which is the most significant relevant requirement under 
section 110 and Part D. That rulemaking also addressed related 
requirements for reasonably available control measures and for 
reasonable further progress. Indiana was not required to address 
transportation conformity for particulate matter because transportation 
sources are not significant contributors to PM10 
concentrations in Lake County.

II. Rulemaking Action

    EPA is redesignating Lake County, Indiana, to attainment for 
PM10. In addition, EPA is approving Indiana's maintenance 
plan for this area.
    Clean Air Act section 107(d)(3)(E) identifies five prerequisites 
for redesignation of areas from nonattainment to attainment. EPA 
concludes that these criteria are met with respect to PM10 
in Lake County.
    EPA is publishing these actions without a prior proposal because we 
view these as noncontroversial actions and anticipate no adverse 
comments. However, in the ``Proposed Rules'' section of today's Federal 
Register, EPA is publishing a separate document that will serve as the 
proposal to approve the redesignation and maintenance plan if adverse 
comments are filed. This rule will be effective on March 11, 2003 
without further notice unless we receive relevant adverse written 
comment by February 10, 2003. If the EPA receives adverse comment, we 
will publish a final rule informing the public that this rule will not 
take effect. We will address all public comments in a subsequent final 
rule based on the proposed rule. We will not institute a second comment 
period on this action. Any parties interested in commenting on these 
actions must do so at this time.

III. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, 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). This action 
merely changes the attainment status of a portion of a county and 
imposes no additional requirements. 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

[[Page 1373]]

Act (5 U.S.C. 601 et seq.). Because this rule does not impose any 
additional enforceable duty, 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. 104-4).
    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). 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). This action merely approves a state request 
to change the attainment status of an area, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the Clean Air Act. 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.
    Indiana's request for redesignation did not include any additional 
limitations on sources, and thus provided no opportunity to use 
voluntary consensus standards (VCS). 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. This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, 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 11, 2003. 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

40 CFR Part 52

    Environmental protection, Air pollution control, Intergovermental 
relations, Particulate matter, Reporting and recordkeeping 
requirements.

40 CFR Part 81

    Air pollution control, National parks, Wilderness areas.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: December 23, 2002.
David A. Ullrich,
Acting Regional Administrator, Region 5.

    Chapter 1, 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 52.776 is amended by removing and reserving paragraph 
(j) and adding paragraph (r) to read as follows:


Sec.  52.776  Control strategy: Particulate matter.

* * * * *
    (j) [Reserved]
* * * * *
    (r) Approval--EPA is approving the PM10 maintenance plan 
for Lake County that Indiana submitted on September 25, 2002.
* * * * *

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 particulate matter 
table entry to read as follows:


Sec.  81.315  Indiana.

* * * * *

                                                 Indiana--PM-10
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                                                Designation                           Classification
         Designated area         -------------------------------------------------------------------------------
                                      Date                Type                Date                Type
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Lake County: Cities of East          03/11/03  Attainment.
 Chicago, Hammond, Whiting, and
 Gary.
Vermillion County: Part of           10/27/97  Attainment.
 Clinton Township,
 Unclassifiable including
 sections 15, 16, 21, 22, 27,
 28, 33, and 34.
Rest of State...................     11/15/90  Unclassifiable.
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[FR Doc. 03-282 Filed 1-9-03; 8:45 am]
BILLING CODE 6560-50-P