[Federal Register Volume 74, Number 184 (Thursday, September 24, 2009)]
[Proposed Rules]
[Pages 48703-48707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23042]



[[Page 48703]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2009-0512; FRL-8962-1]


Determination of Attainment, Approval and Promulgation of Air 
Quality Implementation Plans; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to make a determination, under the Clean Air 
Act (CAA), that the Chicago-Gary-Lake County, Illinois-Indiana (IL-IN) 
ozone nonattainment area has attained the 1997 eight-hour ozone 
National Ambient Air Quality Standard (NAAQS). This determination is 
based on complete, quality-assured ambient air quality monitoring data 
for the period of 2006-2008. Preliminary data for 2009 show that the 
area continues to attain the standard. EPA is also proposing to approve 
a request from the State of Indiana to exempt sources of Nitrogen 
Oxides (NOX) in Lake and Porter Counties from CAA 
requirements for Reasonably Available Control Technology (RACT). The 
State's NOX RACT waiver request is based on the most recent 
three years of complete, quality-assured ozone monitoring data, which 
demonstrate that additional reduction of NOX emissions would 
not contribute to attainment of the 1997 eight-hour ozone NAAQS in the 
Chicago-Gary-Lake County, IL-IN area. This action proposes to approve 
the State's request for a waiver from the NOX RACT 
requirements for Lake and Porter Counties under the CAA. In the Final 
Rules section of this Federal Register, EPA is deferring the imposition 
of sanctions for the State's failure to submit required NOX 
RACT regulations based on this proposed attainment determination while 
we complete action on the proposed NOX RACT waiver. This 
deferral of sanctions will continue unless EPA determines that the area 
is no longer attaining the 1997 eight-hour ozone NAAQS. However, if EPA 
proposes and takes final action in the future to redesignate the area 
to attainment, such action will permanently stop the sanctions clock.

DATES: Comments must be received on or before October 26, 2009.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-
OAR-2009-0512, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: (312) 692-2551.
     Mail: John M. Mooney, Chief, Criteria Pollutant Section, 
Air Programs Branch, (AR-18J), U.S. Environmental Protection Agency, 77 
West Jackson Boulevard, Chicago, Illinois 60604.
     Hand Delivery: John M. Mooney, Chief, Criteria Pollutant 
Section, Air Programs Branch, (AR-18J), U.S. Environmental Protection 
Agency, 77 West Jackson Boulevard, 18th Floor, Chicago, Illinois 60604. 
Such deliveries are only accepted during the Regional Office's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information. The Regional Office official hours of 
business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding 
Federal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-
2009-0512. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects and viruses. For additional instructions on submitting 
comments, go to section I of the SUPPLEMENTARY INFORMATION section of 
this document.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the U.S. 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 Edward Doty at (312) 886-6057 
before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist, 
Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental 
Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, 
Illinois 60604, (312) 886-6057.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA. This supplementary information 
section is arranged as follows:

I. What Should I Consider as I Prepare My Comments for EPA?
II. What Is the Background for This Action?
III. State Petition
IV. EPA Analysis of the Petition
    A. Has the Chicago-Gary-Lake County, IL-IN Area Attained the 
1997 Eight-Hour Ozone NAAQS?
    B. EPA Analysis of the State's NOX RACT Waiver 
Petition
V. Sanctions
VI. What Are the Environmental Effects of This Action?
VII. EPA's Proposed Action
VIII. Statutory and Executive Order Reviews

I. What Should I Consider as I Prepare My Comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. Follow directions--EPA may ask you to respond to specific 
questions or organize comments by referencing a Code of Federal 
Regulations (CFR) part or section number.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.

[[Page 48704]]

    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    8. Make sure to submit your comments by the comment period deadline 
identified in the proposed rule.

