[Federal Register Volume 75, Number 48 (Friday, March 12, 2010)]
[Proposed Rules]
[Pages 12090-12113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5112]



  Federal Register / Vol. 75, No. 48 / Friday, March 12, 2010 / 
Proposed Rules  

[[Page 12090]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R05-OAR-2009-0512; FRL-9125-5]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; Indiana

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA proposes to approve a request from the State of Indiana to 
redesignate Lake and Porter Counties to attainment of the 1997 eight-
hour ozone National Ambient Air Quality Standard (NAAQS). In proposing 
to approve this request, EPA also proposes to approve, as a revision of 
the Indiana State Implementation Plan (SIP), the State's plan for 
maintaining the eight-hour ozone standard through 2020 in Lake and 
Porter Counties and in the Chicago-Gary-Lake County, Illinois-Indiana 
(IL-IN) ozone nonattainment area. In addition, EPA proposes to approve 
Volatile Organic Compound (VOC) and Nitrogen Oxides (NOX) 
emission inventories for Lake and Porter Counties as a revision of the 
Indiana SIP. Finally, EPA proposes to find adequate and to approve the 
State's 2010 and 2020 Motor Vehicle Emission Budgets (MVEBs) for Lake 
and Porter Counties.

DATES: Comments must be received on or before April 12, 2010.

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) 692-2054.
     Mail: Jay Bortzer, Chief, Air Programs Branch, (AR-18J), 
U.S. Environmental Protection Agency, 77 West Jackson Boulevard, 
Chicago, Illinois 60604.
     Hand Delivery: Jay Bortzer, Chief, 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 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:

Table of Contents

I. What Should I Consider As I Prepare My Comments for EPA?
II. What Actions Is EPA Proposing?
III. What Is the Background for These Actions?
    A. General Background
    B. What Is the Relationship of This Action to a May 31, 2007 EPA 
Proposal To Approve the Redesignation of Lake and Porter Counties to 
Attainment of the 1997 Eight-Hour Ozone Standard?
    C. What Are the Impacts of December 22, 2006 and June 8, 2007 
United States Court of Appeals Decisions on EPA's April 15, 2004 
Phase 1 Ozone Implementation Rule?
    1. Summary of Court Decisions
    2. Requirements Under the Eight-Hour Ozone Standard
    3. Requirements Under the One-Hour Ozone Standard
    D. What Is the Effect of the 2008 Eight-Hour Ozone Standard?
IV. What Are the Criteria for Redesignation to Attainment?
V. Review of the State's Ozone Redesignation Request and the Basis 
for EPA's Proposed Action
    A. Has the Chicago-Gary-Lake County, IL-IN Area Attained the 
1997 Eight-Hour Ozone NAAQS?
    B. Have Lake and Porter Counties and the State of Indiana Met 
All Requirements of Section 110 and Part D of the CAA Applicable for 
Purposes of Redesignation, and Do Lake and Porter Counties Have a 
Fully Approved SIP Under Section 110(k) of the CAA for Purposes of 
Redesignation to Attainment?
    1. Lake and Porter Counties Have Met All Applicable Requirements 
of Section 110 and Part D of the CAA
    a. Section 110: General Requirements for Implementation Plans
    b. Part D Requirements Under the 1997 Eight-Hour Ozone Standard
    c. Subpart 1 Section 172 Requirements
    d. Section 176 Conformity Requirements
    e. Subpart 2 Section 182(a) Requirements
    f. Subpart 2 Section 182(b) Requirements
    g. Subpart 2 Section 182(f) Requirements
    2. Lake and Porter Counties Have a Fully Approved SIP For 
Purposes of Redesignation Under Section 110(k) of the CAA
    3. Lake and Porter Counties Have a Fully Approved SIP and Meet 
Anti-Backsliding Requirements Under the One-Hour Ozone Standard
    C. Are the Air Quality Improvements in the Chicago-Gary-Lake 
County, IL-IN Area Due to Permanent and Enforceable Emission 
Reductions?
    1. Permanent and Enforceable Controls Implemented

[[Page 12091]]

    a. Reasonably Available Control Technology
    b. ROP Plans and Attainment Demonstration Plan
    i. 1996 Fifteen Percent ROP Plan
    ii. 1999 Nine Percent ROP Plan
    iii. 2002 Nine Percent ROP Plan
    iv. 2005 Nine Percent ROP Plan
    v. 2007 Six Percent ROP Plan
    c. NOX Control Rules
    d. Federal Emission Control Measures
    e. Additional Local Emission Reductions
    f. Controls to Remain in Effect
    2. Emission Reductions
    3. Ozone Modeling Results and Temperature Analysis
    D. Does Indiana Have a Fully Approvable Ozone Maintenance Plan 
Pursuant to Section 175A of the CAA for Lake and Porter Counties?
    1. What Is Required in an Ozone Maintenance Plan?
    2. How Did the State Estimate the Attainment Year VOC and 
NOX Emissions?
    a. Area Sources
    b. Point Sources
    c. On-Road Mobile Source Emissions
    d. Non-Road Mobile Source Emissions
    e. Emissions From the Illinois Portion of the Chicago-Gary-Lake 
County, IL-IN Ozone Nonattainment Area
    3. Has the State Demonstrated Maintenance of the Ozone Standard 
in Lake and Porter Counties?
    4. What Is the Contingency Plan for Lake and Porter Counties?
    5. Has the State Committed to Update the Ozone Maintenance Plan 
Within Eight Years After the Redesignation of Lake and Porter 
Counties to Attainment of the Eight-Hour Ozone NAAQS?
    6. How Is Indiana's Ozone Maintenance Plan Affected by the 
Future of NOX Emission Control Rules in Indiana and in 
Upwind Areas Under CAIR and Under the NOX SIP Call?
VI. Has the State Adopted Acceptable MVEBs for the End Year of the 
Ozone Maintenance Period?
    A. How Were the MVEBs Developed, and What Are the MVEBs for Lake 
and Porter Counties?
    B. Are the MVEBs Adequate and Approvable for Use in Conformity 
Determinations?
VII. What Is the Base Year Emissions Inventory, and Is Indiana's 
Approvable?
    VIII. What Are EPA's Proposed Actions?
    IX. 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.
    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 Actions Is EPA Proposing?

    EPA is proposing to take several related actions. First, based on a 
review of a June 5, 2009, ozone redesignation request from the State of 
Indiana, EPA is proposing to approve the redesignation of Lake and 
Porter Counties, Indiana from nonattainment to attainment of the 1997 
eight-hour ozone NAAQS, in accordance with sections 107(d)(3)(E) and 
175A of the Clean Air Act (CAA). Second, EPA is proposing to approve 
Indiana's 1997 eight-hour ozone maintenance plan for Lake and Porter 
Counties as a revision of Indiana's SIP. This ozone maintenance plan 
demonstrates that Lake and Porter Counties (and the Chicago-Gary-Lake 
County, IL-IN area) should remain in attainment of the 1997 eight-hour 
ozone NAAQS through 2020, and specifies the measures that will be taken 
if violation of the ozone standard occurs or is threatened. Third, EPA 
is proposing to approve 2002 VOC and NOX emission 
inventories for Lake and Porter Counties as a revision of the Indiana 
SIP, as required by section 182(a)(1) of the CAA. Finally, EPA is 
proposing to find as adequate and to approve VOC and NOX 
2010 and 2020 MVEBs for Lake and Porter Counties. The comment period 
for adequacy of the MVEBs is concurrent with the comment period for 
this proposed rule.

III. What Is the Background for These Actions?

A. General Background

    EPA has determined that ground-level ozone 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 (ppm) (80 parts per 
billion (ppb)) (the 1997 eight-hour ozone standard or NAAQS). This 
standard is violated in an area when any ozone monitor in the area (or 
in its impacted 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 
0.085 ppm. This eight-hour ozone standard replaced a prior one-hour 
ozone NAAQS promulgated on February 8, 1979 (44 FR 8202), and revoked 
on June 15, 2005.
    Ground-level ozone is generally not emitted directly by sources. 
Rather, emitted NOX and 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.
    Section 107 of the CAA requires EPA to designate as nonattainment 
areas that violate the NAAQS. This includes the 1997 eight-hour ozone 
NAAQS. The Federal Register action promulgating the eight-hour ozone 
designations and classifications was published on April 30, 2004 (69 FR 
23857). The designations and classifications became effective on June 
15, 2004.
    The CAA contains two sets of provisions--subparts 1 and 2--that 
address planning and emission control requirements for ozone 
nonattainment areas. Both of these subparts are found in title 1, part 
D of the CAA. 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. In the April 30, 2004, 
designation rulemaking, EPA divided eight-hour ozone nonattainment 
areas into the categories of subpart 1 nonattainment (``basic'' 
nonattainment) and subpart 2 nonattainment (nonattainment areas 
classified using an approach analogous to the approach defined in 
section 181 of the CAA for the one-hour ozone NAAQS).
    Emission control requirements for classified, subpart 2 
nonattainment areas are linked to areas' ozone nonattainment 
classifications. Areas with more serious ozone pollution problems (with 
higher ozone nonattainment classifications) are subject to more 
prescribed requirements and later attainment dates. The prescribed 
emission control requirements are designed to help bring areas into 
attainment by their specified attainment dates.

[[Page 12092]]

    In EPA's April 30, 2004 (69 FR 23591) rulemaking, EPA designated 
Lake and Porter Counties (a portion of the Chicago-Gary-Lake County, 
IL-IN ozone nonattainment area) as a subpart 2 moderate nonattainment 
area for the 1997 eight-hour ozone standard. This designation was based 
on 2001-2003 ozone data collected in the Chicago-Gary-Lake County, IL-
IN area and at the Chiwaukee Prairie monitoring site in Wisconsin 
(located very near the Illinois-Wisconsin border, and considered to be 
one of the peak ozone impact sites resulting from the VOC and 
NOX emissions in the Chicago-Gary-Lake County, IL-IN area).
    On June 5, 2009, the State of Indiana, through the Indiana 
Department of Environmental Management (IDEM), requested redesignation 
of Lake and Porter Counties to attainment of the 1997 eight-hour ozone 
NAAQS based on ozone data from the period of 2006-2008.
    On July 20, 2009, IDEM supplemented the June 5, 2009, ozone 
maintenance demonstration to demonstrate that the 1997 eight-hour ozone 
standard can be maintained in Lake and Porter Counties and in the 
Chicago-Gary-Lake County, IL-IN area through 2020 without emission 
reductions resulting from implementation of EPA's Clean Air Interstate 
Rule (CAIR). As explained below, some uncertainty currently exists 
regarding the implementation of the CAIR-based emission control rules 
in Indiana and in other states whose NOX emissions may 
impact ozone levels in the Chicago-Gary-Lake County, IL-IN area.

B. What Is the Relationship of This Action to a May 31, 2007 EPA 
Proposal to Approve the Redesignation of Lake and Porter Counties to 
Attainment of the 1997 Eight-Hour Ozone Standard?

    On May 31, 2007 (72 FR 30436), EPA published a proposed rule to 
approve the redesignation of Lake and Porter Counties to attainment of 
the 1997 eight-hour ozone standard based on a September 12, 2006, 
request by the State of Indiana. Before the final rulemaking could be 
completed, however, violations of the 1997 eight-hour ozone standard 
were monitored at two sites in or associated with the Chicago-Gary-Lake 
County, IL-IN ozone nonattainment area. Both the Chiwaukee Prairie 
monitoring site in Wisconsin and the Whiting monitoring site in Lake 
County, Indiana recorded violations of the 1997 eight-hour ozone 
standard based on 2005-2007 quality-assured and State-certified ozone 
data.\1\ Because violations of the 1997 eight-hour ozone standard 
occurred prior to final rulemaking to approve Indiana's September 12, 
2006 ozone redesignation request, EPA could not complete a final 
rulemaking approving this redesignation request.
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    \1\ The 2005, 2006, and 2007 fourth-high daily maximum eight-
hour ozone concentrations respectively for each of these monitoring 
sites were: Chiwaukee Prairie--93, 79, and 85 ppb; and, Whiting--88, 
81, and 88 ppb.
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    The June 5, 2009, ozone redesignation request is based on 
subsequent complete, quality-assured ozone data for 2006-2008 showing 
attainment of the 1997 eight-hour ozone NAAQS throughout the entire 
Chicago-Gary-Lake County, IL-IN ozone nonattainment area, as well as at 
the Chiwaukee Prairie monitoring site in Wisconsin. Preliminary data 
from the 2009 ozone monitoring season show that the area continues to 
attain the 1997 eight-hour ozone NAAQS.
    As discussed below, EPA has previously proposed to determine that 
the Chicago-Gary-Lake County, IL-IN area is attaining the 1997 eight-
hour ozone standard based on the 2006-2008 ozone data. See 74 FR 48703 
(September 24, 2009). In the same action, EPA also proposed to approve 
a NOX Reasonably Available Control Technology (RACT) waiver 
request from the State for Lake and Porter Counties that was included 
in the State's June 5, 2009 submittal. In addition, on September 24, 
2009 (74 FR 48662), through an interim final rule, EPA concluded that, 
contingent on continued monitored attainment of the 1997 eight-hour 
ozone standard in the Chicago-Gary-Lake County, IL-IN area, Indiana has 
met the NOX RACT requirement of section 182(f) of the CAA 
through a waiver of this requirement. EPA did not receive any comments 
on either the September 24, 2009, proposed rule or the September 24, 
2009, interim final rule. In a separate final rulemaking in today's 
Federal Register, EPA finds that the Chicago-Gary-Lake County, IL-IN 
area has attained the 1997 eight-hour ozone standard based on the 2006-
2008 ozone data, and approves Indiana's requested NOX RACT 
waiver for Lake and Porter Counties.
    On December 4, 2008, IDEM submitted a draft of a redesignation 
request based on the 2006-2008 ozone data and requested parallel 
processing while IDEM completed public review of the redesignation 
request and associated ozone maintenance plan. Because EPA did not 
complete the rulemaking on the September 12, 2006 ozone redesignation 
request and because the December 4, 2008 submittal considered more 
recent ozone data, IDEM requested EPA to consider only this later 
redesignation request, which was finalized and submitted on June 5, 
2009 (and supplemented in July, 2009), and to disregard the December 
12, 2006, ozone redesignation request. Since the State of Indiana has 
requested that EPA disregard the September 12, 2006, ozone 
redesignation request, EPA will not conduct further rulemaking with 
regard to that submittal. This proposed rule considers only the final 
June 5, 2009, redesignation request and supporting information, as 
supplemented in July, 2009.

C. What Are the Impacts of December 22, 2006 and June 8, 2007 United 
States Court of Appeals Decisions on EPA's April 15, 2004 Phase 1 Ozone 
Implementation Rule?

1. Summary of Court Decisions
    On December 22, 2006, in South Coast Air Quality Management Dist. 
v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit 
(D.C. Circuit) vacated EPA's Phase 1 implementation rule for the 1997 
eight-hour ozone standard (69 FR 23591, April 30, 2004). 472 F.3d 882 
(D.C. Cir. 2006). On June 8, 2007, in response to several petitions for 
rehearing, the D.C. Circuit clarified that the Phase 1 rule was vacated 
only with regard to those parts of the rule that had been successfully 
challenged. Id., Docket No. 04-1201. Therefore, the Phase 1 rule 
provisions for areas currently classified under subpart 2 of title 1, 
part D of the CAA as eight-hour ozone nonattainment areas, the eight-
hour ozone attainment dates, and the timing of emission reductions 
needed for attainment of the 1997 eight-hour ozone NAAQS remain in 
effect. The June 8th decision left intact the Court's rejection of 
EPA's reasons for implementing the 1997 eight-hour ozone standard in 
certain nonattainment areas under subpart 1 of the CAA. By limiting the 
vacatur, the Court let stand EPA's revocation of the one-hour ozone 
standard and those anti-backsliding provisions of the Phase 1 rule that 
had not been successfully challenged. The June 8th decision reaffirmed 
the December 22, 2006, decision that EPA had failed to retain measures 
required for one-hour ozone nonattainment areas under the anti-
backsliding provisions of the CAA, including: (1) Nonattainment area 
New Source Review (NSR) requirements based on an area's one-hour ozone 
nonattainment classification; (2) section 185 source penalty fees for 
one-hour severe and extreme nonnattainment areas; (3) measures to be 
implemented pursuant to section 172(c)(9) or

[[Page 12093]]

182(c)(9) of the CAA as contingencies for areas not making Reasonable 
Further Progress (RFP) toward attainment of the one-hour ozone NAAQS, 
or for failure to attain the NAAQS; and, (4) transportation conformity 
requirements for certain types of Federal actions. The June 8th 
decision clarified that the Court's reference to conformity 
requirements for anti-backsliding purposes was limited to requiring the 
continued use of one-hour motor vehicle emission budgets until eight-
hour MVEBs are available for conformity determinations.
    For the reasons set forth below, EPA does not believe that the 
Court's rulings preclude redesignation. EPA believes that the Court's 
decisions impose no impediment to moving forward with redesignation of 
this area to attainment, because even in light of the Court's 
decisions, redesignation is appropriate under the relevant 
redesignation provisions of the CAA and longstanding policies regarding 
redesignation requests.
2. Requirements Under the Eight-Hour Ozone Standard
    For the eight-hour ozone standard, the Chicago-Gary-Lake County, 
IL-IN ozone nonattainment area is classified as moderate nonattainment 
under subpart 2 of the CAA. The June 8, 2007, opinion clarifies that 
the Court did not vacate the Phase 1 Rule's provisions with respect to 
classifications for areas under subpart 2. The Court's decision, 
therefore, upholds EPA's classifications for those areas classified 
under subpart 2 for the eight-hour ozone standard, and all eight-hour 
ozone requirements for these areas remain in place.
3. Requirements Under the One-Hour Ozone Standard
    In its June 8, 2007, decision, the Court limited its vacatur so as 
to uphold those provisions of EPA's anti-backsliding requirements that 
were not successfully challenged. Therefore, an area must meet the 
anti-backsliding requirements, see 40 CFR 51.900, et seq.; 70 FR 30592, 
30604 (May 26, 2005), which apply by virtue of the area's 
classification for the one-hour ozone NAAQS. As set forth in more 
detail below, the area must also address several additional anti-
backsliding provisions identified by the Court in its decisions.

