[Federal Register Volume 74, Number 184 (Thursday, September 24, 2009)]
[Rules and Regulations]
[Pages 48662-48664]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23044]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R05-OAR-2009-0512; FRL-8961-9]


Approval and Promulgation of Air Quality Implementation Plans; 
Indiana; Interim Final Determination That Lake and Porter Counties Are 
Exempt From NOX RACT Requirements for Purposes of Staying Sanctions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule.

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SUMMARY: In the Proposed Rules section of this Federal Register, EPA is 
proposing approval of Indiana's request to exempt Lake and Porter 
Counties from the Nitrogen Oxides (NOX) Reasonably Available 
Control Technology (RACT) requirement under section 182(f) of the Clean 
Air Act (CAA) for the 1997 eight-hour ozone standard based on a 
proposed determination that the area has attained that standard. Based 
on the proposed approval, EPA is making an interim final determination 
by this action that, with respect to the NOX RACT 
requirement, the State, contingent upon continued monitored attainment 
of the 1997 eight-hour ozone National Ambient Air Quality Standard 
(NAAQS), has corrected the deficiency which was the basis for a 
sanctions clock. This action will defer the application of the new 
source offset sanction, which would be imposed on September 24, 2009, 
and defer the application of the highway funding sanction, which would 
otherwise apply six months after imposition of the offset sanction. 
Although this action is effective upon publication, EPA will take 
comment on this interim final determination as well as on EPA's 
proposed determination of attainment and proposed approval of the 
State's requested NOX RACT waiver. EPA will publish a new 
final action addressing sanctions at the time it takes further action 
regarding the proposed determination of attainment and proposed 
approval of the NOX waiver, taking into consideration any 
comments on EPA's proposed action and this interim final action.

DATES: This interim final determination is effective on September 24, 
2009. However, comments will be accepted until 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

[[Page 48663]]

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.
    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. Background
II. EPA Action
III. Statutory and Executive Order Reviews

I. Background

    On March 17, 2008, EPA sent a letter to Thomas W. Easterly, 
Commissioner, Indiana Department of Environmental Management (IDEM) 
stating that, under section 179 of the CAA, EPA had determined that 
Indiana failed to submit a State Implementation Plan (SIP) revision for 
NOX RACT in Lake and Porter Counties. EPA formalized this 
finding by taking final action in the Federal Register on March 24, 
2008 (73 FR 15416), and that action started the sanctions process 
outlined in section 179 of the CAA and 40 CFR 50.31. The two-to-one 
(2:1) new source offset sanction was set to take effect on September 
24, 2009, in Lake and Porter Counties as the result of the March 24, 
2008, finding of failure to submit.
    On June 5, 2009, IDEM submitted an ozone redesignation request for 
Lake and Porter Counties, which included a petition pursuant to section 
182(f) of the CAA to exempt Lake and Porter Counties from the 
NOX RACT requirement. The petition is based on ambient air 
monitoring data for 2006-2008 which shows that the Chicago-Gary-Lake 
County, Illinois-Indiana (IL-IN) ozone nonattainment area is meeting 
the 1997 eight-hour ozone NAAQS. In the Proposed Rules section of 
today's Federal Register, EPA has proposed a determination that the 
area has attained the 1997 eight-hour ozone NAAQS and has proposed 
approval of the NOX RACT waiver request contingent on 
continued monitored attainment of the 1997 eight-hour ozone NAAQS in 
the Chicago-Gary-Lake County, IL-IN ozone nonattainment area and at the 
Chiwaukee Prairie monitoring site in Kenosha County, Wisconsin (a peak 
ozone downwind impact site for emissions originating in the Chicago-
Gary-Lake County, IL-IN area).

II. EPA Action

    Based on the proposed approval of the NOX RACT waiver 
request set forth in today's Federal Register, EPA believes that it is 
more likely than not that Indiana (and Lake and Porter Counties) has 
met the NOX RACT requirement under section 182(f) of the 
CAA. Therefore, EPA is making this interim final determination finding 
that the State, contingent on continued monitored attainment of the 
ozone NAAQS, has corrected the deficiency of failing to submit 
NOX RACT rules.
    Because EPA has preliminarily determined that the State has 
corrected the deficiency identified in EPA's promulgated finding of 
failure to submit required NOX RACT rules for Lake and 
Porter Counties, relief from sanctions should be provided as quickly as 
possible. Therefore, EPA is invoking the good cause exception under the 
Administrative Procedure Act (APA) in not providing an opportunity for 
comment before this action takes effect (5 U.S.C. 553(b)(3)). However, 
by this action EPA is providing the public with a chance to comment on 
EPA's determination after the effective date, and EPA will consider any 
comments received in determining whether to reverse this action.
    EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public interest. EPA has reviewed the State's NOX RACT 
waiver petition, and, through its proposed action, is indicating that 
it is more likely than not that the State has corrected the SIP 
deficiency that started the sanctions clock for Lake and Porter 
Counties. It is not in the public interest to initially impose 
sanctions or to keep applied sanctions in place when the State has most 
likely done all it can to correct the deficiency that triggered the 
sanctions clock. Moreover, it would be impracticable to go through 
notice-and-comment rulemaking on a finding that the State has corrected 
the deficiency prior to the rulemaking approving the State's submittal. 
Therefore, EPA believes that it is necessary to use the interim final 
rulemaking process to defer the imposition of sanctions while EPA 
completes its rulemaking process on the approvability of the State's 
submittal. Furthermore, because this rule relieves a restriction, EPA 
is providing that it will be effective upon publication. (5 U.S.C. 
553(d)(1).)

III. Statutory and Executive Order Reviews

    This action stays and defers Federal sanctions and imposes no 
additional 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.
    This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action.
    The administrator certifies that this action 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.).
    This rule 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 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 (59 
FR 22951, November 9, 2000).

[[Page 48664]]

    This action 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 rule 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.
    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272) do not apply to 
this rule because it imposes no standards.
    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 to Congress and the Comptroller 
General. However, section 808 provides that any rule for which the 
issuing agency for good cause finds that notice and public procedure 
thereon are impracticable, unnecessary, or contrary to the public 
interest, shall take effect at such time as the agency promulgating the 
rule determines. 5 U.S.C. 808(2). EPA has made such a good cause 
finding, including the reasons thereof, and established an effective 
date of September 24, 2009. 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 rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by November 23, 2009. Filing a petition for 
reconsideration by the Administrator of this final rule does not affect 
the finality of this rule for the purpose of judicial review nor does 
it extend the time within which petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action may not be challenged later in proceedings to enforce its 
requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

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

    Dated: September 16, 2009.
Bharat Mathur,
Acting Regional Administrator, Region 5.
[FR Doc. E9-23044 Filed 9-23-09; 8:45 am]
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