II. What Is the Background for This Action?

    EPA has determined that ground-level ozone (O3) is 
detrimental to human health. On July 18, 1997 (62 FR 38856), EPA 
promulgated an eight-hour ozone NAAQS of 0.08 parts per million parts 
of air (0.08 ppm). This standard is violated in an area when any ozone 
monitor in the area (or in its downwind environs) records eight-hour 
ozone concentrations with a three-year average of the annual fourth-
highest daily maximum eight-hour ozone concentrations equaling or 
exceeding 85 parts per billion parts of air (ppb).
    Section 107 of the CAA required EPA to designate as nonattainment 
any area that violated the 1997 eight-hour ozone standard. The Federal 
Register notice promulgating the eight-hour ozone designations and 
classifications was published on April 30, 2004 (69 FR 23857). In that 
EPA rulemaking, the Chicago-Gary-Lake County, IL-IN area, which 
contains Lake and Porter Counties, Indiana, was designated as a 
nonattainment area for the 1997 eight-hour ozone standard, and the 
designation became effective on June 15, 2004.
    Ground-level ozone is not generally emitted directly by sources. 
Rather, emitted NOX and Volatile Organic Compounds (VOC) 
react in the presence of sunlight to form ground-level ozone as a 
secondary compound, along with other secondary compounds. 
NOX and VOC are referred to as ``ozone precursors.'' 
Reduction of peak ground-level ozone concentrations is achieved through 
controlling VOC and NOX emissions.
    The CAA, title 1, part D contains two sets of provisions--subparts 
1 and 2--that address planning and emission control requirements for 
ozone nonattainment areas. Subpart 1 contains general, less 
prescriptive requirements for all nonattainment areas of any pollutant 
governed by a NAAQS. Subpart 2 contains more specific requirements for 
certain ozone nonattainment areas and applies to ozone nonattainment 
areas classified under section 181 of the CAA. The Chicago-Gary-Lake 
County, IL-IN area is classified as a moderate nonattainment area for 
the 1997 eight-hour ozone standard.
    The subpart 2 ozone plan requirements under the CAA with respect to 
control of VOC and NOX emissions depend on the ozone 
nonattainment classification of an area. The air quality planning 
requirements for the reduction of NOX emissions are set 
forth in section 182(f) of the CAA. Section 182(f) requires States with 
areas designated nonattainment for ozone and classified as moderate and 
above to adopt and implement the same level of NOX emission 
controls for major stationary sources as apply to major stationary 
sources of VOC emissions. Section 182(f) also provides that these 
NOX emission reduction requirements do not apply to an area 
outside of an ozone transport region if EPA determines that additional 
reductions of NOX emissions would not contribute to 
attainment of the ozone standard in the area. Section 182(f)(1)(A). In 
areas where the ozone standard is attained, as demonstrated by 
complete, quality-assured air quality data, without the implementation 
of the additional section 182(f) NOX emission controls, it 
is clear that the additional NOX emission reductions 
required by section 182(f) did not contribute to attainment of the 
ozone standard.
    On March 17, 2008, EPA notified Thomas W. Easterly, Commissioner, 
Indiana Department of Environmental Management (IDEM), that EPA had 
determined that the State of Indiana had failed to submit a 
NOX RACT State Implementation Plan (SIP) revision for Lake 
and Porter Counties (the Indiana portion of the Chicago-Gary-Lake 
County, IL-IN ozone nonattainment area for the 1997 eight-hour ozone 
standard). EPA formalized this finding in the Federal Register on March 
24, 2008 (73 FR 15416), and that action commenced the sanctions process 
outlined by section 179 of the CAA and 40 CFR 52.31. See 59 FR 39832, 
August 4, 1994. Under this process, the new source two-to-one (2:1) 
emissions offset sanction would take effect in Lake and Porter Counties 
on September 24, 2009. The sanctions clock would run and any imposed 
sanctions would remain in effect until either a NOX RACT SIP 
revision is submitted to EPA by the State of Indiana and is 
affirmatively determined complete by EPA or a NOX control 
exemption (waiver) under section 182(f) is granted by EPA. In the Final 
Rules section of today's Federal Register, EPA has published an interim 
final rule to defer sanctions for Lake and Porter Counties based on our 
proposed determination that the Counties are attaining the 1997 eight-
hour ozone NAAQS and that the NOX RACT waiver request is 
approvable.
    The criteria established for determining the applicability of 
section 182(f) NOX emission controls and the evaluation of 
section 182(f) NOX emission control waiver requests are set 
forth in a January 14, 2005, EPA policy memorandum, ``Guidance on 
Limiting Nitrogen Oxides (NOX) Requirements Related to 8-
Hour Ozone Implementation,'' from Stephen D. Page, Director, Office of 
Air Quality Planning and Standards.