D. What Is the Effect of the 2008 Eight-Hour Ozone Standard?

    On March 27, 2008 (73 FR 16435), EPA adopted a new eight-hour ozone 
NAAQS (the 2008 eight-hour ozone standard) of 0.075 ppm, three-year 
average of the annual fourth-highest daily maximum eight-hour ozone 
concentrations at each ozone monitoring site. Although this reflects a 
tightening of the ozone standard, the states and EPA have not completed 
the designation of areas for this standard. In addition, on September 
16, 2009, EPA announced its intention to reconsider the 2008 eight-hour 
ozone standard, and announced that it was staying the designation of 
areas for this standard pending the outcome of the reconsideration of 
the standard. Finally, on January 19, 2010, EPA proposed to revise the 
eight-hour ozone standard (75 FR 2938), proposing an eight-hour ozone 
concentration standard in the range of 0.060 to 0.070 ppm.
    EPA's future actions with respect to the 2008 eight-hour ozone 
standard or the newly-proposed standard have no effect on the 
redesignation of Lake and Porter Counties with regard to the 1997 
eight-hour ozone standard. In addition, our final action on the 
redesignation to attainment of Lake and Porter Counties for the 1997 
eight-hour ozone standard will have no bearing on any future action as 
to the attainment designation of Lake and Porter Counties for the 2008 
ozone standard or any subsequently-promulgated ozone standard.

IV. What Are the Criteria for Redesignation to Attainment?

    The CAA provides the basic requirements for redesignating a 
nonattainment area to attainment. Specifically, section 107(d)(3)(E) of 
the CAA authorizes redesignation provided that: (1) The Administrator 
determines that the area has attained the applicable NAAQS based on 
recent air quality data; (2) the Administrator has fully approved an 
applicable SIP for the area under section 110(k) of the CAA; (3) the 
Administrator determines that the improvement in air quality is due to 
permanent and enforceable emission reductions resulting from 
implementation of the applicable SIP, Federal air pollution control 
regulations, and other permanent and enforceable emission reductions; 
(4) the Administrator has fully approved a maintenance plan for the 
area meeting the requirements of section 175A of the CAA; and, (5) the 
state has met all requirements applicable to the area under section 110 
and part D of the CAA.
    EPA provided guidance on redesignations in the General Preamble for 
the implementation of title I of the CAA on April 16, 1992 (57 FR 
13498), and supplemented this guidance on April 28, 1992 (57 FR 18070).
    Two significant policy documents affecting the review of ozone 
redesignation requests are the following: (1) ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992 (the September 4, 1992 Calcagni memorandum); and, (2) 
``Reasonable Further Progress, Attainment Demonstration, and Related 
Requirements for Ozone Nonattainment Areas Meeting the Ozone National 
Ambient Air Quality Standard,'' Memorandum from John S. Seitz, 
Director, Office of Air Quality Planning and Standards, May 10, 1995 
(the May 10, 1995 Clean Data Policy memorandum). Additional guidance on 
processing redesignation requests is included in the following 
documents:
     ``Maintenance Plans for Redesignation of Ozone and Carbon 
Monoxide Nonattainment Areas,'' Memorandum from G.T. Helms, Chief 
Ozone/Carbon Monoxide Programs Branch, April 30, 1992;
     ``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G.T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
     ``State Implementation Plan (SIP) Actions Submitted in 
Response to Clean Air Act (Act) Deadlines,'' Memorandum from John 
Calcagni, Director, Air Quality Management Division, October 28, 1992;
     ``Technical Support Documents (TSDs) for Redesignation of 
Ozone and Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from 
G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 
1993;
     ``State Implementation Plan (SIP) Requirements for Areas 
Submitting Requests for Redesignation to Attainment of the Ozone and 
Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On 
or After November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 17, 
1993;
     ``Use of Actual Emissions in Maintenance Demonstrations 
for Ozone and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, 
Acting Director, Air Quality Management Division, November 30, 1993;
     ``General Preamble for the Interpretation of Title I of 
the Clean Air Act Amendments of 1990,'' (General Preamble) 57 FR 13498 
(April 16, 1992); and,
     ``Part D New Source Review (Part D NSR) Requirements for 
Areas Requesting Redesignation to

[[Page 12094]]

Attainment,'' Memorandum from Mary D. Nichols, Assistant Administrator 
for Air and Radiation, October 14, 1994.

V. Review of the State's Ozone Redesignation Request and the Basis for 
EPA's Proposed Action

    EPA is proposing to: (1) Approve the ozone maintenance plan for 
Lake and Porter Counties and the VOC and NOX MVEBs supported 
by the ozone maintenance plan; (2) approve the 2002 VOC and 
NOX emissions inventory for Lake and Porter Counties as 
meeting the emission inventory requirements of the CAA; and, (3) 
approve the redesignation of Lake and Porter Counties to attainment of 
the 1997 eight-hour ozone NAAQS. The bases for our proposed approvals 
follow.

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 
NAAQS if there are no violations of the NAAQS, as determined in 
accordance with 40 CFR 50.10 and 40 CFR part 50, 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 at any nearby ozone monitor outside of the area with ozone 
concentrations impacted by VOC and NOX emissions from the 
subject area, particularly if the external monitor is used to calculate 
the area's ozone design value. To attain this standard, the average of 
the annual fourth-high daily 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 part 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 part 58, and 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 
part 50, appendix I.
---------------------------------------------------------------------------

    \2\ The worst-case monitoring site-specific ozone design value 
in the area and in its nearby downwind environs.
---------------------------------------------------------------------------

    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 showed that the 2006-2008 
ozone design values for all monitoring sites are below the 0.084 ppm 
ozone attainment level. IDEM has certified that all ozone data for the 
Indiana Counties covered by the ozone redesignation request have been 
quality-assured and submitted to EPA's AQS. Note that Illinois and 
Wisconsin have also certified their ozone data through 2008. We have 
already addressed these data in a September 24, 2009 (74 FR 48703) 
proposed finding that the Chicago-Gary-Lake County, IL-IN ozone 
nonattainment area is attaining the 1997 eight-hour ozone standard 
based on the 2006-2008 ozone data, and the data that show the area 
continued attaining up to the date of our proposed determination. As 
noted above, we received no comments on this proposed finding. The 
final rule addressing this finding of attainment, along with approval 
of Indiana's request for a waiver from the requirement for 
NOX RACT in Lake and Porter Counties, is covered in a 
separate rulemaking in today's Federal Register.
    We also note that the Chicago-Gary-Lake County, IL-IN area 
continues to attain the 1997 eight-hour ozone standard based on 2007-
2009 ozone data. Table 1 summarizes the annual fourth-high eight-hour 
ozone concentrations and three-year (2007-2009) averages of the annual 
fourth-high 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 2007-2009 monitoring data cover the most 
recent three years of quality-assured ozone monitoring data for this 
area. The data continue to show monitor-specific ozone design values 
that are well below the 0.084 ppm ozone attainment level.

 Table 1--Annual Fourth-High Daily Maximum Eight-Hour Ozone Concentrations in Parts Per Million (ppm) and Three-
                                                  Year Averages
----------------------------------------------------------------------------------------------------------------
                                                                                                    Three-year
                 Monitoring site                       2007            2008            2009           average
----------------------------------------------------------------------------------------------------------------
                                            Indiana Monitoring Sites
----------------------------------------------------------------------------------------------------------------
Gary............................................           0.085           0.062           0.058           0.068
Hammond.........................................           0.077           0.068           0.065           0.070
Ogden Dunes.....................................           0.084           0.069           0.067           0.073
Valparaiso......................................           0.080           0.061           0.064           0.068
Whiting.........................................           0.088           0.062           0.062           0.071
----------------------------------------------------------------------------------------------------------------
                                            Illinois Monitoring Sites
----------------------------------------------------------------------------------------------------------------
Alsip...........................................           0.085           0.066           0.069           0.073
Chicago-Cheltenham..............................           0.082           0.066           0.065           0.071
Chicago-Adams...................................           0.084           0.058           0.076           0.073
Chicago-Ellis Avenue............................           0.079           0.063           0.060           0.068
Chicago-Ohio Street.............................           0.075           0.063           0.062           0.067
Chicago-Lawndale................................           0.080           0.066           0.067           0.071
Chicago-Hurlbut Street..........................           0.079           0.063           0.064           0.069
Lemont..........................................           0.085           0.071           0.067           0.074
Cicero..........................................           0.068           0.060           0.067           0.065
Northbrook......................................           0.076           0.063           0.069           0.069

[[Page 12095]]

 
Evanston........................................           0.080           0.058           0.064           0.067
Lisle...........................................           0.072           0.057           0.059           0.063
Elgin...........................................           0.075           0.061           0.068           0.068
Waukegan........................................           0.081           0.061           0.057           0.066
Illinois Beach State Park.......................           0.080           0.067           0.075           0.074
Cary............................................           0.074           0.063           0.066           0.068
Essex Road......................................           0.071           0.057           0.063           0.064
----------------------------------------------------------------------------------------------------------------
                                            Wisconsin Monitoring Site
----------------------------------------------------------------------------------------------------------------
Chiwaukee Prairie...............................           0.085           0.069           0.071           0.075
----------------------------------------------------------------------------------------------------------------

    Indiana commits to continue ozone monitoring at the Indiana 
monitoring sites addressed in the ozone redesignation request. Indiana 
will consult with EPA prior to making any changes in the existing ozone 
monitoring network, should changes become necessary in the future.

B. Have Lake and Porter Counties and the State of Indiana Met All 
Requirements of Section 110 and Part D of the CAA Applicable for 
Purposes of Redesignation, and Do Lake and Porter Counties Have a Fully 
Approved SIP Under Section 110(k) of the CAA for Purposes of 
Redesignation to Attainment?

    In April 2004, Lake and Porter Counties were designated as moderate 
nonattainment for the 1997 eight-hour ozone NAAQS, with a June 15, 
2010, attainment deadline. Prior to this, Lake and Porter Counties had 
been designated as severe nonattainment for the one-hour ozone NAAQS, 
with a November 15, 2007, attainment deadline. As a result of these 
nonattainment designations, the State of Indiana was required to submit 
SIP revisions that meet the ozone standard attainment requirements of 
the CAA.
    The September 4, 1992, Calcagni memorandum describes EPA's 
interpretation of section 107(d)(3)(E) of the CAA. Under this 
interpretation, a state with an area seeking redesignation to 
attainment must meet SIP requirements that come due prior to the 
state's submittal of a complete redesignation request. See also 60 FR 
12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor, 
Michigan); 68 FR 25424, 25427 (May 12, 2003) (redesignation of St. 
Louis); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004); and 70 
FR 19895, 19900 (April 15, 2005) (redesignation of Cincinnati). 
Furthermore, requirements of the CAA that come due subsequent to the 
state's submittal of a complete redesignation request continue to be 
applicable to the area until redesignation to attainment is approved, 
but are not required as a prerequisite for redesignation (see section 
175A(c) of the CAA). If the redesignation is disapproved or is not 
finalized due to a violation of the standard in the nonattainment area 
prior to final rulemaking approving the redesignation, the state 
remains obligated to fulfill these requirements.
    We are proposing to determine that Lake and Porter Counties and the 
State of Indiana have met all SIP requirements currently applicable for 
this area for purposes of redesignation under section 110 and part D of 
title I of the CAA.
    As part of the June 5, 2009, submittal, IDEM included draft VOC 
RACT rules to cover Control Techniques Guidelines (CTGs) published by 
EPA in 2006, 2007, and 2008. Along with the draft RACT rules, IDEM also 
submitted a negative source declaration for the VOC source category of 
Fiberglass Boat Manufacturing Materials. On September 4, 2009, IDEM 
submitted final, adopted VOC RACT rules. On October 16, 2009 (74 FR 
53193), EPA proposed to approve these VOC RACT rules and negative 
source declaration, noting that, with the approval of these VOC RACT 
rules and negative source declaration, Indiana's SIP would meet the CAA 
requirement for VOC RACT. See section 107(d)(3)(E)(v) of the CAA. On 
February 24, 2010 (40 FR 8246), EPA published the final rule approving 
the VOC RACT rules and the negative source declaration.
    As discussed further below, EPA is proposing in this rulemaking to 
approve Indiana's 2002 VOC and NOX emission inventories as a 
revision of the Indiana SIP. See section 107(d)(3)(E)(ii) of the CAA.
    Finally, as part of the June 5, 2009, submittal, IDEM requested a 
waiver of NOX RACT requirements under section 182(f) of the 
CAA based on the monitoring of attainment of the 1997 eight-hour ozone 
standard in the Chicago-Gary-Lake County, IL-IN area. On September 24, 
2009 (74 FR 48703), we proposed to determine that the area has attained 
the 1997 eight-hour ozone standard and to approve Indiana's 
NOX RACT waiver request. On the same date, September 24, 
2009 (74 FR 48662), through an interim final rule, we also made a 
finding that Indiana has complied with the NOX RACT 
requirement of section 182(f) of the CAA through the proposed 
NOX RACT waiver, contingent on monitoring showing continued 
attainment of the 1997 eight-hour ozone standard in the Chicago-Gary-
Lake County, IL-IN area. No comments were received on either of these 
rulemakings. In a separate rulemaking in today's Federal Register, we 
are approving Indiana's requested NOX RACT waiver for Lake 
and Porter Counties, as well as finalizing the determination of 
attainment of the 1997 eight-hour ozone standard.
    We believe that all other SIP requirements applicable for purposes 
of redesignation are addressed and approved in the Indiana SIP. In 
making these determinations, we reviewed the CAA SIP requirements 
applicable to Lake and Porter Counties for purposes of redesignation, 
and concluded that the applicable portions of the SIP meeting these 
requirements are fully approved under section 110(k) of the CAA.
1. Lake and Porter Counties Have Met All Applicable Requirements of 
Section 110 and Part D of the CAA
a. Section 110: General Requirements for Implementation Plans
    Section 110(a)(2) of the CAA lists the elements to be included in 
each SIP after adoption by the state and reasonable notice and public 
hearing. The SIP elements include, but are not limited to: (a) 
Provisions for establishment and operation of

[[Page 12096]]

appropriate devices, methods, systems, and procedures necessary to 
monitor ambient air quality; (b) implementation of a source permit 
program; (c) provisions for part C Prevention of Significant 
Deterioration (PSD) and part D NSR permit programs; (d) criteria for 
stationary source emission control measures, monitoring, and reporting; 
(e) provisions for air quality modeling; and, (f) provisions for public 
and local agency participation in planning and emission control rule 
development.
    Section 110(a)(2)(D) of the CAA requires SIPs to contain certain 
measures to prevent sources in the state from significantly 
contributing to air quality problems in another state. To implement 
this provision, EPA has required certain states to establish programs 
to address transport of certain air pollutants (NOX SIP Call 
\3\ and CAIR (70 FR 25162)). However, the section 110(a)(2)(D) SIP 
requirements are not linked with a particular area's attainment/
nonattainment designation. EPA believes that the SIP requirements 
linked with a particular area's air quality designation are the 
relevant measures to evaluate when reviewing a redesignation request. 
The transport SIP requirements, where applicable, continue to apply to 
a state regardless of the designation of any area within the state. 
Thus, we believe that these requirements are not applicable 
requirements for purposes of redesignation. 65 FR 37890 (June 19, 
2000), 66 FR 50399 (October 19, 2001), 68 FR 25418, 25426-25427 (May 
13, 2003).
---------------------------------------------------------------------------

    \3\ On October 27, 1998 (63 FR 57356), EPA issued a 
NOX SIP Call requiring the District of Columbia and 22 
states to reduce emissions of NOX in order to reduce the 
transport of ozone and ozone precursors. In compliance with EPA's 
NOX SIP Call, IDEM developed rules governing the control 
of NOX emissions from Electric Generating Units (EGUs), 
major non-EGU industrial boilers, turbines, major cement kilns, and 
internal combustion engines. EPA approved Indiana's rules as 
fulfilling requirements of Phase I of the NOX SIP Call on 
November 8, 2001 (66 FR 56465) and December 11, 2003 (68 FR 69025), 
and of Phase II of the NOX SIP Call on October 1, 2007 
(72 FR 55664).
---------------------------------------------------------------------------

