[Federal Register Volume 72, Number 7 (Thursday, January 11, 2007)]
[Rules and Regulations]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-255]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
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 (312) 886-6052 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,(312) 886-6052,
SUPPLEMENTARY INFORMATION: In the following, whenever ``we,'' ``us,''
or ``our'' are used, we mean the United States Environmental Protection
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 (NOX) and volatile organic
compounds (VOC) react in the presence of sunlight to form ground-level
ozone. NOX 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
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 NOX 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
NOX (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-
(4) Comment: EPA should delay redesignation until after the 2005-
2007 air quality data is collected and enforceable reduction(s) are
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 NOX 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
(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
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 NOX emissions, and continued attainment throughout the
maintenance period. It should also be noted that Indiana's and 21 other
states' electric generating unit NOX emission control rules
stemming from EPA's NOX SIP Call have already been
implemented, with additional NOX emission reductions
expected through 2007. More specifically for Indiana, Table 3 in the
withdrawn direct final notice (at 71 FR 51494) shows that
NOX 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 NOX
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 NOX emissions in upwind areas,
resulting in decreased ozone and ozone precursor transport into Allen
County--also supporting maintenance of the ozone standard in Allen
(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 NOX 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
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
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
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.
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
40 CFR Part 81
Air pollution control, Environmental protection, National parks,
Dated: January 3, 2007.
Acting Regional Administrator, Region 5.
Parts 52 and 81, chapter I, title 40 of the Code of Federal Regulations
is amended as follows:
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
2. Section 52.777 is amended by adding paragraph (ff) to read as
Sec. 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
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:
Sec. 81.315 Indiana.
* * * * *
Designation \a\ Classification
Designated area -------------------------------------------------------------------------------
Date\1\ 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.
[FR Doc. E7-255 Filed 1-10-07; 8:45 am]
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