III. State Petition

    On June 5, 2009, IDEM submitted a request for the redesignation of 
Lake and Porter Counties to attainment of the 1997 eight-hour ozone 
standard. As part of this ozone redesignation request, IDEM also 
requested an exemption from NOX RACT requirements for Lake 
and Porter Counties under section 182(f) of the CAA based on the 
monitoring of ozone, which showed attainment of the 1997 eight-hour 
ozone standard in the Chicago-Gary-Lake County, IL-IN ozone 
nonattainment area and at the Chiwaukee Prairie monitoring site in 
Kenosha County, Wisconsin monitoring site.\1\ The NOX 
exemption request is based on ozone air quality monitoring data for the 
period of 2006-2008, which demonstrate that the 1997 eight-hour ozone 
NAAQS has been attained in the area without additional reductions of 
NOX emissions.
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    \1\ Although the Chiwaukee Prairie monitoring site is outside of 
the Chicago-Gary-Lake County, IL-IN ozone nonattainment area, it is 
very near the Illinois-Wisconsin border and is considered to be a 
peak ozone impact site for VOC and NOX emissions 
originating in the Chicago-Gary-Lake County, IL-IN ozone 
nonattainment area. The fact that the Chiwaukee Prairie ozone 
monitoring site is the ozone design value site for the Chicago-Gary-
Lake County, IL-IN eight-hour ozone nonattainment area is documented 
in an enclosure to a December 3, 2003 letter from Thomas V. Skinner, 
Regional Administrator, Region 5, U.S. Environmental Protection 
Agency to Honorable Rod R. Blagojevich, Governor, State of Illinois.
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IV. EPA Analysis of the Petition

A. Has the Chicago-Gary-Lake County, IL-IN Area Attained the 1997 
Eight-Hour Ozone NAAQS?

    An area may be considered to be attaining the 1997 eight-hour ozone 
standard if there are no violations of the standard, as determined in 
accordance with 40 CFR 50.10 and appendix I, based on the most recent 
three complete, consecutive calendar years of quality-assured air 
quality monitoring data at all ozone monitoring sites in the area and 
in its nearby downwind environs. To attain this standard, the average 
of the annual fourth-high daily

[[Page 48705]]

maximum eight-hour average ozone concentrations measured and recorded 
at each monitoring site (the monitoring site's ozone design value) over 
the most recent three-year period must not exceed the ozone standard. 
Based on an ozone data rounding convention described in 40 CFR 50, 
appendix I, the eight-hour ozone standard is attained if the area's 
ozone design value \2\ is 0.084 ppm or less. The data must be collected 
and quality-assured in accordance with 40 CFR 58, and must be recorded 
in EPA's Air Quality System (AQS). The ozone monitors generally should 
have remained at the same locations for the duration of the monitoring 
period required to demonstrate attainment (for three years or more). 
The data supporting attainment of the standard must be complete in 
accordance with 40 CFR 50, appendix I.
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    \2\ The worst-case monitoring site-specific ozone design value 
in the area and in its downwind environs.
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    As part of the June 5, 2009, ozone redesignation request, IDEM 
summarized the annual fourth-high eight-hour ozone concentrations and 
the three-year eight-hour ozone design values for the period of 2003-
2008 for all ozone monitoring sites in Lake and Porter Counties and in 
the Chicago-Gary-Lake County, IL-IN ozone nonattainment area. This 
summary also includes ozone concentration data for the Chiwaukee 
Prairie monitoring site in Wisconsin. IDEM notes that the 2006-2008 
ozone design values for all monitoring sites are below the 0.084 ppm 
ozone attainment level. We have reviewed the data and agree that the 
ozone monitoring data for the monitoring sites in the nonattainment 
area and for the Chiwaukee Prairie, Wisconsin monitoring site show 
attainment of the 1997 eight-hour ozone standard. The worst-case 2006-
2008 ozone design \3\ for the Chicago-Gary-Lake County, IL-IN area is 
found at the Chiwaukee Prairie monitoring site, with a value of 0.078 
ppm, below the 0.08 ppm eight-hour ozone standard level. See Table 1 
below.
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    \3\ For an individual ozone monitoring site, the ozone design 
value is the three-year average of the annual fourth-highest daily 
maximum eight-hour ozone concentrations. For any given area, the 
area's ozone design value is the worst-case site-specific ozone 
design value for all ozone monitoring sites in the area.
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    Table 1 summarizes the annual fourth-high daily maximum eight-hour 
ozone concentrations and three-year (2006-2008) averages of the annual 
fourth-high daily maximum eight-hour ozone concentrations for all ozone 
monitoring sites in the Chicago-Gary-Lake County, IL-IN area and for 
the Chiwaukee Prairie monitoring site. The 2006-2008 monitoring data 
cover the most recent three years of quality assured ozone monitoring 
data for this area. These representative peak ozone concentrations are 
based on 2006-2008 ozone data that have been quality assured and 
certified by the States of Indiana, Illinois, and Wisconsin.