    Further, we believe that other section 110 elements described above 
that are not connected with nonattainment plan submissions and that are 
not linked with an area's attainment status are also not applicable 
requirements for purposes of redesignation. A state remains subject to 
these requirements regardless of an area's designation and after an 
area is redesignated to attainment. We conclude that only the section 
110 (and part D) requirements that are linked with an area's 
designation and classification are the relevant measures for evaluating 
this aspect of a redesignation request. This approach is consistent 
with EPA's policy on applicability of conformity and oxygenated fuels 
requirements for redesignation purposes, as well as with section 184 
ozone transport control requirements. See: Reading, Pennsylvania 
proposed and final rulemakings (61 FR 53174-53176, October 10, 1996 and 
62 FR 24826, May 7, 1997); Cleveland-Akron-Loraine, Ohio final 
rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida final 
rulemaking (60 FR 62748, December 7, 1995). See also the discussion on 
this issue in the Cincinnati, Ohio ozone redesignation (65 FR 37890, 
June 19, 2000), and the Pittsburgh, Pennsylvania ozone redesignation 
(66 FR 50399, October 19, 2001).
    We have reviewed Indiana's SIP and believe that it meets the 
general SIP requirements under section 110 of the CAA for purposes of 
redesignation. EPA has previously approved provisions of the Indiana 
SIP addressing section 110 elements under the one-hour ozone standard 
(40 CFR 52.773). In addition, the State has submitted a letter dated 
December 7, 2007, setting forth its belief that the section 110 SIP 
approved for the one-hour ozone NAAQS is also sufficient to meet the 
requirements under the 1997 eight-hour ozone NAAQS. EPA has not yet 
acted on this submission, but believes that approval is not necessary 
for purposes of redesignation, as discussed above. We thus propose to 
find that the State of Indiana has met all section 110 requirements 
relevant to the State's eight-hour ozone redesignation request.
b. Part D Requirements Under the 1997 Eight-Hour Ozone Standard
    EPA is proposing that the Indiana SIP meets the SIP requirements 
applicable for purposes of redesignation under part D of title I of the 
CAA for Lake and Porter Counties. Under part D of title I of the CAA, 
an area's ozone nonattainment classification determines the SIP 
requirements to which it will be subject. Subpart 1 of part D, found in 
sections 172-176 of the CAA, sets forth the basic nonattainment 
requirements applicable to all nonattainment areas. Subpart 2 of part 
D, which includes section 182 of the CAA, establishes additional 
requirements depending on the area's ozone nonattainment 
classification.
    Lake and Porter Counties were classified as moderate nonattainment 
for the 1997 eight-hour ozone NAAQS and were included in the Chicago-
Gary-Lake County, IL-IN ozone nonattainment area under subpart 2 of 
part D. Therefore, Indiana must meet the requirements of subparts 1 and 
2 of part D applicable for purposes of redesignation. The applicable 
subpart 1 requirements are contained in sections 172(c)(1)-(7), 
172(c)(9), and 176 of the CAA. The subpart 2 requirements applicable to 
Lake and Porter Counties are contained in sections 182(a)-(b) 
(requirements applicable to moderate ozone nonattainment areas) of the 
CAA.
c. Subpart 1 Section 172 Requirements
    A thorough discussion of the requirements contained in section 172 
can be found in the General Preamble (57 FR 13498, April 16, 1992).
    Section 172(c)(1) requires the state plans for all nonattainment 
areas to provide for the implementation of all Reasonably Available 
Control Measures (RACM), including RACT at a minimum, as expeditiously 
as practicable. EPA interprets this requirement to impose a duty on all 
nonattainment areas and their states to consider all available control 
measures and to adopt and implement such measures as are reasonably 
available for implementation in the areas as components of the areas' 
attainment demonstrations (the attainment demonstrations must address 
RACM) and SIPs. Note also that RACT requirements are classification-
dependent, and, as such, are addressed as part of the subpart 2 
requirements discussed below.
    Because attainment of the 1997 eight-hour ozone NAAQS has been 
reached in Lake and Porter Counties and in the Chicago-Gary-Lake 
County, IL-IN area, no additional RACM measures, beyond RACT, are 
needed to provide for attainment. No attainment demonstration is needed 
as a prerequisite for redesignation to attainment, and, therefore, the 
SIP does not need to address RACM as a prerequisite for approval of the 
State's redesignation request. 57 FR 13498, 13564 (April 16, 1992), 40 
CFR 51.918.
    Section 172(c)(2) requires plans for all nonattainment areas to 
provide for RFP toward attainment of the NAAQS. This requirement, as 
well as contingency measures under section 172(c)(9), is not relevant 
to Lake and Porter Counties because the Chicago-Gary-Lake County, IL-IN 
area has monitored attainment of the 1997 eight-hour ozone NAAQS. 
General Preamble, 57 FR 13564. In addition, pursuant to EPA's 
determination of attainment for the Chicago-Gary-Lake County, IL-IN 
area, the requirement for RFP under section 172(c)(2), as well as the 
section 172(c)(9) contingency measure requirement, is suspended 
pursuant to 40 CFR 51.918.

[[Page 12097]]

    Section 172(c)(3) requires submission and EPA approval of a 
comprehensive, accurate, and current inventory of actual emissions. 
This requirement is superseded by the emission inventory requirement in 
section 182(a)(1) of the CAA. The 2002 VOC and NOX emission 
inventories for Lake and Porter Counties are further discussed below.
    Section 172(c)(4) requires the identification and quantification of 
allowable emissions for major new and modified stationary sources 
allowed in a nonattainment area, and section 172(c)(5) requires source 
permits for the construction and operation of new and modified major 
stationary sources in the nonattainment area (NSR requirements). EPA 
has determined that, since PSD requirements \4\ will apply after 
redesignation, areas being redesignated need not comply with the 
requirement that a NSR program be approved prior to redesignation, 
provided that states demonstrate maintenance of the NAAQS in the areas 
without implementation of part D NSR. A more detailed rationale for 
this view is described in a memorandum from Mary Nichols, Assistant 
Administrator for Air and Radiation, dated October 14, 1994, titled 
``Part D New Source Review Requirements for Areas Requesting 
Redesignation to Attainment.'' Indiana has demonstrated that Lake and 
Porter Counties will be able to maintain the 1997 eight-hour ozone 
standard without the continued implementation of part D NSR. Therefore, 
EPA concludes that the State need not have a fully approved part D NSR 
program as an applicable requirement for approval of the State's ozone 
redesignation request. The State's PSD program will become effective in 
Lake and Porter Counties upon redesignation to attainment. See 
redesignation rulemakings for Detroit, Michigan (60 FR 12467-12468, 
March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, 
May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); 
and, Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996). 
Nonetheless, and as discussed further below, we note that, in any 
event, Indiana has a NSR program that EPA has approved as part of the 
Indiana SIP.
---------------------------------------------------------------------------

    \4\ PSD requirements control the growth of new source emissions 
in areas designated as attainment for a NAAQS.
---------------------------------------------------------------------------

    Section 172(c)(6) requires the SIP to contain control measures 
necessary to provide for attainment of the standard. Because attainment 
has been reached in the Chicago-Gary-Lake County, IL-IN area, no 
additional control measures are needed to provide for attainment of the 
ozone NAAQS. This does not relieve the State from compliance with CAA 
requirements for certain minimum emission control measures applicable 
to Lake and Porter Counties as discussed below.
    Section 172(c)(7) requires the SIP to meet the applicable 
provisions of section 110(a)(2). As noted above, we believe the Indiana 
SIP meets the applicable requirements of section 110(a)(2).
d. Section 176 Conformity Requirements
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally-supported or funded activities, 
including highway projects, conform to the air quality planning goals 
of the SIPs. The requirement to determine conformity applies to 
transportation plans, programs, and projects developed, funded, or 
approved under Title 23 of the U.S. Code and the Federal Transit Act 
(transportation conformity) as well as to all other Federally-supported 
or funded projects (general conformity). State conformity SIP revisions 
must be consistent with Federal conformity regulations relating to 
consultation, enforcement, and enforceability, which EPA promulgated 
pursuant to CAA requirements.
    EPA believes that it is reasonable to interpret the conformity SIP 
requirements as not applying for purposes of evaluating the 
redesignation request under section 107(d) for two reasons. First, the 
requirement to submit SIP revisions to comply with the conformity 
provisions of the CAA continues to apply to areas after redesignation 
to attainment since such areas would be subject to a section 175A 
maintenance plan. Second, EPA's Federal conformity rules require the 
performance of conformity analyses in the absence of Federally-approved 
state rules. Therefore, because areas are subject to the conformity 
requirements regardless of whether they are redesignated to attainment 
and, because they must implement conformity under Federal rules if 
state rules are not yet approved, EPA believes it is reasonable to view 
these requirements as not applying for purposes of evaluating a 
redesignation request. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), 
upholding this interpretation. See also 60 FR 62748, 62749-62750 
(December 7, 1995) (Tampa, Florida).
e. Subpart 2 Section 182(a) Requirements
    As set forth in the September 4, 1992, and September 17, 1993, EPA 
guidance memoranda, only those CAA/EPA requirements which come due 
prior to Indiana's submittal of a complete redesignation request for 
Lake and Porter Counties must be fully approved into the SIP by the 
time EPA approves the redesignation of Lake and Porter Counties to 
attainment. The section 182(a) requirements are discussed below.
    Section 182(a)(1) requires the submission of a comprehensive, 
accurate, current emissions inventory as a revision of the SIP. As part 
of Indiana's redesignation request, the State submitted 2002 VOC and 
NOX emission inventories for Lake and Porter Counties. As 
noted later in this proposed rule, EPA is proposing to approve the 2002 
emission inventories as meeting the section 182(a)(1) emission 
inventory requirement.
    Section 182(a)(2)(C) requires states to adopt a NSR permit program 
and to correct the existing NSR permit programs to meet EPA NSR 
guidelines issued prior to 1990. EPA approved Indiana's NSR permit 
program, including the requirements in sections 182(c)(6), (c)(7) and 
(c)(8), and the new source offset requirements in section 182(d)(2), in 
rulemakings on October 7, 1994 (59 FR 51108), August 18, 1995 (60 FR 
43008), and July 21, 1997 (62 FR 38919). Therefore, Indiana has met the 
NSR requirements of section 182(a)(2)(C). Moreover, as noted above, we 
believe that this is not an applicable requirement for purposes of 
evaluating a redesignation request, for the reasons set forth there.
    Section 182(a)(3)(B) requires a state to adopt provisions in the 
SIP to require the owners or operators of stationary sources of VOC or 
NOX to provide the state with annual statements of actual 
emissions from the sources. EPA approved Indiana's emission statement 
SIP revisions for Lake and Porter Counties through rulemakings on 
August 9, 1994 (59 FR 29956), and October 29, 2004 (69 FR 63069). 
Indiana revised its State rule for emission statements under the 1997 
eight-hour ozone standard, and we approved this rule on March 29, 2007 
(72 FR 14678).
    All other SIP requirements of section 182(a) have been superseded 
by CAA requirements specific to moderate ozone nonattainment areas 
(addressed below) or were covered in Indiana's SIP to meet requirements 
for the one-hour ozone standard (also addressed below) and remain in 
effect as required under EPA's anti-backsliding policies and as 
committed to by the State.

[[Page 12098]]

f. Subpart 2 Section 182(b) Requirements
    As in the case of the section 182(a) requirements, as a condition 
for approval of the ozone redesignation request, Indiana was required 
only to have adopted those SIP provisions under section 182(b) of the 
CAA that came due prior to the State's submittal of the complete 
redesignation request. The applicable requirements of section 182(b) 
are addressed below.
    Section 182(b)(1)(A) establishes a Rate-Of-Progress (ROP)/RFP 
requirement for ozone nonattainment areas.
    We proposed, on September 24, 2009 (74 FR 48703), to find that the 
Chicago-Gary-Lake County, IL-IN area has attained the 1997 eight-hour 
ozone standard. As noted above, in a separate rulemaking in today's 
Federal Register, we are finalizing this finding of attainment for the 
Chicago-Gary-Lake County, IL-IN area. This determination results in a 
suspension of the requirements under section 182(b)(1)(A) for 
additional RFP VOC and NOX emission reductions in this area. 
In addition, as set forth above, in accordance with the General 
Preamble, in the context of a redesignation request, where an area is 
attaining the standard, requirements for RFP have no meaning. Although 
Indiana submitted a RFP plan as part of the June 5, 2009, submittal to 
demonstrate progress toward attainment of the 1997 eight-hour ozone 
standard, EPA need not approve this plan as a condition for approval of 
the State's ozone redesignation request.
    Section 182(b)(2) requires that the SIP include rules requiring the 
implementation of RACT for all VOC source categories covered by CTGs 
published prior to the date of attainment \5\ and for all major non-CTG 
VOC sources. Indiana has adopted and submitted VOC RACT rules and 
negative source declarations to cover all applicable CTGs, and major 
non-CTG sources. In a final rulemaking published on February 24, 2010 
(40 FR 8246), and covering Indiana's latest submittals of VOC RACT 
rules, we conclude that Indiana has complied with all applicable VOC 
RACT requirements.
---------------------------------------------------------------------------

    \5\ States are required to have adopted RACT rules and EPA must 
have approved those RACT rules for source categories with CTGs 
published one or more years prior to the State's submittal of a 
complete ozone redesignation request. The submittal of RACT rules 
for a source category covered by a CTG is due one year after the 
publication of the CTG. In keeping with the September 4, 1992, and 
September 17, 1993, EPA guidance memoranda, only those RACT rules 
which came due prior to Indiana's submittal of the final request to 
redesignate Lake and Porter Counties (i.e., prior to June 5, 2009) 
must be fully approved into the SIP before or at the time EPA 
approves the redesignation of the area to attainment.
---------------------------------------------------------------------------

    Section 182(b)(3) requires the SIP to provide for the installation 
and operation of gasoline vapor control systems for the refueling of 
vehicles at gasoline service stations (Stage II gasoline vapor 
recovery). On November 3, 1999 (64 FR 59642), EPA approved Indiana's 
Stage II gasoline vapor recovery program as required by section 
182(b)(3) for Lake and Porter Counties, as well as for other areas in 
Indiana.
    Section 182(b)(4) requires the SIP to provide for vehicle 
Inspection and Maintenance (I/M) in moderate and above ozone 
nonattainment areas. Through rulemakings on March 19, 1996 (61 FR 
11142), and September 27, 2001 (66 FR 49297), EPA fully approved 
Indiana's vehicle I/M program. Therefore, Lake and Porter Counties meet 
the vehicle I/M requirement of section 182(b)(4).
g. Subpart 2 Section 182(f) Requirements
    Section 182(f)(1) generally requires major sources of 
NOX to be covered by the same plan provisions as required 
for major sources of VOC. Since moderate ozone nonattainment areas are 
required to be covered by RACT rules for major sources of VOC, these 
ozone nonattainment areas are also required to have NOX RACT 
rules. Section 182(f)(1), however, also provides that the requirement 
for such NOX emission controls does not apply in an area if 
the Administrator determines that net air quality benefits are greater 
in the absence of the reduction of the NOX emissions. The 
NOX emission control requirement would also not apply if the 
Administrator determines that additional reductions of NOX 
emissions would not contribute to attainment of the ozone NAAQS.
    In its June 5, 2009, submittal, IDEM requested a waiver from the 
NOX RACT requirement based on the fact that the 1997 eight-
hour ozone standard has been attained in the Chicago-Gary-Lake County, 
IL-IN area and additional NOX emission reductions in Lake 
and Porter Counties are not needed to attain the 1997 eight-hour ozone 
standard in that area. On September 24, 2009 (74 FR 48703), we proposed 
to approve Indiana's NOX RACT waiver request based on a 
finding that the Chicago-Gary-Lake County, IL-IN area has attained the 
1997 eight-hour ozone standard without the implementation of 
NOX RACT regulations in Lake and Porter Counties. In 
addition, on September 24, 2009 (74 FR 48662), through an interim final 
rule, we made a finding that Indiana has met the section 182(f) 
requirement for NOX RACT in Lake and Porter Counties through 
the proposed NOX RACT waiver, contingent on continued 
attainment of the 1997 eight-hour ozone standard in the Chicago-Gary-
Lake County, IL-IN area. We requested but received no comments on both 
of these rulemakings.
    In a separate rulemaking in today's Federal Register, we are 
finalizing our approval of Indiana's requested NOX RACT 
waiver. This NOX RACT waiver is contingent upon continued 
monitored attainment of the 1997 eight-hour ozone standard in the 
Chicago-Gary-Lake County, IL-IN area. If and when we finalize the 
approval of the redesignation of Lake and Porter Counties to attainment 
of the 1997 eight-hour ozone standard, the NOX RACT waiver 
for Lake and Porter Counties will become permanent.
2. Lake and Porter Counties Have a Fully Approved SIP for Purposes of 
Redesignation Under Section 110(k) of the CAA
    EPA has fully approved the Indiana SIP for Lake and Porter Counties 
under section 110(k) of the CAA for all requirements applicable for 
purposes of redesignation. EPA may rely on prior SIP approvals in 
approving a redesignation request (See the September 4, 1992, John 
Calcagni memorandum, page 3, Southwestern Pennsylvania Growth Alliance 
v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998), and Wall v. EPA, 265 
F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve 
in conjunction with a redesignation action. See 68 FR 25413, 25426 (May 
12, 2003). Since the passage of the CAA in 1970, Indiana has adopted 
and submitted, and EPA has fully approved, provisions addressing the 
various required SIP elements applicable to Lake and Porter Counties 
under the one-hour ozone standard as noted below.
3. Lake and Porter Counties Have a Fully Approved SIP and Meet Anti-
Backsliding Requirements Under the One-Hour Ozone Standard
    The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 
one-hour ozone NAAQS requirements that continue to apply after 
revocation of the one-hour ozone NAAQS for former one-hour ozone 
nonattainment areas. 40 CFR 51.905(a)(1) provides that:

    The area remains subject to the obligations to adopt and 
implement the applicable requirements defined in 40 CFR 51.900(f), 
except as provided in paragraph (a)(1)(iii) of this section and 
except as provided in paragraph (b) of this section.


[[Page 12099]]


40 CFR 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005), 
provides that:

    Applicable requirements means that for an area that the 
following requirements, to the extent such requirements applied to 
the area for the area's classification under section 181(a)(1) of 
the CAA for the one-hour NAAQS at the time of designation for the 
eight-hour NAAQS, remain in effect:
    (1) Reasonably available control technology (RACT).
    (2) Inspection and maintenance programs (I/M).
    (3) Major source applicability cut-offs for purposes of RACT.
    (4) Rate of Progress (ROP) reductions.
    (5) Stage II vapor recovery.
    (6) Clean fuels fleet program under section 182(c)(4) of the 
CAA.
    (7) Clean fuels for boilers under section 182(e)(3) of the CAA.
    (8) Transportation Control Measures (TCMs) during heavy traffic 
hours as provided under section 182(e)(4) of the CAA.
    (9) Enhanced (ambient) monitoring under section 182(c)(1) of the 
CAA.
    (10) TCMs under section 182(c)(5) of the CAA.
    (11) Vehicle Miles Travelled (VMT) provisions of section 
182(d)(1) of the CAA.
    (12) NOX requirements under section 182(f) of the 
CAA.
    (13) Attainment demonstration or alternative as provided under 
40 CFR 51.905(a)(1)(ii).

    In addition to applicable requirements listed under 40 CFR 
51.900(f) and as discussed above, the State must also comply with the 
one-hour anti-backsliding requirements discussed in the Court's 
decisions in South Coast Air Quality Management Dist. v. EPA: (1) NSR 
requirements based on the area's one-hour ozone nonattainment 
classification; (2) section 185 source penalty fees; (3) contingency 
measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) 
of the CAA for areas not making reasonable further progress toward 
attainment of the one-hour ozone NAAQS, or for failure to attain the 
NAAQS; and, (4) transportation conformity requirements for certain 
types of Federal actions.
    Pursuant to 40 CFR 51.905(c), the area is subject to the 
obligations set forth in 40 CFR 51.905(a) and 40 CFR 51.900(f). The 
following paragraphs address the one-hour ozone SIP requirements 
applicable to Lake and Porter Counties pursuant to these anti-
backsliding requirements and those discussed in the Court's decision in 
South Coast Air Quality Management Dist. v. EPA. Note that the State 
commits to continue to comply with these requirements unless revised 
through SIP revisions approved by EPA.
    Prior to the revocation of the one-hour ozone standard on June 15, 
2005, the Chicago-Gary-Lake County, IL-IN area was classified as a 
severe nonattainment area for the one-hour ozone standard with a 
compliance date of November 15, 2007. Lake and Porter Counties, as part 
of the Chicago-Gary-Lake County, IL-IN area, were subject to ozone SIP 
requirements for severe one-hour ozone nonattainment areas pursuant to 
sections 182(a) through 182(d) of the CAA. In reviewing the State of 
Indiana's ozone redesignation request for Lake and Porter Counties, we 
assessed whether the area satisfied the CAA requirements under the one-
hour ozone standard. We conclude that Lake and Porter Counties and the 
State of Indiana have satisfied all anti-backsliding CAA requirements 
applicable to a severe one-hour ozone nonattainment area. The following 
discusses how the applicable CAA requirements have been met in Lake and 
Porter Counties.
40 CFR 51.900(f)(1) RACT
    Section 182(a)(2)(A) of the CAA requires RACT corrections. Section 
182(b)(2) requires RACT for each category of VOC sources covered by a 
CTG and for all other major sources of VOC within an ozone 
nonattainment area. Section 182(d) specifies requirements for severe 
ozone nonattainment areas, including a major source emissions cut-off 
of 25 tons per year. Section 182(f) requires major sources of 
NOX in an ozone nonattainment area to be covered by the same 
emission control requirements as applicable to major sources of VOC, 
unless EPA waives the NOX emission control requirements as 
provided in section 182(f). The section 182(f) NOX emission 
control requirements includes NOX RACT in ozone 
nonattainment areas required to implement VOC RACT, in one-hour ozone 
nonattainment areas classified as moderate or above.
    Under the one-hour ozone standard, EPA fully approved Indiana's VOC 
RACT regulations as SIP revisions for CTG sources and for major non-CTG 
sources through rulemakings on the following dates: March 6, 1992 (57 
FR 8082); May 4, 1995 (60 FR 22240); July 5, 1995 (60 FR 34856); 
January 17, 1997 (62 FR 2591 and 62 FR 2593); October 30, 1996 (61 FR 
55889); June 29, 1998 (63 FR 35141); and, June 8, 2000 (65 FR 36343). 
On January 26, 1996 (61 FR 2428), EPA approved a NOX 
emission control waiver requested by the State of Indiana under section 
182(f) of the CAA, exempting Lake and Porter Counties from the 
NOX RACT requirements of section 182(f) as it applied for 
the one-hour ozone NAAQS. We conclude that Lake and Porter Counties and 
the State of Indiana meet all RACT requirements under the one-hour 
ozone standard.
40 CFR 51.900(f)(2) Vehicle I/M
    Through rulemakings on March 19, 1996 (61 FR 11142) and September 
27, 2001 (66 FR 49297), EPA fully approved Indiana's vehicle I/M 
program as meeting the enhanced I/M requirements of section 182(c)(3) 
of the CAA. Therefore, Lake and Porter Counties meet the I/M 
requirements for severe one-hour ozone nonattainment areas.
40 CFR 51.900(f)(3) Major Source Cut-Off for RACT
    We have determined that Indiana's VOC RACT rules for CTG sources 
covered source size cut-offs that are well below CTG-recommended major 
source cut-off for severe ozone nonattainment areas. In addition, 
Indiana's major non-CTG source RACT rule covers all sources with the 
potential to emit VOC at or in excess 25 tons per year. Therefore, 
Indiana's RACT rules meet the major source size cut-off requirement of 
section 182(d) of the CAA, and Indiana and Lake and Porter Counties 
meet this CAA requirement.
40 CFR 51.900(f)(4) ROP
    Sections 182(b)(1)(A) and 182(c)(2)(B) of the CAA establish the ROP 
requirements for ozone nonattainment areas. EPA has fully approved 
Indiana's SIP revisions that demonstrate that Indiana would achieve ROP 
in Lake and Porter Counties. On July 18, 1997 (62 FR 38457), EPA 
approved Indiana's plan to achieve a 15 percent reduction in VOC 
emissions in Lake and Porter Counties, as required in section 182(b) of 
the CAA. On January 26, 2000 (65 FR 4126), EPA approved Indiana's plan 
to achieve ROP between 1996 and 1999 in Lake and Porter Counties, 
meeting the ROP requirements of section 182(c) of the CAA. Finally, on 
November 13, 2001 (66 FR 56944), EPA approved Indiana's plan to achieve 
ROP emission reductions for the period of 1999 through 2007. Therefore, 
Indiana has met all one-hour ozone ROP requirements of Lake and Porter 
Counties.
40 CFR 51.900(f)(5) Stage II Gasoline Vapor Recovery
    On November 3, 1999 (64 FR 59642), EPA approved Indiana's Stage II 
gasoline vapor recovery rules for Lake and Porter Counties as required 
by section 182(b)(2) of the CAA.
40 CFR 51.900(f)(6) Clean Fuel Fleet Program
    On March 21, 1996 (61 FR 11552), EPA approved Indiana's clean fuel 
fleet program rules as required by section

[[Page 12100]]

182(c)(4) of the CAA. Therefore, the State of Indiana has met this CAA 
requirement under the one-hour ozone standard.
40 CFR 51.900(f)(7) Clean Fuels for Boilers
    As noted above, section 182(e)(3) of the CAA does not apply to Lake 
and Porter Counties. This CAA requirement only applies to extreme ozone 
nonattainment areas.
40 CFR 51.900(f)(8) TCMs During Heavy Traffic Hours
    This requirement applies to areas subject to section 182(e)(4) of 
the CAA. This CAA requirement only applies to extreme ozone 
nonattainment areas.
40 CFR 51.900(f)(9) Enhanced Ambient Monitoring
    On March 16, 1994 (59 FR 12168), EPA fully approved Indiana's SIP 
revision establishing an enhanced monitoring program in Lake and Porter 
Counties. Therefore, Indiana has complied with the enhanced monitoring 
requirement of section 182(c)(1) of the CAA.
40 CFR 51.900(f)(10) Transportation Control Measures
    Within six months of November 15, 1990, and every three years 
thereafter, section 182(c)(5) of the CAA requires states to submit a 
demonstration that current aggregate vehicle mileage, aggregate vehicle 
emissions, congestion levels, and other relevant traffic-related and 
vehicle emissions-related factors (collectively ``relevant 
parameters'') are consistent with those used for the area's ozone 
attainment demonstration for serious and above one-hour ozone 
nonattainment areas. If the levels of relevant parameters that are 
projected in the attainment demonstration are exceeded, a state has 18 
months to develop and submit a revision to the SIP to include TCMs to 
reduce mobile source emissions to levels consistent with the emission 
levels in the attainment demonstration.
    On April 30, 1998, Indiana submitted an ozone attainment 
demonstration based on a range of possible emission control measures 
reflecting various emission control alternatives and did not specify a 
single set of emission control measures that were judged to be adequate 
to achieve attainment of the one-hour ozone standard in the Chicago-
Gary-Lake County, IL-IN area. On December 16, 1999 (64 FR 70514), EPA 
proposed to conditionally approve the State's one-hour ozone 
demonstration for Lake and Porter Counties. On December 21, 2000, 
Indiana submitted a SIP revision request consisting of a demonstration 
that the Chicago-Gary-Lake County, IL-IN area would attain the one-hour 
ozone standard by November 15, 2007, the statutory attainment deadline 
for the area. EPA approved this requested SIP revision on November 31, 
2001 (66 FR 56944). EPA, therefore, concludes that Indiana has complied 
with section 182(c)(5) of the CAA, has no currently due section 
182(c)(5) obligations, and, by virtue of EPA's approval of the one-hour 
ozone attainment demonstration, has never triggered an obligation under 
section 182(c)(5) to include additional TCMs in the one-hour ozone SIP 
for Lake and Porter Counties.
    In addition, the section 182(c)(5) requirements are also included 
in those measures subject to EPA's interpretation under EPA's May 10, 
1995, Clean Data Policy memorandum. EPA, therefore, concludes that, 
since Lake and Porter Counties are attaining the one-hour ozone 
standard,\6\ any requirement for submitting the section 182(c)(5) 
measures is suspended. See also 40 CFR 51.918.
---------------------------------------------------------------------------

    \6\ See 73 FR 79652 (December 30, 2008).
---------------------------------------------------------------------------

40 CFR 51.900(f)(11) Vehicle Miles Travelled
    Section 182(d)(1)(A) of the CAA requires severe ozone nonattainment 
areas to offset the growth in emissions attributed to growth in VMT; to 
select and implement TCMs necessary to comply with the periodic 
emission reduction requirements of sections 182(b) and (c); and, to 
consider TCMs specified in section 108(f) of the CAA, and implement 
TCMs as necessary to demonstrate attainment with the ozone standard. 
Through rulemakings on July 28, 1995 (60 FR 38718) and August 3, 2001 
(66 FR 40829), EPA approved Indiana's TCMs as meeting these 
requirements of the CAA.
40 CFR 51.900(f)(12) NOX Requirements Under Section 182(f)
    With respect to NOX requirements under section 182(f) of 
the CAA, as discussed above, EPA approved a NOX emissions 
control waiver for Lake and Porter Counties for the one-hour ozone 
standard. See 61 FR 2428 (January 26, 1996). In addition, we have 
approved Indiana's NOX emission control regulations adopted 
in response to EPA's NOX SIP call. See 66 FR 56465 (November 
8, 2001) and 68 FR 69025 (December 11, 2003).
40 CFR 51.900(f)(13) Ozone Attainment Demonstration
    On November 13, 2001 (66 FR 56944), EPA fully approved Indiana's 
one-hour ozone attainment demonstration SIP revision for Lake and 
Porter Counties (demonstrating attainment of the one-hour ozone 
standard in the entire Chicago-Gary-Lake County, IL-IN ozone 
nonattainment area). Therefore, Indiana has met the ozone attainment 
demonstration requirements of sections 182(b)(1)(A) and 182(c)(2)(A) of 
the CAA for the one-hour ozone standard.
New Source Review
    As discussed above, the Court's decision in South Coast Air 
Management Dist. v. EPA preserved one-hour NSR as an anti-backsliding 
requirement. Section 182(a)(2)(C) of the CAA requires states to adopt a 
NSR permit program and to correct the existing NSR permit programs to 
meet EPA NSR guidelines issued prior to 1990. EPA approved Indiana's 
NSR permit program as meeting EPA's guidelines and CAA NSR requirements 
for the one-hour ozone standard, including the requirements in sections 
182(c)(6), (c)(7) and (c)(8), and the source offset requirements in 
section 182(d)(2), through rulemakings on the following dates: October 
7, 1994 (59 FR 51108); August 18, 1995 (60 FR 43008); and, July 21, 
1997 (62 FR 38919).
    As noted elsewhere in this proposed rule, EPA believes that NSR is 
not an applicable requirement for purposes of evaluating an ozone 
redesignation request. EPA has determined that areas being redesignated 
to attainment need not have an approved nonattainment NSR program, 
provided that the area demonstrates maintenance of the standard without 
part D NSR in effect. The rationale for this view is described in a 
memorandum from Mary Nichols, Assistant Administrator for Air and 
Radiation dated October 14, 1994, titled, ``Part D New Source Review 
Requirements for Areas Requesting Redesignation to Attainment.'' If a 
state has demonstrated that an area will be able to maintain the 
standard without part D NSR in effect, the state need not have a fully 
approved part D NSR program prior to approval of a redesignation 
request for the area.\7\ The state's PSD program will become effective 
in the area immediately upon redesignation to attainment. Consequently, 
EPA concludes that an approved NSR program is not an applicable 
requirement for purposes of

[[Page 12101]]

redesignation. See the more detailed explanations of this issue in the 
following rulemakings: Detroit, Michigan (60 FR 12467-12468 (March 7, 
1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 
1996); Louisville, Kentucky (66 FR 53665, 53669, October 23, 2001); 
Grand Rapids, Michigan (61 FR 31831, 31836-31837, June 21, 1996).
---------------------------------------------------------------------------

    \7\ Nonetheless, Indiana's NSR program has been approved into 
the Indiana SIP, as noted elsewhere in this proposed rule.
---------------------------------------------------------------------------

Section 185 Source Emission Penalty Fees
    On December 30, 2008 (73 FR 79652), EPA published a final rule 
finding that the Chicago-Gary-Lake County, IL-IN area has attained the 
one-hour ozone standard prior to its November 15, 2007 attainment 
deadline. In this final rule, EPA concluded that the finding of 
attainment for the one-hour ozone standard relieved Indiana of the 
obligation to adopt section 185 source emission fee regulations for 
Lake and Porter Counties under the one-hour ozone standard. Thus, the 
section 185 fee requirements no longer apply to Lake and Porter 
Counties and to the State of Indiana for these counties.
Contingency Measures
    Sections 172(c)(9) and 182(c)(9) of the CAA require ozone control 
plans to contain measures to be implemented in the event that any 
milestone in the ozone control plan is missed. EPA approved Indiana's 
contingency measures for attainment of the one-hour ozone standard in 
Lake and Porter Counties in our approval of the State's one-hour ozone 
attainment plan. See 66 FR 56944 (November 13, 2001).
Transportation Conformity
    The transportation conformity portion of the Court's ruling in 
South Coast Air Quality Management District v. EPA does not impact the 
redesignation request for Lake and Porter Counties because there are no 
transportation conformity requirements that are relevant to 
redesignation requests for any standard, including the requirement for 
a state to submit a transportation conformity SIP.\8\ Under 
longstanding EPA policy, EPA believes it is reasonable to interpret the 
conformity SIP requirements as not applying for purposes of evaluating 
a redesignation request under section 107(d) because state conformity 
rules are still required after redesignation and Federal conformity 
rules apply where state rules have not been approved. See 40 CFR 
51.390. Also see Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), upholding 
this interpretation, and 60 FR 62748 (December 7, 1995) (Tampa, Florida 
ozone redesignation).
---------------------------------------------------------------------------

    \8\ CAA section 176(c)(4)(E) requires states to submit revisions 
to their SIPs to reflect certain Federal criteria and procedures for 
determining transportation conformity. Transportation conformity 
SIPs are different from MVEBs that are established in control 
strategy SIPs and maintenance plans.
---------------------------------------------------------------------------

Conclusions
    For the above reasons, EPA believes that Indiana has met all 
applicable part D SIP requirements for the one-hour ozone standard as 
addressed in the Court's and EPA's anti-backsliding requirements for 
the purposes of redesignation. It is again noted that the State of 
Indiana has committed to maintain the VOC and NOX emission 
controls already in place and included in Indiana's ozone SIP, as 
approved by EPA. As noted later in this proposed rule, Indiana has 
committed to retain and implement all VOC and NOX emission 
control measures under the one-hour ozone RFP and attainment plans for 
Lake and Porter Counties. EPA concludes that the anti-backsliding 
requirements have been met by Indiana for Lake and Porter Counties for 
the purposes of redesignation.