 Table 1--Annual Fourth-High Daily Maximum Eight-Hour Ozone Concentrations in Parts per Million (ppm) and Three-
                                                  Year Averages
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                                                                                                    Three-year
                 Monitoring site                       2006            2007            2008           average
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                                            Indiana Monitoring Sites
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Gary............................................           0.073           0.085           0.062           0.073
Hammond.........................................           0.075           0.077           0.068           0.073
Ogden Dunes.....................................           0.070           0.084           0.069           0.074
Valparaiso......................................           0.071           0.080           0.061           0.070
Whiting.........................................           0.081           0.088           0.062           0.077
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                                            Illinois Monitoring Sites
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Alsip...........................................           0.078           0.085           0.066           0.076
Chicago-Cheltenham..............................           0.075           0.082           0.066           0.074
Chicago-Adams...................................           0.073           0.084           0.058           0.071
Chicago-Ellis Avenue............................           0.070           0.079           0.063           0.070
Chicago-Ohio Street.............................           0.065           0.075           0.063           0.067
Chicago-Lawndale................................           0.075           0.080           0.066           0.074
Chicago-Hurlbut Street..........................           0.077           0.079           0.063           0.073
Lemont..........................................           0.070           0.085           0.071           0.075
Cicero..........................................           0.060           0.068           0.060           0.062
Northbrook......................................           0.068           0.076           0.063           0.069
Evanston........................................           0.072           0.080           0.058           0.070
Lisle...........................................           0.062           0.072           0.057           0.063
Elgin...........................................           0.062           0.075           0.061           0.066
Waukegan........................................           0.071           0.081           0.061           0.071
Illinois Beach State Park.......................           0.068           0.080           0.067           0.071
Cary............................................           0.057           0.074           0.063           0.064
Essex Road......................................           0.068           0.071           0.057           0.065
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                                            Wisconsin Monitoring Site
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Chiwaukee Prairie...............................           0.079           0.085           0.069           0.078
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    Review of the 2006-2008 ozone concentrations and ozone design 
values summarized in Table 1 shows that all of the ozone monitoring 
sites for the Chicago-Gary-Lake County, IL-IN area, plus the Chiwaukee 
Prairie monitoring site in Wisconsin, were attaining the 1997 eight-
hour ozone standard during this period. Therefore, based on the most 
recent three years of quality assured ozone monitoring data, the 1997 
eight-hour ozone standard has been

[[Page 48706]]

attained in this area. Preliminary data for 2009 \4\ indicate that the 
area continues to attain the standard. Based on these ozone monitoring 
data, EPA is proposing here to determine that the Chicago-Gary-Lake 
County, IL-IN ozone nonattainment area has attained the 1997 eight-hour 
ozone standard.
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    \4\ Quality-assured ozone data for 2009 are generally only 
available through June in EPA's Air Quality System for Illinois, 
Indiana, and Wisconsin, providing an incomplete picture of the peak 
ozone concentrations for all high ozone months in 2009. Nonetheless, 
these data, coupled with draft data used to support ozone action 
alerts, indicate that no violations of the 1997 eight-hour ozone 
NAAQS have been monitored to date in this area in 2009.
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B. EPA Analysis of the State's NOX RACT Waiver Petition