C. Are the Air Quality Improvements in the Chicago-Gary-Lake County, 
IL-IN Area Due to Permanent and Enforceable Emission Reductions?

    EPA proposes to find that Indiana has demonstrated that the 
observed ozone air quality improvement in the Chicago-Gary-Lake County, 
IL-IN area is due to permanent and enforceable reductions in emissions 
resulting from implementation of the SIP, Federal measures, and other 
State-adopted measures.
    In making this demonstration, the State presented several sets of 
data. First, the State analyzed the changes in VOC and NOX 
emissions in Lake and Porter Counties and statewide between the ozone 
standard violation years, 2000, 2002, and 2004, and one of the years in 
the period during which the area attained the standard, 2006. Second, 
the State documented the VOC and NOX emission control 
measures that have been implemented in Lake and Porter Counties and 
statewide between 2000 and the present. Finally, the State considered 
ozone modeling data that support the case that the implementation of 
emission controls in the Lake Michigan area, including in Indiana, have 
led to reductions in peak ozone levels and to attainment of the 1997 
eight-hour ozone standard in Northwestern Indiana.
    To assess the impact of emission control implementation, IDEM 
determined the VOC and NOX emission trends during the period 
of 1996 through 2006. This included determining or projecting the VOC 
emissions for all even years in this time period, 1996, 1998, etc. 
During this period, IDEM determined that the Lake and Porter Counties' 
VOC and NOX emissions peaked in 1998 or 2000 and declined to 
significantly lower levels by 2006 (an attainment year). The reduction 
in emissions and the corresponding improvement in ozone air quality 
over the assessed period can be attributed to the implementation of a 
number of emission control measures. The improvement in air quality can 
also be attributed to the implementation of emission control measures 
throughout Indiana and in upwind states. Air quality in Lake and Porter 
Counties is impacted by the transport of ozone and ozone precursors 
from upwind states. Therefore, local controls, as well as regional 
emission controls, have contributed to the ozone air quality 
improvement in Lake and Porter Counties and in the Chicago-Gary-Lake 
County, IL-IN area as a whole.
1. Permanent and Enforceable Controls Implemented
    The following is a discussion of the permanent and enforceable 
emission controls that have been implemented in Lake and Porter 
Counties or in other upwind areas. In Indiana's ozone redesignation 
request, the State documented all of the emission control rules or 
programs that have impacted VOC or NOX emissions during the 
period of 2000-2006.
a. Reasonably Available Control Technology
    IDEM notes that a number of VOC RACT rules developed in prior years 
have continued to provide additional VOC emission reductions during the 
more recent years. With the exception of the source categories covered 
by the most recently published CTGs, Indiana has implemented VOC RACT 
rules for source categories covered by older (prior to 2006) CTGs and 
for major non-CTG sources in Lake and Porter Counties. All VOC RACT 
rules are contained in chapter 8 of volume 326 of the Indiana 
Administrative Code (326 IAC 8). All of these VOC RACT rules have been 
approved by EPA as revisions of the Indiana SIP.
    In addition to the implementation of RACT in Lake and Porter 
Counties, IDEM confirms that Best Available Control Technology (BACT) 
is required for all major new VOC sources throughout the State of 
Indiana. The rule requiring this BACT

[[Page 12102]]

implementation is contained in 326 IAC 8-1-6.
b. ROP Plans and Attainment Demonstration Plan
    IDEM states that Lake and Porter Counties have met all of the one-
hour ozone SIP obligations, including implementation of the VOC 
emission control programs and rules needed to comply with Indiana's 
one-hour ozone attainment demonstration for Lake and Porter Counties 
and implementation of all emission control measures contained in the 
various ROP plans applicable to Lake and Porter Counties. The emission 
controls included in the ROP plans are listed below.
i. 1996 Fifteen Percent ROP Plan
     Enhanced Vehicle Inspection and Maintenance, 326 IAC 13-
1.1.
     Gasoline Vapor Recovery, 326 IAC 8-11-2.
     Reformulated Gasoline, Federal control program.
     Architectural Coating, Federal Rule at 40 CFR part 59.
     Open Burning Ban, 326 IAC 4-1.
     Non-CTG RACT, 326 IAC 8.
ii. 1999 Nine Percent ROP Plan
     National Emission Standard for Hazardous Air Pollutant 
(NESHAP) for Benzene Emissions from Coke Oven By-Product Recovery 
Plants, Federal Rule at 40 CFR part 61 subpart L.
     NESHAP for Coke Oven Batteries, Federal Rule at 40 CFR 
part 63 subpart L.
     Federal Phase I Reformulated Gasoline for Small Non-Road 
Engines.
     Federal Controls on Small Spark-Ignited Engines at 40 CFR 
part 90.
     Commercial/Consumer Solvent Reformulation Rule.
     Volatile Organic Liquid Storage RACT, 326 IAC 8-9.
iii. 2002 Nine Percent ROP Plan
     Additional Emission Reductions from Federal Controls on 
Small Spark-Ignited Engines, 40 CFR part 90.
     Sinter Plant Rule, 326 IAC 8-13.
     Municipal Solid Waste Landfill Rule, 326 IAC 8-8.
iv. 2005 Nine Percent ROP Plan
     Additional Emission Reductions from Federal Controls on 
Small Spark-Ignited Engines, 40 CFR part 90.
v. 2007 Six Percent ROP Plan
     Additional Emission Reductions from Federal Controls on 
Small Spark-Ignited Engines, 40 CFR part 90.
     Commercial/Consumer Solvent Reformulation Rule, 60 FR 
15264.
     Petroleum Refinery NESHAP, 40 CFR part 63, subpart CC.
     United States Steel--Gary Works Agreed Order
    (Halts Use of Untreated Water for Quenching), 2005.
     Volatile Organic Liquid Storage RACT, 326 IAC 8-9.
     Cold Cleaner Rule, 326 IAC 8-3-8.
c. NOX Control Rules
    IDEM developed emission control rules for Electric Generating Units 
(EGUs), major non-EGU industrial boilers, and cement kilns in 
compliance with EPA's Phase I NOX SIP call. These rules were 
adopted in 2001. Emission reductions resulted from these rules 
beginning in 2004.
    EPA published Phase II of the NOX SIP call to require 
NOX emission reductions from large stationary internal 
combustion engines. Indiana developed the Phase II NOX 
control rules and committed to maintain a statewide NOX 
emission cap. The Phase II NOX control rules became 
effective on February 26, 2006, with implementation beginning in 2007.
d. Federal Emission Control Measures
    Besides the Federal emission control considered in the ROP plans, 
IDEM notes that other Federal emission control measures have had 
significant impacts on Lake and Porter Counties' and regional upwind 
VOC and NOX emissions. These Federal measures include the 
following.
    Tier 2 Emission Standards for Vehicles and Gasoline Sulfur 
Standards. 40 CFR part 86, subpart S. These emission control 
requirements result in lower VOC and NOX emissions from new 
cars and light duty trucks, including sport utility vehicles. The 
Federal rules were phased in between 2004 and 2009. EPA has estimated 
that, by the end of the phase-in period, the following vehicle 
NOX emission reductions will occur nationwide: Passenger 
cars (light duty vehicles) (77 percent); light duty trucks, minivans, 
and sport utility vehicles (86 percent); and larger sport utility 
vehicles, vans, and heavier trucks (69 to 95 percent). VOC emission 
reductions are expected to range from 12 to 18 percent, depending on 
vehicle class, over the same period. Although some of the these 
emission reductions occurred by the attainment years (2006-2008) in the 
Chicago-Gary-Lake County, IL-IN area, additional emission reductions 
will occur during the maintenance period for Lake and Porter Counties. 
For example, note that the Tier 2 emission standards for passenger 
vehicles weighing over 8,500 pounds were not implemented until 2008 or 
later.
    Heavy-Duty Diesel Engine Rule. EPA issued this rule in January 2001 
(66 FR 5002). This rule includes standards limiting the sulfur content 
of diesel fuel, which went into effect in 2004. A second phase took 
effect in 2007 which further reduced the highway diesel fuel sulfur 
content to 15 parts per million, leading to additional reductions in 
combustion NOX and VOC emissions. This rule is expected to 
achieve a 95 percent reduction in NOX emissions from diesel 
trucks and buses.
    Non-Road Diesel Rule. EPA issued this rule in June 2004 (69 FR 
38958). This rule applies to diesel engines used in industries, such as 
construction, agriculture, and mining. It is estimated that compliance 
with this rule will cut NOX emissions from non-road diesel 
engines by up to 90 percent. This rule is currently achieving emission 
reductions, but will not be fully implemented until 2010.
e. Additional Local Emission Reductions
    Several local permanent and enforceable emission reductions have 
occurred through various mechanisms other than through the State's RACT 
rules or through Federal emission control rules/programs. These 
emission reductions have occurred through permanent and enforceable 
source closures, agreed orders, or consent decrees.
    According to IDEM, the NIPSCO Mitchell electric generating facility 
was permanently closed in 2001. The closure of this facility reduced 
NOX emissions by 3,000 tons per year and VOC emissions by 40 
tons per year. IDEM has stated that this facility cannot be restarted 
or replaced without the source being subject to PSD and/or NSR 
requirements. Therefore, IDEM considers the emission reductions 
resulting from the source closure to be permanent and enforceable.
    USS Gary Works, through an agreed order with IDEM, shut down Coke 
Battery No. 3 in 2005. This resulted in emission reductions of 650 tons 
per year for VOC and 500 tons per year for NOX.
    In 2000, EPA and British Petroleum entered into a consent decree 
with the BP Exploration & Oil Company, which included the Whiting 
Refinery. This consent decree required the installation of 
NOX emission control systems and fuel changes for several 
units at the refinery. According to IDEM, NOX emissions at 
the refinery were reduced by over 6,000 tons per year by 2007. The 
source modifications leading to this emission reduction have been 
included in the Federally enforceable Title V source permit for this 
facility.

[[Page 12103]]

f. Controls to Remain in Effect
    Indiana commits to maintain all of the current emission control 
measures for VOC and NOX after Lake and Porter Counties are 
redesignated to attainment. Indiana, through IDEM's Office of Air 
Quality (OAQ) and the Office of Enforcement, has the legal authority 
and necessary resources to actively enforce against any violations of 
the State's air pollution emission control rules. After Lake and Porter 
Counties are redesignated to attainment, OAQ will implement NSR for 
major sources through the PSD program.
2. Emission Reductions
    Indiana chose 2006 as the attainment year, and compared 1996, 1998, 
2002, and 2004 VOC and NOX emissions to the attainment year 
emissions to show that emission reductions have occurred in the area, 
explaining the ozone air quality improvement in the area. The emissions 
for all years were derived from periodic VOC and NOX 
emission inventories, which were prepared every three years. Based on 
the estimated emissions, IDEM has documented several emission trends to 
show that permanent and enforceable emission controls in various source 
sectors are responsible for significant downward trends in VOC and 
NOX emission totals in Lake and Porter Counties and in 
upwind areas. For a discussion of emission inventory preparation 
methods, see the discussion of the preparation of the 2002 base year 
emission inventories below.
    To demonstrate that VOC and NOX emissions have decreased 
between standard violation years and the attainment year, IDEM has 
documented the VOC and NOX emissions in Lake and Porter 
Counties. Table 2 gives the total VOC and NOX emissions in 
Lake and Porter Counties for anthropogenic (man-made) sources.

  Table 2--Total Anthropogenic VOC and NOX Emissions in Lake and Porter
                                Counties
                          [Tons per Summer Day]
------------------------------------------------------------------------
          Year                     VOC                      NOX
------------------------------------------------------------------------
            1996                   130.80                  321.00
            1998                   131.70                  323.92
            2002                   111.94                  285.77
            2004                   107.00                  261.00
            2006                    83.57                  223.86
------------------------------------------------------------------------

    To demonstrate that permanent and enforceable emission controls 
have reduced VOC and NOX emissions, IDEM also documented the 
trends in point source emissions in Lake and Porter Counties (point 
sources are the source sector most impacted by the implementation of 
the State's emission control regulations). Table 3 gives the Lake and 
Porter Counties' total point source VOC and NOX emissions 
for the documented years.

  Table 3--Total Point Source VOC and NOX Emissions in Lake and Porter
                                Counties
                          [Tons per Summer Day]
------------------------------------------------------------------------
          Year                     VOC                      NOX
------------------------------------------------------------------------
            1996                       29                     204
            1998                       33                     233
            2002                       25                     186
            2004                       25                     148
            2006                       19                     126
------------------------------------------------------------------------

    IDEM has also documented the Lake and Porter Counties VOC and 
NOX emissions by year for all anthropogenic source sectors. 
Table 4 lists these emissions.

                   Table 4--VOC and NOX Emissions in Lake and Porter Counties by Source Sector
                                             [Tons per Summery Day]
----------------------------------------------------------------------------------------------------------------
                       Sector                          VOC 1996    VOC 1999    VOC 2002    VOC 2004    VOC 2006
----------------------------------------------------------------------------------------------------------------
Area................................................      45.19       49.59       32.37       31.34       32.47
Non-Road Mobile.....................................      16.23       19.98       35.09       31.63       17.14
On-Road Mobile......................................      40.05       33.29       20.00       18.90       14.92
Point...............................................      29.33       28.84       24.58       25.43       19.04
                                                     -----------------------------------------------------------
    Total...........................................     130.80      131.70      111.94      107.30       83.57
----------------------------------------------------------------------------------------------------------------
                                                       NOX 1996    NOX 1999    NOX 2002    NOX 2004    NOX 2006
----------------------------------------------------------------------------------------------------------------
Area................................................       8.02       10.36        5.72        5.76        6.45
Non-Road Mobile.....................................       45.7       49.07       38.61       40.64       31.17
On-Road Mobile......................................      63.14       49.92       55.00       65.95       60.09
Point...............................................     204.22      214.58      186.44      148.22      126.15
                                                     -----------------------------------------------------------
    Total...........................................     321.08      323.93      285.77      260.57      223.86
----------------------------------------------------------------------------------------------------------------

    IDEM notes that statewide NOX emissions from EGUs have 
been significantly reduced as a result of the State's NOX 
control rules. Table 5 lists the statewide ozone season (April-
September) NOX emissions from EGUs.

                  Table 5--Statewide EGU NOX Emissions
                         [Tons per Ozone Season]
------------------------------------------------------------------------
                Year                            NOX  Emissions
------------------------------------------------------------------------
                  2000                              133,882
                  2001                              136,052
                  2002                              113,996
                  2003                               99,283
                  2004                               66,568
                  2005                               55,486
                  2006                               53,768
                  2007                               54,816
------------------------------------------------------------------------

    All of these emission trends show that Lake and Porter Counties' 
and Indiana statewide NOX emissions have significantly 
declined between 2002 and 2006. In addition, Lake and Porter

[[Page 12104]]

Counties' VOC emissions have also declined between 2002 and 2006. IDEM 
concludes that the local VOC emission reduction coupled with the 
region-wide NOX emission reduction explains the observed 
improvement area ozone concentrations.
    To assess the VOC and NOX changes between the 2002 base 
year and the 2006 attainment year for the entire Chicago-Gary-Lake 
County, IL-IN ozone nonattainment year, we have combined the VOC and 
NOX emissions documented in Indiana's ozone redesignation 
request with those documented by the Illinois Environmental Protection 
Agency for the Illinois portion of the ozone nonattainment area in an 
ozone redesignation request submitted on April 8, 2009. The VOC and 
NOX emission totals for 2002 and 2006 for each State's 
portion of the Chicago-Gary-Lake County, IL-IN ozone nonattainment area 
are given in Table 6.

Table 6--VOC and NOX Emissions by State Portion of the Chicago-Gary-Lake
            County, IL-IN Eight-Hour Ozone Nonattainment Area
                          (Tons per Summer Day)
------------------------------------------------------------------------
                Year                   Illinois     Indiana      Total
------------------------------------------------------------------------
VOC:
    2002............................      752.4       111.9       864.3
    2006............................      625.6        83.6       709.2
NOX:
    2002............................    1,086.3       285.8      1372.0
    2006............................      812.0       223.9      1035.9
------------------------------------------------------------------------

    Based on the 2002 and 2006 nonattainment area total emissions, we 
conclude that VOC and NOX emission totals have significantly 
declined in the nonattainment area during the 2002-2006 period. These 
emission reductions have contributed to attainment of the 1997 eight-
hour ozone standard in this area.
    Ozone modeling results, some of which are discussed in the next 
subsection, support the conclusion that local VOC reductions coupled 
with regional NOX emission reductions have led to lowered 
local ozone levels and attainment of the 1997 eight-hour ozone standard 
in the Chicago-Gary-Lake County, IL-IN area. This supports Indiana's 
conclusions regarding the impacts of the VOC and NOX 
emissions reductions. We concur with Indiana's conclusions that the 
emission trends and ozone modeling results support the conclusion that 
attainment in the area is due to permanent and enforceable emission 
reductions.
3. Ozone Modeling Results and Temperature Analysis
    To further support the conclusion that the observed ozone air 
quality improvements in the Chicago-Gary-Lake County, IL-IN area are 
due to the implementation of emission controls, IDEM reviewed several 
ozone modeling results covering the subject area, and also compared the 
observed trend in peak ozone concentrations to the trend (and 
deviations from normal) in monthly maximum temperatures. Both of these 
analyses, as discussed below, showed that reductions in ozone precursor 
emissions rather than trends in peak temperatures are the primary 
explanation of the observed improvement in local peak ozone 
concentrations.
Ozone Modeling
    Ozone modeling results contained in various documents allowed IDEM 

to estimate current and future ozone design values for Lake and Porter 
Counties. Ozone modeling results from the following studies and EPA 
rulemaking analyses were considered: (1) EPA modeling analysis for the 
Heavy Duty Engine final rulemaking; (2) Lake Michigan Air Directors 
Consortium (LADCO) modeling analysis for the eight-hour ozone standard 
attainment assessment; (3) EPA modeling for CAIR;\9\ and, (4) LADCO 
Round 5 modeling for the eight-hour ozone standard. IDEM concludes, and 
EPA agrees, that these modeling results show that existing national 
emission control measures have brought Lake and Porter Counties into 
attainment of the 1997 eight-hour ozone standard. In addition, emission 
controls to be implemented in the next few years will provide 
additional reductions in peak ozone levels in Lake and Porter Counties, 
resulting in maintenance of the 1997 eight-hour ozone standard in Lake 
and Porter Counties.
---------------------------------------------------------------------------

    \9\ Even though EPA conducted this modeling to support CAIR, 
IDEM considered the modeling results to estimate the future ozone 
impacts of NOX reductions that do not factor in 
NOX emission reductions from CAIR. IDEM accounted for the 
fact that, on July 11, 2008, the District of Columbia Circuit Court 
of Appeals vacated CAIR. North Carolina v. EPA, 531 F.3d 896 (D.C. 
Cir. 2008). On December 23, 2008, the same Court of Appeals remanded 
CAIR without vacatur, directing EPA to revise the CAIR. 550 F.3d 
1176. Considering CAIR and non-CAIR ozone modeling, IDEM determined 
that CAIR would have contributed only 1 ppb of ozone reduction in 
Lake and Porter Counties in 2018/2020, far less than the modeled 
margin of attainment for the 1997 eight-hour ozone standard in this 
area.
---------------------------------------------------------------------------

Temperature Analysis
    Recognizing that certain meteorological conditions are very 
important factors in the formation of high ozone levels and that, among 
the contributing meteorological conditions, high temperatures are the 
most significant contributor to high ozone concentrations, IDEM 
analyzed trends in peak monthly temperatures and the annual numbers of 
days with peak temperatures over 90 degrees Fahrenheit for the period 
of 1999 through 2008 versus the trends of peak ozone concentrations 
during this period. This analysis showed a downward trend in the annual 
number of ozone standard exceedance days without accompanying downward 
trends in peak monthly temperatures or annual number of high 
temperature days. IDEM concluded that the downward trend in emissions 
is a more likely cause of the observed downward trend in peak ozone 
concentrations than is a downward trend in conducive meteorological 
conditions.
    IDEM concluded that all of the VOC and NOX emission 
controls implemented in Northwest Indiana and statewide, as discussed 
above, which are permanent and enforceable, are responsible for the 
observed ozone air quality improvement in Lake and Porter Counties and 
have contributed significantly to attainment of the 1997 eight-hour 
ozone standard in the Chicago-Gary-Lake County, IL-IN area. We agree 
with this conclusion.
    As noted above, Indiana has committed to retaining all existing 
emission control measures that affect ozone levels in Lake and Porter 
Counties and in the Chicago-Gary-Lake County, IL-IN area after Lake and 
Porter Counties are redesignated to attainment of the 1997 eight-hour 
ozone NAAQS. All changes in existing rules subsequently determined to 
be necessary will be submitted to EPA for approval as SIP revisions.
    Based on the above, EPA proposes to determine that Lake and Porter 
Counties and the State of Indiana have met the requirement of section 
107(d)(3)(E)(iii) of the CAA, and have demonstrated that the 
improvement in air quality is due to permanent and enforceable emission 
reductions.

D. Does Indiana Have a Fully Approvable Ozone Maintenance Plan Pursuant 
to Section 175A of the CAA for Lake and Porter Counties?

1. What Is Required in an Ozone Maintenance Plan?
    Section 175A of the CAA sets forth the required elements of air 
quality maintenance plans for areas seeking redesignation from 
nonattainment to attainment of a NAAQS. Under section

[[Page 12105]]

175A, a maintenance plan must demonstrate continued attainment of the 
applicable NAAQS for at least 10 years after the Administrator approves 
the redesignation to attainment. The state must commit to submit a 
revised maintenance plan within eight years after the redesignation. 
This revised maintenance plan must provide for maintenance of the ozone 
standard for an additional ten years beyond the initial 10 year 
maintenance period. To address the possibility of future NAAQS 
violations, the maintenance plan must contain contingency measures, 
with a schedule of implementation, as EPA deems necessary, to assure 
prompt correction of any future NAAQS violation. The September 4, 1992, 
Calcagni memorandum provides additional guidance on the content of 
maintenance plans.
    An ozone maintenance plan should, at minimum, address the 
following: (1) The attainment VOC and NOX emission 
inventories; (2) a maintenance demonstration showing maintenance for 
the 10 years of the maintenance period; (3) a commitment to maintain 
the existing monitoring network; (4) factors and procedures to be used 
for verification of continued attainment; and, (5) a contingency plan 
to prevent and/or correct a future violation of the NAAQS.
2. How Did the State Estimate the Attainment Year VOC and 
NOX Emissions?
    As noted above in the discussion of the emission reductions leading 
up to the attainment of the 1997 eight-hour ozone standard, IDEM 
selected 2006 as the attainment year, one of the three years (2006-
2008) in which monitored attainment of the 1997 eight-hour ozone 
standard was recorded throughout the Chicago-Gary-Lake County, IL-IN 
area. The 2006 emissions for Lake and Porter Counties were determined 
using the following procedures.
a. Area Sources
    Area source emissions were extrapolated from Indiana's 2005 
periodic emissions inventory using projections of the same surrogates, 
such as population, number of households, acres under cultivation, 
etc., used to calculate the area source emissions for the periodic 
emission inventory.
b. Point Sources
    Point source VOC and NOX emissions were compiled from 
IDEM's 2006 annual emission statement database and the 2007 EPA Clean 
Air Markets acid rain emissions database.
c. On-Road Mobile Source Emissions
    Mobile source emissions were calculated using EPA's MOBILE6.2 
emission factor model and traffic data taken from the Northwestern 
Indiana travel-demand model. IDEM has provided detailed model input 
data summaries to document the calculation of on-road mobile source VOC 
and NOX emission for 2006, as well as for the projection 
years of 2010 and 2020.
d. Non-Road Mobile Source Emissions
    Non-road emissions for 2006 were projected from the 2005 National 
Emissions Inventory (NEI) non-road emissions developed by EPA. IDEM 
used the NEI emissions along with surrogate data growth factors to 
project the non-road mobile source emissions for 2006.
e. Emissions From the Illinois Portion of the Chicago-Gary-Lake County, 
IL-IN Ozone Nonattainment Area
    To demonstrate that emission reductions contributed to attainment 
of the eight-hour ozone standard in the entire ozone nonattainment area 
and to demonstrate maintenance of the eight-hour ozone standard in the 
entire ozone nonattainment area, IDEM considered the VOC and 
NOX emissions from the Illinois portion of the eight-hour 
ozone nonattainment area. The emissions data for the Illinois portion 
of the nonattainment area were provided by LADCO. The Illinois 
emissions inventory was prepared by the use of techniques and 
assumptions similar to those used by IDEM. To support ozone modeling in 
the Lake Michigan area, LADCO oversaw the development of VOC and 
NOX emissions of the LADCO member States, which insured 
consistency in emission inventory preparation techniques by the States.
3. Has the State Demonstrated Maintenance of the Ozone Standard in Lake 
and Porter Counties?
    As part of the redesignation request, IDEM included a request for 
revision of its SIP to incorporate a maintenance plan as required under 
section 175A of the CAA. The maintenance plan includes a demonstration 
based on a comparison of emissions in the attainment year (2006) and 
projected emissions to demonstrate maintenance of the standard for at 
least ten years after the anticipated redesignation year. To 
demonstrate maintenance of the eight-hour ozone standard, IDEM 
projected VOC and NOX emissions to 2020 and to an interim 
year, 2010. These emissions were compared to the 2006 attainment year 
emissions to show that VOC and NOX emissions remain below 
the attainment levels for the entire demonstrated maintenance period. 
This demonstration was performed considering Lake and Porter Counties' 
emissions only, and separately considering the VOC and NOX 
emissions for the entire Chicago-Gary-Lake County, IL-IN ozone 
nonattainment area.
    In the June 5, 2009, ozone redesignation request, IDEM graphically 
represented and compared the VOC and NOX emissions for 2006, 
2010, and 2020 for all major source sectors, and in total for Lake and 
Porter Counties and for the entire ozone nonattainment area. In the 
July 20, 2009, supplement to the ozone maintenance demonstration, IDEM 
presented the 2020 NOX and VOC emission totals for Lake and 
Porter Counties without the impacts of CAIR.\10\ IDEM's maintenance 
demonstration shows that in 2010 and 2020, without the impacts of 
Indiana's CAIR rules, VOC and NOX emission totals for Lake 
and Porter Counties are projected to be below the 2006 VOC and 
NOX emission totals for these Counties.
---------------------------------------------------------------------------

    \10\ As discussed in footnote 9, the U.S. Court of Appeals, for 
the District of Columbia Circuit has remanded CAIR without vacatur, 
directing EPA to revise the CAIR. This raises questions about the 
future emission impacts of States' CAIR-based emission control 
rules. As a conservative approach to this problem, EPA requested 
IDEM to supplement the ozone maintenance demonstration with 
projected emissions removing the impacts of the States' (Indiana's 
and all nearby States', whose emissions impact ozone levels in the 
Chicago-Gary-Lake County, IL-IN area) CAIR NOX emission 
control rules.
---------------------------------------------------------------------------

    VOC emissions in Lake and Porter Counties are projected to decline 
by more than 16 percent between 2006 and 2020, and VOC emissions in the 
entire nonattainment area are projected to decline by more than 25 
percent between 2006 and 2020. NOX emissions in Lake and 
Porter Counties are projected to decline by more than 25 percent 
between 2006 and 2020, and NOX emissions in the entire ozone 
nonattainment area are projected to decline by more than 49 percent 
between 2006 and 2020. (Note that the projected NOX emission 
reduction for 2020 did not include NOX emission reductions 
resulting from CAIR, but did include NOX emission reductions 
resulting from Indiana's existing NOX emission control 
rules, adopted as a result of EPA's NOX SIP call.)
    The December 23, 2008, remand of EPA's CAIR by the U.S. Court of 
Appeals led to both the State and EPA further considering the impact of 
this remand on Indiana's ozone maintenance demonstration for Lake and 
Porter Counties. The CAIR was remanded to EPA, and the process of 
developing a

[[Page 12106]]

replacement rule is ongoing. However, the remand of CAIR does not alter 
the requirements of the NOX SIP call, and Indiana has 
demonstrated that Lake and Porter Counties can maintain the 1997 eight-
hour ozone standard without any additional NOX emission 
reduction requirements (beyond those required by the NOX SIP 
call). Therefore, EPA believes that Indiana's demonstration of 
maintenance under sections 175A and 107(d)(3)(E) of the CAA remains 
valid.
    The NOX SIP call requires states to make significant, 
specific emission reductions. It also provided a mechanism, the 
NOX Budget Trading Program, which states could use to 
achieve those emission reductions. When EPA promulgated CAIR, it 
discontinued (starting in 2009) the NOX Budget Trading 
Program, 40 CFR 51.121(r), but created another mechanism, the CAIR 
ozone season trading program, which states could use to meet their SIP 
call obligations, 70 FR 25289-25290. EPA notes that a number of states, 
when submitting SIP revisions to require sources to participate in the 
CAIR ozone season trading program, removed the SIP provisions that 
required sources to participate in the NOX Budget Trading 
Program. In addition, because the provisions of CAIR, including the 
ozone season NOX trading program remain in place during the 
remand, EPA is not currently administering the NOX Budget 
Trading Program. Nonetheless, all states, regardless of the current 
status of their regulations that previously required participation in 
the NOX Budget Trading Program, will remain subject to all 
of the requirements in the NOX SIP call even if the existing 
CAIR ozone season trading program is withdrawn or altered. In addition, 
the anti-backsliding provisions of 40 CFR 51.905(f) specifically 
provide that the provisions of the NOX SIP call, including 
the statewide NOX emission budgets, continue to apply after 
revocation of the one-hour ozone standard and, therefore, currently 
remain in effect.
    All NOX SIP call states have SIPs that currently satisfy 
their obligations under the NOX SIP call. The NOX 
SIP call emission reduction requirements are being met, and EPA will 
continue to enforce the requirements of the NOX SIP call 
even after any response to the CAIR remand. For these reasons, EPA 
believes that regardless of the status of the CAIR program, the 
NOX SIP call requirements can be relied upon in 
demonstrating maintenance of the 1997 eight-hour ozone standard. Here, 
the State has demonstrated maintenance based, in part, on these 
emission reduction requirements.
    Indiana has successfully demonstrated maintenance of the 1997 
eight-hour ozone standard between 2006 and 2020. In addition, VOC and 
NOX emissions in Lake and Porter Counties and in the 
Chicago-Gary-Lake County, IL-IN area are projected to decline between 
2006 and 2010. EPA and Indiana do not anticipate an increase in VOC or 
NOX emissions in Lake and Porter Counties between 2010 and 
2020 given the emission growth and source control factors used to 
project emissions.
    Table 7 provides the maintenance period VOC and NOX 
emissions for Lake and Porter Counties only, and Table 8 provides the 
maintenance period VOC and NOX emissions for the entire 
Chicago-Gary-Lake County, IL-IN ozone nonattainment area.