    EPA's 2005 guidance document, ``Guidance on Limiting Nitrogen 
Oxides (NOx) Requirements Related to 8-Hour Ozone Implementation,'' 
sets forth the criteria for demonstrating that further NOX 
emission reductions in an ozone nonattainment area will not contribute 
to ozone attainment. The guidance provides that three consecutive years 
of monitoring data documenting ozone levels attaining the ozone NAAQS 
in areas in which a State has not implemented certain NOX 
emission controls (see discussion below) is adequate to demonstrate 
that the additional NOX emission reductions will not aid in 
achieving attainment of the ozone NAAQS. As described in the guidance 
document, approval of the NOX emission control exemption is 
granted by EPA on a contingent basis. The NOX emission 
control exemption continues only as long as the State(s) continues to 
monitor attainment of the ozone NAAQS. If, prior to redesignation of 
the area to attainment of the ozone NAAQS, the area violates the 1997 
eight-hour ozone NAAQS, as defined at 40 CFR 50.10 and appendix I, EPA 
will undertake rulemaking to withdraw the NOX RACT emission 
control exemption for the area. Upon issuance of a final action 
withdrawing the NOX RACT emission control exemption, the 
area would once again be subject to the NOX emission control 
requirements under section 182(f) of the CAA.
    As noted above, IDEM documented the annual fourth-highest daily 
maximum eight-hour ozone concentrations during the period of 2006-2008 
for all ozone monitors in the Chicago-Gary-Lake County, IL-IN ozone 
nonattainment area and for the Chiwaukee Prairie monitoring site in 
Kenosha County, Wisconsin in the June 5, 2009, submittal. These data 
demonstrate that the 1997 eight-hour ozone NAAQS has been attained in 
the Chicago-Gary-Lake County, IL-IN ozone nonattainment area.
    Indiana has not adopted or implemented the NOX RACT 
emission controls required for Lake and Porter Counties under section 
182(f). Based on the most recent ozone air quality data and the absence 
of these NOX RACT emission controls, IDEM has requested 
exemption from the NOX RACT requirements under section 
182(f)(1)(A).
    EPA's review of the ozone monitoring data and IDEM's NOX 
emission control exemption request shows that Indiana has complied with 
the requirements for a NOX RACT exemption under section 
182(f) of the CAA consistent with guidelines contained in EPA's January 
14, 2005, guidance document. Therefore, EPA proposes to determine that 
the State of Indiana qualifies for an exemption from NOX 
RACT requirements for Lake and Porter Counties.

V. Sanctions

    If EPA takes final action approving IDEM's June 5, 2009, 
NOX RACT exemption request, Lake and Porter Counties would 
not be subject to the NOX RACT requirement for the duration 
of the emission control exemption. Based on our proposed determination 
that the area has attained the 1997 eight-hour ozone NAAQS and our 
proposed approval of the NOX RACT waiver request, in today's 
Federal Register we are separately issuing an interim final 
determination that it is more likely than not that the State has 
corrected the deficiency. That action will defer the imposition of the 
2:1 offset sanction that would take effect on September 24, 2009, and 
defer the imposition of the highway funding sanction that would take 
effect six months following imposition of the offset sanction. The 
imposition of sanctions will continue to be deferred if EPA takes final 
action determining that the area has attained the 1997 eight-hour ozone 
NAAQS and approves the NOX RACT waiver. The area will not be 
permanently relieved of the possibility of sanctions until such time as 
EPA approves a redesignation request for the area. If, prior to 
redesignation of Lake and Porter Counties to attainment of the 1997 
eight-hour ozone NAAQS, the NOX RACT exemption is revoked 
due to a monitored violation of the 1997 eight-hour ozone NAAQS 
anywhere in the Chicago-Gary-Lake County, IL-IN area or at the 
Chiwaukee Prairie monitoring site, the sanctions clock will restart at 
the point it stopped and the imposition of sanctions will no longer be 
deferred. If Lake and Porter Counties are redesignated to attainment of 
the 1997 eight-hour ozone NAAQS through a final rule by the EPA, the 
NOX RACT waiver will become permanent and the sanctions 
clock will permanently stop, and any imposed sanctions resulting from 
Indiana's failure to submit NOX RACT regulations for Lake 
and Porter Counties would no longer apply.