                      Table 7--Projected VOC and NOX Emissions in Lake and Porter Counties
                                              [Tons per Summer Day]
----------------------------------------------------------------------------------------------------------------
                                                                                  VOC 2020 with      VOC 2020
                  Source sector                      VOC 2006        VOC 2010         CAIR         without CAIR
----------------------------------------------------------------------------------------------------------------
Point...........................................           19.04          18.18           22.25  ...............
Area............................................           32.47          28.8            29.24  ...............
On-Road Mobile..................................           14.92           9.93            5.71  ...............
Non-Road Mobile.................................           17.14          14.11           12.22  ...............
                                                 ---------------------------------------------------------------
    Total.......................................           83.57          71.02           69.42           69.93
----------------------------------------------------------------------------------------------------------------
                                                        NOX 2006    NOX 2010      NOX 2020 with        NOX 2020
                                                                                           CAIR        without CAIR
----------------------------------------------------------------------------------------------------------------
Point...........................................          126.15         110.49          114.75  ...............
Area............................................            6.45           6.59            6.77  ...............
On-Road Mobile..................................           60.09          38.65           11.97  ...............
Non-Road Mobile.................................           31.17          28.50           21.37  ...............
                                                 ---------------------------------------------------------------
    Total.......................................          223.86         184.23          154.86          165.91
----------------------------------------------------------------------------------------------------------------


              Table 8--Projected VOC and NOX Emissions in the Chicago-Gary-Lake County, IL-IN Area
                                              [Tons per Summer Day]
----------------------------------------------------------------------------------------------------------------
                                                                                                     VOC 2020
                          Source sector                              VOC 2006        VOC 2010      without CAIR
----------------------------------------------------------------------------------------------------------------
Point...........................................................           89.00           93.00          113.00
Area............................................................          313.40          254.00          254.00
On-Road Mobile..................................................          153.92          104.00           55.00
Non-Road Mobile.................................................          222.00          174.09          150.00
                                                                 -----------------------------------------------
    Total.......................................................          778.32          625.09          572.00
----------------------------------------------------------------------------------------------------------------
                                                                        NOX 2006        NOX 2010        NOX 2020
                                                                                                    without CAIR
----------------------------------------------------------------------------------------------------------------
Point...........................................................          302.00          247.00          262.00
Area............................................................           38.50           41.00           41.00

[[Page 12107]]

 
On-Road Mobile..................................................          419.00          254.00           84.86
Non-Road Mobile.................................................          290.00          243.00          150.00
                                                                 -----------------------------------------------
    Total.......................................................         1049.50          785.00          537.86
----------------------------------------------------------------------------------------------------------------

    We propose to conclude that IDEM has demonstrated maintenance of 
the ozone standard during the 10-plus year maintenance period both 
within Lake and Porter Counties and throughout the Chicago-Gary-Lake 
County, IL-IN area through projections of VOC and NOX 
emissions that show that the emissions will remain below the 2006 
attainment levels during the maintenance period. This is demonstrated 
with and without the emission reductions from CAIR.
4. What Is the Contingency Plan for Lake and Porter Counties?
    Section 175A of the CAA requires the maintenance plan to include 
such contingency measures as EPA deems necessary to assure that the 
state will promptly correct a violation of the NAAQS that might occur 
after redesignation. The maintenance plan must identify the contingency 
measures to be considered for possible adoption, a schedule and 
procedure for adoption and implementation of the selected contingency 
measures, and a time limit for action by the state. The state should 
also identify specific indicators to be used to determine when the 
contingency measures need to be adopted and implemented. The 
maintenance plan must include a requirement that the state will 
implement all measures with respect to control of the pollutant(s) that 
were controlled through the SIP before the redesignation of the area to 
attainment. See section 175A(d) of the CAA.
    As required by section 175A of the CAA, Indiana has adopted a 
contingency plan to address possible future ozone air quality problems. 
The contingency plan has two levels of actions/responses depending on 
whether a violation of the 1997 eight-hour ozone standard is only 
threatened (Warning Level Response) or has actually occurred (Action 
Level Response).
    A Warning Level Response will be prompted whenever an annual (one-
year) fourth-high daily maximum eight-hour ozone concentration of 0.089 
ppm is monitored in a single ozone season, or a two-year average 
fourth-high daily maximum eight-hour ozone concentration of 0.085 ppm 
or greater is monitored at any site within the maintenance area. A 
Warning Level Response will consist of a study to determine whether the 
high ozone level indicates a trend toward higher ozone values or 
whether emissions appear to be increasing. The study will evaluate 
whether the trend, if any, is likely to continue. If the trend is 
likely to continue, the emission control measures necessary to reverse 
the trend, taking into consideration the ease and timing for 
implementation along with economic and social impacts and issues, will 
be determined. Implementation of selected emission controls will take 
place as expeditiously as possible, but in no event later than 12 
months from the end of the most recent ozone season (September 30). If 
new emission controls are needed to reverse the adverse ozone/emissions 
trend, the procedures for emission control selection under the Action 
Level Response will be followed.
    An Action Level Response will be triggered when a violation of the 
1997 eight-hour ozone standard is monitored within the maintenance 
area. In the event that the ozone standard violation is not found to be 
due to an exceptional event, malfunction, or noncompliance of a source 
with a permit condition or rule requirement, IDEM will determine the 
additional emission controls needed to assure future attainment of the 
eight-hour ozone NAAQS. In this case, emission control measures that 
can be implemented in a short time will be selected and will be adopted 
and implemented within 18 months from the close of the ozone season in 
which the violation of the ozone NAAQS is monitored.
    Adoption of any additional emission control measures prompted by 
either of the two response levels will be subject to the necessary 
administrative and legal processes dictated by State law. This process 
will include publication of public notices, an opportunity for public 
hearings, and other measures required by Indiana law for rulemaking by 
State environmental boards. If a new emission control measure is 
already promulgated and scheduled for implementation at the Federal or 
State level, and if that emission control measure is determined to be 
sufficient to address the air quality problem or adverse trend, 
additional local emission control measures may be determined to be 
unnecessary. Indiana will submit to EPA an analysis to demonstrate that 
the proposed emission control measures are adequate to return the area 
to attainment of the ozone NAAQS. EPA understands that Indiana will 
submit any such State-proposed or existing emissions control measure 
(if not already included in the SIP) to EPA as a requested SIP 
revision.
    Contingency measures contained in the maintenance plan are those 
emission controls or other measures that the State chooses to adopt and 
implement in response to either an Action Level or a Warning Level 
trigger. Possible contingency measures include, but are not limited to, 
the following:
    a. Vehicle emission testing program enhancements, including 
increased vehicle weight limits, addition of diesel vehicles, etc.;
    b. Asphalt paving (lower VOC formulation requirements);
    c. Diesel exhaust retrofits;
    d. Traffic flow improvements;
    e. Idle reduction programs;
    f. Portable fuel container regulation (statewide);
    g. Park and ride facilities;
    h. Rideshare/carpool programs;
    i. VOC cap-and-trade program for major stationary sources;
    j. Commercial/consumer solvent VOC content limits (statewide); and,
    k. NOX RACT.
    Several aspects of the contingency plan merit further discussion. 
First, the plan does not require the adoption and implementation of new 
emission controls in the event of a future ozone standard violation if 
it can be shown that the ozone standard violation is due

[[Page 12108]]

to an exceptional event, source malfunction, or source noncompliance. 
If a monitored exceedance is determined to be due to an ``exceptional 
event'' (March 22, 2007, 72 FR 13560), it will not be considered in 
determining whether a violation has occurred. Since exceptional event 
exceedances are not counted against ozone standard violations, EPA 
accepts this approach in Indiana's ozone maintenance plan.
    Second, with regard to source malfunctions or source noncompliance, 
we note that the Indiana SIP contains provisions for ensuring that 
sources take actions to correct malfunctions, as well as provisions for 
the State to take enforcement actions against noncompliant sources. See 
326 IAC 1-6. EPA believes that this provides a mechanism for the State 
to take prompt corrective actions, including expeditious and effective 
enforcement actions, to achieve compliance. See an analogous discussion 
in the General Preamble, 57 FR 13547 (April 16, 1992). In the context 
of section 172(c)(9) contingency measures for sulfur dioxide 
(SO2), EPA has interpreted ``contingency measures'' to mean 
that the State agency has a comprehensive program to identify sources 
of violations of the NAAQS and to undertake an aggressive follow-up for 
compliance and enforcement, including expedited procedures for 
establishing enforceable consent agreements pending the adoption of 
revised SIPs. This type of source-specific noncompliance and correction 
by enforcement action in the ozone context is similar to source-
specific SO2 noncompliance and enforcement, and, therefore, 
it is appropriate to apply the SO2 guidance in this 
circumstance.
5. Has the State Committed To Update the Ozone Maintenance Plan Within 
Eight Years After the Redesignation of Lake and Porter Counties To 
Attainment of the Eight-Hour Ozone NAAQS?
    As required by section 175A(b) of the CAA, Indiana commits to 
review its ozone maintenance plan eight years after redesignation of 
Lake and Porter Counties to attainment of the 1997 eight-hour ozone 
standard and to provide for maintenance of the ozone standard for an 
additional 10 years.
6. How Is Indiana's Ozone Maintenance Plan Affected by the Future of 
NOX Emission Control Rules in Indiana and in Upwind Areas 
Under CAIR and Under the NOX SIP Call?
    EPA has considered the relationship of Indiana's ozone maintenance 
plan for Lake and Porter Counties to the emission reductions currently 
required pursuant to CAIR. This rule was remanded to EPA,\11\ and the 
process of developing a replacement rule is ongoing. However, the 
remand of CAIR does not alter the requirements of the NOX 
SIP call and the State has now demonstrated, as noted above, that the 
area can maintain attainment of the eight-hour ozone standard without 
any additional requirements (beyond those required by the 
NOX SIP call). In addition, in the July 20, 2009, ozone 
maintenance plan supplement, IDEM has confirmed that the State's 
NOX SIP call rules remain in effect regardless of the future 
of EPA's CAIR replacement rule. Therefore, EPA believes that the 
State's demonstration of maintenance under sections 175A and 
107(d)(3)(E) remains valid.
---------------------------------------------------------------------------

    \11\ See footnote 8.
---------------------------------------------------------------------------

    The NOX SIP call requires states to make significant, 
specific emissions reductions. It also provided a mechanism, the 
NOX Budget Trading Program, which states could use to 
achieve those reductions. When EPA promulgated CAIR, it discontinued 
(starting in 2009) the NOX Budget Trading Program, 40 CFR 
51.121(r), but created another mechanism--the CAIR ozone season trading 
program--which states could use to meet their SIP call obligations. EPA 
notes that a number of states, when submitting SIP revisions to require 
sources to participate in the CAIR ozone season trading program, 
removed the SIP provisions that required sources to participate in the 
NOX Budget Trading Program. In addition, because the 
provisions of CAIR, including the ozone season NOX trading 
program, remain in place during the remand, EPA is not currently 
administering the NOX Budget Trading Program. Nonetheless, 
all states, regardless of the current status of their regulations that 
previously required participation in the NOX Budget Trading 
Program, will remain subject to all of the requirements in the 
NOX SIP call even if the existing CAIR ozone season trading 
program is withdrawn or altered. In addition, the anti-backsliding 
provisions of 40 CFR 51.905(f) specifically provide that the provisions 
of the NOX SIP call, including the statewide NOX 
emission budgets, continue to apply after revocation of the one-hour 
ozone standard.
    All NOX SIP call states have SIPs that currently satisfy 
their obligations under the SIP call, the SIP call reduction 
requirements are being met, and EPA will continue to enforce the 
requirements of the NOX SIP call even after any response to 
the CAIR remand. For these reasons, EPA believes that, regardless of 
the status of the CAIR program, the NOX SIP call 
requirements can be relied upon in demonstrating maintenance. Here, the 
State has demonstrated maintenance based in part on those requirements.
    In addition, LADCO performed a regional modeling analysis to 
address the Court's remand of CAIR. This analysis is documented in 
LADCO's ``Regional Air Quality Analysis for Ozone, PM2.5, and Regional 
Haze: Final Technical Support Document (Supplement), September 12, 
2008,'' attached to Indiana's June 20, 2009, submittal. LADCO produced 
a base year emissions inventory for 2005 and future year emissions 
inventories for 2009, 2012, and 2018. To estimate EGU NOX 
emissions without implementation of CAIR, LADCO projected EGU 
NOX emissions for all states in the modeling domain based on 
Energy Information Administration growth rates by state (North American 
Electric Reliability Corporation (NERC)) and fuel type for the years 
2009, 2012, and 2018. The assumed 2007-2018 growth rates were 8.8 
percent for Illinois, Iowa, Missouri and Wisconsin; 13.5 percent for 
Indiana, Kentucky, Michigan and Ohio; and 15.1 percent for Minnesota. 
Emissions were adjusted by applying existing, legally enforceable 
control requirements, e.g., consent decrees or state rules.
    EGU NOX emission projections for the States of Illinois, 
Indiana, Michigan, Ohio, and Wisconsin are shown below in Table 9. The 
emission projections used for the modeling analysis do not account for 
certain relevant factors, such as emission allowance trading and 
potential changes in operation of existing emission control devices. 
The NOX emission projections indicate that, due to the 
NOX SIP call, certain state rules, consent decrees resulting 
from enforcement cases, and ongoing implementation of a number of 
mobile source control rules, EGU NOX emissions are expected 
to remain relatively constant in Indiana or in any of the states in the 
immediate region, and overall NOX emissions in Indiana

[[Page 12109]]

and the nearby region are expected to decrease substantially between 
2005 and 2018.\12\ Base year and projected total NOX 
emissions are shown in Table 10 below.
---------------------------------------------------------------------------

    \12\ There is more uncertainty about the use of SO2 
allowances and future projections for SO2 emissions. 
Thus, further review and discussion will be needed regarding the 
appropriateness of using these emission projections for future fine 
particulate SIP approvals and redesignation requests.

     Table 9--EGU NOX Emissions for the States of Illinois, Indiana,
                      Michigan, Ohio, and Wisconsin
                             [Tons per Day]
------------------------------------------------------------------------
           Source category              2007     2009     2012     2018
------------------------------------------------------------------------
EGU.................................   1,582    1,552    1,516    1,524
------------------------------------------------------------------------


   Table 10--Total NOX Emissions for the States of Illinois, Indiana,
                      Michigan, Ohio, and Wisconsin
                             [Tons per Day]
------------------------------------------------------------------------
           Source category              2005     2009     2012     2018
------------------------------------------------------------------------
All Source Totals...................   8,260    6,778    6,076    4,759
------------------------------------------------------------------------

    Given that 2007 is one of the years Indiana used to demonstrate 
that the 1997 eight-hour ozone NAAQS has been attained in Lake and 
Porter Counties and in the Chicago-Gary-Lake County, IL-IN ozone 
nonattainment area, Table 9 shows that EGU emissions will remain below 
attainment levels through 2018. Assuming that EGU NOX 
emissions will not significantly increase between 2018 and 2020, we 
conclude that EGU NOX will remain below attainment levels 
through 2020. Furthermore, as shown in Table 10, total NOX 
emissions in Indiana and in nearby states are expected to decrease 
throughout the maintenance period, through 2020.
    Ozone modeling performed by LADCO using these NOX 
emissions and maintenance period VOC emissions supports the conclusion 
that the Chicago-Gary-Lake County, IL-IN area will maintain the 1997 
eight-hour ozone standard throughout the maintenance period. Peak 
modeled ozone levels in the area for 2009, 2012, and 2018 are 82.2, 
80.8, and 77.2 ppb, respectively. These projected ozone levels were 
modeled applying only legally enforceable emission controls, e.g., 
source consent decrees, state emission control rules, the 
NOX SIP call, Federal Motor Vehicle Emission Control Program 
(FMVCP), etc. Because these emission control programs will remain in 
place, emission levels, and, therefore, ozone levels, would not be 
expected to increase significantly between 2018 and 2020. Given that 
projected emissions and modeled ozone levels are expected to decrease 
substantively through 2018, it is reasonable to infer that a 2020 ozone 
modeling run would also show levels well below the 1997 eight-hour 
ozone standard.

VI. Has the State Adopted Acceptable MVEBs for the End Year of the 
Ozone Maintenance Period?

A. How Were the MVEBS Developed, and What Are the MVEBS for Lake and 
Porter Counties?

    Under the CAA, states are required to submit, at various times, SIP 
revisions and ozone maintenance plans for applicable areas (for ozone 
nonattainment areas and for areas seeking redesignation to attainment 
of the ozone standard or revising existing ozone maintenance plans). 
These emission control SIP revisions (e.g., RFP and attainment 
demonstration SIP revisions), including ozone maintenance plans, must 
create and document MVEBs based on on-road mobile source emissions 
allocated to highway and transit vehicle use that, together with 
emissions from other sources in the area, will provide for attainment 
or maintenance of the ozone NAAQS.
    Under 40 CFR part 93, MVEBs for an area seeking a redesignation to 
attainment of the NAAQS are required to be established for the last 
year of the maintenance plan. In addition, MVEBs can be established for 
interim years to provide a quantitative benchmark. If earlier MVEBs are 
not established in a SIP, then 40 CFR 93.118(b)(2)(i) provides that a 
qualitative finding must be made by the metropolitan planning 
organization that there are no factors that would cause or contribute 
to a new violation or increase an existing violation in the years 
before the last year of the maintenance plan. In this case, Indiana has 
submitted emission budgets for both 2010 (an interim year) and 2020 
(the last year of the maintenance plan). The MVEBs serve as ceilings on 
mobile source emissions from an area's planned transportation system. 
The MVEB concept is further explained in the preamble to the November 
24, 1993 transportation conformity rule (58 FR 62188). The preamble 
also describes how to establish the MVEBs in the SIP and how to revise 
the MVEBs if needed.
    Under section 176(c) of the CAA, transportation plans, 
transportation improvement programs, and new transportation projects, 
such as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the SIP. Conformity to the SIP means that 
transportation activities will not cause or contribute to new air 
quality standard violations, increase the frequency or severity of 
existing violations, or delay timely attainment of the NAAQS. CAA 
section 176(c)(1). If a transportation plan does not conform, most new 
transportation projects that would expand the capacity of roadways 
cannot go forward. Regulations at 40 CFR part 93 set forth EPA's 
policy, criteria, and procedures for demonstrating and assuring 
conformity of transportation activities to a SIP.
    When reviewing SIP revisions containing MVEBs, including attainment 
strategies, ROP plans, and maintenance plans, EPA must find that the 
MVEBs are ``adequate'' for use in determining transportation 
conformity. Once EPA finds the submitted MVEBs to be adequate for 
transportation conformity purposes, the MVEBs are used by the state and 
Federal agencies in determining whether proposed transportation plans 
and transportation improvement programs conform to the SIP as required 
by section 176(c) of the CAA. EPA's criteria for determining the 
adequacy of MVEBs are specified in 40 CFR 93.118(e)(4).

[[Page 12110]]

    EPA's process for determining adequacy of MVEBs consists of three 
basic steps: (1) Providing public notification of a SIP submission; (2) 
providing the public the opportunity to comment on the MVEBs during a 
public comment period; and, (3) making a finding of adequacy. The 
Transportation Conformity Rule, in 40 CFR 93.118(f), provides for MVEB 
adequacy finding through two mechanisms. First, 40 CFR 93.118(f)(1) 
provides for posting a notice to the EPA conformity Web site (http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm) and providing a 
30-day public comment period. Second, a mechanism is described in 40 
CFR 93.118(f)(2) which provides that EPA can review the adequacy of an 
implementation plan MVEB simultaneously with its review of the 
implementation plan itself. In this action, EPA is using the second 
mechanism in 40 CFR 93.118(f)(2), and is taking comment on both the 
adequacy and approvability of the submitted MVEBs.
    The Lake and Porter Counties' ozone maintenance plan contains VOC 
and NOX MVEBs for 2020 and 2010. The State has the option of 
setting budgets for earlier years in the maintenance plan in addition 
to the last year of the maintenance plan. EPA is taking comment on both 
the adequacy and the approvability of the submitted VOC and 
NOX MVEBs for Lake and Porter Counties. Any and all comments 
on the adequacy and approvability of the MVEBs should be submitted 
during the comment period stated in the DATES section of this notice.
    EPA intends to make its determination of the adequacy of the 2010 
and 2020 MVEBs for Lake and Porter Counties for transportation 
conformity purposes in the final rulemaking on the eight-hour ozone 
redesignation. If EPA finds the 2010 and 2020 MVEBs adequate and 
approves the MVEBs in the final rulemaking action, the new MVEBs must 
be used for future transportation conformity determinations. The new 
MVEBs, if found adequate and approved in the final rulemaking, will be 
effective the date of publication of EPA's final rulemaking in the 
Federal Register. For required regional emissions analysis years that 
involve 2010 or beyond, the applicable budgets are defined in the table 
below.

               Table 11--Lake and Porter County Area MVEBs
                             [Tons per Day]
------------------------------------------------------------------------
                         Year                             VOC      NOX
------------------------------------------------------------------------
2010..................................................    10.5     40.6
2020..................................................     6.0     12.6
------------------------------------------------------------------------

    These MVEBs are the on-road mobile source VOC and NOX 
emissions for Lake and Porter Counties for 2010 and 2020. The on-road 
mobile source emissions were derived using the Northwestern Indiana 
Regional Planning Commission (NIRPC) travel demand model and EPA's 
MOBILE6.2 mobile source emission factor model, with source growth 
estimates provided in NIRPC's 2030 Long Range Plan, adopted by NIRPC on 
June 21, 2007.
    EPA is proposing to approve the MVEBs for both 2020 and 2010, as 
part of the eight-hour ozone maintenance plan. EPA has determined that 
the emission budgets are consistent with the control measures in the 
SIP and that Lake and Porter Counties can maintain attainment of the 
1997 eight-hour ozone NAAQS (projected VOC and NOX emissions 
in total for 2010 and 2020 remain below the attainment year, 2006, 
levels with or without CAIR) for the required 10-year maintenance 
period with mobile source emissions at the levels of the MVEBs. EPA has 
reviewed these MVEBs in light of the remand of CAIR and concluded that 
the budgets meet the conformity rule's adequacy criteria found at 40 
CFR 93.118(e)(4). In particular, EPA has concluded that the MVEBs 
satisfy the requirements of 40 CFR 93.118(e)(4)(iv), which requires 
that MVEBs, when considered together with all other emissions, is 
consistent with applicable requirements for maintenance. EPA bases this 
conclusion on the overall reduction in VOC and NOX emissions 
from all sources which are documented as part of the ozone maintenance 
plan.
    It should be noted that the one-hour ozone MVEBs, which were 
approved as part of the one-hour ozone attainment demonstration, will 
continue to be used for transportation conformity purposes until these 
budgets are found adequate and approved. The current one-hour ozone 
emission budgets that are being used for transportation conformity 
purposes are for 2007, and cap emissions at 12.37 tons per day for VOC 
and 63.33 tons per day for NOX. When the eight-hour ozone 
maintenance plan MVEBs are approved and found adequate, the new 2010 
and 2020 emission budgets will provide lower caps on mobile source 
emissions in Lake and Porter Counties because the new emission budgets 
are lower than the current 2007 MVEBs.
    It should finally be noted that the 2010 and 2020 MVEBs exceed the 
on-road mobile source VOC and NOX emissions projected by 
IDEM for 2010 and 2020 as summarized above. Through discussions with 
all organizations involved in transportation planning for Lake and 
Porter Counties, IDEM decided to include safety margins of five percent 
in the MVEBs to provide for mobile source growth not anticipated in the 
projected 2010 and 2020 emissions, allowing for a margin of error in 
the calculation of future mobile source emissions. Indiana has 
demonstrated that Lake and Porter Counties can maintain the 1997 eight-
hour ozone NAAQS with these mobile source emissions since total 2010 
and 2020 VOC and NOX emissions in Lake and Porter Counties, 
including the increased mobile source emissions, will remain under the 
attainment year emission levels.

B. Are the MVEBs Adequate and Approvable for Use in Conformity 
Determinations?

    The submitted MVEBs will meet the criteria for adequacy when EPA 
addresses the ozone maintenance plan through a final rule. EPA has 
reviewed the submitted MVEBs and the SIP and is proposing to approve 
the budgets because, in part, the budgets meet the adequacy criteria in 
40 CFR 93.118(e)(4) as discussed below. Additionally, EPA has reviewed 
the entire maintenance plan and has concluded that the maintenance plan 
is approvable.
    The MVEBs are clearly identified and precisely quantified in the 
submitted SIP revision. The MVEBs, when considered together with all 
emissions from other sources in Lake and Porter Counties, are 
consistent with applicable requirements for maintenance. The MVEBs are 
consistent with and clearly related to the emissions inventory and the 
control measures in the submitted ozone maintenance plan; and the 
established safety margins are within the allowable emission limits.
    The 2010 and 2020 VOC and NOX MVEBs for Lake and Porter 
Counties are approvable because the MVEBs will meet all of the above 
criteria and maintain the total VOC and NOX emissions for 
Lake and Porter Counties at or below the attainment year emission 
levels, as required by the transportation conformity regulations. We 
are proposing to find these MVEBs to be adequate and to approve these 
MVEBs for transportation conformity purposes.

[[Page 12111]]

VII. What Is the Base Year Emissions Inventory, and Is Indiana's 
Approvable?

    The CAA gives the states the responsibility to inventory emissions 
contributing to the violation of a NAAQS, to track these emissions over 
time, and to ensure that emission control strategies have been 
implemented and have achieved planned emission targets. States 
containing ozone nonattainment areas are required, under section 
182(a)(1) of the CAA, to submit comprehensive, accurate, and current 
inventories of actual ozone precursor emissions (emissions of VOC and 
NOX) for each ozone nonattainment area. These emission 
inventories must include emissions from point, area, on-road mobile, 
and non-road mobile man-made (anthropogenic) and biogenic (natural or 
plant-generated) sources in the ozone nonattainment areas. The emission 
inventories must specify emissions for typical summer weekdays.
    Two EPA guidance documents have been developed to cover the 
emissions reviewed here. First, a November 18, 2002 memorandum (``2002 
Base Year Emission Inventory SIP Planning: 8-hr Ozone, PM2.5 
and Regional Haze Programs,'' memorandum from Lydia N. Wegman, 
Director, Air Quality Strategies and Standards Division, and Peter 
Tsirigotis, Director, Emissions, Monitoring, and Analysis Division) 
established 2002 as the base year to be used in the current round of 
ozone, fine particulates (PM2.5), and haze control planning. 
Second, SIP emissions inventory guidance, including guidance specific 
to the base year emissions, is given in an August 2005 EPA guidance 
document, (``Emissions Inventory Guidance for Implementation of Ozone 
and Particulate Matter National Ambient Air Quality Standards (NAAQS) 
and Regional Haze Regulations,'' EPA-454/R-05-001).
    On March 26, 2007, IDEM submitted documentation of 2002 statewide 
emissions of VOC, NOX, and CO in response to an EPA request 
for the documentation of the base year emissions. The 2002 statewide 
emissions, documented by county, were prepared to comply with EPA's 
Consolidated Emissions Reporting Rule (CERR), published on June 10, 
2002 (67 FR 39602) (40 CFR part 51 subparts A and Q). Also included 
with the March 26, 2007, submittal was a compact disk containing 
detailed emissions data, including input data used to calculate the 
emissions.
    Emissions contained in the March 26, 2007, submittal cover the 
general source categories of point sources, area sources, on-road 
mobile sources, non-road mobile sources, and biogenic sources. All 
emission summaries were accompanied by source-specific descriptions of 
emission calculation procedures and sources of input data, along with 
sample calculations for various counties in the State.
    To determine point source emissions, the State relied on data 
collected from source facilities complying with the State's annual 
emissions reporting requirements, 326 IAC 2-6. Major sources of any 
criteria pollutant located anywhere in the State of Indiana are 
required to annually submit to the State data specifying their annual 
emissions of criteria pollutants along with seasonal source activity 
information to allow the calculation of seasonal emissions. Emissions 
for any particular year are to be reported by April 15th of the 
following year. In Elkhart, Floyd, Lake, Marion, Porter, St. Joseph, 
and Vanderburgh Counties, sources with the potential to emit more than 
10 tons per year of VOC or NOX must report annually. In 
other portions of the State, the reporting source size emissions cutoff 
is 100 tons per year.
    Point source emissions reporting submittals are checked by IDEM to 
assure completeness. If the data are determined to be complete, the 
emissions data are loaded into the State's emissions database. IDEM 
also reviews the data for quality assurance, and, if needed, sources 
are requested to correct the data. After completing data quality 
assurance, the point source data are submitted to EPA for incorporation 
into the NEI, as required by the CERR.
    The March 26, 2007, submittal includes VOC, NOX, and CO 
emissions for each reporting facility statewide. The supplied data 
files document a number of source-specific data used to determine the 
emissions.
    Area source emissions were calculated using a variety of 
information sources and guidance from EPA. A primary source of 
calculation procedures and applied guidance was EPA's Emission 
Inventory Improvement Program. Where appropriate, point source 
emissions were subtracted from the calculated area source emissions to 
account for source coverage overlap with the reported point source 
emissions and to avoid double counting of emissions in the emissions 
totals. The documentation supplied in the March 26, 2007, submittal 
shows how the county-specific emissions were calculated for each area 
source category. County-specific source surrogates and associated 
emission factors were generally used to calculate county-specific 
emissions. Samples of area source emission calculations were provided 
for selected Counties. Area source emissions for all 92 Indiana 
Counties were documented in the March 26, 2007, submittal and in the 
data files included in the accompanying data disk.
    The base year emission inventory documentation included a detailed 
description of the procedures and input data used to determine the 
mobile source emissions for Lake and Porter Counties for 2002. The 
emissions submittal documents the mobile source VOC, CO, and 
NOX emissions for each of the counties in the State. The 
March 26, 2007, submittal notes that the mobile source emissions for 
Lake and Porter Counties were derived by the Northwest Indiana Regional 
Planning Commission, whereas, the mobile source emissions for all other 
counties were obtained from EPA's NEI.
    Non-road mobile source VOC, NOX, and CO emissions for 
2002 were generated by the National Mobile Inventory Model. To update 
and quality assure the emissions for locomotives, commercial and 
recreational marine sources, and off-road mobile equipment sources, 
LADCO contracted with several consultants to update source population 
and distribution levels. Summaries of the consultants' results and 
recommended emissions changes were included in the March 26, 2007, 
submittal. This submittal documented non-road mobile VOC, 
NOX, and CO emissions by county for all 92 Counties in 
Indiana.
    Biogenic VOC, NOX, and CO emissions for 2002 were taken 
directly from the NEI for each county in Indiana.
    The March 26, 2007, submittal documents 2002 VOC, CO, and 
NOX emissions for each Indiana county in units of tons per 
year and tons per summer day. The 2002 summer day emissions of VOC, 
NOX, and CO for Lake and Porter Counties are summarized in 
Table 12.

[[Page 12112]]



  Table 12--2002 Ozone Precursor Emissions in Lake and Porter Counties,
                                 Indiana
                          [Tons per Summer Day]
------------------------------------------------------------------------
              Source category                  VOC       NOX       CO
------------------------------------------------------------------------
Lake County:
    Point.................................     19.88    106.33    466.11
    Area..................................     24.78      4.37      3.93
    On-Road Mobile........................     15.35     40.15    186.39
    Non-Road Mobile.......................     20.18     28.82    176.98
    Biogenic..............................     18.59      0.79      1.91
                                           -----------------------------
        Total.............................     98.78    180.46    835.32
------------------------------------------------------------------------
Porter County:
    Point.................................      4.70     80.11    405.01
    Area..................................      7.49      1.35      1.35
    On-Road Mobile........................      4.85     14.95     63.66
    Non-Road Mobile.......................     12.80     11.37     73.19
    Biogenic..............................     15.15      0.63      1.63
                                           -----------------------------
        Total.............................     44.99    108.41    544.84
------------------------------------------------------------------------

    The 2002 emissions for Lake and Porter Counties were the primary 
source of emissions data used to project the attainment year (2006) and 
maintenance period (2010 and 2020) VOC and NOX emissions 
discussed in the State's June 5, 2009, ozone redesignation request, 
which was subject to public hearing. Since this ozone redesignation 
request and ozone maintenance plan, including the 2002 VOC and 
NOX emission totals for Lake and Porter Counties, were 
discussed during a public hearing, we believe that the 2002 base year 
VOC and NOX emissions for Lake and Porter Counties have been 
addressed by a public hearing. The March 26, 2007, documentation of the 
2002 VOC and NOX emissions inventory was included as an 
appendix of the June 5, 2009, ozone redesignation request 
documentation.
    We find the documentation of the 2002 VOC, NOX, and CO 
emissions to be acceptable, and we are proposing here to approve the 
2002 VOC and NOX emissions inventories for Lake and Porter 
Counties as a revision of the Indiana SIP.\13\
---------------------------------------------------------------------------

    \13\ Although CO emissions were included in the 2002 emissions 
documentation submitted on March 26, 2007, CO emissions play a 
minimal role in the formation of ground-level ozone. As such, we are 
not including CO emissions in the 2002 emissions inventory proposed 
for approval as a revision of the Indiana SIP.
---------------------------------------------------------------------------

VIII. What Are EPA's Proposed Actions?

    The State of Indiana has submitted acceptable 2002 VOC and 
NOX emission inventories for Lake and Porter Counties. 
Therefore, EPA is proposing to approve these emission inventories as a 
revision of Indiana's ozone SIP pursuant to section 182(a)(1) of the 
CAA.
    EPA has evaluated Indiana's ozone redesignation request and has 
determined that it meets the redesignation criteria of section 
107(d)(3)(E) of the CAA. Therefore, EPA is proposing to approve 
Indiana's ozone redesignation request for Lake and Porter Counties for 
the 1997 eight-hour ozone NAAQS. Final approval of the redesignation 
request would change the official designation of Lake and Porter 
Counties for the 1997 eight-hour ozone NAAQS, found at 40 CFR part 81, 
from nonattainment to attainment.
    Finally, EPA is proposing to approve Indiana's ozone maintenance 
plan for Lake and Porter Counties as a revision of the Indiana ozone 
SIP because it meets the requirements of section 175A of the CAA. Final 
approval would thus incorporate into the Indiana SIP a plan for 
maintaining the 1997 eight-hour ozone NAAQS through 2020. The 
maintenance plan includes contingency measures to remedy possible 
future violations of the 1997 eight-hour ozone NAAQS, and establishes 
MVEBs of 10.5 tons per day for VOC and 40.6 tons per day for 
NOX for 2010 and 6.0 tons per day for VOC and 12.6 tons per 
day for NOX for 2020. EPA is proposing to find adequate and 
approve these MVEBs.

IX. Statutory and Executive Order Reviews

Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, September 30, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review by the Office of Management and Budget.

Paperwork Reduction Act

    This proposed 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.).

Regulatory Flexibility Act

    This proposed action merely proposes to approve 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 CAA does not impose any 
new requirements on small entities. Redesignation is an action that 
affects the status of a geographical area and does not impose any new 
regulatory requirements on sources. Accordingly, the Administrator 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

    Because this rule proposes to approve 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 (Pub. L. 104-4).

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

[[Page 12113]]

Executive Order 13132 (64 FR 43255, August 10, 1999). Redesignation is 
an action that merely affects the status of a geographical area, does 
not impose any new requirements on sources, or allows a state to avoid 
adopting or implementing other requirements, and does not alter the 
relationship or the distribution of power and responsibilities 
established in the CAA.

Executive Order 13175: Consultation and Coordination With Indian Tribal 
Governments

    This proposed 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 13045: Protection of Children From Environmental Health 
and Safety Risks

    This proposed 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.

Executive Order 13211: Actions 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).

National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTA), 15 U.S.C. 272, requires Federal agencies to use 
technical standards that are developed or adopted by voluntary 
consensus to carry out policy objectives, so long as such standards are 
not inconsistent with applicable law or otherwise impracticable. In 
reviewing program submissions, EPA's role is to approve state choices, 
provided that they meet the criteria of the CAA. Absent a prior 
existing requirement for the state to use voluntary consensus 
standards, EPA has no authority to disapprove a program submission for 
failure to use such standards, and it would thus be inconsistent with 
applicable law for EPA to use voluntary consensus standards in place of 
a program submission that otherwise satisfies the provisions of the 
CAA. 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.

List of Subjects in 40 CFR Part 52

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

    Dated: February 25, 2010.
Walter W. Kovalick, Jr.,
Acting Regional Administrator, Region 5.
[FR Doc. 2010-5112 Filed 3-11-10; 8:45 am]
BILLING CODE 6560-50-P