VI. What Are the Environmental Effects of This Action?

    The section 182(f) NOX RACT exemption is based on a 
finding that additional reductions of NOX would not 
contribute to attainment of the 1997 eight-hour ozone NAAQS in the 
Chicago-Gary-Lake County, IL-IN ozone nonattainment area. This area has 
three consecutive years of ozone levels attaining the ozone standard 
even though Indiana has not adopted and implemented NOX RACT 
in Lake and Porter Counties.
    While EPA is proposing to waive the requirements to control 
NOX emissions through NOX RACT in Lake and Porter 
Counties on the basis that NOX emission reductions would not 
contribute to attainment of the ozone NAAQS in the Chicago-Gary-Lake 
County, IL-IN area, EPA recognizes that there are other benefits to 
controlling NOX emissions. These benefits include reducing 
acid deposition, reducing nitrogen deposition in sensitive wetlands, 
estuaries, and their watersheds, and mitigating ozone transport to 
downwind ozone nonattainment areas. Indiana will continue to be 
required to control NOX emissions from certain 
NOX sources under other CAA programs, such as the Acid Rain 
program in title IV of the CAA, for purposes of achieving these 
environmental benefits. This proposed NOX RACT waiver for 
Lake and Porter Counties will not affect other existing and pending 
NOX emission control requirements for Lake and Porter 
Counties needed to achieve these environmental benefits.
    In addition, EPA notes that an approval of this waiver request is 
solely for purposes of the CAA requirements to meet the 1997 eight-hour 
ozone NAAQS. The waiver would not apply for purposes of the ozone NAAQS 
promulgated in 2008 (March 27, 2008, 73 FR 16435) or for purposes of 
any future ozone NAAQS EPA may promulgate. To the extent section 182(f) 
applies in this area for purposes of the 2008 or any future ozone 
NAAQS, the State would need to submit a NOX RACT SIP or 
would need to demonstrate that a waiver is appropriate for purposes of 
that different ozone NAAQS.

[[Page 48707]]

VII. EPA's Proposed Action

    Based on complete, quality-assured ozone data for 2006-2008, and 
considering 2009 ozone data available to date, EPA is proposing to 
determine that the Chicago-Gary-Lake County, IL-IN ozone nonattainment 
area is attaining the 1997 eight-hour ozone standard.
    EPA is proposing approval of Indiana's request to exempt Lake and 
Porter Counties from the section 182(f) NOX RACT 
requirement. This proposed approval is based on EPA's review of the 
evidence provided by Indiana that the requirements of section 
182(f)(1)(A), as elaborated upon in EPA's guidance for section 182(f) 
exemptions, have been met for Lake and Porter Counties. In the future, 
if EPA determines that a violation of the 1997 eight-hour ozone NAAQS 
has occurred in the Chicago-Gary-Lake County, IL-IN area or at the 
Chiwaukee Prairie monitoring site in Kenosha County, Wisconsin while 
Lake and Porter Counties are designated as nonattainment for the 1997 
eight-hour ozone NAAQS, EPA will take action to revoke the exemption.
    Final approval of Indiana's NOX RACT exemption request 
would continue the deferral of the 2:1 new source offset sanction and 
the highway funding sanction that would have applied based on the 
finding of failure to submit the NOX RACT regulations issued 
by the EPA on March 24, 2009. The deferral would remain in place 
contingent upon continued attainment of the 1997 eight-hour ozone NAAQS 
in the Chicago-Gary-Lake County, IL-IN area. If EPA approves a 
redesignation request for the area for the 1997 eight-hour ozone NAAQS, 
the sanctions clock will permanently stop at that time. If EPA 
determines that there is a violation of the 1997 eight-hour ozone NAAQS 
while Lake and Porter Counties remain designated as nonattainment for 
the 1997 eight-hour ozone NAAQS, the NOX RACT waiver will no 
longer be applicable as of the effective date of any such determination 
by EPA. At that time, the sanctions will no longer be deferred and the 
sanctions clock will restart at the point at which it stopped. EPA will 
provide notice in the Federal Register of any such waiver revocation 
and of the restarting of the sanctions clock.

VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP 
submission that complies with the provisions of the CAA and applicable 
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in 
reviewing SIP submissions, EPA's role is to approve State choices, 
provided that they meet the criteria of the CAA. Accordingly, this 
action merely approves State law as meeting Federal requirements and 
does not impose additional requirements beyond those imposed by State 
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because the 
SIP is not approved to apply in Indian country located in the State, 
and EPA notes that it will not impose substantial direct costs on 
Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Volatile organic compounds.

    Dated: September 16, 2009.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. E9-23042 Filed 9-23-09; 8:45 am]
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